United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL MICHELL (of Counsel) Instructed by: Messrs Hatch Brenner Solicitors 4 Theatre Street Norwich NR2 1QY
For the Respondent	MS AMANDA HART Free Representation Unit 4th Floor, Peer House 8-14 Verulam Street London WC1X 8LZ


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about unfair dismissal following an admitted TUPE Transfer. The judgment represents out acceptance of the parties' joint approach for the further stages in this case. We will refer to the parties as the Applicant; Broadland and Temple, Respondents.

Introduction

2. It is an appeal by Broadland, which is the transferee in a TUPE transfer, following a decision of an Employment Tribunal sitting at Bury St Edmunds, promulgated on 4 September 2003 with Summary Reasons. After careful reflection the Chairman, Mr J Cole, decided in response to an application that they would stand as Extended Reasons.
3. The Notice of Appeal makes criticisms of the Decision which was that the Applicant was unfairly dismissed by Broadland, that his dismissal was connected with the business transfer of a security operation from Temple to Broadland; and that Temple was dismissed from the proceedings. Following discussions during the course of the day at the Employment Tribunal the parties agreed a figure of £13,008.80 by way of compensation to the Applicant Mr Walker.
4. The principal part of the challenge to the Tribunal's Decision relates to its deficiency in reasoning. We have had the advantage of Skeleton Arguments produced by Mr Paul Michell who appears for Broadland and Ms Amanda Hart who appears through the aegis of FRU for Mr Walker. Both recognise that this reasoning is jejune. In our judgment that is a fair criticism of the Employment Tribunal at this stage.
5. Counsel have jointly invited us to make an order that this same Tribunal should record its findings on certain key issues. They are to answer questions relating to how the Applicant came to be dismissed and whether he was assigned to the control room at Wisbech which was the entity the subject of the TUPE transfer.
6. The purpose of our remission is to allow the Tribunal not to elaborate or clarify its findings but to record in writing the evidence and the findings which it undoubtedly had made relating to both of those issues, for the Tribunal moved quickly to its conclusion in favour of the Applicant without displaying the evidence or the reasoning behind it.
7. Since the judgment of the Court of Appeal in English v Emery Reimbold [2003] IRLR 710 (CA) the EAT has considered that it has jurisdiction to enable a case to be sent back to an Employment Tribunal for it to record findings and decisions where they appear to be left out: see Prebon Marshall Yamani v Rose EAT/1000/02 and Bax Global Ltd v French UKEAT/0596/03.
8. We consider that that is a cost-effective and expeditious approach to the proceedings today and it also invokes a sensible solution to a practical problem presented by what appears to us to be an administrative error: Temple has not been served with notice of today's proceedings, and so it would not be fair to make a decision about which it may be at risk without its attendance. So, for both of the reasons which we have given, we accept the joint approach and have given this short judgment because we are remitting.
9. The matter will therefore go back to the same Employment Tribunal without hearing further evidence. The Chairman will be invited to record its decisions and findings in respect of the questions which have been drafted by Counsel and on the recording of those additional matters the parties will consider whether to seek reinstatement of the appeal by the introduction of a new ground of appeal and Respondent Answer.
10. At the same time, if all three parties are in agreement, we would be happy to deal with it on the papers, for we acknowledge that the parties are going to be involved in additional costs and difficulties in coming back here again. That is an option which we will leave to the parties to decide. If all three invite us to consider this matter on written submissions we will accommodate that.
11. I will give further directions as required.