Appeal No. EAT/0184/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 April 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR W MORRIS
MRS D M PALMER

HOLDGATE LTD T/A UNCLE SAM'S 
AMERICAN DINER	APPELLANT

1)  JUMP IN THE SAX LTD 
2)  MR G A WITCHER	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

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

JUDGE PETER CLARK:
1.	This appeal originally came on for preliminary hearing before a decision presided over by Mr Justice Lindsay on 20 June 2001.  On that occasion the Appellant, Holdgate Ltd trading as Uncle Sam’s American Diner (Holdgate) neither appeared nor was represented.  In these circumstances the hearing was adjourned with a direction that the chairman of the Tribunal whose decision is under appeal, Mr I A Edwards, be requested to provide further material not then before the EAT.  That has been done.  We are therefore in a position now to deal with the appeal, the Appellant again making no appearance.

2.	The history is as follows.  On 29 June 2000 the Applicant, Mr Witcher, presented an Originating Application to the Southampton Tribunal naming a company, Jump in the Sax Ltd (first Respondent) as his employer and the Respondent to his claims of unfair constructive dismissal and unlawful deductions from wages.  

3.	On 14 July 2000 a Notice of Appearance was entered on behalf of the first Respondent and signed by their accountant, Mr Edward H J Jenkins, which contended that the first Respondent had ceased trading on either 21 February or 6 March 2000 and was insolvent.  It was there suggested that the Applicant had been dismissed by Mr Ivans, formerly the manager of the restaurant where the Applicant was employed and the person effectively continuing the restaurant business at that site.

4.	On 6 September 2000 a directions hearing took place before Mr Edwards alone at which he ordered that the Appellant Company, Holdgate be joined as second Respondent.  The second Respondent entered a Notice of Appearance contending that although it had acquired the lease of the restaurant premises on 13 March 2000, it had nothing to do with the first Respondent and, effectively, that the employment of the Applicant was not transferred from the first Respondent to Holdgate.

5.	The matter was fixed for a substantive hearing on 15 December 2000 before a full Tribunal chaired by Mr Edwards.  On that occasion the Applicant, Mr Witcher attended and gave oral evidence.  Neither the first Respondent, Holdgate, nor the Secretary of State, who had been added as third Respondent due to the suggestion that the first Respondent was insolvent attended the hearing.  The third Respondent submitted written representations.  The Notices of Appearance by both the first Respondent and Holdgate were treated as their written submission.

6.	In the absence of evidence from the first Respondent or Holdgate the Tribunal accepted the evidence given by the Applicant.  On the basis of that evidence they concluded that a relevant transfer had taken place from the first Respondent to Holdgate; that the Applicant had been unfairly dismissed by Holdgate; that he had suffered unlawful deductions from his wages for which Holdgate as transferee was reliable and made money orders against Holdgate.

7.	Against that decision, promulgated with extended reasons on 19 December 2000, an appeal was entered giving as the name of the Appellant, Mr Ivans.  We shall treat that as being an appeal on behalf of Holdgate, the second Respondent below found liable to the Applicant.  In the absence of any representation on behalf of Holdgate and bearing in mind that the company did not appear before the Tribunal below nor before Mr Justice Lindsay’s court at the preliminary hearing and are again absent without explanation today, we shall determine this appeal on the basis of the papers.  

8.	The Notice of Appeal sets out two grounds, the first is that at paragraph 7 of the Tribunal’s written reasons there is an incorrect date, that is a reference to a meeting held on 21 April 2000, which it is said in the Notice of Appeal was in fact 21 February.  Mr Edwards acknowledges that typographical error in his letter to the EAT dated 28 August 2001.  However, it seems to us that that error is not material to the conclusions reached by the Tribunal.  Secondly, it is submitted that as a point of law, Holdgate was completely separate from the first Respondent and because of this had no legal obligation to employ the Applicant Mr Witcher.  That is precisely the contention which was advanced in Holdgate’s Notice of Appearance.  Parties should understand that where there is potential conflict of fact, it is imperative that they attend before the Employment Tribunal to give evidence in support of their cause.  

9.	In the absence of evidence from Holdgate, the Tribunal, in our judgment, was entitled to accept the evidence which they heard from the Applicant.  Based on their findings of fact derived from that evidence, it seems to us that the Tribunal was entitled to conclude that a relevant transfer took place between the first Respondent and Holdgate.  

10	In those circumstances, there being no challenge to the substantive findings made by the Tribunal in favour of the Applicant, it seems to us that no arguable point of law is raised in relation to the finding that a relevant transfer took place and consequently this appeal must be dismissed.