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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Springfield China Ltd v. O'Reilly & Anor [2001] UKEAT 1127_00_0903 (9 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1127_00_0903.html Cite as: [2001] UKEAT 1127__903, [2001] UKEAT 1127_00_0903

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APPEARANCES

 

For the Appellant	MR P JONES (Company Secretary)


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of the employers' interlocutory appeal against the refusal of the Employment Tribunal, sitting at Shrewsbury, and promulgated with Summary Reasons on 18 July of last year, to order a deposit to be paid by the Applicants under Rule 7(4) of the Employment Tribunal Rules set out in Schedule 1 to the Employment Tribunals (Constitution and Procedure) Regulations 1993. Under those Rules, the Tribunal has a discretion to order the payment of a deposit as a condition of a party's being permitted to continue to take part in the proceedings if the Tribunal considers that the contentions put forward by that party have no reasonable prospect of success.
2. The Notice of Appeal was dated 29 August. If it was served upon this Appeal Tribunal on the date it bears, it was just within time if the Decision was one which had been given with Extended Reasons; in fact there have never been Extended Reasons for the Decision which is the subject of the present appeal, namely the refusal to order the deposit which the employers sought from the Tribunal.
3. On 25 July the employers sought a review. This was also refused by the Chairman, this time sitting alone, in Extended Reasons, dated 21 August 2000. Because the Decision now appealed from, namely that dated 17 July was only one with Summary Reasons, it could be said that this appeal is not properly constituted before us. However we are going to put that on one side and deal with the appeal on its merits, at this preliminary hearing.
4. The employers resisted the employees' claim which was a claim that they had been laid off by the employers from 22 March and for a period of at least four weeks and that therefore under section 148 of the Employment Rights Act 1996 they were entitled to a redundancy payment by reason of having been laid off. Entitlement to a redundancy payment under section 148 arises if the employee (a) gives notice in writing to the employer, indicating his or her intention to claim a redundancy payment, in respect of lay-off, and (b) if, before service of that notice, the employee has been laid off, for four or more consecutive weeks, of which the last week before service of the notice ended not more than four weeks before the notice.
5. It is not in dispute that on 19 March, in the case of each employee, the employers wrote a letter saying that, due to a fall in orders, it would not possible for the employers to provide work for the next four weeks; and it is also not in dispute that, as a result of that letter, the employees did not, in fact, work for four weeks which followed between 22 March and 19 April, and that the employees then served a Notice, as required by section 148(1)(a) within the requisite time.
6. The employer's response, as it appeared in the application for an order for the payment of the deposit was that, during those four weeks, the employees had, for the purpose of one of those weeks, not been laid off at all. Section 147 of the Act says that:-

"(1) For the purposes of this Part an employee shall be taken to be laid off for a week if -

(a) he is employed under a contract on terms and conditions such that his remuneration under the contract depends on his being provided by the employer with work of the kind which he is employed to do, but

(b) he is not entitled to any remuneration under the contract in respect of the week because the employer does not provide such work for him."

7. The contention put forward is that, in one of those weeks, the employees were entitled to remuneration, namely holiday pay, because one of those weeks was not a week of work, but was a week when the works would have been closed anyway, even if there had not been a shortage of work, because it was a week which was, either by agreement with the unions or otherwise, a holiday week as between the employers and the employees.
8. The Tribunal in its Decision on the application, so far as we can see from the Summary Reasons, said that there were issues which had to be determined by a full Tribunal. They referred specifically to the date of payment of holiday pay, as to which Mr Jones, from the employers, has confirmed to us today that there was an issue of fact, and also as to the contractual entitlement to holiday pay and, the Tribunal goes on, as to the meaning, interpretation and impact of the actual notices given by the Respondent to the Applicants. Mr Jones says that it was so clear that the week to which we have referred did not qualify as a lay-off week by reason of the provisions of section 147 that the Tribunal must have made an error in law in considering that there were reasonable prospects of success, and therefore in refusing to make an order requiring the employees to pay a deposit.
9. We do not regard there as being any arguable grounds in support of this appeal. The issue as to the date on which holiday pay was paid might or might not, in itself, be of significance. What will be of particular significance, in our judgment, when or if this matter comes to be decided on its merits by the Tribunal, is what the contractual position, in relation to the week on which Mr Jones relies, actually was. It is certainly not clear beyond peradventure to us what that position was; it was clearly not so clear to the Tribunal that they felt that there was not some reasonable prospect of success for these employees, and we do not see, on what we have been told by Mr Jones, how it could be said that the Tribunal had erred in law in exercising its discretion not to order a deposit, as the Tribunal did.
10. In our view, there is no arguable prospect for this appeal, and the appeal should be dismissed. No doubt the proceedings here have been delayed for some time, by reason of this appeal; and it might be, and we say no more than this, helpful to the parties if they were now able to get on and have a hearing to decide this matter on the merits.