Scale Reprographics Ltd v McSweeney [1994] UKEAT 499_94_2010

EAT
Scale Reprographics Ltd v McSweeney
[1994] UKEAT 499_94_2010 · 1994-10-20
MR JUSTICE PILL: This is an appeal against the decision of the Industrial Tribunal held at London (North) on 7 April 1994 whereby the Tribunal unanimously decided that the application for a review of an earlier decision was refused. The earlier decision had been contained in a letter dated 4 August 1993. It had been the unanimous decision of a Tribunal with the same constitution held on 21 July 1993 that the Applicant, Mr C McSweeney, had been unfairly dismissed by reason of redundancy. The Tribunal had ordered £10,000 by way of compensation.The Respondent employers, Scale Reprographics Ltd, had sought a review of that decision. The notice of appeal is dated 25 May 1994. The present hearing was notified to the Appellants, Scale Reprographics Ltd, on 22 September 1994. An adjournment of the appeal is now sought and we deal first with that application.It was made by letter dated 14 October 1994 and read as follows:
"The writer of this letter who intends to represent the appellant is unable to appear on 20 October and we ask for a short adjournment."
By letter of 18 October, written on behalf of the Registrar and referring to the earlier letter and to a telephone conversation, the solicitors, Messrs. Wilson Cowie & Dillon, were told that the Registrar had refused the application for an adjournment and that the appeal would remain in the list for today. A further letter from the solicitors was received and it is dated 19 October 1994:
"We are extremely disappointed to hear that the Registrar has refused our request for a short adjournment. The writer of this letter has represented the appellants throughout these proceedings and briefed Counsel who appeared at the Industrial Tribunal and the writer wished to be present at and conduct the preliminary hearing but finds it impossible due to other judicial commitments to be present at the hearing fixed for 20 October 1994 in London. If the Appeal Tribunal decides to deal with the preliminary hearing in the absence of the Appellants representative, the appellants' arguments are set out in the notice of appeal dated 25 May 1994 and the other documents within the bundle. We understand that the application for an adjournment will be considered afresh by the Appeal Tribunal and we repeat the application and suggest that in the interests of natural justice it ought to be allowed."
We have, indeed, considered the application afresh. Notice of hearing was given almost a month ago and the application is made only quite recently. It refers to "other judicial commitments", which are unspecified. We have assumed that "the writer" is Mr Roberts, the senior partner. We make that assumption solely because of the reference JR on the letter. If that assumption is correct, we have no information as to what the "other judicial commitments" of Mr Roberts are. No reason is given why some other person should not appear to conduct the appeal and, indeed, we note that it was Counsel who had been briefed before the Industrial Tribunal. We refuse the application for an adjournment. It is suggested that we should grant it "in the interests of natural justice". Such interests require that a party be given an opportunity to appear at a hearing and we are satisfied that a proper opportunity has been given and the Appellants have not availed themselves of that opportunity.We have considered, as we have been invited to consider, the notice of appeal and that is set out in four subparagraphs. We have considered the decision complained of and the findings of fact and conclusions of law set out in that document.The Industrial Tribunal clearly considered the points carefully and have set out findings of fact which we do not find it necessary to repeat. In our judgment the Tribunal are right in law in the conclusion which they have reached. The first point made in the notice of appeal is that the Tribunal misdirected itself upon the effect of Rule 20(2)(c) of the Industrial Tribunal's Constitution and (Rules of Procedure) Regulations 1993. We believe the reference to be rule 20(3)(c) and approach it accordingly.In our judgment the Tribunal are correct in their interpretation of that rule. The Tribunal were entitled to find that the appropriate notices had been served. As we read it, (c) in the grounds of appeal arises only if an appearance had been entered and we make no finding as to that and assume for present purposes that it had been entered and, therefore, subparagraphs (c) and (e) of rule 11(1) can arise. In our judgment the Tribunal were justified in the decision they took and we would not begin to think it right to reverse their overall conclusion.We have been glad to reach that conclusion because we see no merit whatever in the Appellant's case. It is not challenged that their general manager, Mr David Parmenter, did receive the originating application and replied to the Tribunal upon headed notepaper giving the address to which the notice of hearing was sent.That appeal is dismissed.The letter to which we have referred does refer to the notice of appeal dated 25 May 1994 and that was clearly what was in the solicitors' minds when they requested an adjournment.However, there remains a notice of appeal with respect to the original decision on the merits and we turn to that. Several of the points turn upon the procedural issue which we have already considered but this further point is made:
"That Scale Reprographics Limited were not the employer of the Applicant at all relevant times."
As will have appeared, the Company did not appear at the hearing of the merits of the matter on 21 July 1993.The originating application to the Tribunal included these statements by Mr McSweeney:
"I was employed by Scale Reprographics & Technical Services Ltd for a period of twenty years. I was appointed as branch manager in 1977. On November 20th 1992 the Company changed hands and without any prior consultation I was notified on the evening of the same day that I was being made redundant.
Subsequently a younger member of staff who joined the Company 5 years ago was appointed to my post.

I believe I was unfairly selected for redundancy."

The decision of the Tribunal records that Mr P Bibby of the Free Representation Unit appeared at the hearing on 21 July for the Applicant.In their reasoned decision the Tribunal stated at paragraph 2:
"The Applicant was employed by a firm called Scale Reprographics and Technical Services Limited from February 1973 until his employment was terminated on 20 November 1992. He was employed as a branch manager in the Picton Place branch of that company's printing shop."
Their finding of fact, in so far as it is material, is at paragraph 14:
"The Tribunal finds as a fact that the Applicant was employed or would have been employed immediately before the transfer if he had not been dismissed."
That was a finding of fact which they were entitled to make on the material before them. There is no arguable case in relation to the ground of appeal stating that the Respondents were not the employer of the Applicant at all relevant times. The appeal must be dismissed.