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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Holdgate Ltd (t/a Uncle Sam’s American Diner) v. Jump in The Sax Ltd [2001] UKEAT 184_01_2006 (20 June 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/184_01_2006.html Cite as: [2001] UKEAT 184_01_2006, [2001] UKEAT 184_1_2006

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APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us, as a preliminary hearing, the appeal Holdgate Ltd t/a Uncle Sam's American Diner in the matter Witcher against three Respondents, firstly, Jump in the Sax Ltd, secondly, Holdgate Ltd t/a Uncle Sam's American Diner and, thirdly, the Secretary of State for Trade and Industry.
2. No one attends for Holdgate Ltd this morning. Nothing has been heard from Holdgate or from any officer or representative. The ELAAS representative has attended and, perhaps, expected someone to attend on Holdgate's behalf but no one has attended. It is now 10 past 11 and, given that we have read the papers and discussed between ourselves what we think is appropriate, we will go ahead and grant such relief as hereinafter appears.
3. It is not a very clear story but on 20 June 2000 Mr Gary Witcher presented an IT1 against Jump in the Sax Ltd. It was for constructive dismissal, unfair dismissal, failure to pay arrears of wages and last wages and holiday pay. He gave as his dates of employment from 15 April 1999 to "not terminated". At first blush, then, his claims for constructive dismissal and unfair dismissal would be running into difficulty. He said that he had begun work for a restaurant called Fatty Arbuckle's restaurant. He was hired, he said, by Miss Clements and Mr Alex Ivans but who they were acting for and who the employer was was not specified in the IT1. The Fatty Arbuckle franchise ceased to trade, said Mr Witcher in his IT1, sometime around August Bank Holiday 1999, in other words somewhere about 30 August 1999.
4. A Transfer of Undertaking was mentioned in the IT1. All the staff, said the IT1, were re-employed by Jump in the Sax Ltd. However, unfortunately, trade fell off and work ceased. Mr Witcher mentioned USA Ltd as if his employer and also mentioned Mr Alex Ivans as if his employer at one point thereafter in the IT1. But it is far from clear as to whether either was ever his employer and the IT1, as I mentioned, is only against Jump in the Sax Ltd. So that was the position in the IT1.
5. On 14 July 2000 there was an IT3 purporting to come from Jump in the Sax Ltd. It stated that Mr Witcher had been dismissed. It was completed, it said, not by an officer or employee of Jump in the Sax Ltd but by a former accountant, no longer acting as accountant to Jump in the Sax Ltd. Jump in the Sax, said the IT3, had ceased trading and was insolvent. The IT3 said this:

"We believe Mr Witcher was probably dismissed by the manager, Mr A. Ivans, who carried out this transaction without consultation or the knowledge of the owners. Mr Witcher referred to the reopening of the restaurant. Please note we understand Mr A. Ivans and Ms T. Clement formed their own company [and then it seems to say] [Holdgate Ltd] purchased the lease of the premises from the landlord and owned their own business, and their company have no legal connection with Jump in the Sax which is insolvent and unable to pay its debts."

6. We have no other papers until one comes to the hearing at Southampton on 15 December 2000. On 19 December 2000 the decision was sent to the parties and the relief granted was this:

"1. By Consent, the title of the Second Respondent is amended to Holdgate Ltd t/a Uncle Sam's American Diner."

7. Although that is expressed as being, by consent, the Second Respondent had not attended the hearing so if there had been any consent it must have been written in advance. Whether there was, indeed, written consent in advance does not appear from our papers. Then the relief granted on that occasion contained as follows:

"2 The Tribunal declares that there has been an unlawful deduction from the wages of the Applicant in the sum of £669.16 in respect of outstanding wages and holiday pay, and the Tribunal orders the Second Respondent to pay this sum to the Applicant.

3 The Applicant has been unfairly dismissed by the Second Respondent.

4 The Applicant is entitled to a Basic Award of £230.00.

5 The Applicant is entitled to a Compensatory Award of £239.16.

6 The Second Respondent is responsible for payment of the Basic Award and Compensatory Award."

There is other relief but we need not set it out.

8. Such a situation could only have emerged if Holdgate had employed Mr Witcher or was required by statute or by secondary legislation to be treated as if it had. In particular, of course, one has in mind TUPE.
9. On 18 January 2001 there was a Notice of Appeal, not from Holdgate but actually describing the Appellant as Mr Alex Ivans. Presumably, although this needs to be verified, he is an officer of Holdgate and authorised to present a Notice of Appeal on its behalf. If the matter goes forward, as we will come on to, then that will be need to be verified and consideration will need to be given to a formal amendment to the Notice of Appeal.
10. In its Extended Reasons the Employment Tribunal found there to have been a relevant transfer from Jump in the Sax Ltd to Holdgate Ltd, although its account of the facts is really not very full. The date, 21 April 2000, for example, in paragraph 7 of the Employment Tribunal's Extended Reasons may well be a mistake for 21 February 2000. The Employment Tribunal held that Mr Witcher did not work after 21 February 2000. The restaurant on the site reopened on 21 April 2000 but Mr Witcher did not work there. However, at least four of the Jump in the Sax staff were taken on, it seems, by Holdgate: that was four out of twelve, so far as one can tell. Manifestly no majority in number was taken over by Holdgate. Whether there was, so to speak, a majority in terms of skills is not spoken to by the Employment Tribunal. One needs to contrast the case with the case of Suzen in the European Court of Justice. Nor is there any examination of what, if any, assets of Jump in the Sax were taken over by Holdgate.
11. Holdgate is said to have taken over the lease and it would seem that it occupied the same premises as Jump in the Sax but what the dealings were with any lease is not set out in the Employment Tribunal's decision. Whether Jump in the Sax had anything which it could assign to Holdgate, or did assign to Holdgate, is unclear. The Tribunal said:

"Towards the end of April, Mr Ivans telephoned the Applicant to ask for his address, so that he could pay any outstanding money to him."

And later, as confirmation of the Employment Tribunal's view that there had, indeed, been a transfer, the Tribunal went on:

"Our views are confirmed by the fact that Mr Ivans telephoned the Applicant towards the end of April to ask for his address, so that he could be paid his outstanding wages."

12. But Mr Ivans was manager under Jump in the Sax as well, it seems, as likely to be an officer of Holdgate. So Mr Ivans enquiring about wages owing would not serve to confirm a transfer unless, in so raising the question, he was speaking in his capacity, not as a manager or ex-manager of Jump in the Sax, but as an officer of Holdgate. The Employment Tribunal does not seem to notice which capacity was involved.
13. Another thing that leaves us in further doubt is this. How far, if at all, could Holdgate reasonably be expected to have foreseen that the Employment Tribunal, faced with an IT1 which was only against Jump in the Sax which did not mention Holdgate (although USA Ltd is mentioned) and which did not, at any rate in terms, mention TUPE as between Jump in the Sax and Holdgate, should nonetheless conclude that it was Holdgate that was responsible for sums owing to Mr Witcher?
14. The Employment Tribunal refers to Notices of Appearance put in by Jump in the Sax and by Holdgate but unfortunately neither of those is in our papers. What we shall do, therefore, in the light of the doubts that we have spoken to, is adjourn this matter to return still to come back as a preliminary hearing.
15. We shall need to see Jump in the Sax's and Holdgate's Notices of Appearance and any further particulars served before 15 December of the Applicant's claim and any further papers served, by way of defence or particulars of defence, by any of the Respondents and any written representations put in on behalf of any parties.
16. If Holdgate could, so to speak, be reasonably expected to have seen coming the possibility of a TUPE transfer being held by the Employment Tribunal, as between Jump in the Sax and Holdgate, then it may be that it had no one but itself to blame for not attending and not giving evidence or not countering the evidence given at the Employment Tribunal hearing on 15 December. If, however, no such threat could fairly have been foreseen by Holdgate, it may have been unfair of the Employment Tribunal to proceed to a holding of a relevant transfer without sufficiently forewarning Holdgate, a party which was not, in fact, in front of it at the time.
17. We therefore adjourn the matter generally. The Employment Appeal Tribunal will write to the Employment Tribunal on the points we have raised, sending a transcript of this judgment. The matter is to be restored still as a preliminary hearing. We do not say it is necessary that it comes in front of the same panel of three of us but, as the President has spent some time on the papers, it may as well come back to a panel which includes him.