Unitvale Ltd (t/a Cleavers Dairy) v Bates [1993] UKEAT 789_92_2510

EAT

Unitvale Ltd (t/a Cleavers Dairy) v Bates

[1993] UKEAT 789_92_2510 · 1993-10-25

MR JUSTICE KNOX: This is an appeal from a decision of the Industrial Tribunal sitting at Birmingham on the 16th March 1992 which was sent to the parties on the 8th June 1992. The appeal was received by this Tribunal on the 28th July 1992. The decision on the 16th March was that the employee, Mr Bates, was unfairly dismissed by the employer Unitvale Limited, which trades as Cleavers Dairy and which is the Appellant before us.

This was not the first hearing in the matter because there had been a hearing on the 13th January 1992, before a differently constituted Industrial Tribunal sitting at Birmingham, when there was a decision, as a matter of preliminary proceeding, that the preliminary point brought by Mr Bates, namely that he had two year's service and was therefore in a position to bring a claim for unfair dismissal, succeeded, and that the Industrial Tribunal had jurisdiction to hear the claim for unfair dismissal. That was sent to the parties on the 17th January 1992.

The appeal is aimed at the proposition that there was indeed two year's service. The grounds upon which the appeal is brought are stated as follows by Mr Lockton, who is the Managing Director of Unitvale Limited, the Appellant. The grounds are stated in this way:

"The Industrial Tribunal was led to believe that Mr Bates had worked for Cleavers Dairy for over 2 years but he had broke his service. Evidence was concealed by himself by way of lying on oath, also a letter sent to him by the Inland Revenue which I was not allowed a copy. I had all the proof in my defence but was not listened to. Therefore in the eyes of the law less than 2 years service no case can be brought against Cleavers and any decision or monies owed is void."

(I read that literally). It seems to us that this is, indeed, a hopeless appeal on a variety of grounds.

The first ground is that it is seriously out of time. The relevant decision is the decision on the preliminary hearing, which was sent to the parties on the 17th January 1992 to the effect that there was jurisdiction because there was two year's service. That was an issue which was decided conclusively, between the parties, and if that was to be upset then that decision needed to be appealed. In fact there was no appeal from that decision. The matter went forward for the substantive hearing on the 16th March, with the result that I have already described, namely that it was held that Mr Bates was indeed unfairly dismissed and was given an award, and it was much too late after the substantive decision to seek to re-open the question which was firmly decided against the Appellant at the preliminary decision. In fact the appeal from the substantive decision is also out of time. The time limit is 42 days under Rule 3(1)(A) of the Employment Appeal Tribunal Rules, and the operative decision was sent to the parties on the 8th June 1992. So that time for appealing against that decision ran out on the 20th July, and the appeal was not actually received by this Tribunal until the 28th July. However, what matters is that there was no appeal at all from the preliminary decision which conclusively decided this point.

That brings me to the second principal reason why this appeal cannot possibly succeed and that is that there is a binding decision by the Industrial Tribunal, as a matter of fact, that there was two years employment in Mr Bates before his employment came to an end by his dismissal.

This Tribunal has no jurisdiction to go behind that particular finding of fact because our jurisdiction is limited to issues of law. The date when Mr Bates was first employed, and the date when his employment came to an end, are matters of fact upon which there are conclusive findings by the Industrial Tribunal in the course of its preliminary decision. In fact the second hearing put the termination of Mr Bates' employment one day different from the date that was identified by the first Industrial Tribunal decision, but nothing turns on that, because both reveal over two year's service which is enough to ground Mr Bates' application as a matter of jurisdiction.

We have, therefore, reached the conclusion that there is no possible basis upon which this appeal can succeed and it therefore falls to be dismissed at this stage.