United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr A Kelly (Of Counsel) Messrs N J Evans & Co. Solicitors 30 Marshall Wall London N14 9TP


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in an appeal against a decision of the Employment Tribunal sitting in Reading whereby they decided that the Applicant, Mr Elliott had been unfairly dismissed and gave him a basic award of £990 but no further compensation. The employee Mr Elliott appeals.

Quite shortly the facts are that originally this was a company begun by Mr Elliott. In 1993, sometime probably in July, he was joined by his brother. Together, they were the shareholders of the company. As from 1 December 1994, the company was transferred to the Respondents and indeed the company bears the same name as the Appellant himself because he had been the original founder.

As from 1 December 1994, he remained employed by the Respondent company by virtue of a service agreement of that date. This was a contract for a three year period extending to the 31 August 1997. Thereafter he was subject to three months notice of dismissal, should the Respondents be so minded.

On 28 August 1997, Mr Elliott received a letter from a Mr Smith, a director of the Respondent Company, terminating his service agreement and it is a finding of the Employment Tribunal, which I understand is not in dispute, that his employment was terminated by reason of redundancy.

In this appeal two issues arise, and they are both related to the computation of the compensation to which Mr Elliott is entitled as a result of the redundancy. The first is the number of years he had been employed by the Respondent company. As we have indicated as from 1 December 1994, he was employed under a service agreement and there is no dispute that he was an employee as from that date onwards. Mr Elliott's contention however is that he was an employed person during the time he was the sole shareholder and also during that period of time when he and his brother were joint shareholders. With regard to that issue, Mr Skelly who has appeared on behalf of Mr Elliott to argue this point, says that in coming their conclusion, the Tribunal did not take adequately into account all of the relevant factors indicating whether he was an employed person or not.

The Tribunal's decision was that during this period of time he was not an employee. This essentially is a question of fact for the Employment Tribunal to decide. Except in exceptional circumstances where it could be said that they have come to a perverse finding, it is not appropriate or right that we should consider interfering with their decision about that matter.

What Mr Skelly says is, that whilst they listed the factors they took into account in paragraph 5 of their decision, they gave undue weight to the fact that Mr Elliott was in control of the company during the period of time when the issue arose. He says that control is not a conclusive factor and he has referred us to the case of Secretary of State for Trade and Industry v Bottrill [1998] IRLR 20. In addition to that, he says that the Tribunal made no express reference to other relevant factors they should have taken into account, such as that he drew a salary under the PAYE scheme, after the tax and national insurance had been deducted by the company. He also relies upon the fact that he was not paid director's fees.

The fact that an Employment Tribunal does not set out all the factors they have considered in coming to their conclusions, does not vitiate their decision. What the Tribunal in this case did, is place emphasis on the facts they thought were important and having done so drew the conclusion they did having considered all those matters to which their attention had been drawn. We think there is insufficient evidence here to support the contention that the finding of the Employment Tribunal was perverse. Accordingly we do not think that there is an arguable point on this aspect which could sensibly go forward to a full hearing.

So far as the issue relating to compensation is concerned: The Tribunal decided that although there was no consultation, it would have made no difference if consultation had taken place. Mr Skelly submits that there is no evidence upon which the Tribunal could rely in coming to that finding. The company set out the details of their case in an IT3 and one would have supposed that case would be backed by the evidence of a witness who could speak to those matters.

Instead the Respondents sent along Mr Burke the personnel director who was not acquainted personally with any of the relevant details in the IT3. The person who could have given direct evidence about these matters was a Mr Smith, but he did not attend the hearing nor give evidence by way of a statement. Accordingly, Mr Skelly submits there was no evidence relating to the matters set out in the IT3.

We consider that this is a matter which should be looked at, at a full hearing before this Tribunal. In order to facilitate the submissions on that occasion, we think the Chairman of the Tribunal should be asked to provide his notes of evidence of matters which provide the evidence upon which the Tribunal relied in coming to the conclusion that if the proper procedures of consultation had taken place, it would have made no difference to the end result. On that limited issue, we allow the matter to go forward to a full hearing.