Appeal No.	 EAT/1009/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 December 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS J W COLLERSON
MR A D TUFFIN CBE

MR A E STEPHENSON	APPELLANT

TRENCHING & ROAD MINING LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	
For the Respondents	MR L AMOS
(Co-Director)

		MR JUSTICE MORISON (PRESIDENT):   This is an appeal by Mr Stephenson against a decision of an Industrial Tribunal held at Middlesbrough on 3 July 1995.  The unanimous decision of the Tribunal was that the Applicant’s claim in respect of redundancy payment was dismissed and that the Respondent was awarded costs against the Applicant, such costs to be taxed on the appropriate County Court scale.  

	The facts giving rise to this appeal may be shortly stated.  The Appellant commenced employment with a company who he identified in his application to the Industrial Tribunal (IT1) as Tetbury Storage Ltd.  It was his case as set out in the IT1 that the company changed its name to Northern Plant Supplies Ltd., which company ceased trading in June 1992, in circumstances where his employment was transferred to a company called Trenching & Road Mining Ltd., without interval or issue of a P45.  

	The response to that complaint by Trenching & Road Mining Ltd., was as follows:
“8.1  It is admitted that the Applicant was employed by Tetbury Storage Limited from 2nd January 1991 until June 1992.  It is denied that his employment was transferred to the Respondent.  It is averred that his employment by the Respondent only began in October 1992, and that the business of the Respondent was entirely different from that of Tetbury Storage Limited.”

	When the matter came before the Industrial Tribunal they were required as it seems to us, to examine whether there had been a transfer of a business in 1992, so that the Applicant’s employment was transferred from Northern Plant Supplies Ltd., or Tetbury Storage Ltd., to Trenching & Road Mining Ltd.  Such a transfer of employment would occur if there had been a transfer of an undertaking falling within the Transfer of Undertakings Regulations 1981 as amended.  
	Having looked at the matter with care, it seems to us to be quite apparent that the Industrial Tribunal failed to address its mind to the question of whether there was a transfer of a business within those regulations.  We have been supplied with Notes of Evidence from which it becomes plain that the Tribunal asked itself whether the three companies referred to were associated within the meaning of an associated employer as defined in the Employment Protection (Consolidation) Act 1978 Schedule 13 paragraph 8 and Section 153(4).  Looking at the decision itself of the Industrial Tribunal as opposed to the Notes of Evidence, they say in paragraph 8:
“... It follows therefore that, since it has not been shown that the Company and any other Company employing the applicant during the relevant two year period were “Associated” within the definition outlined in Section 153(4) of the 1978 Act or that there was any transfer of a business under Schedule 13 paragraph 17 of the Act, the applicant’s claim for a redundancy payment must be dismissed.”

	Nowhere has the Industrial Tribunal directed its attention to the Transfer of Undertakings Regulations or considered, as it seems to us, all the difficult questions that arise when those regulations are in issue.  Accordingly, it seems to us that the basis upon which the Applicant’s case was being presented to the Industrial Tribunal has not been fully or properly examined by the Industrial Tribunal; instead they appear to have directed their attention solely to the question of whether the employers were associated within the meaning of the statute.

	It follows therefore that Mr Stephenson’s claim for a redundancy payment has not been properly considered, because the Industrial Tribunal concluded that he did not have the requisite period of employment and therefore rejected his claim for a redundancy payment on that basis.  If there was a transfer of a business within the Regulations in 1992, then the requisite period of employment would have been served by the Applicant and there would be no doubt that he would be entitled to a redundancy payment as against Trenching & Road Mining Ltd.  

	There are two further points that we should add: Trenching & Road Mining Ltd is a company which has now gone into liquidation and a liquidator has been appointed.  Mr Amos who has appeared before us today, was a director of this company, but of course by reason of the provisions of Section 103 of the Insolvency Act 1986 on the appointment of a liquidator, all the powers of the directors shall cease.  Nonetheless, not least because he has taken the trouble to appear before us today, we have listened to what he has had to tell us on behalf, or possibly on behalf, of Trenching & Road Mining Ltd.  

	Because the company has gone into liquidation, if there is to be recovery in this case, the Secretary of State may himself have an interest in these proceedings and no doubt when the Industrial Tribunal have read the terms of this judgment, before setting up a new Tribunal to consider the matter, they will consider whether it would be appropriate that the Secretary of State should be informed of them.  

	The second point to mention is this: Mr Stephenson has not appeared before us today to argue his appeal.  We should make it perfectly clear as is clear from our rules, that the presence of a party to an appeal is not a prerequisite to us doing justice between the parties.  We have received Mr Stephenson’s submission.  We have considered that and taken it fully into account in arriving at our conclusion.  Therefore, the fact that he did not appear, has no bearing on our attitude to the way we should deal with this appeal.  He is a person against whom an order for costs was made by the Industrial Tribunal.  We think that it would have been better had the Industrial Tribunal complied with the requirements before making an order for costs, but as the decision is going to be over-turned in any event, it follows that the order for costs itself will also no longer apply.

	In those circumstances, with a heavy heart, because it is always unsatisfactory that there should have to be two hearings before an Industrial Tribunal before justice can be properly done between the parties, we must allow this appeal and remit the matter back for a hearing before a differently constituted Industrial Tribunal with a direction that the Secretary of State should be duly notified of these proceedings as he has an interest in their outcome.