Appeal Nos. UKEAT/0270/10/DA
UKEAT/0271/10/DA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 4 October 2011
Before
HIS HONOUR JUDGE McMULLEN QC
MRS C BAELZ
MR P SMITH
SOUTH
EAST LEISURE GROUP LTD APPELLANT
(1)
MR Y E VACHOUMIS
(2) ZAFF BRIGHTON LTD
(DEBARRED) RESPONDENTS
Transcript of Proceedings
JUDGMENT
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about unfair dismissal and other matters, but essentially
on appeal, it is about who is the correct employer. We will refer to the
parties as the Claimant and SEL. The other relevant party is Zaff Brighton Limited.
Essentially the triangular relationship is between what is alleged to be a
transferor SEL, and transferee, Zaff, and an employee of 35 years service of
the combined operation at Aberdeen Steak Houses in Brighton.
Introduction
2.
This is an appeal by the Claimant in those proceedings against a reserved
Judgment of an Employment Tribunal sitting at Brighton for a day,
2 February 2010, registered with Reasons on
23 February 2010. The Claimant was represented by an official of his
union, USDAW, SEL by its solicitor, Mr Wilson, and Zaff by its manager,
Mrs Fuccio.
3.
The Tribunal decided that SEL unfairly dismissed the Claimant, failed to
give relevant statutory written particulars, and failed to pay for untaken
holiday. SEL was ordered to pay a capped by statute figure for unfair
dismissal of £63,000, and other payments totalling £73,320.
4.
SEL appealed. The cases had a protracted adjectival history.
Cox J on the sift decided the matter should go to a preliminary hearing.
At that hearing, which I conducted on 16 November 2010 with
Mr Harris and Mr Warman, we gave a direction that the case should be
heard at a full hearing. Amendments were allowed to the Notice of Appeal, but
the matter should be stayed in the following terms:
“4. This appeal be stayed, pending referral back to the
Employment Judge under Employment Tribunals Act 1996 s35 to give
a decision, if practicable within 14 days of the date of the sealed order, in
response to the application for a Review made on the 26th day of January
2010 and is to give any further directions in light of this.”
5.
The Judge has answered the invitation on 23 March 2011. The
central issue was an outstanding application for a review of the decision made
to debar the Respondent because it had not sent in a proper ET3. That application
in writing, properly made by solicitors, was never dealt with. The Judge, in
answer to our request, said this:
“It follows from the above that the request from SE Leisure for
a review of the decision to reject its response was never dealt with by the
tribunal. Paragraph 4 of your order sealed on 17th November 2010
asks if further directions are to be given with regard to it. I propose no
further directions be given for the following reasons:
1. The
best result SE Leisure could have expected on their application for review of
the decision to reject their ET3 was to have it overturned and be permitted to
take part in the proceedings.
2. The
practical effect of the decision made by my tribunal on 2nd February 2010
was to overturn the exclusion decision and permit SE Leisure to participate in
the proceedings by allowing their witness Mr Cootes to give evidence to
support their contention they were not the Claimant’s employer.
3. SE
Leisure therefore has suffered no prejudice or disadvantage by reason of their
request for review being overlooked.”
6.
The only construction of that is that there has never been a decision on
the review, the first stage of which, in accordance with rule 35 of the 2004
Rules is a preliminary consideration by a Judge. If it has no prospect
of success there will be no review, but otherwise there will be a review provided
the sub-rules (a) or (e) or both are met, that is “party was not aware of the
proceedings” or the “interests of justice require”.
7.
At the preliminary hearing we had the advantage of a substantial
skeleton written and oral argument from Mr Marcus Pilgerstorfer of counsel
and concise written submissions by Ms Joanna Hughes, who today
represents the Claimant. On the basis of what we there heard and read, we
ordered a full hearing. It occurred to us that there was an unfair dismissal
here somewhere, but there was unfairness in the way in which the matter had been
dealt with as against SEL.
The facts
8.
Although Mr Wilson, solicitor, attended, he recognised that his scope
for manoeuvre was constricted by rule 9, which means that he was not able to
participate in the proceedings. The Tribunal said this:
“4. At today’s hearing the Claimant was represented by
Mr Rey of USDAW. The Claimant gave evidence and produced a bundle of
documents. Mr Wilson solicitor appeared on behalf of SE Leisure. He
accepted that his client’s rights in the proceedings were circumscribed by rule
9 of the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2004
and that he intended to keep a watching brief on their behalf. He informed the
tribunal that he had a witness Mr Edward Cootes who might be able to
assist with identifying the employer of the Claimant and whilst recognising
that he had no right to call Mr Cootes as a witness invited the tribunal
to consider calling him under its powers provided by rules 10 and 14 of the
2004 Rules.
5. The tribunal was concerned to establish the identity of
the Claimant’s employer at time of dismissal. The pleadings showed the Claimant
believed his employer to be SE Leisure. That company filed a response denying
it was the employer but having regard to delay was not permitted to participate
in the proceedings. Mr Wilson for SE Leisure invited the tribunal to use
its powers to receive evidence from Mr Cootes. On the face of his
prepared statement it appeared from his inside knowledge of the various
companies he might be able to throw light on the issue. The tribunal therefore
concluded that in the interests of justice to both the Claimant, Zaff and SE
Leisure Mr Cootes should give evidence and therefore the tribunal decided
to exercise its power to permit him to do so.
6. Mrs Fuccio appeared as representative for Zaff. She
claimed to have worked for that organisation and was the manageress of the Aberdeen Steakhouse being the premises at which the Claimant worked as head chef. It was
not disputed she was the Claimant’s line manager at time of dismissal. She
chose not to cross-examine the Claimant nor to give or call evidence on behalf
of Zaff.”
9.
The curiosity is that Zaff, in its ET3, accepts that Zaff employed the
Claimant, and dismissed him for dishonesty, having suspended him. That is
entirely consistent with the relationship of employment between Zaff and the
Claimant.
10.
Because Ms Fuccio did not give evidence, the only material the
Tribunal had was that ET3, one assumes. On the other hand, Mr Cootes gave
evidence. The Tribunal found his evidence unsatisfactory, to such an extent
that notwithstanding his assertion of there being a TUPE transfer, 18 months
prior to dismissal, SEL was constituted as the Claimant’s employer. The sole
defence of SEL in its draft ET3, which was not allowed to be heard, was that it
was not the Claimant’s employer.
Discussion
11.
In her submissions to us today, Ms Hughes has very fairly
recognised that the circumstances presented by Mr Wilson on paper to the
Employment Tribunal for a review could lead to only one conclusion. The Judge
would be bound to order a review, because of the facts relating to why SEL had
not put in its ET3.
12.
The logical conclusion, therefore, is that there should be a review. So
we directed a decision be made on that application, but the Judge has not made
it. He could have made a decision that it had no reasonable prospects. That
seems unlikely in view of Ms Hughes’ acceptance that there was material
here such as would fall within the rule. Or he could have ordered a review
where all this would have come out.
13.
What Ms Hughes however does argue, with some force, is that the
Tribunal’s reasoning was that SEL could not have done any better than it did.
Mr Cootes was not a satisfactory witness. The problem with that is one of
fairness. This was not a review. It was not a hearing. Mr Cootes was,
as a matter of grace, heard, apparently on the direction of the Tribunal. No
evidence was available from SEL. The Claimant was not cross-examined by
Mr Wilson. Zaff gave no evidence, Ms Fuccio providing none.
Mr Wilson was not able to open the case, perhaps an unusual indulgence in
a Tribunal these days, but he was not able to make any submissions. All of
these are important safeguards in a hearing. The simple indulgence of the
Tribunal in hearing Mr Cootes was no substitute for SEL’s full right to be
heard and to conduct the case as it saw fit. The answer to this case is found
in those procedural shortcomings.
14.
It may well be that, since we have decided to remit the case, the same
result is forthcoming, but at the moment that looks unlikely. There would need
to be some positive findings by the new Tribunal that when Zaff said it
employed him and dismissed him, it never did, and all the time the Claimant was
employed by SEL. We do not say that that cannot be a conclusion, but it will
be one which would have to be examined at a hearing.
15.
The logical next step would be for us to order that there be a review,
but since we have directed the Judge to make a decision on the review, and he
has not done so, we consider in fairness that there will now be an extension of
time for SEL to validate its extant ET3, that the ET3 be accepted and that
there be a hearing of which the Claimant, SEL and Zaff be given notice. This
case took a day and we see no reason to differ from that.
16.
We are very grateful to both counsel for the expeditious way in which
they have handled what seems to us to be a straightforward and obvious point.
