Segal v Rutherfords (Morpeth) Ltd [1991] UKEAT 90_330_2904

EAT
Segal v Rutherfords (Morpeth) Ltd
[1991] UKEAT 90_330_2904 · 1991-04-29
MR JUSTICE WOOD (PRESIDENT) : This is an appeal by way of a preliminary hearing from a decision of an Industrial Tribunal sitting at Newcastle upon Tyne on 11th December 1989, under the chairmanship of Mr Cato.The issue before them was whether the applicant, Mr Segal, had the required period of 2 years' continuous employment prior to the date of dismissal to found jurisdiction to hear his application of unfair dismissal.The respondents were Rutherfords (Morpeth) Limited. That company had taken on the business from Tynedale Motor Company Ltd and the director of that company had been a Mr Robinson, who had since retired.The date of dismissal was 9th June 1989 but, allowing for a week's holiday, and what was looked for was whether there had been that period of continuous employment from 9th or 19th June 1987.Mr Segal had obtained a grant from the Enterprise Allowance Scheme and operated under a firm name of Management Relief Services. That scheme came to an end on a date which was at issue between the parties.Prior to 1987 Mr Segal had been paid on the basis of a contract for services by the company and the issue before the Industrial Tribunal was upon what date had that contract for services been converted into a contract of employment.Mr Segal, who was represented by a chartered accountant, Mr Dixon, was alleging that it was in April 1987. Mr Robinson, who was giving evidence for the respondents, maintained that the agreement was not until the July of 1987.The method of payment was important and it is clear that during the contract for services period Mr Segal had been paid on a monthly basis by cheque payable to Management Relief Services. Those cheques continued up until April 1987 and thereafter but from the April until the June or July they were not presented.Mr Robinson's evidence was that the agreement to employ, in other words, the change, took place in July 1987 and that as the monthly cheques had not been presented, his wife, who was in charge of the accounts, worked backwards to the beginning of the financial year and made the payments out on of a PAYE basis.The Tribunal had to look at all the evidence and decide on what date the contract of employment had started. It was a matter for them to sift the evidence and to decide what evidence to accept and what to reject. They rejected Mr Segal's evidence and accepted that of Mr Robinson, as a result of which they reached the conclusion as follows:
"On that basis we find the discussion about the applicant's change of status and any agreement on his change of status did not occur, as the applicant pleaded, on or before the 6 April 1987. Because of our acceptance of Mr Robinson's evidence we find that there was what we term a `retrospective reconstruction' of pay arrangements for the first 12 weeks. Mr Robinson referred to this as an `accommodation'. In our view it amounts to, as we have described it, a retrospective reconstruction. All retrospective reconstructions involve imposing on the past a pattern which did not exist in the past when the past was the present. During those first 12 weeks after the 6 April the applicant was not paid a weekly wage with deductions. The applicant was not paid at all. The firm of which he was sole proprietor, Management Relief Services, was paid cheques on a monthly basis, as they had been for a period of time up to April 1987 which cheques, for reasons best known to the applicant, he did not present."
They then dealt with an alternative plea and the alternative plea was on the basis that the agreement was in the July but that the arrangement was made by Mrs Robinson to make the payments on the basis which she did.Of course, Mr Segal argues that the very fact that that period of time he was paid on that particular basis points to the fact that the date of the contract of employment started in April 1987. That was part of the considerations of the Tribunal and they rejected that construction of the matter and they accepted the clear evidence from Mr Robinson that the agreement had been reached in the summer and was, therefore, effective from that date. What happened before did not affect thet fact that the employment only started on that date.There was an application for a review. This was considered by the learned Chairman and there was an application that the relationship of employer-employee should be alleged to have started from 6th December 1986 and not from 6th April, as pleaded. Mr Dixon, who appeared for Mr Segal, was given an opportunity to amend but he declined that offer.A number of criticisms are made by Mr Segal, who has appeared before us in person about this decision and, in essence, as he informed us, he is complaining that the Industrial Tribunal did not accept his evidence and accepted that of Mr Robinson. That essentially is a question of fact. The Tribunals see and hear the witnesses and they were entitled to form their view as to what evidence they accepted and what evidence they rejected.This was an issue as to jurisdiction. When one came to the case itself, if it had been heard, there were allegations of misconduct by Mr Segal but they were all matters for the future and the Tribunal simply saw and heard the witnesses and saw them cross-examined and assessed their evidence. They decided, as a matter of fact, that this contract of employment did not start until after the period which was relevant and that, therefore, there was no two years' continuous employment prior to the relevant date.In the circumstances, we are unable to ascertain any principle of law and whilst we understand and sympathize with Mr Segal in his feeling that he should have been believed, nevertheless, we are unable to help him unless there is an error of law and we can find no error of law on the face of this decision.It follows, therefore, that the appeal must be dismissed.