 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Employment Appeal Tribunal |
||
|
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Acorn Joinery v Kavanagh & Anor [1993] UKEAT 747_92_1507 (15 July 1993) URL: http://www.bailii.org/uk/cases/UKEAT/1993/747_92_1507.html Cite as: [1993] UKEAT 747_92_1507 |
||
[New search] [Printable RTF version] [Help]
I N T E R N A L
At the Tribunal
Before
THE HONOURABLE MR JUSTICE KNOX
MR J R CROSBY
MR P M SMITH
(2) MISS S LEAHY
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MR J P WARD
Partner
MR JUSTICE KNOX: This is an unfortunate affair. It is an appeal by a partnership which appears now to be in dissolution, but nothing turns on that, of which Mr Ward who has appeared before us on this appeal is, or was, a partner. The appeal is against a decision of the Industrial Tribunal sitting at London (South) on the 24th July 1992. The decision was sent to the parties some time in August 1992 (which is not very legible). The decision was that the Applicant before the Industrial Tribunal, a Miss Sandra Leahy, was dismissed for redundancy by the partnership, of which Mr Ward was a partner, which was called "Acorn Joinery" and which I will call by that name and they held that that partnership, therefore, was liable to pay her the sum of £720 as a redundancy payment.
It was a case which raised a problem under the Transfer of Undertakings (Protection of Employment) Regulations 1981 in that it was clear enough that Miss Leahy had originally been employed by the first Respondent, Acorn Joinery being the second Respondent. The first Respondent was a Mr Kavanagh, and he had employed her from March 1985.
The only people who appeared before the Industrial Tribunal, most unfortunately for Acorn Joinery, were Mr Kavanagh and Miss Leahy, and they gave evidence which was fairly consistent, one with the other, upon which the Industrial Tribunal made findings of fact which included this: that some time in March 1991 Mr Kavanagh sold his business to Acorn Joinery but continued to use partly the services of Miss Leahy and to pay her for alternate weeks. The other alternate weeks were paid for by Acorn Joinery, who originally, so Mr Ward tells us today, had gone into the same premises for storage purposes but subsequently got a lease in their own right and paid on an alternate week basis for Miss Leahy's services as a secretary. Mr Ward, again, tells us this morning, that the idea was that Mr Kavanagh should invoice Acorn Joinery for Miss Leahy's services. That obviously got overtaken to some extent with this alternate week scheme of partial payments, and it got overtaken, according to the findings of the Industrial Tribunal, to a greater extent because Mr Kavanagh stopped paying in August. His reasoning for that being that Acorn Joinery had failed to pay him what he claimed they agreed to pay him to purchase Mr Kavanagh's business, which was described in the papers as a company but was not in fact a limited company, called "Computer Acoustics". Again, Mr Ward tells us today that there was no such agreement for the purchase and sale of Computer Acoustics, that they looked at it but decided not to buy it. There is no doubt that that slightly idiosyncratic arrangement that was come to for alternate payment and then subsequent payment for a period, August to November, it would appear only solely by Acorn Joinery, might well have raised a tricky point under the Transfer of Undertakings (Protection of Employment) Regulations if one assumed that there had not been the agreement that the Industrial Tribunal found as a fact, there was, for the purchase and sale by Mr Kavanagh of Computer Acoustics to Acorn Joinery. But because no one turned up to challenge Mr Kavanagh's evidence that there had been this agreement for the sale of his business to Acorn Joinery the Industrial Tribunal, not unnaturally, decided that that was indeed, what had happened. There was no evidence the other way. That was the first unfortunate error that was committed by Acorn Joinery and its partners, not turning up. There is no suggestion that they did not have notice of the proceedings because they wrote in a letter, which we have before us, expressing their surprise at having these documents served upon them and giving a very brief account of the relationship between Miss Leahy and Mr Kavanagh and them. But they took the matter no further. Once the decision had been made it would in principle have been open to them to apply for a review on the basis that they were not present and represented before the Industrial Tribunal and had they had a convincing reason for not being present, having had notice of the hearing, it may be, one does not know, but it may well be, that the Industrial Tribunal would have been persuaded to exercise its powers under Rule 10 of the Industrial Tribunal Regulations which confers on an Industrial Tribunal a power to review and revoke or vary any decision on the ground that inter alia the decision was made in the absence of a party or persons entitled to be heard. Again, unfortunately, they did not take that step and therefore there was no review or application for a review. We therefore have the situation whereby they now appeal against the decision of the Industrial Tribunal and for that appeal to succeed there has to be shown an error of law in the Industrial Tribunal's decision.
We have looked carefully at the case and we have heard what Mr Ward has to say, and we in fact have taken account of his factual account of the events. The highest that it can be put, even on the basis that this had been before the Industrial Tribunal and it was not, is that there would have been a slightly tangled problem to sort out under the Transfer of Undertaking Regulations. But the problem is not that difficult, sadly, for us, because the Industrial Tribunal did not have Mr Ward and his partners' version of the events and therefore made findings of fact which are binding upon us which there really is no material for us to criticise because they just believed what was told to them and on that basis we fear that there is no basis upon which we can find an error of law by the Industrial Tribunal and it would do no service to Mr Ward for this to go forward to a full appeal. He would merely incur more delay and expense and we therefore dismiss this appeal at this stage.