United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR BARKLEM (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: The parties to the hearing below before the Industrial Tribunal were a Mr Skidmore who was the Applicant and there were two Respondent companies called Genesis Diesinking Ltd and Euro-Die (UK) Ltd. The decision of the Tribunal was that the Applicant, Mr Skidmore, was unfairly dismissed and they ordered the second Respondent to pay him a sum of money.

The underlying reasoning of the Tribunal was that there had been a TUPE transfer from the First Respondent to the Second Respondent.

The appeal before us is by the Second Respondent and that Company put in a number of grounds in a letter dated 17 August 1998. Today the Company have had the benefit of being represented by Mr Barklem, under the ELAAS Scheme, to whom we are very grateful and I should say that he has identified points which passed us by in our reading of the papers over the weekend.

Having regard to the submissions he has made to us we have identified three points upon which we have concluded there are reasonably arguable points of law and upon which this appeal should be allowed to proceed. The points are as follows. Firstly, in paragraph 4 of the Extended Reasons the Industrial Tribunal say this:

"The Applicant submitted that his employment terminated on Friday the 9 January 1998, when he refused to agree to work for the second respondents without first being assured that the period of employment with the first respondents would be aggregated for continuity of employment purposes. He was particularly concerned that if he agreed to transfer without this assurance, then very shortly thereafter his employment would be terminated and he would be deprived of his employment protection rights."

That finding is in line with what Mr Skidmore said in his IT1 where he said this:

"On 9th January 1998 at 3.10 pm I was informed by Mr K. Smith M D that the Company was closing down. A new Company Euro-Die UK was being formed on Monday 13th.

My employer said that if I took employment with this Company there would be no continuity of employment and no paid holiday entitlement.

I asked about redundancy pay etc. My employer said he would refuse to pay as he had no money and that I would have to claim from the N I Redundancy Fund.

My employer failed to discuss the redundancy prior to these talks and has to date refused payment of P.I.L.O.N and redundancy pay.

I ask for compensation."

The point which Mr Barklem puts to us and we agree to be a reasonably arguable point of law is that if one goes back to paragraph 4 of the Extended Reasons and assumes that there was a TUPE transfer, the point arises: Was Mr Skidmore entitled to treat that conversation as a fundamental breach of his contract of employment? Relevant to the argument relating to that point of law is the further point that it would have been open to Mr Skidmore to seek a declaration as to his rights which would include his position in relation to continuity of employment. At this stage we need say nothing more other than that we accept this point raises an arguable point of law.

The second point which we have concluded raises an arguable point of law is that it appears from paragraph 15 of the Extended Reasons that arguably the Tribunal did not take into account the question whether Mr Skidmore failed to mitigate his loss by taking up employment with the Second Respondent Company.

The third point which goes back to the grounds set out in the letter dated 17 August 1998 from the Company itself, relates to the findings of fact made by the Tribunal. On its face that letter does not, in our judgment, raise arguable points of law. However, it has been pointed out to us by Mr Barklem that it is not clear from the Extended Reasons what documents the Industrial Tribunal had before it and that the Tribunal only heard evidence from the Applicant and from Mr Martin Smith who was not the Managing Director of these Companies.

If, and we repeat if, there was no evidence upon which the Tribunal could base their findings of fact relating to their conclusion that there was a TUPE transfer that would found an argument based on perversity. So far as this point is concerned we will direct that the Chairman be invited to identify the documents upon which the Tribunal relied. If documents are identified which show that there was evidence upon which the Tribunal could base their findings of fact we say here and now that the Company would be at risk as to costs if it pursued that part of the appeal.

We also give the Company leave to put in a statement within 21 days identifying the documents which they say were before the Tribunal. We will give this case Category A and a time estimate of a day.