Appeal No.	 EAT/58/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 May 2001

Before
THE HONOURABLE MR JUSTICE CHARLES
MR A E R MANNERS
MR S M SPRINGER MBE

JOHN MILLS BUILDERS	APPELLANT

MR A ARMSTRONG	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

MR JUSTICE CHARLES:

1	We have before us this morning a preliminary hearing in a case, the parties to which are John Mills Builders and Mr Armstrong.  The Appellant is John Mills Builders.

2	The appeal is against a decision of an Employment Tribunal sitting at Newcastle, the Extended Reasons for which were sent to the parties on 24 November 2000.  The decision was that the Employment Tribunal found that the Applicant, who was Mr Armstrong, was dismissed on the grounds of redundancy and is entitled to a redundancy payment from the Respondent (John Mills Builders) who was ordered to pay the Applicant the sum of £2,310.

3	The Appellant before us (John Mills Builders) sought a review of that decision.  The basis of that application was essentially the same as the basis upon which this appeal is brought.  That application for review was refused.  The Extended Reasons for that refusal were sent to the parties on 14 December 2000.  Paragraph 1 of those Extended Reasons says:

“The Tribunal heard evidence from both the applicant and the respondent at the hearing and concluded on the evidence presented that the current date of the commencement of employment was as stated in the decision.”

4	In paragraph 2 of the Extended Reasons for the substantive decision the Employment Tribunal found that Mr Armstrong had commenced employment on 6 June 1992.  In the Application for Review the Appellant (John Mills Builders) submitted a copy of a P45 relating to Mr Armstrong which shows the date upon which he left previous employment rather than the date he started with John Mills Builders, but that document supports the view that Mr Armstrong did not leave previous employment until June 1993 and thus that he commenced work with John Mills Builders in June 1993 rather than in 1992.

5	Other information we have is that in Box 4 of his IT1 Mr Armstrong asserted that he commenced his employment in June 1992, but in box 11 thereof he asserted that he had worked for John Mills Builders for six and a half years which, if our mathematics is correct, would mean that he started in June 1993.  So on the face of the IT1 there is a conflict.

6	Neither party has appeared before us on this appeal.  A reason for that may well be that the amount of money at stake is very small.  

7	A point which it seems to us is relevant is that both parties must actually know the date upon which Mr Armstrong commenced employment with John Mills Builders.  

8	We should refer to other documents from the records of John Mills Builders relating to a previous employee.  As to them the contention of John Mills Builders is that he only had one employee and those documents also support the conclusion that Mr Armstrong’s employment began in June 1993. 

9	We are not clear as to whether the P45 was before the Employment Tribunal and whether those other documents were before the Employment Tribunal and thus as to the extent of the evidence that the Employment Tribunal heard as to the starting date.

10	It seems to us, given that lack of knowledge, that a possibility is that the starting date was taken from the date in box 4 of the IT1 without real investigation and there is potentially an argument in this case that there was not evidence before the Employment Tribunal on which it could reach a conclusion that the starting date was June 1992, rather than June 1993, or an argument that having regard to the documentary evidence and such oral evidence as was heard the conclusion on the starting date was perverse.

11	Given that conclusion and notwithstanding the fact that neither party has attended, we propose on the basis I will refer to in a moment to give permission for this appeal to go ahead and to invite the Chairman to produce his notes of the hearing to show what evidence, both oral and documentary, was before the Employment Tribunal as to the starting date of Mr Armstrong’s employment.

12	Having said that, we invite the parties to carefully consider their positions because, as we have said, it seems to us that they must know the relevant starting date and if this appeal proceeds before this Tribunal one or other of them may be at real risk of being ordered to pay the costs of the appeal.  

13	For the reasons we have given we have concluded that this appeal does give rise to points that are reasonably arguable.  Given the absence of both parties we direct that the appeal should go ahead if, within 21 days of posting of the transcript of this judgment, John Mills Builders writes to this Tribunal indicating that they wish to proceed with the appeal.  If that letter is received, we will direct that the Chairman be invited to provide his notes of the hearing as to the oral and documentary evidence he had before him as to the starting date of Mr Armstrong’s employment.  

14	We repeat our warning to the parties as to costs in respect of this appeal.  We give it Category C and a time estimate of one hour.