United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS
For the Respondent	MISS C McCANN (of Counsel)


 


JUDGE PETER CLARK:

1. The position reached in this appeal is as follows. By a reserved decision promulgated with Extended Reasons on 9 May 2000 an Employment Tribunal sitting at Manchester under the Chairmanship of Mr P J Russell, upheld the applicant, Mr Blakeman's claim to be entitled to a full statutory redundancy payment following his dismissal by his employer, Robert Fletcher (Greenfield) Limited ("The Company").
2. The case involved consideration of the little-used Redundancy Payments Pensions Regulations 1965 ("The Regulations"), which allow in certain circumstances the extinction or reduction of the full statutory redundancy payment entitlement in cases where redundant employees are in receipt of occupational pension payments. In this case the Company had paid to Mr Blakeman a reduced redundancy payment, purportedly in accordance with the Regulations.
3. Against that decision the Company appealed and on 12 January 2001 at an ex parte preliminary hearing a differently constituted division on which I sat, having heard submissions by Mr John Bowers QC on behalf of the Company, allowed the appeal to proceed to this full hearing. On that occasion we gave certain directions and in particular I directed that the Department of Trade and Industry, as a potentially interested party, should be given the express opportunity to apply to be joined in the appeal. By letter dated 15 May the Department declined that invitation.
4. On 17 October 2001 the Company was made the subject of an Administration Order and joint administrators were appointed by the Court. On the same day, solicitors acting for Mr Blakeman, Thompsons, wrote to the Employment Appeal Tribunal pointing to the financial state of the Company and asking that the EAT formally dismiss the appeal without the need for them to instruct Counsel to oppose it. On 13 November solicitors acting for the joint administrators, Hammond Suddards Edge, faxed the EAT enclosing a copy of the Administration Order and indicating that there were insufficient funds to continue the appeal.
5. Having considered the papers on 16 November I caused a letter to be faxed to those solicitors, copied to Thompsons, enquiring whether the Company or the administrators was seeking permission to withdraw the appeal. If so, I would consider a draft Consent Order; if not, the hearing today would go ahead, when we would consider the respondent to the appeal's application to dismiss the appeal without enquiring into its merits.
6. On 19 November Hammond Suddards replied, indicating that they were instructed to advise as to the effect of this litigation on the ongoing administration of the Company and not the legal merits of the appeal. The letter concludes that due to funding restraints those solicitors were instructed to take no further steps in the appeal.
7. Today, Miss McCann of Counsel, appears on behalf of the respondent, having this morning submitted a helpful skeleton argument. The appellants do not appear and are not represented.
8. This state of affairs raises a point of practice. Paragraph 13 of the EAT Practice Direction is headed "Disposal of Appeals By Consent". An appeal may be withdrawn by consent without difficulty. An appeal against a reasoned decision of an Employment Tribunal will not be allowed by consent without the EAT first determining whether there is good reason for making the agreed order. However, nothing is said about the case in which an appellant does not actively pursue an appeal nor does he withdraw it and no agreement is reached between the parties. In such circumstances, it seems to us, as Miss McCann submits, that the appeal ought to be dismissed without an enquiry into the merits, for these reasons:

(1) As between the parties to the appeal, the respondent seeks to uphold the reasoned decision of the Employment Tribunal. In the absence of argument from the appellant challenging the basis of that decision below, we ought not to interfere with it, particularly in circumstances where we are told that the respondent to this appeal has now received the balance of his full redundancy entitlement out of the fund operated by the Department of Trade and Industry to meet payments due from insolvent employers.

(2) It often happens that the point in an appeal is of wider interest and application and that is the case here where we are told that there are a number of other cases in which applicants are seeking full redundancy payment in similar circumstances. In these circumstances it would be undesirable, it seems to us, for this Appeal Tribunal to reach a conclusion on the points of law raised in the appeal in the absence of argument from the appellant. Far better that a decision not binding on other Employment Tribunals but disposing of the lis between these parties should stand without endorsement or qualification by the EAT.

9. In these circumstances we shall dismiss this appeal without more.