United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R C UNWIN (Company Secretary)


 


JUDGE COLIN SMITH QC: We will not give a long judgment in this matter. On the face of it, the Industrial Tribunal here reached very clear findings which it would be very difficult to impugn and it has been said time and again that the Employment Appeal Tribunal can only consider points of law. Many times during the submissions we were getting the clear impression that this is an attempt, very courteously and ably put to us by Mr Unwin, to reopen and obtain a rehearing of the whole matter simply because the Appellants now before us do not agree with the conclusions reached. The Tribunal found that Mr Brierley was at all relevant times between May 1987 and September 1997 an employee of the Respondents and was entitled to a redundancy payment accordingly.

Now if the matter had rested there as it appeared to rest when we started hearing this application this morning, we would have all of us unhesitatingly have refused the application for leave to appeal to a full hearing and dismissed it out of hand. But what in fact has happened here is that Mr Unwin who has put all matters before us today on behalf of the Appellants actually sent to this Employment Appeal Tribunal, about a week ago or so, a very carefully prepared bundle of documents. Including first of all a 15 paragraph statement over two pages and also 8 separate appendices which in fact arrived on our bench this morning during the course of the application. Unfortunately, due to some kind of error, it had failed to get through to the Employment Appeal Tribunal from the office.

We have now had to look at that and we are told by Mr Unwin and we accept, that all of this material was in fact before the Industrial Tribunal and included within the material there is first of all, an appendix 1 where the Applicant, Mr Brierley before the Industrial Tribunal has declared himself on that document, for what it is worth, to be self-employed.

In addition at appendix 2, there are a series of invoices in the name of a business called Aladdin Lamp Repairs, addressed to the Gorton Trades & Labour Club, between the dates of 12 January 1991 and 21 March 1992, which appear to be invoices submitted by the Applicant before the Tribunal, Mr Brierley, on a self-employed basis because they relate to a business he was running, Aladdin Lamp Repairs, and the description of the services rendered are "cover for Stewart", or "meeting with reps", or "cover for Stewart" "meeting with Inland Revenue" and a number of them, at any rate, are marked paid. In fact the first 8 or 9 of them in the bundle are all marked paid, for example, one takes even the one of 31 August 1991, "cover for Stewart £70 paid 12 November 1991, Colin Brierley", and so those documents are important documents.

There is then another appendix that seems to record all the payslips, the proper employment payslip documentation that was kept by the club as I understand it, from which Mr Brierley is conspicuous by his absence I assume from that appendix.

Now the net result of all this is that we have concluded that it is arguable, and no more than arguable, that the Industrial Tribunal erred in not making findings in any detail in regard to these various appendices other than to simply recite what the Applicants said about the Aladdin Lamp Repairs invoices, namely that his accountants advised him to tender accounts to the Respondents after the event so to speak, in order to register the indebtedness of the club of the Respondents to himself. It is arguable, in our judgment, that for the Industrial Tribunal to say no more than that rather than to carry out any analysis of those invoices which do not appear on their face to be ex post facto invoices but on the contrary appear to be contemporaneous invoices and appear in the majority of cases to be marked as being paid apparently contemporaneously amounts to an error of law. In that state of affairs, although we are most reluctant ever to allow appeals to go forward on the basis that the findings of fact by a Tribunal are perverse, in our judgment it is here arguable that the Tribunal failed really sufficiently to come to grips with the Respondent's case, that is to say with the employer's case, so we think that may be arguable. We should point out that we have noticed that the position of the Appellants is not at all helped by the fact that firstly there was no reply whatsoever in writing to the Mr Brierley's very clear letter which is at appendix 8 in the bundle, nor was there any attempt to set out the Respondent's case in the Notice of Appearance which simply said that payment was opposed because the company had not been incorporated until 1994 and disputed the amount as being excessive. Both those factors weighed heavily against the likelihood of the employers being able to persuade the Tribunal that the Applicant was indeed self-employed between about 1989 and May 1994.

However, for the reasons we have stated, we think that this is just arguable and leave should be given for the matter to proceed to a full hearing. We are very strongly of the view that if the Appellants are anxious to reduce the amount they have got to pay to Mr Brierley and are serious about the matter, they should take legal advice, because Mr Unwin mentioned to us today that he is not a lawyer, although he has some experience before Industrial Tribunals, and if this matter is to be presented in its best light it is essential really that the company should have a solicitor at least who is experienced in Employment law, and this is no disrespect to Mr Unwin, to present their appeal for them.

We will give leave, we mark it category C, we say that we would estimate that it would take one hour and a half to hear, no Notes of Evidence seem to us to be necessary and skeleton arguments should be exchanged and an agreed bundle of documentation agreed at least 28 days before the hearing. The skeleton arguments to be served on the Employment Appeal Tribunal and the bundle of documents that is agreed between the parties should also be served on the Employment Appeal Tribunal before the hearing of the appeal.