Appeal No. EAT/351/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th June 1993

	Before

	HIS HONOUR JUDGE N HAGUE QC

	MISS J W COLLERSON

	MR G H WRIGHT MBE

WAGSTAFF BROS LTD t/a WAGSTAFF OFFICE	APPELLANTS
 EQUIPMENT GROUP

MISS S KNIGHT	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY OR 	REPRESENTATION ON 	BEHALF OF THE 	APPELLANTS

For the Respondent	MISS P HARRISON
(Of Counsel)
Messrs Gray Marshall & Campbell
Solicitors
1A Katherine Street
Croydon
Surrey
CRO 1NX

	JUDGE N HAGUE QC:  This is an appeal brought by employers, Wagstaff Bros Limited, against a decision of an Industrial Tribunal sitting at London (South) on a preliminary issue which arose in the course of a claim for unfair dismissal brought by an employee, Miss Knight.

	From 1982 up to January 1990 Miss Knight worked for a Company called "Metyclean" and its successor "Infomet Ltd",  both of which companies supplied and sold office equipment and also maintained office equipment, in particular computer equipment.  On the 27th January 1990 Informet went into receivership, the receivers being Arthur Anderson & Co.  Arthur Anderson found it impossible to dispose of the whole of Informet's business, but arranged a sale of the maintenance contracts side of the business to Wagstaff.  As part of that arrangement it was agreed that a number of named staff employed on that side of the business, which the industrial tribunal on the evidence said numbered 34 - (although it appears from later documents that that number may be an underestimate), would be taken over and would have continuity of employment.

	The evidence before the Industrial Tribunal of Mr Ansell, the Managing Director of Wagstaff, was that the transfer was effectively made in or before the very early hours of Friday 9th February.  Later on that day, at a meeting held in the afternoon, the employees who were still employed by the receivers, who had previously made some redundant, were told of the transfer, of the named staff, and the remaining employees were made redundant and issued with redundancy notices as from 4 pm that day.  However, Mr Ansell himself addressed that meeting and told those employees that there was a good chance that Wagstaff might be able to employ them and asked them to attend at Wagstaff's offices on Monday 12th February.

	Miss Knight was not one of these named staff to be transferred.  She therefore received a redundancy notice and she regarded her employment as terminated on Friday 9th.  She made a redundancy claim and in fact received a redundancy payment from the Department of Employment.  She did not go to the Wagstaff offices on Monday 12th.  However, during the course of that day she was telephoned by a director of Wagstaff who asked her to attend an interview.  In paragraph 6 of their Full Reasons the Tribunal say:
"This she attended and it was arranged that she would begin work next day 13 February 1990 as support and training manager.  A letter dated 12 February 1990 was sent to her in confirmation and containing the terms and conditions of employment, signed by Mr Aris the establishment director . . . . . She continued to perform work similar if not identical to that she performed with Infomet and retained the same company car."

Miss Knight has now left the employment of Wagstaff and, as we have mentioned, made a claim for unfair dismissal based on constructive dismissal.  Wagstaff have taken a preliminary point on that claim, that she does not have the two year employment qualification required by Section 64(1)(a) of the Employment Protection (Consolidation) Act 1978.  Miss Knight's riposte to that is the obvious one, that there was a transfer of the undertaking, and pursuant to paragraph 17(2) of Schedule 13 of the 1978 Act and the Transfer of Undertakings (Protection of Employment) Regulations 1981, she is entitled to count her previous employment with Infomet towards the two year period.

	That preliminary issue was decided by the Industrial Tribunal in favour of Miss Knight and the employers appeal.

	Before the Industrial Tribunal Miss Knight appeared in person and Mr Ansell appeared for Wagstaff.  Neither side was professionally represented.  In the course of her evidence Miss Knight, according to the Chairman's note (which I have to refer to in a little more detail in a moment) said this:
"She was promoted whilst in Metyclean's employ and her last job was support and training Manager.  Support was providing a telephone hot line to customers on computer software.  Such support is still provided.  When the Respondents took over the company they had to take over the support contracts as well as the engineering maintenance contracts.  The Respondents did not have their own engineering or support base."

In cross-examination it was suggested to Miss Knight that she had, in fact, been an assistant to a Miss Byfield who was the Managing Director of Infomet.  But in reply to that the Chairman's note reads:
"She was not an assistant to Miss Byfield but helped her for six weeks during the receivership.  Filling a joint role then."

In other words Miss Knight appears to be saying that she was still the support and training manager.  No doubt, in reliance on that evidence, the Industrial Tribunal made some findings of fact, including in paragraph 2 of its Reasons this:
"The applicant progressed through several jobs until towards the end of 1989 she was support and training manager.  She was then also designated as assistant to Miss Byfield, the managing director.  The `support' role was in relation to a telephone hot-line for customers requiring assistance on computer software."

	Subsequently to that decision Wagstaff applied for a review of the decision on the basis that, in fact, Miss Knight had ceased to be the support and training manager in about October 1989 and indeed had been replaced by another person, and that her job at the time of the transfer to Wagstaff was an assistant to the Managing Director.  The importance of that is that, if it were, she would not have been concerned on the maintenance contracts of the side of the business at the date of transfer and there would thus have been a break in the continuity of her employment.  However, that application for a review was refused by the Chairman of the Tribunal and there is no appeal from his decision.

	When the appeal in this case was launched and the Notice of Appeal was drafted there were no Chairman's Notes of Evidence available.  The main thrust of the Notice of Appeal is to challenge certain findings of the Industrial Tribunal on the basis that there was no evidence to support those findings.  It is fair to say that there was quite a long delay before the Chairman's Notes of Evidence were in fact produced and they did not become available until as late as March 1993.  However, at the end of the Notes of Evidence these words appear:
"I certify the above to be an accurate copy of my Notes of Evidence taken at the hearing between Miss S Knight and Wagstaff Bros Ltd on 20 December 1991."

That is signed by the Chairman.

	Wagstaff were clearly disappointed with what came out in those Chairman's Notes and they made it clear, at any rate in letters to this Appeal Tribunal, that they did not agree with the accuracy of the Notes.  What they wanted, and have applied for, is copies of the Chairman's original manuscript notes, and they have applied for an adjournment of this appeal pending the production of those manuscript notes.  That involves a challenge to the accuracy of the Chairman's notes as certified by him.  The proper procedure which should be adopted in such a situation is set out in the decision of this Appeal Tribunal in Dexine Rubber Company Ltd v. Alker [1977] ICR 434 at page 438 in the following terms:
"Where a party to proceedings in the industrial tribunal has received a chairman's note which he challenges as inaccurate, it is his duty, as was done here, to send the criticisms he wishes to make to the chairman for his observations.  If the chairman replies that, having considered the criticisms, he is satisfied that his (the chairman's) recollection was accurate and that his note is the correct material for use in the appeal tribunal, the party who is criticising the chairman's note must accept the chairman's conclusion, unless, after submitting his criticisms to the advocate on behalf of the opposite party, there is confirmation from both sides that the chairman's note and recollection is incomplete or imperfect. That was not done in this case, and in that situation this appeal tribunal refused to admit any material other than that before them by the chairman's note of proceedings.  We would suggest for the future that where such a criticism is going to be made by one party, that party should submit the criticism to the advocate for the opposite party before submitting the criticism for the comments of the chairman of the tribunal.  This is likely to make it easier for the chairman of the tribunal to appreciate whether there is a risk recognised by both parties that his note is incomplete or inaccurate, and that is the procedure which should be followed in future if such a situation arises again."
If the parties agree that there is an inaccuracy of the Chairman's Notes, then this Tribunal will ordinarily proceed on the basis of what the parties agree.  That was what happened in the case of Aberdeen Steak Houses Group plc v. Ibrahim [1988] ICR 550.  But in the absence of such agreement (and in the absence of any confirmation by the Chairman of any inaccuracy) then, as it seems to us, the Chairman's Notes "reign supreme" a phrase used by Wood J. in the Aberdeen Steak Houses Group case.

	Returning to this case, Wagstaff have not made any application to the Chairman of the Industrial Tribunal;  they have not set out where they challenge what the Chairman's Notes say;  they have not followed the procedure which we have just mentioned;  and there is no agreement that the Chairman's Notes are not correct.  Indeed on behalf of Miss Knight, it is said that they are actually perfectly correct.  For those reasons, that we cannot do other than apply and consider the Chairman's Notes as he has certified himself as being correct.  Therefore, we refuse the application for adjournment.

	We turn now to the substantive case, which we can deal with a little more shortly.  Just before the hearing in this case, this Appeal Tribunal was informed by the solicitors for Wagstaff that no appearance would be made on their behalf. The solicitors did, however, set out what are called "written submissions on behalf of the Appellant" which first of all make the application for the adjournment, which we have already dealt with, and then, on the basis that that would be refused, set out various grounds of the appeal by reference to the Notice of Appeal.

	Miss Knight has appeared in front us by Counsel, Miss Harrison, to whom we would like to express our gratitude for the clarity of both her written skeleton argument and her oral submissions, which we found most helpful.  

	Most of the facts which we have set out above are not really disputed.  It is clear that there was a transfer of part of the business, that that part was a separate part of the business,  that Miss Knight was employed at the time of the transfer and that she was subsequently taken on and employed by Wagstaff.  

	The main point was taken on behalf of Wagstaff was that it was wrong that Miss Knight's last job was support and training manager and therefore concerned on the maintenance contract side of the business.  However, once the Chairman's Notes of Evidence became available it is quite clear that there was ample evidence to support that finding of fact by the Industrial Tribunal, and although it does not expressly say so, paragraph 2 of Wagstaff's written submissions are tantamount to abandoning that particular point.  Also in paragraph 2(3) of their Grounds of Appeal Wagstaff assert:
"that the Industrial Tribunal received no evidence to support its statement in the final sentence of paragraph 11 of the Decision to the effect that there would be a continuing need for the Respondent to carry on the duties that she had been performing for Infomet."

What happened, it is clear from the evidence, was that the directors of Wagstaff took the papers relating to Infomet's business home over the week-end, and considered the whole situation very carefully.  What the Tribunal found in paragraph 11 of their findings was this:
"So anxious was the respondent to employ the applicant that she was telephoned at home when she did not arrive with her colleagues.  We are satisfied that whatever the job description in the applicant's personal file the respondent was aware of the broad nature of the duties she had performed for Infomet and that there would be a continuing need for them."

It is in essence those final words, which the Wagstaff challenge as being unsupported by evidence, and it is fair to say that there is no evidence directly to that particular point.  However, bearing in mind the clear evidence, of Miss Knight's position with Infomet, the fact that she was telephoned and the fact that she was offered and did a similar job for Wagstaff, we think there was ample evidence from which the Industrial Tribunal was entitled to draw the inference of fact that they found at the end of paragraph 11.

	There were in the Notice of Appeal various other points raised concerning the absence of evidence.  We do not propose to go through them.  Miss Harrison has set out in her skeleton argument in detail the references to where there is evidence to support the various findings of fact of the Tribunal.  We agree with her that there was evidence on which the Tribunal was entitled to arrive at those findings of fact.  As we can only interfere if there is an error of law, we are not further concerned.  For those reasons we dismiss this appeal.

	There remains one other matter.  Miss Harrison made an application in respect of the costs of the appeal.  Under a little pressure she wisely confined that, I think, to the period after the Chairman's Notes of Evidence had become available in March of this year.  We have considered very carefully what she has said but we think this was a rather unusual case, (after all Miss Knight did receive a redundancy payment) and we are not able to say that it comes within the exceptional class of cases where this Tribunal can properly make an order for costs.  Therefore, we refuse the application for costs.  We do order a Legal Aid taxation of Miss Knight's costs.