Appeal No. EAT/923/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20th January 1994

	Before

	THE HONOURABLE MR JUSTICE TUDOR EVANS

	MR J D DALY

	MISS A MACKIE OBE

MR G LLOYD t/a REBBECKS RESIDENTIAL	APPELLANT

MR L J EYRE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PHILIPS
(Consultant)

	MR JUSTICE TUDOR EVANS:   This is a preliminary hearing in which we have to decide whether the Appellant has raised an arguable ground of appeal.

	On the 27th April 1992, an Industrial Tribunal sitting at Southampton gave a decision in favour of Mr Eyre who was claiming that he had been unfairly dismissed by Mr Lloyd, the Appellant today.

	The application was made against two Respondents.  The first was Teachers Wentworth Estates Limited which was an estate agency and the subsidiary of a building society.  The second Respondent was, as we have said, Mr Geoffrey Lloyd and he was sued as t/a Rebbecks Residential, an estate agency.  Mr Lloyd has been represented before us today by Mr Philips, his adviser.

	At the start of the hearing before the Industrial Tribunal, Wentworth Estates applied for an extension of time for filing a Notice of Appearance.  They were several months out of time, despite numerous written reminders.  In the exercise of its discretion, the Tribunal declined to extend the time and the hearing continued against Mr Lloyd alone.  We shall refer briefly to some background facts, although, for reasons we shall indicate later, the actual grounds of appeal filed following the finding of the Industrial Tribunal have been abandoned and a new matter is raised which, as yet, does not form a ground of appeal but about which we have listened to argument from Mr Philips.

	Mr Eyre had worked as a Branch Manager for Wentworth Estates.  The Tribunal found as a fact that Mr Lloyd had acquired shares in Wentworth Estates on the 16th September 1991, the Building Society, having decided to dispose of the business because of the recession.  At the hearing, either the person appearing on behalf of Mr Lloyd, or Mr Lloyd himself, accepted that Mr Eyre had been dismissed without proper consultation and that the dismissal was unfair.  The concession was made on the limited basis that the Applicant should be compensated for the period of time in which the proper consultation should have taken place and that after such consultation he could have been dismissed fairly.

	The argument advanced on behalf of Mr Lloyd was rejected and in due course there was a subsequent hearing in which the Tribunal made a compensatory award in favour of Mr Eyre but no basic award. 

	As we indicated at an earlier stage of this judgment, the original grounds advanced in the Notice of Appeal have been abandoned and we need say nothing further about them.  But today the argument is advanced by Mr Philips that in fact Mr Eyre remained employed by Wentworth Estates and not by Mr Lloyd and, of course, if that is arguable it is a matter which in due course should be argued before this Tribunal.  Two points are made by Mr Philips:  first, that Mr Lloyd merely acquired the shares of Wentworth Estates, which continued as a legal entity and that it therefore continued to employ Mr Eyre.  All that Mr Lloyd was in law, was the owner of shares, together with his son we understand, in Wentworth Estates and he was not the employer of Mr Eyre.  A number of documents have been put in front of us.  Whether or not they were in front of the Tribunal below we do not know.  There is the P45 and the P60 for the relevant year, 1991, which states that the employer was Wentworth Estates.  There is a finding to which we shall refer in a moment that Mr Eyre was employed by Mr Lloyd but it is submitted that there is no evidence to support that conclusion because otherwise there would be some evidence of a transfer of the contract of employment.  It is now convenient to read in its entirety the paragraph of the finding below that Mr Lloyd was the employer of Mr Eyre.  In paragraph 13 of the decision the Tribunal find as follows:
"13.		We should say at the outset that having heard the evidence we are satisfied and accept the point agreed by the parties at the outset of the case that the effective date of termination was namely the 10th November 1991, the undertaking or business employing the applicant had been transferred to Mr Lloyd personally and that at that date Mr Lloyd was indeed the applicant's employer.  We heard a lot of evidence on the question of events following the acquisition of the Rebbecks properties on the 2nd October and are satisfied that Mr Lloyd took over responsibility for the Contracts of Employment of all staff formerly employed by Teachers Wentworth Estates Limited (the first respondent)."

We would simply add that we have had put before us by Mr Philips, a letter with the heading "Teachers Wentworth Estates Limited" hearing the date 11th October 1991, written by Mr Lloyd to Mr Eyre in which, in terms, he dismisses him from his employment.

	The difficulty which confronts this application is that there are specific findings of fact by the Tribunal that the undertaking or business employing Mr Eyre was transferred to Mr Lloyd personally and the finding that at the material time Mr Lloyd was Mr Eyres' employer.  There is a finding that the Tribunal are satisfied that Mr Lloyd took over responsibility for the contracts of employment of all staff.  In the face of those express findings of fact it is, in our view, impossible for us to conclude that there is an error of law or that the finding of fact is perverse. 

	We come to the conclusion that this appeal must fail because there are findings of fact which are fatal to its success.  In those circumstances, we have come to the conclusion that there is, in this appeal, no arguable ground of appeal and for that reason the appeal must be dismissed.