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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harbour v. Earle & Anor [2002] UKEAT 1181_01_1503 (15 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1181_01_1503.html Cite as: [2002] UKEAT 1181_1_1503, [2002] UKEAT 1181_01_1503

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APPEARANCES

 

For the Appellants	MR L HARBOUR (In Person)


 


JUDGE PETER CLARK:

1. By an Originating Application presented to the Watford Employment Tribunal on 28 September 2000 the Applicant, Mrs Earle, claimed entitlement to a redundancy payment following termination of her employment on 31 March 2000 as a sales assistant, that employment having commenced in April 1986. She there named as her employer Harrington Supersizes Ltd (Harringtons).
2. Harringtons put in a Notice of Appearance alleging that they had no responsibility to make a redundancy payment to the Appellant; there had been a transfer of the business in which she had been employed to Mr Harbour and Mrs Brown, the Appellants before us. Any such responsibility lay with them. The Appellants were added as Respondents, but it seems that Harringtons gave the wrong address and they did not receive notice of the proceedings.
3. In these circumstances the Appellants did not enter an appearance, nor did they attend a hearing held on 26 March 2001 before a Tribunal chaired by Mr V J Adamson. On that occasion the Applicant appeared in person and gave evidence; Harringtons were represented by a Director, Mr San, who also gave evidence.
4. By a decision promulgated with extended reasons on 18 April 2001 the Tribunal found the following facts. On 25 March 2000 Harringtons sold the business in which the Applicant was employed to the Appellants. The sale included all stock, mailing lists, computers and the premises. The business involved the sale of women's clothing under a concession granted by Frank Usher Ltd. That concession was to be allocated to the Appellants. Harringtons ceased trading on 25 March 2000. They dismissed all their staff. The Appellants commenced trading on 27 March.
5. The Tribunal found that a relevant transfer had taken place; that the Applicant had been dismissed by reason of redundancy and the Appellants were responsible for her redundancy payment, calculated at £1,680.
6. The Appellants did not apply for a review of the Tribunals decision on the basis that they had not received notice of the proceedings. Instead they lodged a Notice of Appeal dated 7 May 2001.
7. Paragraph 16 of the EAT Practice Direction provides that where an Appellant has failed to enter a Notice of Appearance below he will not be permitted to pursue an appeal unless the EAT is satisfied, at a preliminary hearing

(1) that there is a good excuse for failing to enter a Notice of Appearance and,

(2) there is a reasonably arguable defence to the claim in the Originating Application.

8. For the purposes of deciding those issues affidavit evidence is required from the Appellant and the Respondent or Respondents may lodge an affidavit in reply. In accordance with those directions we have before us an affidavit from Mr Harbour, who appears on behalf of the Appellants today, sworn on 10 November 2001, and an affidavit in reply from Mr San sworn on 10 December.
9. As to the first question, it seems to us, despite Mr San's scepticism, that the Appellants have provided a good excuse for not entering an appearance. Communications from the Employment Tribunal went to the wrong address.
10. As to the merits of the appeal, Mr Harbour strongly relies on the fact that in a claim brought by another employee, Mrs Moutiris, a different Tribunal reached the conclusion that no transfer from Harringtons to the Appellants had taken place. It is right to say that on that occasion the Appellants appeared and Harringtons did not.
11. The mere fact that one Tribunal decides an issue one way and another the opposite way, on similar facts, does not of itself render either decision necessarily wrong in law. Gilham v. Kent County Council (No2) [1985] ICR 233, 240 C – D, per Griffiths L J.
12. However, in this case the Appellants did not take part in the proceedings with good excuse. They were not notified of them. Transfer issues are both fact sensitive and frequently give rise to difficult questions of law.
13. In these circumstances we are persuaded that this appeal ought to proceed to a full hearing.
14. For that purpose we give the following directions:

1) Mr Harbour is to swear a further affidavit within 21 days of this order, setting out the nature of the Appellants case as to why no transfer took place between Harringtons and themselves. The Respondents may serve an affidavit in reply within 21 days thereafter.

2) The Appellants must lodge with the EAT a draft Notice of Appearance within 21 days.

3) Mr Harbour is to lodge with the EAT a copy of the Employment Tribunals reasons in the case of Moutiris. We have been shown an order of the Registrar dismissing an application by Harringtons for an extension of time to appeal against the Tribunals decision in the Moutiris case.

15. Finally, there will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. It will be listed with a time estimate of half a day, Category C.