Appeal No. EAT/1342/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 May 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR R THOMSON
MISS D WHITTINGHAM

MRS S P CROTTY	APPELLANT

1) UNIPRO SOFTWARE LTD  2) UNIPRO ENTERPRISE SOFTWARE
3) SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS M STACEY
(of Counsel)
Appearing under the
Employment Law Appeal 
Advice Scheme 

MR JUSTICE WALL

1	Mrs Crotty worked for a company called Unipro Software Ltd for six and a half years as a Software Release Co-ordinator.  On 6 September 2000 she was laid off on an unpaid basis.  She took advice and, as a result of that advice, wrote to her employer claiming a redundancy payment.  That letter, the Chairman found, brought her within the terms of section 148 of the Employment Rights Act 1996.  

2	The employer’s reply advised Mrs Crotty that in order to claim her redundancy she had to resign.  Once again, she took advice and was told not to resign under any circumstances.  The Chairman of the Employment Tribunal, sitting at Leeds on 27 July 2001 to hear Mrs Crotty’s application, took the view that that was bad advice and that it effectively debarred Mrs Crotty from claiming a redundancy payment.  Effectively, he said, there was no other route open to her.  She was not entitled to a redundancy payment from her employer because she had not resigned. Because her employer was not under a liability to pay her a redundancy payment, the Secretary of State did not have to do so either under the provisions of section 166 Employment Rights Act 1996 .  

3	Mrs Crotty appeals that Decision and in a very helpful Skeleton Argument produced for us this morning, effectively argues that there were two routes open to her apart from the resignation route.  These are contained within section 136 of the Employment Rights Act 1996, and, it is argued, enable Mrs Crotty to apply where her employment is effectively terminated by her employer.  

4	The Chairman of the Tribunal did not consider section 136 at all and accordingly, Ms Stacey this morning, on Mrs Crotty’s behalf, argues that that was a clear error of law; that there is a second and, indeed, a third route open to Mrs Crotty to claim her redundancy payment and therefore this appeal is arguable.  We agree with those submissions and have found both the Skeleton Argument and the Notice of Appeal most helpful documents.  

5	Ms Stacey relies in her argument on the provisions of section 136 and, in particular, on section 136(5):
“ Where in accordance with any enactment or rule of law -
(a) an act on the part of the employer……
operates to terminate a contract under which an employee is employed by him, the act or event shall be taken for the purposes of this Part to be a termination of the contract by the employer.”

6	We are also told today by Ms Stacey that all the other employees who were in a similar situation to herself have received their redundancy payments from the Secretary of State.  The Respondent has now gone out of business, and appeared in a somewhat chameleon form to have changed its identity.  

7	Ms Stacey referred us to section 166 of the 1996 Act which deals with applications for payments from the Secretary of State and, under section 166(1):
“Where an employee claims that his employer is liable to pay to him an employer’s payment and either -
(a) that the employee has taken all reasonable steps, other than legal proceedings, to recover the payment from the employer and the employer has refused or failed to pay it, or has paid part of it and refused or failed to pay the balance, or
(b)  that the employer is insolvent and the whole or part of the payment remains unpaid,
the employer may apply to the Secretary of State for payment under this section.”

8	The Tribunal Chairman appears to have taken the view that there was no liability on the Secretary of State to make a payment under the provisions of section 166, but on the material before us, and the argument placed before us by Ms Stacey, it seems highly arguable that that proposition was plainly wrong, given the history and, in particular, Mrs Crotty’s application for a redundancy payment to her employer.  

9	In these circumstances, clearly this is a highly arguable appeal and we propose to let it go through to a full hearing.  Ms Stacey advised us that she is hopeful that if the matter is presented with suitable force to the Secretary of State, a full hearing of this appeal may be obviated.  That, plainly, is not a matter for us; it is, however, sufficient for us to say that we regard this appeal as highly arguable and we will let it go forward.  Category B, one hour.