United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M SAHEID (Representative)
For the Respondent	MISS M LAZARUS (of Counsel) Messrs Marsh Ferriman & Cheale Solicitors Southfield House 11 Liverpool Gardens Worthing West Sussex BN11 1SD


 


MR JUSTICE MORISON (PRESIDENT): This is a directions hearing in relation to an appeal against a Tribunal decision which followed a hearing before an Industrial Tribunal held at Brighton on 30 September 1997.

The critical issue between the parties on that hearing was whether the Applicant had continuous employment from December 1984 to April 1997 with her former employers. The answer to that question would determine the amount of the redundancy payment to which she would be entitled.

The Tribunal's decision was that between 1984 and November 1985, the Applicant Mrs Churchill had worked at a residential home called Lyndhurst House. From November 1985 to 1992, she had worked at a residential home called Hythe House. From 1992 until the termination of her employment in 1997, she worked at Lyndhurst house.

The issue essentially for the Industrial Tribunal was whether the period of service at Hythe Road could be aggregated with the service which she had previously had at Lyndhurst House and the service that she had thereafter at Lyndhurst House. That depended upon the proper interpretation of the events which had occurred surrounding her employment in November 1985 at Hythe Road and her subsequently re-employment at Lyndhurst House in 1992, and that also depended upon whether there had been a transfer of a business, such that one could say that the period of employment at Hythe Road could be aggregated with that at Lyndhurst House.

The Tribunal's decision was, as I understand it, that there was a transfer such that there was continuity of employment from 1984 until 1992.

Although there is reference by the Industrial Tribunal to a very close association between the then director of Lyndhurst House and the person who owned and ran Hythe Road, it was not their finding they could be regarded as associated employers within the meaning of the legislation. As I understand their decision it depended upon their finding that there had been transfers which effected a continuity.

When the matter came before the Employment Appeal Tribunal at a preliminary hearing, the Court was persuaded to accept an amended ground of appeal which contained two propositions. Firstly, that the Industrial Tribunal erred in finding that there was continuity of employment on the basis that the Respondent had worked for associated employers and second, there was no evidence to support the findings that Mr Ahmed took an active part in the management of Hythe Road Rest Home and that Mrs Eastwood took an active part in the management of Lyndhurst House.

Having allowed that amendment, I think that the Court believed that it would then be in a position to effectively resolve the case, but in order to do so, it made an order against Mr Ahmed requiring him to produce certain documentation. The present director, Mr Saheid , I think, indicates that he has difficulty in complying with the order for discovery, although it is fair to him to say that he had produced a certain amount of information.

The question that should now be answered is how should this appeal be progressed. Miss Lazarus on behalf of the employee, Mrs Churchill says that it is her submission and will be her submission that the Industrial Tribunal have decided the case the way they did, not on the basis that s.231 had been fulfilled but rather on the basis that there had been a transfer. I agree that that appears to be a rationale of the Industrial Tribunal's decision. The question will therefore be at the appeal hearing, whether the Industrial Tribunal were entitled to arrive at that conclusion. It seems to me that on the hearing of the appeal the first amended ground of appeal is moot, because that was not the basis on which the case had been presented to the Industrial Tribunal and did not form as I understand it the basis of the Industrial Tribunal's decision.

For the purposes of the perversity argument, it seems to me manifestly clear that this is a case where we should invite the learned Chairman to provide his notes of evidence. It may be that in due time it will emerge that the Tribunal are unable to provide their notes of evidence because this request is being made very much at the end of the day. However, I order that the Chairman be invited to provide his notes of evidence, and if there is any difficulty in that respect the parties will be informed. I secondly direct that this appeal be listed for a full hearing within 14 days of the Employment Appeal Tribunal receiving the notes of evidence. The reason why I have made that second direction, is that the amount involved in this case is relatively small although of importance to both parties and secondly, there has been considerable delay since the notice of appeal was first lodged in this case.

I also direct, although this will not form part of the order itself, that this short judgment be put on the file and made available to the Court when it hear and determines the appeal. I estimate that it will last for one and a half hours. It should be listed as category B and I would think that it would be an appropriate case for His Honour Judge Peter Clark to determine if he is available. I am grateful to the parties for bringing this matter back to the Court. It seems to me most desirable that the case should be concluded in the shortest possible time.