United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G KELLY (Managing Director)


 


JUDGE PETER CLARK: By an Originating Application 23rd October 1996, as amended on 6th December 1996, Mr Shokunbi, the applicant, brought a complaint of unfair dismissal, redundancy entitlement and unlawful deduction from his wages in respect of holiday pay against his former employer, Computer Insight Ltd ["CIL"].

The factual background to the claim was that CIL held the contract to provide a New Restart Programme and Workwise Programme for the South London areas of Lewisham, Catford, Forest Hill and Deptford. The applicant was employed by CIL on these programmes, based at premises in Lewisham.

In September 1996 CIL lost that contract, which was awarded by the Department to a competitor, Personnel Consultancy Services Ltd ["PCSL"].

The applicant was not taken on by the new contractor, PCSL. It was his case that Mr Gordon Kelly, the managing director of CIL, told him on 20th September 1996 that CIL had lost the contract and that his employment would be transferred to PCSL under the provisions of the TUPE Regulations.

By an Notice of Appearance dated 24th February 1997 CIL resisted the unfair dismissal claim on the basis that a relevant transfer of the applicant's employment to PCSL had taken place, or if not, there was an "Economic, Technical or Other reason" for dismissal by CIL. We think that is a reference to an economic, technical or organisational reason within the meaning of Regulation 8 of the TUPE Regulations.

As to the claim for holiday pay, CIL accepted that as at the date of cessation of the applicant's employment with CIL, 27th September 1996, he had five days holiday entitlement outstanding, but it was contended that the contract of employment provided that "holidays must be taken during the period of employment". Consequently there was no entitlement to pay in lieu of holiday, alternatively, any holiday pay obligation transferred to PCSL if a relevant transfer had taken place.

The preliminary question as to whether there had been a relevant transfer from CIL to PCSL came on for hearing before a Chairman, Mr B A Kelly, sitting alone at London (South) Industrial Tribunal on 27th February, 20th March and 22nd May 1997. In a reserved decision, promulgated with extended reasons on 4th July 1997, that Chairman found that no relevant transfer had taken place, and directed that a full merits hearing of the applicant's complaint should take place on a date to be fixed. ["The Kelly decision"].

Against the Kelly decision CIL appealed to the Employment Appeal Tribunal (EAT/1217/97) by a Notice dated 14th August 1997. That appeal came before this tribunal for a preliminary hearing on 9th December 1997. For the reasons given in the judgment of the tribunal which I delivered on that day the appeal was dismissed.

Meanwhile on 19th August 1997 the full merits hearing of the complaint was listed before a tribunal sitting at London (South) under the chairmanship of Mr John Warren. The applicant attended on that day, CIL did not.

The tribunal satisfied themselves, from looking at the file and hearing from the applicant that CIL were aware of the hearing. They proceeded to take evidence from applicant; they considered the Notice of Appearance and on the facts which they found, concluded that the applicant had been unfairly dismissed; and awarded him compensation for unfair dismissal, including both the basic and compensatory awards, totalling £3,250. In addition, the tribunal awarded £250 in respect of five day's holiday pay which they held had been unlawfully deducted from his wages.

That decision, the substantive decision, was promulgated with extended reasons on 9th September 1997, and a copy was sent to the parties.

It seems from a review decision promulgated by Mr Warren on 7th October 1997 ["the first review decision"] that on 26th September 1997 a representative of CIL telephoned the tribunal seeking a review of the substantive decision. That application was summarily dismissed by Mr Warren on the grounds that it was not, under the Rules, made in writing, nor was it made within 14 days of the promulgation of the first review decision.

By letter dated 20th October 1997 CIL pursued its application for a review, contending that it had originally applied for a review by a fax dated 15th September 1997. Also on 20th October CIL lodged a further appeal to the Employment Appeal Tribunal against the substantive decision. That is the appeal presently before us (EAT/309/98).

In due course a review hearing took place before the Warren tribunal on 2nd January 1998. The review was granted on the basis that the tribunal accepted evidence given on behalf of CIL that it had not received notice of the substantive hearing fixed for 19th August 1997. The tribunal then went on to consider the original Notice of Appearance, and concluded that it advanced no potentially fair reason for dismissal in the event that no relevant transfer had taken place between CIL and PCSL. The tribunal refused to allow an amendment to the Notice of Appearance and in these circumstances confirmed the substantive decision. We shall call this the second review decision which was promulgated with extended reasons on 9th January 1997.

The present appeal

Before us today, Mr Gordon Kelly on behalf of CIL, seeks, in effect, to challenge the second review decision in so far as the Warren tribunal refused an application for leave to amend the Notice of Appearance; he also relies upon the second review decision for the finding that CIL were not given notification of the substantive hearing held on 19th August 1997.

However, he has not entered a Notice of Appeal against the second review decision. The time for appealing has now expired. In these circumstances, he applies to us for an adjournment of the present preliminary hearing in the instant appeal, so that he may lodge a further Notice of Appeal against the second review decision coupled with an application for an extension of time for appealing.

We have considered that application sympathetically. We bear in mind that correspondence took place between this tribunal and CIL following the lodging of the current Notice of Appeal, and it appears that Mr Gordon Kelly was under the impression that if the review application was unsuccessful then any further complaint which he may have as to the review decision could be incorporated into the existing Notice of Appeal. That is not the true position.

However, particularly bearing in mind the Industrial Tribunal's finding in the second review decision that the employer did not receive notice of the substantive hearing, we have acceded to his application. We have strongly recommended to him that he obtains further advice from solicitors before taking the next step which is to lodge a Notice of Appeal, coupled with an application for an extension of time for appealing, against the second review decision. We direct that this should be done within 14 days of the publication of this judgment.

It will then be a matter for the Registrar in the first instance, to consider the application for an extension of time. We express no view on the merits of the prospective application.

If such an extension is granted, then we anticipate that the present appeal will be consolidated with the new appeal against the second review decision, and both matters will come on for preliminary hearing before a division of this tribunal. If not, the present appeal alone will be relisted for Preliminary Hearing.