Appeal No.	 EAT/953/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 February 1998

Before
HIS HONOUR JUDGE PETER CLARK
(AS IN CHAMBERS)

CHERRYHAWK (LEICESTER) LTD	APPELLANTS

MR W STEAD & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPLICATION FOR THE CHAIRMAN’S NOTES OF EVIDENCE

Revised

	APPEARANCES

For the Appellants	MR J MIDDLEBURGH
(of Counsel)
Messrs Turner Coulston
Solicitors
29 Billing Road
Northampton
NN1 5DQ	
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS	

	JUDGE PETER CLARK:     By an Originating Application presented on 3rd June 1996, Mr Stead, the applicant, complained of unfair dismissal, breach of contract and sought a declaration under the then Wages Act. He named as respondents first the administrative receivers appointed after his former employer, Tom Hoskins Brewery PLC went into receivership on 15th January 1996; secondly, the Secretary of State responsible for the fund out of which any payment due to the applicant from his insolvent employer would be made; and thirdly, Cherryhawk (Leicester) Ltd, who were said to be the transferees of the undertaking in which he was employed.

	The matter came before an Industrial Tribunal sitting at Leicester on 29th April 1997. That tribunal found that the applicant had been unfairly dismissed by Cherryhawk as transferee. Extended reasons for that decision are dated 4th July 1997.

	Against that decision Cherryhawk appealed by a Notice dated 14th August 1997, subsequently amended on 30th October 1997. At a preliminary  hearing on 13th November 1997 a division of the Employment Appeal Tribunal presided over by Lindsay J. allowed the appeal to proceed to a full hearing. I am told by Mr Middleburgh, who appeared on that occasion, that Lindsay J directed that an application be made for Chairman’s Notes of Evidence to the Registrar, even although an application had been made in writing by a letter dated 22nd August 1997, and despite the fact that Mr Middleburgh sought to persuade the Appeal Tribunal on that occasion to entertain his application. That course was taken. The application was renewed by letter dated 18th November 1997 and by a letter dated 28th November 1997, the Registrar indicated that she did not regard the Chairman’s Notes as being necessary. The application is now renewed before me.

	By a letter of 15th January 1996 the applicant’s’ solicitors take a neutral position; they leave it to the Appeal Tribunal to make whatever order it considers appropriate in accordance with the practice.

	I begin with the principles to be applied.

	Appeals to this tribunal are on points of law only. Chairman’s Notes will not be ordered to enable parties to check the reasoning of the tribunal against the evidence given below; the Notes will only be called for where they are necessary to dispose of the appeal. An obvious example is where it is legitimately contended that there is no evidence to support a particular material finding of fact, or where it is said that the Industrial Tribunal ought to have made a relevant finding, but failed to do so.

	Mr Middleburgh has referred me to the guidance of Browne-Wilkinson J in Webb v Anglian Water Authority [1981] ICR 811, in particular, at page 813F. In that passage Browne-Wilkinson J suggests that where there is an allegation of perversity in the sense that no Industrial Tribunal properly directed could have reached the conclusion which the tribunal did, that that was a permissible ground on the basis of which an order for the production of the Chairman’s Notes might be made.

	Further, and subsequently, it has been suggested that the Court of Appeal decision in Piggott Brothers v Jackson [1991] IRLR 309 is authority for the proposition that a perversity ground of appeal cannot be argued without the Chairman’s Notes. It seems to me that that is too wide a proposition, as was pointed out by the Employment Appeal Tribunal in Hawkins v Ball and Barclays Bank PLC [1996] IRLR 258. It will depend upon what issues under the umbrella of perversity are specifically raised in the appeal.

	I bear in mind also that our experience has shown that very often, where Notes are ordered, the inconvenience to which the Industrial Tribunal Chairman is put in producing them is not justified by the limited use to which the Notes are put in the appeal.

	Consequently, our practice today requires an applicant for Chairman’s Notes to identify precisely what evidence is said to be relevant to which particular issues raised in the appeal.

	Against that background I turn to the issues in this appeal.

	Mr Middleburgh has helpfully outlined the issues which were before the Industrial Tribunal, and has then gone on to identify seven specific examples where he says that the Notes are necessary in order for the Appeal Tribunal to adjudicate upon the issues raised in this appeal. 

	None of those grounds raise a contention that there was no evidence to support the tribunal’s finding. It seems to me that the argument is directed to the weight which the Industrial Tribunal attached to the evidence which it accepted. In particular, the effect of Clause 17 of the Sale and Purchase Agreement entered into between the receivers and Cherryhawk which led to Cherryhawk acquiring either the assets or the business of Hoskins. I leave that neutral because there is an issue as to whether or not a relevant transfer took place.

	There are also issues raised as to whether inconsistent findings were made by the tribunal, those inconsistencies appearing on the face of the tribunal’s reasons. As to the resignation letter written by the applicant on 2nd October 1995, and handed in to his then employers in the middle December, an issue arises as to whether or not he intended at that stage merely to resign his directorship, or whether he also intended to resign his employment.

	All of these are matters which, it seems to me, can properly be argued on the face of the tribunal’s reasons. It seems to me that Mr Middleburgh’s bold submission that really this appeal cannot be properly disposed of without the whole of the Chairman’s Notes of Evidence, is misconceived. I shall make no order for the production of the Chairman’s Notes.