Appeal No. EAT/0955/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 April 2002

Before
MR RECORDER LANGSTAFF QC
MR D J HODGKINS CB
MS B SWITZER

MR R F COX	APPELLANT

EXCALIBUR BOATS INTERNATIONAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C SHELDON
(of Counsel)
Batterns
23 Market Street
Crewkerne
Somerset
TA18 7JU	

RECORDER LANGSTAFF QC:
1.	This is a preliminary hearing in an appeal against a decision of an Employment Tribunal sitting in Exeter.  In a decision promulgated on 25 June 2001 that Tribunal upheld the Appellant’s complaint of unfair dismissal and ordered a payment from his erstwhile employer.  However, it refused an application to adjourn.  The application to adjourn was sought because it became apparent that the remedy, the compensation, would be nugatory since the Respondent was no longer trading and it appeared had been taken over perhaps by a TUPE transfer on 1 April 2001.

2.	We have been persuaded by Mr Sheldon that there are two arguable parts to his appeal.  The first part relates to the question whether or not the Employment Tribunal properly exercised its discretion to reject an adjournment.  We consider is arguable that it failed to take into account matters which it should have done and took into account matters which were erroneous in law.  In particular depending upon the way in which paragraph 4 of the reasons is interpreted, it might be that they had in mind that there was a time limit in respect of adding further Respondents, which was specific to any further Respondent in the same terms as it would be to a first Respondent in any application for unfair dismissal.  

3.	Secondly, it may be that the Tribunal took a view of the meaning of regulation 5 of the TUPE regulations which relied more upon timing than purpose despite the guidance given in the House of Lords case of Litster.  

4.	We were concerned that although there seemed to be arguable force to us in those contentions, nonetheless the decision which the Tribunal reached might be unarguably right in any event, because it appeared to depend to us upon whether the TUPE regulations could conceivably have applied to Mr Cox. 

5.	This morning we have been shown a letter dated 14 December 2000 from Excalibur Boats International Ltd to Refinish Systems Ltd which purports to show that on 14 December 2000 a process of take over or transfer was in contemplation and that in consequence the Appellant had lost his job.  The questions to which this letter gives rise suggest that there may be an arguable case in respect of the application of the TUPE regulations, whereas without it there might have seemed to be none.  

6.	In respect of the adjournment point, in his grounds of appeal, the Appellant sought to argue at paragraph 6 (i) – (iii) that the decision of the Tribunal was perverse.  We do not think that this is the primary ground of attack within the grounds as identified and its force is entirely secondary.  If the Appellant succeeds in demonstrating to a full hearing of this Tribunal, that on either of the apparent grounds upon which the discretion was exercised, as identified in paragraph 4, the Employment Tribunal was in error, then this Tribunal will have to consider whether the decision was in any event unarguably right, such that it should not be set aside.

7.	In that context, we consider it open to Mr Sheldon or the Appellant’s representative at that appeal to argue that the prejudice to the Appellant in not permitting the adjournment is a relevant consideration.  We do not however see any other force in what has been described as the perversity ground and we limit the argument at the full appeal in those terms and for those reasons.  

8.	Finally we see that there is an arguable case that the compensatory award was restricted inappropriately by reference to 1 April 2001 as being the date that the employers ceased to trade.  If there was, then, a TUPE transfer, the employee would, had he remained in employment have continued to enjoy the terms of his contract, including those as to pay.  Therefore we consider that point is open on appeal.  

9.	For those reasons we give permission for this matter to proceed to appeal.  It should take no more than half a day to argue, category B.  Skeleton arguments together with copies of any authorities to be relied upon to be provided no less than 14 days prior to the hearing.