Pooley (t/a Goldline Engineering) v Jones & Ors [1993] UKEAT 718_92_1207

EAT
Pooley (t/a Goldline Engineering) v Jones & Ors
[1993] UKEAT 718_92_1207 · 1993-07-12
MR JUSTICE KNOX: This is an appeal by Mr Pooley from a decision of the Industrial Tribunal sitting at Plymouth on the 3rd September 1992, which was sent to the parties on 7th September 1992 and also, we take it, from the refusal on the 15th September 1992 of Mr Pooley's request for a review which he made on the 14th September.The issue at the main hearing on the 3rd September 1992 was whether the Applicants, three persons who had been employed by Mr Pooley who traded as Goldline Engineering, were entitled to redundancy payments, holiday pay and pay in lieu of notice. The pay in lieu of notice was held to be outside the Industrial Tribunal's jurisdiction and therefore, those claims did not succeed. There is no appeal about that.The three employees were held to be entitled to redundancy payments and two of them were held to be entitled to arrears of holiday pay. There is no point at this stage on the precise figures.The representation before the Tribunal was that each of the Applicants appeared and one of the two Respondents appeared, a Mr Hufton. Mr Pooley did not appear before the Industrial Tribunal.The main issue regarding the redundancy payments revolved around the question: what exactly was the nature of the agreement between Mr Pooley, who had been until the 5th May 1992 the employer of these three Applicants, and Mr Hufton? As a result, Mr Hufton came into the premises on which Mr Pooley had been trading at Victoria Wharves, Plymouth, and also as a result thereof Mr Hufton "acquired a set of machinery", in the words of the Industrial Tribunal, of which they saw a list and observed that it was worth a considerable amount. So far as the lease was concerned the Industrial Tribunal said this:
"There was no security in any lease, there was simply an oral agreement about renting the premises, as far as we are aware, between Mr Pooley and the dock company. Subsequently, Mr Hufton reached his own oral agreement with the dock company. It is a little vague because that company appears to be in the process of takeover negotiations. There was no security in the premises."
and then they went on to find:
"There was no ledger handed over, no continuing work and no continuing debts. A list of customers was given, but that seems to have been more of a liability because those customers appear to have fallen out with Goldline."
which is of course Mr Pooley's trading name.Mr Hufton was found to have taken on the three Applicants because he needed some extra staff and also their familiarity with a particular machine. The Industrial Tribunal decided that the question they had to look at was whether there was a transfer of an undertaking, within the meaning of the employment legislation, by which they must have meant the Employment Protection (Consolidation) Act 1978 and the Transfer of Undertakings (Protection of Employment) Regulations 1981 , and they took a test from an earlier Court of Appeal decision, whether Mr Hufton was put into possession of a "going concern". The unfortunate fact is that Mr Pooley now contends that there was a transfer of a "going concern" and that more just a list of customers passed and if he had turned up in front of the Industrial Tribunal no doubt the Industrial Tribunal would have had both sides of the story presented to it. But that did not happen and the Industrial Tribunal, not altogether surprisingly, accepted what Mr Hufton and the Applicants said and they found, in particular, that one of the three employees, Mr Reading, was entitled to holiday pay and that he had not taken any that year. That is a matter which Mr Pooley would, if he had the opportunity, wish to challenge. When he heard of the Industrial Tribunal's decision he wrote in, in a letter of the 14th September shortly afterwards, and applied for a review of the decision made in his absence and then he put forward various factors, but what he did not say in that letter was why he was absent. That is left entirely undealt with in this letter. So far as Mr Reading's holiday entitlement he said that the decision was incorrect:
"as holiday entitlement was paid in the relevant period and is supported by time sheets and wage slips, not asked for by the tribunal."
That reveals a misapprehension as to how industrial tribunals operate. There is no obligation on an industrial tribunal to call for particular evidence. The industrial tribunal receives the evidence from the parties and decides the case on the basis of what is put before it. Secondly, Mr Pooley submitted, in his application for review, that:
"Mr Hufton, on take over, used and continues to use customers of Goldline Eng. Details are available if required."
That reveals again the same basic misapprehension. Then there is a point about when the P45s were issued and Mr Pooley expresses surprise, at the end of the letter how the tribunal can state the assumptions and findings that it made about his, Mr Pooley's business, prior to the 5th May, on what Mr Pooley described as hearsay, and said:
"I feel no fair decision can be made on this or any other matter without the full facts being presented."
As a result of that letter which raised the several points that Mr Pooley should, of course, have put at the original hearing, the Chairman considered the letter and refused the application on the ground that it had no reasonable prospect of success for two reasons, first of all the Tribunal reached its decision on the evidence put before it. The first Respondent, Mr Pooley, chose not to attend, and accordingly the Tribunal was unable to consider any possible conflict of evidence having only the information given by him in his Notice of Appearance. Secondly, the Applicants and the second Respondent did attend and gave detailed evidence. It is evident from those reasons that the Industrial Tribunal was going on the basis that it was a voluntary act on Mr Pooley's part not to attend before it, otherwise they would not have said the first Respondent, Mr Pooley, chose not to attend and if and to the extent to which Mr Pooley was unable to attend, rather than decided not to attend, then the onus clearly is on him to tell the Tribunal that that is so and why it is so. But he did not do that. In those circumstances the matter comes before us on a Notice of Appeal that I imagine Mr Pooley prepared himself. It just says this:

"Dear Sirs

With reference to the above case numbers, I wish to appeal against the tribunal's decision due to its incorrect assessment of 1 Holiday pay awards2 The legal status, re the sale of the companyI have enclosed documentation regarding this matter together with the tribunals decision."and there was sent with it a statement which in fact is a duplication of the Notice of Appearance that he sent to the Industrial Tribunal in answer to the Originating Applications of the three Applicants. They set out his contention that, what he describes as "the Company", I do not think it was a limited company, was sold to Mr Hufton's concern as a "going concern", which of course was the central question in the case. He also said in his Notice of Appearance that:
"I have taken advice from my accountants on this matter and have been advised that all redundancy payment entitlement is transferred to the new employer"
and at the end of his Notice of Appearance he said:

"I am available at any date for any future hearing."

In those circumstances what we have to do is to see whether there is an error of law, or a question of law, that arises on this appeal. That is because Section 136 of the 1978 Act defines our functions as follows:
"An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of [amongst other things]

The Employment Protection (Consolidation) Act

The Wages Act 1986."

There is no error of law, in our view, that we can discern. Proceedings went in accordance with the evidence that was given to the Industrial Tribunal, which of course did not include Mr Pooley's evidence because he was not there, and Mr Pooley did not tell the Industrial Tribunal why he was not there, and therefore, they did not take into account any excuse that he may have had. In those circumstances it really is not fair to the Industrial Tribunal to blame it for having acted on the material that was presented before it. We have been unable to detect an error of law. The appeal will therefore have to be dismissed.