United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MATTHEW CHAPMAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES:

1. This appeal comes before us today by way of preliminary hearing. Our task is therefore to consider whether it raises any points of law that are reasonably arguable.
2. The parties are a Mr Morgan who was the Applicant before the Employment Tribunal and T G Jeary Ltd, the Respondent before the Employment Tribunal.
3. The appeal is by Mr Morgan from firstly, a decision of an Employment Tribunal sitting at Bristol on 11 February 2000, the Extended Reasons for which were sent to the parties on 7 March 2000 and secondly, the refusal of the Chairman to allow a review of that decision on the basis that that review had no reasonable prospect of success.
4. The Appellant had sought a review by letter dated 2 March 2000. That was before the date upon which the Extended Reasons for the substantive decision were sent but Summary Reasons for that decision had previously been sent on 21 February 2000, which no doubt triggered the application for a review. The reasons for refusing the review were sent on 9 March 2000. The substantive decision of the Employment Tribunal was that it dismissed the Appellant's claim for unfair dismissal. The grounds of appeal are set out under two heading, the first is that "THE TRIBUNAL CONDUCTED ITSELF IMPROPERLY" and contains the following grounds:

"1. The Respondent did everything possible to hinder and delay the exchange of documents prior to the hearing although the Applicant had supplied the Respondent with his documents well in advance. As a result the Applicant did not receive the Respondent's documents until 10 minutes prior to the hearing, giving him insufficient time to scrutinise them. Full details of the Respondent's behaviour were noted by the Chairman, who castigated the Respondent's representative and asked for a reason why its response should not be struck out. The Respondent's representative could give no reason and the Chairman allowed the hearing to continue. Finally when the Respondent's representative had completed its response the Chairman apologised to him for having 'got off on the wrong foot'.

2. The Chairman ruled that legal advice given to the Respondent was inadmissable but questioned the Applicant as to whether he had taken legal advice and in the Extended Reasons paragraph 12 questions whether advice was taken.

3. The Chairman disallowed Review of the case although new evidence came to light which the Applicant could not reasonably have been aware of at the time of the hearing.

The second heading is "THE TRIBUNAL ERRED IN LAW" and it contains the following grounds:

It erred in that it disapplied the provisions of the Transfer of Undertakings Regulations 1981.

1. The Respondent had made a decision to sell the Company prior to dismissal.

2. Negotiations were already in progress with prospective purchasers."

5. Mr Morgan helpfully provided us with a Skeleton Argument for this hearing which puts forward arguments in respect of the second head of appeal, namely that the Tribunal erred in law.
6. Today Mr Morgan has had the benefit of being represented by Counsel through the ELAAS Scheme. We are grateful to Counsel and, in our view, Mr Morgan should also be grateful to him for his efforts.
7. By way of a background I should add that in support of the grounds of appeal under the heading "The Tribunal conducted itself improperly" our papers also contain a sworn statement from Mr Morgan, comments of the Chairman thereon and a letter from Mr Morgan commenting on those comments.
8. The position in respect of the grounds of appeal under the heading "The Tribunal conducted itself improperly" that was reached today was as follows. Counsel did not advance any oral arguments in respect of them but told us he had no instructions to withdraw them and we were invited to deal with them on paper. We say at once that we have considered them on paper and, in our judgment, they do not give rise to any points of law that are reasonably arguable.
9. As to the first ground, it relates to the production of documents and a comment made by the Chairman. The overall impression relied on and asserted is one in which the Chairman was "fairly aggressive" to the representative (or officer) of the Respondent about the production of documents and then as the ground says, having dealt with it, he apologised to that representative for "getting off on the wrong foot".
10. The test for procedural unfairness or bias in this respect is an objective test as has been confirmed by the Court of Appeal in Locabail (UK) Ltd -v- Bayfield Properties Ltd [2000] 2 A.E.R. 65 C.A.
11. It is of note that the other documents before us do not indicate that there was any application for an adjournment made by the Applicant in respect of the late production of documents. It is also to be noted that he was the Company Secretary and was familiar with much of the background, albeit he may not have seen some of the documents that were produced at all, or at least not for some time.
12. In approaching this issue we shall assume in Mr Morgan's favour that there is an argument that the test referred to in paragraph 17 of the judgment in the Locabail case as being more closely in harmony with the jurisprudence of the European Court of Human Rights (a test of reasonable suspicion or apprehension) should be applied in this case. We say that that is an assumption in his favour because we think it in fact is incorrect as a matter of law. But as there may be potential for that test being slightly wider than the English test of real danger or possibility confirmed and applied in Locabail we make the assumption in favour of Mr Morgan.
13. In our judgment, on that objective approach we see no reasonably arguable case based on ground 1.
14. Also on ground 2 we see no reasonably arguable case. It seems to us that the question as to whether or not legal advice had been taken was one that was permissible. It also seems to us that any Chairman would have to raise the point of legal professional privilege in respect of the content of legal advice.
15. As to ground 3, on the papers it was unclear to me what the new evidence was that was being advanced. We have not been given any assistance as to that orally and we see no reasonably arguable point in respect of the Chairman's refusal to review.
16. Accordingly, all the grounds under the heading "The Tribunal conducted itself improperly" are dismissed. I would add in respect of the final ground that any addition of new evidence in this Tribunal would have to satisfy the test in Ladd v Marshall [1954] 3 AER 745.
17. We therefore turn to the point made under the heading "The Tribunal erred in law".
18. It was in respect of alleged errors of law that Counsel advanced his submissions.
19. As we understand the position the accepted background to the service of the notice terminating the contract of employment was a possibility that the business may be sold and arrangements were to be put in place to effect that sale. As we read the Extended Reasons no sale was then actually in contemplation (for example the first sentence of paragraph 8 thereof demonstrates this when it is says there was no prospective purchaser in sight at the time). The most relevant paragraphs of the Extended Reasons in respect of the reason for serving the notice are paragraphs 4, 5, 6, 8 and the beginning of paragraph 9.
20. The way in which the argument was advanced in the Skeleton and, as we understand it, in the Notice of Appeal was that TUPE and, in particular, paragraph 8 thereof applied directly. It seems that that was the way in which the argument was advanced before the Employment Tribunal.
21. Counsel, in our judgment correctly, accepted that as there was no transfer TUPE did not apply directly and so direct reliance cannot be placed on paragraph 8 of TUPE.
22. However Counsel put the case somewhat differently in that in reliance on decisions in RS Components Ltd v Irwin [1974] 1 All ER 41 and Banerjee v City & East London Area Authority [1979] IRLR 147, he argued that in identifying the reason for dismissal the Employment Tribunal had not properly analysed the need for the changes. As to that he accepted that he had an additional problem flowing from the decisions of Jones v Governing Body of Burdett Coutts School [1999] ICR 38 and Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719, that he was seeking to raise a new point.
23. A further argument raised by Counsel and identified by him as a weaker point was that the Tribunal erred in law in their application of section 98 (4) in determining whether the employer acted reasonably, the backdrop to that submission being his point that the employee was negotiating against a background when his notice was running.
24. A further point raised during the course of the hearing and adopted by Counsel was the question whether it is arguable that in determining either (a) whether or not a reason that satisfied section 98 of the Employment Rights Act 1996 had been given, or (b) the decision to dismiss was reasonable, TUPE (and in particular paragraph 8 thereof) should have been taken into account. In other words in applying s. 98 Employment Rights Act 1996 is there an inter relationship between it and TUPE when a notice of termination is served for the purposes of effecting an alteration (by agreement) of the terms of a contract in circumstances such as those that existed here; namely as is set out in paragraphs 4, 5 and 6 of the Extended Reasons, that the board were considering selling the company and long-term contracts would not be attractive.
25. If one took the example of a notice of termination served against the background of negotiations that were far advanced as to a transfer but that transfer fell through, this inter-relationship would certainly be more immediate and possibly more apparent.
26. Counsel told us, and we accept, that there was no authority on this point. Certainly we know of none and it seems to us that it gives rise to a point which merits consideration by a full Tribunal. It is also a point in which it would be of assistance to the Tribunal that heard the matter if the parties were represented. It is a lawyer's point, or largely a lawyer's point.
27. We will allow that point as to the inter-relationship between TUPE and section 98 Employment Rights Act 1996 to go forward to a full appeal without any formal amendment to the Notice of Appeal. We hope that the point is identified by this judgment.
28. Having said that, we make it clear that it is open to the Respondent and indeed, the Tribunal that hears this case of its own motion to consider whether or not that point should be allowed to be argued on the appeal on the basis that it is a new point (see again Jones v Governing Body of Burdett Coutts School and Glennie v Independent Magazines (UK) Ltd).
29. Returning to the other points raised by Counsel, he did not persuade us that they raised reasonably arguable points and/or that they are points that we would at this stage give leave to be added to the appeal. In particular, it seems to us, that the factual premise of his argument based on need is something that, if it had a sound basis, would have been advanced by Mr Morgan below as a litigant in person. It is a point which would have occurred to him if it had merit. The reality of the situation, as we see it, was that the Board and the Company Secretary, Mr Morgan, did not realistically challenge that there was a need for the reason which prompted the service of the notice.
30. However, having said that, it seems to us that the appropriate course for us to adopt on this preliminary hearing is to simply permit the appeal to proceed on the ground we have indicated without an amendment. If Mr Morgan wishes to add the grounds advanced by Counsel on his behalf today he will have to file a draft amended Notice of Appeal. If he does so we will direct that issues as to amendment to include those grounds can be dealt with by the full Tribunal when they hear this appeal.
31. We give this appeal Category B and a time estimate of one day.