Appeal No. EAT/647/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th July 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR R JACKSON

	MR K M HACK JP

MRS D HOOPER	APPELLANT

CHEAP JACKS RETAIL (AVON) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR 
BEHALF OF THE APPELLANT

	MR JUSTICE KNOX:  This is the preliminary ex-parte hearing of an appeal by Diane Beatrice Hooper from the decision of an Industrial Tribunal at Exeter on the 2nd August 1991, the Full Reasons having been sent to the parties on the 23rd October 1991.  Mrs Hooper did not appear before us nor was she represented.  The Industrial Tribunal dismissed Mrs Hooper's application in respect of what she claimed to be unfair dismissal.  The point at issue was whether she had two years continuous employment, which is of course, with irrelevant exceptions, a requisite for the assertion of any such right.  That depended in turn on the effect of what happened in March 1989 when an organisation by which she had previously been employed called "J J Markets", which appears to be the trade name for people called Mr and Mrs Johnson, ceased to trade in the shop in which Mrs Hooper had been employed and a similar, but in some respects, different trade was started there by the Respondents to Mrs Hooper's application called "Cheap Jacks Retail (Avon) Ltd".  I will call them "Cheap Jacks".  Some assets were disposed of, notably there was a transfer of the lease.  The actual transfer in law appears to have occurred some time later, but the Industrial Tribunal found in paragraph 1, that in March 1989 there was an arrangement made between Mr Johnson and Cheap Jacks for the sale of the lease of the premises and it certainly appears quite clearly that Cheap Jacks went into possession, so that the premises went over.  However, that seems to have been very nearly all that did go over.  There was an issue investigated by the Industrial Tribunal regarding the stock that had been owned by the Johnsons in trading as J J Markets and the Industrial Tribunal found that the stock was not transferred to Cheap Jacks but to a wholesale company to which there was an indebtedness by J J Markets.  The stock was taken upstairs, the labels were changed and that stock was not initially used by Cheap Jacks.  Initially, Cheap Jacks used their own stock and it was only later that the stock that had originally belonged to J J Markets and was taken by a wholesale company in satisfaction of a debt, was brought down and used by Cheap Jacks.  The Industrial Tribunal also considered the question of a transfer of good will and was unable to find any transfer of good will.  There was no evidence of any consideration paid to J J Markets by Cheap Jacks for good will and they found that there was no restrictive covenant which would have prevented competition by Mr Johnson in the immediate neighbourhood immediately after March 1989.  On balance the Industrial Tribunal came to the conclusion that they were unable to say that there was a transfer of the business or undertaking within paragraph 17(2) of the 13th Schedule to the Employment Protection (Consolidation) Act 1978 or within Regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981.

	The Notice of Appeal against that decision, which of course was conclusive against Mrs Hooper, because there was no doubt at all that unless there was a relevant transfer within the Regulations or continuity of employment within paragraph 17(2) she did not have the necessary two years, is not very easy to understand.  What it says is:
"The appellant would state that there had been a continuity of employment, that she had been prejudiced, in so far as she was not able to present that evidence during the tribunal, as it was not available to her and once available the Tribunal refused to review their decision."

That is a reference to an application for a review that came before the Industrial Tribunal and was rejected by a decision which was sent to the parties on the 6th September 1991.  The new evidence consisted of a letter from the Inland Revenue to Mrs Hooper, dated 8th August 1991, which contains the following sentence:
"I can now confirm that the actual date of commencement with `Cheap Jacks' (previously Mr J Johnson) is 12 September 1988."

and it was suggested on behalf of Mrs Hooper that this was an indication that she had been employed before March 1989 not by Mr Johnson but by Cheap Jacks.  

	This was rejected as being a matter which justified a review.  The Industrial Tribunal found that Mrs Hooper was aware of the nature of the point, and that she knew what the issues were and therefore had an opportunity of using this evidence.  Therefore the case fell outside the Rule, in that, this was not evidence which could not have been reasonably known of or foreseen at the hearing.  But also the Industrial Tribunal observed, what seems to us to be incontrovertible, that the only value of the letter from the Inspector would have been as some corroboration of evidence by the Applicant that she was employed by Cheap Jacks from September 1988 but the Chairman observed "that was not her evidence", and it is, it seems to us, perfectly clear that except for that letter from the Inland Revenue, all the evidence was in favour of the fact that the business on those premises was conducted by J J Markets down to March 1989 and thereafter by Cheap Jacks.  In any event the letter from the Revenue seems to us ambiguous and not categoric in saying that it was Cheap Jacks and not Mr Johnson who was the employer in September 1988.  It therefore seems to us that the Chairman of the Industrial Tribunal was amply justified in declining to review the decision previously made.

	The other grounds in the Notice of Appeal, equally, seem to us to be devoid of substance.  In particular a point that is apparently sought to be made is that because Cheap Jacks did not acquire the legal title to the premises until 12 months after they went into occupation, their presence in the shop indicates a legal entitlement to be there during those 12 months.  That of course in itself is perfectly correct and the Industrial Tribunal took that factor into account in favour of Mrs Hooper.  The difficulty in Mrs Hooper's path is that this is the only element that did pass from J J Marketing, or Mr Johnson, to Cheap Jacks and is not enough to constitute the transfer of an undertaking, as that expression is defined in the Act, or the Regulations.

	Finally, there is a ground which reads:
"the Tribunal failed to consider that in the case of a former colleague, Mrs C I Evans, who had worked for Cheapjacks Retail (Avon) Ltd, for a period only 1 month longer than Mrs Hooper, she was successful in proving her case against the former employers . . ."

and a copy of that decision was sent in support of the appeal, or stated to be sent.  That is necessarily in our view an irrelevance because what may have been decided in relation to another person by a tribunal on another occasion can not be binding in this case which must go according to the evidence that is presented to the Industrial Tribunal.

	For those reasons, it seems to us, there having been no appearance before us today, that this appeal falls to be dismissed and we dismiss it.