Taylor & Ors v Secretary Of State For Employment [1992] UKEAT 165_91_0812

EAT

Taylor & Ors v Secretary Of State For Employment

[1992] UKEAT 165_91_0812 · 1992-12-08

MR JUSTICE WOOD (PRESIDENT): This appeal is an appeal by three Applicants from a decision of an Industrial Tribunal sitting at Norwich under the Chairmanship of Mr Crome, who on the 7th February 1991 unanimously decided that the employers, Earl Engineering Limited were not insolvent for the purposes of Section 122 of the Employment Protection (Consolidation) Act 1978. It followed, therefore, that the Secretary of State for Employment was not responsible for the sums of money which were alleged to be due from the employers. Those sums of money so far as these three Applicants were concerned fell into two categories. First of all arrears of pay and holiday pay and secondly, money in lieu of notice, not that each type of claim applied to each Applicant, but those are the types which appear amongst the claims made by those three Applicants.

This case caused some problems to the Industrial Tribunal, who, initially, heard the matter on the 3rd October 1990. As a result of what they were told on that occasion they adjourned the hearing to the 7th February when they reached the unanimous decision to which we referred that Earl Engineering Ltd was not insolvent. Therefore, under Section 122, the Secretary of State for Employment was not liable to make the payments demanded.

The three Applicants appealed to this Court by a Notice of Appeal dated the 1st April 1991. The matter came on before a Division of this Appellate Tribunal on the 11th October 1991, when a decision was reached that the matter should be heard inter partes, and not as a preliminary hearing with only one party present.

Further enquiries were made by the Treasury Solicitor, acting on behalf of the Department of Employment and the Secretary of State for Employment during January 1992. As a result of the information received during that month both from an auctioneer and from the Bank involved, under a floating charge, it was quite clear that on the relevant date, namely the 5th January 1990 the Company was, in fact, insolvent within the relevant definition of Section 127(1)(c). Therefore, from two letters it was made clear to the Applicants that the issue of insolvency was conceded. The Applicants have continued their appeal because they ask us to find that the rate at which they should receive payment in respect of their claims was as at today's date, or if not today's date then January 1992, and not at the date of insolvency, namely, the 5th January 1990.

The solution of that issue requires us to look at Section 122 of the 1978 Act again, subsection (1) reads as follows:

"If on an application made to him in writing by an employee the Secretary of State is satisfied - (a)that the employer of that employee has become insolvent; and

[(aa)that the employment of the employee has been terminated; and]

(b)that on the relevant date the employee was entitled to be paid the whole or part of any debt to which this section applies,

the Secretary of State shall, subject to the provisions of this section, pay the employee out of the Redundancy Fund the amount to which in the opinion of the Secretary of State the employee is entitled in respect of that date."

The relevant date for various types of claims or debts is defined in subsection (2) that reads:

"In this section `the relevant date' - (a)in relation to arrears of pay (not being remuneration under a protective award made under section 101 of the Employment Protection Act 1975) and to holiday pay, means the date on which the employer became insolvent; (b)in relation to such an award and to a basic award of compensation for unfair dismissal, means whichever is the latest of - (i)the date on which the employer became insolvent;

(ii)the date of the termination of the employee's employment; and

(iii)the date on which the award was made;

(c)in relation to any other debt to which this section applies, means whichever is the later of the dates mentioned in sub-paragraphs (i) and (ii) of paragraph (b).]"

As we indicated at the start of this judgment the claims fell into two types, first arrears of pay and holiday pay, and secondly, money in lieu of notice. The first type fell under Section 122(2)(a) therefore the relevant date was the date of insolvency. The second type, money paid in lieu of notice, falls under (c) as "any other debt". Then one goes back to (b)(i) and (ii) whichever is the later of those two, and the later of those two is the date of insolvency. It follows, therefore, in our judgement, that the relevant date for the purposes of these claims is the date of insolvency, namely, the 5th January 1990.

A letter of 3rd December 1992 has been sent to Mr Lawrie, who represented the Applicants, and there the calculation is made as the Department see fit. That calculation is a matter for agreement between the Applicants and the Department of Employment, it is not for us to identify the actual figure due in each case, it is simply for us to allow the appeal and to declare that the relevant date for the calculation of what is due is the 5th January 1990. Any dispute as to amount must go back to the Industrial Tribunal. May we just add that we hope there is no room for dispute once the relevant date has been identified.

Finally, there is the possible suggestion from Mr Lawrie, and indeed it is right to say that no Applicants have appeared before us today, on the issue of costs. We do not consider this an appropriate case for costs and if any application is formally made in the correspondence, we reject it and we simply say, no Order as to costs. The appeal is allowed, the declaration is made, the relevant date, no Order as to costs.