Appeal No.	 EAT/474/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 December 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR R N STRAKER
MRS P TURNER OBE

MDA LEISURE LTD	APPELLANTS

MRS E EDWARDS & MRS M HASLOP	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR DAVID WHITE
(Representative)	

	MR JUSTICE LINDSAY:     We have before us an appeal by MDA Leisure Ltd in the matter Mrs J.E. Edwards and Mrs M.J. Haslop against MDA Leisure Ltd.

	There was a decision of the Industrial Tribunal promulgated on 8 January 1997 following a hearing on 10 December 1996 at the Industrial Tribunal at Bury St Edmunds, under the chairmanship of Mr D.R. Crome.  The unanimous decision of that Tribunal was this:

“1.  In the case of Mrs Edwards the respondent [MDA Leisure Ltd] is ordered to pay to Mrs Edwards the sum of £2790.00 being the balance of her redundancy payment and the sum of £1620.00 being the balance of her notice pay.
2.  In the case of Mrs Haslop the respondent is ordered to pay to her the sum of £1669.50 by balance of her redundancy payment and the sum of £1668.00 being the balance of her notice pay.
3.  The respondent [MDA Leisure Ltd] is also ordered to pay £150.00 towards the applicants’ costs.”

	Both those ladies had been dismissed for redundancy and the issue before the Industrial Tribunal was as to length of service.  What they said in paragraph 1 of their Extended Reasons was:
“Each has been paid notice pay and a redundancy payment but an issue has arisen on the length of continuous service each had and of course that effects the calculation.  The termination of the contract was on the basis that the continuity of employment started in 1992.”

And the ladies were claiming earlier terminations.

	So far as concerns Mrs Edwards, she gave evidence that she had begun working for a predecessor undertaking of MDA Leisure Ltd in October 1979 and she also gave evidence that the respondent Company had confirmed that she would have continuity from October 1979 and, as to that, the Industrial Tribunal said this:

“We have been referred to bundles of documents and it is perfectly clear from the documents that we have seen that at each of the various incidents in the life of the business, in the life of the economic unit being owned by various companies of different names, at each change an indication was given to the staff that there was continuity of service and indeed the evidence that we have heard confirms that the economic unit in which Mrs Edwards was employed continued in being.  The respondent on one occasion, on one of the transfers wrote to Mrs Edwards to confirm that, upon its acquisition of the company that employed her, she had continuity of service as from October 1979.”

	As for Mrs Haslop, she gave evidence that she had begun in April 1984 and the Respondent had confirmed, she said, that she would have continuity from 1984 and, as to that, the Industrial Tribunal said this:

“She worked for the same economic unit through all of its changes and transfers and she also, upon the acquisition of the business by the respondent in May 1996, had a letter confirming her continuity dated back to 1984.”

	In each case the Industrial Tribunal, on the evidence, held that there had been a due sequence from predecessor to predecessor and, indeed, tables of continuity or discontinuity (depending which way one regarded them) had been produced to the Industrial Tribunal and the Tribunal came to the views that I have indicated in the quotations so far given.

	Another point taken below was that two P45s had been filled in and indicated discontinuity but there was evidence given on that subject as well and, what was held by the Industrial Tribunal was this:

“We have heard evidence from Mrs Haslop who prepared the P45s that the PAYE reference number was given to her by a receiver at the time and was in fact the receivers own reference number and that, furthermore, the P45s were never issued to the staff but were merely kept on the file, one copy being retained by the receiver.  There is nothing in those documents or in those events that point to any break in the continuity of employment.”

	The Respondent-employer called no evidence below and the Industrial Tribunal says in that paragraph:

“The respondent has not called any evidence at all but has relied on submissions firstly the one I have just dealt with, [the P45 point] secondly that there is no written contract with the original Roper firm in 1979 in the case of Mrs Edwards and 1984 in the case of Mrs Haslop.”

And the Industrial Tribunal dealt with that one by saying this:

“The answer which we have from the evidence of the applicants, which we believe, is that there was no written contract here today because there never was one and that is the end of it.  The oral evidence which we have and accept is that the continuity of employment dated back to the dates which have been given.”

	The Notice of Appeal is dated 6 February 1996 and, rather unhelpfully, paragraph 6 reads as follows:

“The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that (here set out in paragraphs the various grounds of appeal).”

	And there is nothing there at all, but there are, however, some appendices.  There are four pages of typescript appendices and there is an affidavit of an Ian Angus White of some four pages in length that is calculated to support the appeal and that, indeed, has exhibits of its own, or appendices.  Only two points had been relied upon below to resist the Applicants’ case.  Firstly, that P45s had been issued and that there was, therefore, a break in employment and secondly, that there was no written contract.

	We cannot allow some quite new case to be advanced.  To receive evidence which could with due diligence have been produced below but which was not produced below is not a permissible option and, indeed, if a case is to be made that evidence is now available that could not, with due diligence, have been earlier produced, that, itself, is a matter that needs cogent evidence to be produced to show that, indeed, the new evidence is of that character.  There is no such evidence before us.

	Mr Whiting, who has appeared for MDA Leisure Ltd, argues that the decision of the Industrial Tribunal was irrational.  We cannot accept that as it seems to us that on the two points that were argued out and on the evidence on which the Industrial Tribunal relied there was no other decision that could properly have been arrived at by the Industrial Tribunal.  We are able to detect no error of law in the substance of their conclusions.

	But a second aspect of the case is as to costs and the Industrial Tribunal awarded a sum of £150 against the Respondent in favour of the Applicant.  Here, some doubt does enter our minds for this reason; in paragraph 7 of their Extended Reasons the Industrial Tribunal said this as to costs, on the subject of the Respondent having been unreasonable.  First of all, and this is giving reasons why the Industrial Tribunal regarded the Respondent as having been unreasonable:

“First of all because there is correspondence from it to the applicant saying that the respondent would honour the outcome of the Darrington case.  The Darrington case went against the respondent on almost precisely the same facts, it has not been appealed [our emphasis] to the best of my knowledge and enquiry and the respondent has failed to honour that promise.”

	That subject was taken up with the Chairman and, at page 34, being the last paragraph of a letter of 17 July, the Chairman wrote this:

“As to the Darrington Appeal, it was certainly mentioned that there was such an Appeal [again, our emphasis].”

He then goes on to make another point.

	It does seem here that some confusion has crept in.  If, as a factor in viewing the reasonableness or unreasonableness of the Respondent company, the Industrial Tribunal saw fit to entertain whether or not there was an appeal in the Darrington case, then that subject needed to be addressed clearly but it seems to have been dealt with in a confusing way.  

	We are not at all satisfied that the order for costs is improper or anything of that order, but the procedural route to it is confused and so what we shall do is dismiss the appeal altogether, save on the subject of costs, as to which we shall remit the matter to a Tribunal, namely the very Tribunal which dealt with the matter:  Mr Crone, Mr Finch and Mr Coles.  This is only a preliminary hearing and we could, of course, send the issue of costs to a full hearing but with such a small issue and sum at stake it would seem wasteful to bring one or both parties back to a full hearing on costs and to that extent we short-circuit the ordinary course and simply remit the issue of costs direct to the same Tribunal for argument on that subject afresh.

	We set aside, therefore, the order of £150 but remit the question of costs on that basis.  The rest of the appeal is dismissed.