French-Walsh v International Aviation Security Inc [1993] UKEAT 314_93_0312

EAT

French-Walsh v International Aviation Security Inc

[1993] UKEAT 314_93_0312 · 1993-12-03

MR JUSTICE TUCKER: This case was listed for appeal from a decision of an Industrial Tribunal which was made on the 8th June 1992. The Appellant was dissatisfied with that decision. She sought a review of it. The decision was of a preliminary point, the question being, whether the Tribunal had jurisdiction to entertain the Appellant's complaint of unfair dismissal? The reason the Tribunal held, as they did, that they had no jurisdiction to hear her complaint was, as they found, that the Appellant had not been continuously employed by the Respondents for a period of not less than two years, ending with the effective date of termination of employment, as required by Section 64(1)(a) of the Employment Protection (Consolidation) Act 1978.

At the hearing of that preliminary issue the Appellant, Mrs Patricia French-Walsh, appeared in person, and the Respondents were represented by Mr Dalgarno, their solicitor. We have the reasons for that decision and they record that:

"Oral evidence was given by Mrs French-Walsh and, on behalf of the Respondents, by Mrs O Margalit, their Labour Relations and Personnel Manager."

There is no reference to any further evidence being given or to any further witness being present or to any application by either party, in particular by the Appellant, to call any further evidence - let alone is there any reference to such an application having been refused. We are quite sure that if such an application had been made and refused, as is now suggested, that that fact would have been recorded.

As we have said, the Appellant found herself dissatisfied by that decision, and so she applied, as she was entitled to do for a review. She set out her application in a letter dated the 6th July 1992, that is to say, within four weeks of the Tribunal hearing and this is what she said:

"I wish to apply for a review of my case . . .

I have further evidence and 4 to 7 witnesses . . who did not appear at the last hearing. I did not realise, and was not told, to take in witnesses!"

She set out the fact that she was obtaining a solicitor and applying for legal aid. She said so that she could inform the witnesses:

"Please let me have the date . . . 3 reasons to request a review:

a) the decision was wrongly made as a result of an error,

[then we go to c)]

c) the decision was made in the absence of a party entitled to be heard,

and

d) new evidence has become available."

She then listed a number of witnesses whom she wished to call.

There is no suggestion in that letter of any bias on the part of the Chairman, of any refusal by him to entertain evidence which she wished to call, or of anything which could possibly give rise to the complaint which the Appellant now makes before us. That complaint is that the Chairman was biased and that the reason the witnesses were not called is that he refused leave to call them. We find absolutely no support for that in the letter which she herself wrote on the 6th July.

That was not the end of the matter. She served Notice of Appeal from the decision and the matter came before this Court by way of Preliminary Hearing. That hearing took place on the 8th July 1993 and again there is nothing which took place at that hearing to suggest that it was going to be the Appellant's case that the Chairman was biased. That is a most serious allegation to make against a Chairman of an Industrial Tribunal. If it is to be made then it requires to be supported by affidavit evidence. And if there is to be an application to adduce fresh evidence, that too must be supported by affidavit evidence, exhibiting the names and addresses of the witnesses and the statements of the evidence which it is proposed to adduce. None of that has occurred here.

The Appellant has been represented by two firms of solicitors, and was represented at the Preliminary Hearing before this Tribunal, by Counsel. She has been represented by fresh Counsel today, whom she has chosen to dismiss. We are not prepared to grant any further adjournment of this appeal. If the appeal is to be continued it will be heard today. We see nothing which could possibly justify us in granting any further adjournment. This matter has been delayed enough. We see from the correspondence time and time again extensions of time being granted by the Registrar of this Appeal Tribunal to the various firms of solicitors whom the Appellant has instructed. There will be no further adjournments.

So we turn to deal with the appeal.

This appeal has had a long and chequered history. It is an employee's appeal from a decision of the Industrial Tribunal held at London (North) on the 8th June 1992 whereby it was decided, on a preliminary hearing, that the Tribunal were without jurisdiction to entertain the complaint. The Appellant's complaint was one of unfair dismissal. The reason that the Tribunal held that they had no jurisdiction to hear it was, as they found, that the Appellant had not been continuously employed by the Respondents, International Aviation Security Incorporated, for a period of not less than two years, ending with the effective date of termination, in accordance with the provisions of Section 64(1)(a) of the Employment Protection (Consolidation) Act 1978.

At that hearing the Appellant appeared "in person" and the Respondents were represented by their solicitor. It is recorded that oral evidence was given by the Appellant and on behalf of the Respondents by Mrs O Margalit, the Labour Relations and Personnel Manager.

The Appellant was dissatisfied with that decision. She applied for a review at which she applied to adduce fresh evidence. In July 1992 those applications were refused. The application to adduce fresh evidence was refused on the ground that all the evidence which the Appellant sought to adduce was available to her prior to the Tribunal hearing and she chose not to call witnesses or to apply for witness orders. The application for the review was dismissed on the ground that it had no reasonable prospects of success. Nevertheless, this appeal has been allowed to proceed to a Full Hearing, following a Preliminary Hearing at this Tribunal on the 8th July 1993.

When she appeared before us this morning the Appellant was represented by Counsel, Miss Grief, but it very soon appeared that a dispute had arisen between the Appellant and her Counsel. The Appellant had lost confidence in her Counsel and Counsel asked leave to withdraw. Having heard Counsel and having explained to the Appellant that in the event of Counsel withdrawing, that the Appellant would have to conduct her own appeal, we allowed Counsel to withdraw. Since then the Appellant has conducted her own appeal. The first thing she did was to apply for an adjournment of today's hearing. It was a hearing notice of which had been given on the 25th October. These are, as I have already indicated, long drawn out proceedings. There have been many applications for extensions of time and many grants of extensions of time until the matter came on for the Full Hearing today. The Appellant has been represented by at least two firms of solicitors and by two counsel. Different counsel appeared for her at the Preliminary Hearing but he was unavailable to appear for her today. It became apparent to us that the Appellant's complaint was that she wished to adduce fresh evidence and that the reason that evidence had not been adduced before the Tribunal was, according to her, that she had been prevented by the Chairman from adducing it. That was a very serious allegation for her to make. Nevertheless it was one that we had to investigate. It was an allegation which had never been heard before by this Tribunal nor by the Respondents to this appeal. Whether the Appellant had made it to her professional advisers before, is of course entirely another matter but it is the first time it had become apparent in public that that was her complaint. In dismissing her application for an adjournment we dealt with that matter. We referred to her own letter of the 6th July 1992, which was her application for a review, and in that letter she said that she had further evidence comprising a number of witnesses who did not appear at the last hearing:-

"I did not realise, and was not told, to take in witnesses!"

That is a very different thing from her present contention that the witnesses were there but that the Tribunal refused to allow her leave to call them. We dismiss that complaint as being entirely without foundation.

There is, of course, no doubt, and it is perfectly apparent to us that the Appellant has a deeply embedded sense of injustice. She is convinced that the witness called by the Respondent did not tell the truth at the hearing before the Industrial Tribunal. But what was it that the Tribunal had to hear? They heard evidence from the Appellant and they heard evidence from Mrs Margalit. It is apparent from the Tribunals reasons that they gave very careful attention to that evidence and to the issue which was posed before them, that is to say whether or not there had been two years continuous service prior to termination date on the 9th January 1992. The Tribunal set out the facts which they found, they set out the Appellant's contentions and they were the same contentions as she has sought to ventilate before us this morning. We look for example at paragraph 7 of the decision document where we see that the Appellant was suggesting to the Tribunal, as she has urged upon us:

"that while still in Alert's employment, [her former employers] she and other Alert staff were sent in groups to work on TWA aircraft for about a month until Pan Am's licence ceased. that Alert's staff and that of TWA did not get on and she asked to be excused from this duty, . . ."

The Tribunal paid attention to her evidence. They also paid attention to Mrs Margalit's evidence, which was:

"that at no time before 3 April were Alert employees involved in TWA security, that TWA had no contract with Alert and paid them no money and that Alert anyway had no staff available to guard TWA plans since they were concerned about the number of their employees who were leaving."

The Tribunal accepted the evidence of Mrs Margalit. They had heard these two ladies give evidence and they preferred Mrs Margalit's evidence to that of the Appellant. The Appellant had claimed before the Tribunal, as she was entitled to do, that there had been a transfer of Alert's business to IAS, a disposition of a going concern and that the business when taken over by the Respondents had continued in precisely the same way as hitherto. In other words as a matter of law, the Tribunal had to consider, under paragraph 17(2) of Schedule 13 of the Act whether a trade or business or undertaking had been transferred from one person to another so as not to break the period of employment. The Tribunal considered that submission. In paragraph 11 they found:

"For these provisions to operate, the Applicant had to prove that there had been a transfer of a trade or business or undertaking from Alert to IAS. We find that there had been no such transfer . . . We find that there was no transfer of a business between Alert and IAS, no transfer of a going concern, that one business simply came to an end and another began, there being no connection in law between them."

On the facts as deposed to them that was a finding which the Tribunal were perfectly entitled to make. Despite having heard evidence from the Appellant to the contrary, they preferred the evidence of Mrs Margalit, as they were perfectly entitled to do. It was entirely a matter for them. It was a finding of fact. In the penultimate paragraph the Tribunal go on to express a good deal of sympathy for the Applicant. They say:

"We can well understand that from her point of view, it appeared that the same business was being carried on by IAS as the result of a transfer, but she admitted that she knew very little of the legal aspect or the details of the legal arrangements. Moreover, we thought that both Alert and IAS could have taken rather more trouble than they did to explain the legal position in their letters to the Applicant and her colleagues."

Apparently this was not the first such application to them. There had been a previous application by another employee, named Mr Styles, which it seems this Appellant had attended. That application too was dismissed. The Tribunal ended their findings in this way:

"But since we find that there was no transfer, we are necessarily obliged to find that Mrs French-Walsh had only been employed since 5 April 1991 with the result that she has less than two years' service and we thus have no jurisdiction to entertain her complaint."

Having refused to entertain the Appellant's application to adduce fresh evidence on the grounds that the well known tests are not satisfied; on the grounds that she has not shown us that that evidence was not available to her at the time of the hearing, we have heard Mrs French-Walsh, the Appellant, address us as best she can. We appreciate her position but she was warned that that would be the outcome of her dismissal of her Counsel. We take the view that there is nothing in this appeal which should persuade us that the Tribunal reached a wrong decision. They were right in law. They reached their decision on the facts on the evidence which was before them. There is nothing that we see which ought to cause us to impugn that decision, and this appeal is accordingly dismissed.