United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: This is an appeal by Mrs Amanda Clitherow (now Mrs Amanda Fielder) t/a A & R Construction, against the decision of the Southampton Employment Tribunal, chaired by Miss Ann Wakefield, promulgated with extended reasons on 9^th June 1997, following a hearing held on 7^th February 1997, ordering her to pay to the applicant, Mr Gallop, a redundancy payment and damages for wrongful dismissal in the total sum of £2,910. His claim was brought against Mr R Fielder ["the first respondent"] and Mrs Clitherow (now his wife) ["the second respondent"].

1. Mr and Mrs Fielder having removed to Cornwall they applied, unsuccessfully, for the case to be transferred to Exeter. The case was listed for hearing at Southampton on 7^th February 1997 on the preliminary issue as to whether the applicant had completed two years continuous service with the second respondent for the purpose of claiming a redundancy payment and/or unfair dismissal.
2. The second respondent had contended in her Notice of Appearance that the applicant was continuously employed by her only from 12^th December 1994 until his dismissal on 5^th July 1996. The first respondent contended that he had not employed the applicant after 9^th December 1994. At the hearing the applicant appeared, represented by Counsel. Only Mr Fielder out of the two respondents attended.
3. As to the preliminary issue the tribunal found that the applicant commenced employment in March 1984 in a business, Fielder Construction, run by the first respondent. In about 1990 that business was incorporated under the style Fielder Construction Ltd, a company of which the first respondent was a director and shareholder and his then wife, Mrs Carol Fielder, was the only other shareholder. In 1993/94 the business reverted to its former status of a partnership between Mr and Mrs Fielder t/a Fielder Construction.
4. In 1994 Fielder Construction carried out building works at the home of the second respondent, then Mrs Clitherow. As a result the first and second respondent met. They have since married.
5. On Friday, 9^th December 1994 the applicant, then employed as a labourer, was informed by the first respondent that from the following Monday, 12^th December 1994, his employment would be with a new firm A & R Construction. On the Friday he was paid for the last time by Mrs Carol Fielder and on the following Monday he carried on work with A & R Construction, using the same tools as before; being transported by the same van (which was repainted to obliterate the sign "Fielder Construction" and replace it by "A & R Construction"). The nature of the work remained the same (underpinning) and he carried on working on the same contract at Fleet in Hampshire. His working colleagues also continued to work with him, including the first respondent. On Friday, 16^th December, he received his pay packet from Mrs Amanda Clitherow.
6. The tribunal found that A & R Construction was started in December 1994 with Mrs Clitherow as sole proprietor. It took over one of Fielder Constructions two contracts. The three vehicles owned by the first respondent were leased to the second respondent. A & R Construction also took over the responsibility for the rented builders yard, traded from that address, and paid arrears of rent owed by Fielder Construction. The business continued until 5^th July 1996, when it ceased to trade. The applicant's employment then terminated.
7. On these facts the tribunal had no difficulty in concluding that in December 1994 the undertaking of Fielder Construction was transferred to the second respondent for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981, and that the applicant had continuous employment under s. 218 of the Employment Rights Act 1996, that employment being continuous from March 1984 until 5^th July 1996.
8. Having so resolved the preliminary issue, and Counsel for the applicant having conceded that he could not successfully pursue a claim of unfair dismissal, the tribunal record that it was explained to Mr Fielder that the question of a redundancy payment and damages for wrongful dismissal required only a mathematical calculation. The parties then agreed to proceed to the question of compensation. The redundancy payment, based on the applicant's age, years of service and a gross weekly wage of £145, was then calculated at £2,030.
9. As to the claim for pay in lieu of notice, although the applicant had completed in excess of 12 years service normally entitling him to 12 weeks notice, the applicant limited his claim to eight weeks pay in lieu of notice. At the rate of £110 per week net that computed to £880. Hence the total award of £2,910.

The Appeal

10. This appeal was permitted to proceed to a full appeal hearing by a division of the Employment Appeal Tribunal presided over by Judge Hull QC at a preliminary hearing held on 3^rd July 1998.
11. The applicant and Mr Fielder having failed to file a respondent's answer to the appeal, despite letters from the Registrar directing them to do so, were debarred from defending by order of the Registrar dated 19^th August 1998. Both Mr and Mrs Fielder have filed affidavits dated 23^rd December 1998 in support of her appeal, late, following the order made by Judge Hull's tribunal on 3^rd July 1998. We have considered those affidavits, and the Chairman's comments on the Notice of Appeal contained in a letter dated 5^th September 1997.
12. There has been no attendance by or on behalf of the appellant, Mrs Amanda Fielder, today. No explanation has been provided. Attempts to telephone her have met with no response. In these circumstances we have proceeded to consider the matter on the papers.
13. The first point taken in the grounds of appeal is that having ruled on the preliminary issue for which the hearing was convened, the tribunal went on to a full hearing without allowing the parties an opportunity to call evidence on the remaining issues. It is suggested that Mr Fielder was "misrepresented" with regard to costs if he did not agree to the assessment of damages taking place then and there. Further, the applicant provided no evidence to support his claim that he commenced employment in March 1984. Mr Fielder believed that it was in fact some 18 months to two years later.
14. Secondly, it is contended that both the applicant and a fellow employee, Mr Hoare, were given notice on 30^th April 1996 of the second respondent's intention to cease trading in July 1996. The applicant was paid in cash from 5^th March to 6^th July 1996.
15. Thirdly, the applicant claimed that he received £145 per week wages. It is contended in the grounds of appeal that his net weekly wage was £105.79.
16. Those contentions are supported by the affidavits by Mr and Mrs Fielder and, for completeness, it appears therefrom that the tribunal's finding of a relevant transfer is also challenged.
17. Having considered those submissions we reject them for the following reasons:

(1) It is clear from the affidavit of Amanda Fielder that attendance at Southampton was difficult for Mr and Mrs Fielder. They had moved to Cornwall and were engaged in an egg production business; there were difficulties with childcare. In these circumstances it was sensible for the tribunal to see whether the parties would agree to proceed to the remaining issues in the case at the hearing on 7^th February. It is apparent from the Chairman's letter of 5^th September 1997 that Mr Fielder agreed to this course. He plainly represented his wife as well as himself. Had he wished to call further evidence it was open to him to require an adjournment. He did not do so. He, and she, cannot now complain that in these circumstances the tribunal proceeded to finally dispose of the case. We further accept, as the Chairman has indicated, that no costs threat was made against Mr Fielder if he declined to proceed, although he would have of course have been put to further expense had he had to attend a further hearing.

(2) Mr Fielder gave evidence before the tribunal. He was running the business when the applicant joined. It was clear from the form IT1 that the applicant alleged that he commenced employment on 2^nd March 1984. That evidence, given orally by applicant, was not contradicted by Mr Field. In these circumstances the tribunal was entitled to find that the employment began in March 1984.

(3) Even if the applicant was warned on 30^th April 1996 that the business would cease trading "in July 1996", that is insufficiently precise to amount to a notice of dismissal, which must specify the effective date of termination. Mere advance warning of dismissal to occur at some future date is not enough. Morton Sundour Fabrics v Shaw [1966] 2 ITR 84; Burton Group Ltd v Smith [1977] IRLR 351.

(4) Mr Fielder did not challenge the wage details given by applicant in evidence. In any event, there is little difference between the applicant's net figure of £110 per week and that advanced on behalf of the appellant of £105,79.

(5) As to the decision on the preliminary issue, this seems to us, on the tribunal's findings of fact, to be a plain and obvious case of a transfer. The business of Fielder Construction ceased on 9^th December 1994 and continued unchanged under the banner of A & R Construction on 12^th December. The same people, using the same equipment and vehicles, carried on with the same contract at Fleet without interruption.

18. In these circumstances we shall dismiss this appeal.