Appeal No. EAT/1370/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 1996

Before
HIS HONOUR JUDGE H J BYRT QC
MR R JACKSON
MRS R A VICKERS

MR D TURNER	APPELLANT

ORRMAC COATINGS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR 
ON BEHALF OF 
THE APPELLANT	
For the Respondent	MR H CAVANAGH
(of Counsel)
Messrs Dibb Lupton & Broomhead
Solicitors
Fountain Precinct
Balm Green
Sheffield
S1 1RZ	

	JUDGE H J BYRT QC:	This is an appeal against a decision on a preliminary point of the Industrial Tribunal sitting in Sheffield, on 9 October 1995, when it was unanimously decided that it had no jurisdiction to deal with the Appellant’s claim.

	The Appellant had worked since 1987 for a firm called Universal Metal Sprayers Ltd, which I will refer to as (“UMS”).  In April 1993 the Company went into an administrative receivership and on 7 May the business was advertised for sale.  The aim and intention was to sell the Company as a going concern and for that purpose the staff, or certain members of the staff, were retained in order to finish the work that was on hand, and the Appellant was one of the workers so retained.  He stayed until 14 May but by then the work had run out and, as a result, the Appellant was declared redundant.  Another member of the staff who retained his position with UMS was a Mr Martin, who I understand at the time was the Managing Director.

	On the date the business was advertised for sale, 7 May, a Company called Munroe & Miller Ltd (I refer to them as (“MM”)) showed immediate interest and thereafter they made a rapid decision to buy UMS.  The Industrial Tribunal came to a finding that they would be very surprised indeed if any sort of deal had been struck much before 20 May.  They continued:

“However, the deal had been struck, the transfer had taken place and Munro Miller were clearly up and running from about the end of May onwards.”

	At the beginning of June, the Appellant was recruited back again into his job by Mr Martin and he returned to work, as from 8 June.  We have been told, in the course of argument by Mr Cavanagh who has appeared on behalf of the Respondents, that the Appellant was invited back by a letter on MM’s writing paper and signed on their behalf.

	The Industrial Tribunal indeed were satisfied that MM were running the business by 8 June, although the paper work sealing the transfer was not completed until 9 June.  The Industrial Tribunal then went on to state that they were satisfied the Appellant was on 14 May genuinely dismissed by reason of redundancy and not because of transfer.  When talking about the three-week gap between 14 May and 8 June, they came to a further finding that this was no mere temporary cessation of employment.  The gap effectively destroyed the continuity of service and, in consequence, when in March 1995 the Appellant was dismissed by the Respondents, they found there was no right to claim unfair dismissal.  By then, MM had sold on to the Respondents though no problem arises from that transfer.  The preliminary point before the Tribunal was whether the three-week gap constituted a break in service.

	The Appellant has not appeared before us today, nor is represented by reason of the fact that the representative was called away in an emergency.  Neither has he made an application for an adjournment.  But the Appellant has raised a number of points in his Notice of Appeal and we will address them.  The first is that there was no proper dismissal for redundancy on 14 May and that the finding reached by the Industrial Tribunal is in fact perverse.

	The answer to this point is straightforward.  There has been no application for the Chairman’s notes of evidence and, accordingly, we have no indication at all as to the nature of the evidence behind the Industrial Tribunal’s decision.  There is the case of Piggott & Bros v Jackson [1992] ICR 90, which has been cited to us by Mr Cavanagh, in which the Master of the Rolls laid particular stress on how important it is if a finding of perversity is made, that the EAT should have the notes of evidence.  Having regard to the very clear and unmistakable finding of the Industrial Tribunal, it seems that, without them, it is impossible for us to decide that their finding relating to the reason for the dismissal on 14 May was perverse.  Without those notes, one can only conclude that the Appellant thought it unnecessary or unhelpful to obtain them and was going to argue the perversity point without reference to them.  With the greatest respect, in this case we find that it is not feasible to do so.

	The next point raised by the Appellant in his notice is to the effect that, if the Appellant had been dismissed on 14 May, he must have been entitled to some statutory notice, and that that would have carried him forward over the period of transfer at the end of May and the beginning of June, and accordingly, would enable him to argue continuity.

	Once more, it is difficult to find a perverse decision without knowing what it was that influenced the Industrial Tribunal to come to the decision that it did.  There is a very clear finding of fact by the Industrial Tribunal that the dismissal was effective as from 14 May.  Accordingly, albeit without argument from the Appellant, we cannot see that we have any alternative but to say, here is a finding of fact made by the Industrial Tribunal and there is no point of law upon which we could question the Industrial Tribunal’s decision.

	There is a further point which caused us some concern at the outset of Mr Cavanagh’s argument.  That is the question as to when the actual transfer did take place.  As I have already related, the facts are that the legal transfer was not completed until the documents were completed on 9 June, but the Industrial Tribunal came to a somewhat (if I may say so) vague finding, that the transfer took place at some non-specific date at the end of May.  Whilst one has an anxiety about this, we note that the Appellant was recruited on paper which belonged to MM, and he could not have been under any misapprehension that he was being recruited other than by MM at that time.  

	There is a further finding of fact, which shows that there was some evidence to indicate that the Appellant was made perfectly aware of his situation at the time he was recruited.  The Reasons say it was made clear to the Appellant he would be starting afresh when he regained his employment in June.  Further, were it plain that he had been re-engaged on 8 June by UMS rather than MM, it would have served the Appellant little benefit because he still would not have been able to satisfy the Tribunal he had had two years’ continuous service before his ultimate dismissal in March 1995.

	In our view, the issues in this case do essentially turn upon questions of fact, questions of fact which had been addressed by the Industrial Tribunal with clarity and force.  In all the circumstances, bearing in mind that the jurisdiction of this Tribunal relates solely to issues of law, we do not see that we can disturb the Industrial Tribunal’s finding and accordingly the appeal on this preliminary point must be dismissed.