Appeal No.	 EAT/85/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 November 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR D A C LAMBERT
MR B M WARMAN

J C SECURITY SERVICES LTD	APPELLANTS

MR J McCANN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS S MACHIN
(Representative)
Lode Star Consultancy
41 School Fold
Hesketh Bank
Preston
Lancashire
PR4 6RE	
For the Respondent	MR S HYNES
(Representative)
Rochdale Law Centre
Smith Street
Rochdale
Lancashire
OL16 1HE	

	MR JUSTICE MAURICE KAY:     This is an appeal by J C Security Services Ltd against a decision of an Industrial Tribunal held at Liverpool on 15th October and 14th November 1996.

	In the proceedings in the Industrial Tribunal, the applicant, Mr McCann, claimed to have been unfairly dismissed. The issues raised by the Company on their form IT3 were firstly, whether he had been dismissed at all, as opposed to his employment having ended by mutual consent; and secondly, whether he had the necessary qualifying period of employment of a continuous nature so as to be eligible to apply for unfair dismissal. The Industrial Tribunal decided that Mr McCann had been continuously employed at the effective date of termination, namely 2nd May 1996; the Industrial Tribunal further held that that date was the effective date of termination; that Mr McCann had been unfairly dismissed; and, they awarded him the sum of £8,311.58 as compensation.

	The employment which gave rise to this claim had taken place in the security industry. Without going into too much detail, Mr McCann had previously worked for J C Security Services which was an unincorporated body and had been the business of a Mr Coalter. In November 1994, Mr Killeen purchased J C Security Services, and on 16th January 1995, Mr Killeen formed J C Security Services Limited, which then took over the business.

	On 1st May 1996, Mr Killeen telephoned Mr McCann and asked him to come and see him the next morning. On 2nd May 1996, there was a meeting between the two men, and the finding of the Industrial Tribunal was that, on that occasion, Mr McCann was dismissed by reason of redundancy. 

	The employer now seeks to appeal the findings of the Industrial Tribunal on two grounds. The first relates to the finding of continuity of employment sufficient to establish eligibility. The second, relates to the evidence as to what actually happened at the meeting on 2nd May 1996.

	So far as continuity of employment is concerned, Ms Machin’s submissions on behalf of the employer really come to this: she accepts that Mr McCann was in March 1996 the employee of J C Security Services Limited, but she submits that there is uncertainty and obscurity as to what his status had been prior to the transfer in November 1994. It is common ground that there had been a transfer of an undertaking within the meaning of the TUPE Regulations in this case. What Ms Machin seeks to submit, is that such is the obscurity and uncertainty surrounding Mr McCann’s status before the transfer, that it was not established that he was working as an employee under a contract of employment, rather than as a person working under a contract for services.

	It is clear from the wording of the decision of the Industrial Tribunal that they found that Mr McCann’s status had been that of employee under a contract of employment for at least the necessary period to establish eligibility. One of the points sought to be made by Ms Machin is that there is a lacuna in the P60 forms which related to Mr McCann, so far as his work before the transfer is concerned; and that there is general ambiguity about the situation.

	When an earlier constitution of this Appeal Tribunal allowed this matter to proceed to a full hearing, they did not have the benefit of the Chairman’s Notes of Evidence from the Industrial Tribunal. Indeed, they made an order for the production of those Notes on the occasion when they permitted the matter to proceed. The Notes make interesting reading. It was Mr McCann’s evidence that he had been an employee. He produced, albeit it in hearsay form, but was permitted to produce a letter from Mr Coalter dealing with the previous situation and referring to his previous period of “employment”. It stated:

“I can confirm that Mr McCann was first employed by J C Security Services as from Monday the 17th February 1992.”

Ms Machin seeks to make the point that, whilst it refers to employment, it does not specify in what capacity or status.

	However, the Notes of Evidence make the matter quite clear. It was Mr McCann’s consistent evidence that he had been an employee. It was Mr Killeen’s evidence that Mr McCann had come “as part of the business”, and was “the only employee”. Indeed, Mr McCann is recorded in the Notes of Evidence as having said to the Industrial Tribunal “I understood the applicant an employee of J C Security for 15 years”.

	The Company also called Mrs Dezille, who is Mr Killeen’s sister. She was responsible for the administration of the Company. She said it was difficult to obtain the prior status of the applicant, but she also stated that she was told that he was paid wages of £808.00 a month; that she believed that Mr McCann had been “employed by Coalter”, and that she had never asked him for details of his employment with J C Security Services. 

	When one looks at the evidence as a whole on this issue, it is apparent to us that there was abundant evidence upon which it was open to the Industrial Tribunal to find that the status of Mr McCann, vis-à-vis, J C Security Services prior to the transfer was that of employee under a contract of employment. It is of course the case, as Ms Machin points out, that there was absent from the evidence some of the formalities which one customarily finds in relation to employment contracts, and which are, in some respects, required by statute. Sadly, that is not an uncommon occurrence. This was clearly a company that carried out its business with a degree of informality so far as its employment arrangements were concerned. In such circumstances, an Industrial Tribunal has to do its best to find facts on the basis of the evidence before it. We are entirely satisfied that the facts found by this Industrial Tribunal of continuous employment were facts that it was open to the Industrial Tribunal to find. Accordingly, in our judgment, there is no point of law which might dispose us to allow an appeal under that head.

	The second matter advanced by Ms Machin goes to the question of what actually happened on 2nd May 1996. On this point, the evidence of Mr McCann and Mr Killeen diverged. Without going into detail, Mr McCann’s evidence was that he was told of a redundancy situation and was dismissed. Mr Killeen’s account was that he mentioned that he was going to give Mr McCann notice in three months, but that in the final analysis, Mr McCann simply walked out and terminated his own employment. The Industrial Tribunal had to decide where the truth lay. 

	It may be that one of the matters which drove the Industrial Tribunal to conclude that Mr McCann’s evidence was the more reliable, was a letter from Mr Killeen to Mr McCann dated 9th July 1996 which was entirely consistent with there having been a dismissal. However, it is not necessary for us to speculate about why the Industrial Tribunal preferred the evidence of Mr McCann to Mr Killeen. The fact is that they did so. It was for them to decide where the truth lay, and having done so, it follows, as night follows day, that they concluded that there had been a dismissal. They then went on to conclude that no reasonable employer would have dismissed Mr McCann without previously consulting him, and that the dismissal was therefore unfair.

	Ms Machin does not seek to attack the finding of unfairness, given the finding of primary fact. We take the view that she is wholly unable to sustain an attack on the propriety of the finding of primary fact. She has referred to s.142 of the Employment Rights Act 1996 in support of a submission that the Industrial Tribunal did not sufficiently take it into account. It is headed “Employee anticipating expiry of employer’s notice”. The reason that the Industrial Tribunal did not take it into account was that on the facts found by the Industrial Tribunal, it simply did not arise. This was not a case of Mr McCann anticipating the expiry of the employer’s notice, but of, on the facts found, Mr Killeen on behalf of the Company dismissing Mr McCann with immediate effect. In all those circumstance, we detect no point of law which can support this appeal on the second ground. 

	In the circumstances, the appeal is dismissed.