United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T COLLINS (Representative) Barratts & Co Business & Property Consultants 328 Barnacres Road Hemel Hempstead Hertfordshire HP3 8JS


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, by way of a preliminary hearing, the appeal of Mr Mustapha Moussaid in the matter Miss L Final v Mr J Robertson and Mr Micheli and to give that title to the name of the case rather underlines the problem that has arisen, because it will be seen that Mr Moussaid was not named as a party, and that needs some explanation.
2. The position is this; that Miss Final worked at a shop called Robertsons, run by Mr Robertson, although as it transpires, it was owned by a limited company called I G Robertson Ltd. She went off on holiday. While she was away, the business was sold. When she came back she understood that the buyer was a Mr Micheli; she further understood that the buyer did not wish to employ her and that she had thereby been dismissed.
3. On 17 February 2000 she lodged an IT1 claiming unfair dismissal following transfer (sale of business) and the Respondents were Mr Micheli, trading as Robertsons, and an address was given: 16 Stoneycroft Shops, Warners End, Hemel Hempstead, Hertfordshire, HP1 2QF. Robertsons, we add, was a greengrocers business.
4. On 21 February, Notice of that Originating Application was sent by the Employment Tribunal to the name and address which had been given, namely, to Micheli, trading as Robertsons, and the address that I have just read out.
5. On 3 May Notice of a hearing fixed for 25 May was sent out by the Tribunal, again to the name and address the Employment Tribunal had been given, to Mr Micheli, trading as Robertsons at that correct HP1 2QF address. Nothing was heard from that Respondent.
6. On 26 May there was a hearing at the Tribunal. Miss Final was represented by the Citizens Advice Bureau, and no one appeared for Micheli. On 6 July the decision was sent to the parties. It was unanimous and it was that the complaint against the First Respondent, Mr Robertson, was dismissed, but so far as concerned the Second Respondent, Micheli, it said:

"The second respondent Mr Micheli unfairly dismissed the Applicant who is awarded the sum of £1,713.90 as compensation for that unfair dismissal."

7. There had been no Notice of Appearance by Micheli, the sale of the greengrocers business Robertsons, had been whilst Miss Final was on holiday, and the Tribunal said:

"As the Second Respondent had not entered a Notice of Appearance, he had not shown any reason for dismissal under section 98(1) nor had he shown that the reason was for an economic, technical or organisational reason under the Transfer of Undertakings (Protection of Employment) Regulations 1981. Accordingly, the Tribunal found that Mr Micheli had unfairly dismissed Miss Final."

8. On 4 August there was a Notice of Appeal. Although it oddly bears the date for 7.7.00 the accompanying letter was dated 4 August and we think it must have been that the Notice of Appeal was also truly of 4 August. The covering letter asserts as follows:

"We have just received instruction by our client to make an application on his behalf to appeal against the decision made by the Employment Tribunal.

Mr Mustapha Moussaid did not receive any communication from the Tribunal regarding this matter in his correct name. The correspondents sent by the Tribunal to his address was unopened until now.

Would you please give your full consideration to the appeal"

9. We have since had a copy of what purports to be an assignment of good will from I G Robertson Ltd to Mr Moussaid, a receipt by I G Robertson & Ltd for a payment for fixtures and fittings, and an assignment of the lease of 16 Stoneycroft by Mr Robertson to Mr Moussaid. There is no reason to doubt that Mr Moussaid is the current owner of the business and there is no reason to doubt that for a time he left unopened correspondence addressed to Micheli.
10. Unfortunately, as this is, of course, an ex-parte preliminary hearing, we cannot here and now remit the matter to the Tribunal to start afresh, having set aside the decision below. All we can do is direct the matter to go to a full hearing. It is certainly no fault of the Employment Tribunal that the position that has been arrived at has been caused. It had sent the papers to the address and to the name that it was given for that purpose. It can only be, as it seems to us - and of course we have not heard Miss Final - that she unfortunately misheard, or misunderstood, or conceivably was even deceived as to the name of the new owner or manager of the business.
11. We would commend to Miss Final, when she comes to read a transcript of this judgment, to consider whether she would be willing to agree, by consent, to the Employment Tribunal decision being set aside, and the matter being remitted to a fresh Tribunal of three, without awaiting a decision of the full hearing at the Employment Appeal Tribunal.
12. If she were to agree to that, that would save time and worry and expense. Of course, if she does have any good reason to believe that the case is not as we have described it this morning, in other words, for example, if she had true reason to believe that Mr Moussaid had known of the Employment Appeal Tribunal hearing, or had actively deceived her as to his name, that would put a different gloss on things altogether, and if there is any such argument sought to be advanced on her part, then she will, of course, be at liberty to require there to be a full hearing, and to contest a full hearing.
13. But if she has no reason to doubt the case put before us by Mr Moussaid, as we have described it, then, as we say, to agree, ahead of the full hearing at the EAT, that the existing decision can be set aside, and the matter could be remitted to a fresh Tribunal, would save time and expense, and no doubt, anxiety.
14. If the parties are able to come to some such agreement, then what they are to do is to draw up a Consent Order in writing and submit it to me for approval. But in case there is no such agreement, we shall direct the matter to go to a full hearing.
15. If the parties have not agreed terms within 21 days after a transcript of this decision is sent out, then Mr Moussaid must serve on the EAT and on Miss Final, a sworn statement as to whether he is the current owner of the Robertsons business at 16 Stoneycroft; whether he received at 16 Stoneycroft correspondence addressed to Micheli; whether he left it unopened, and how it came to pass that he did learn of the decision of 6 July.
16. He must cover at least those topics - he might wish to cover others - but if there is to be a contest, then, as we say, at least after the expiry of that 21 day period, he is to swear evidence on the subject, so that if there is to a full hearing, they have, on oath, his version of what truly happened below. That is all, I think, we can say at this stage.