S I S Automation Ltd v Wakeling [1994] UKEAT 518_93_0706

EAT
S I S Automation Ltd v Wakeling
[1994] UKEAT 518_93_0706 · 1994-06-07
MR JUSTICE MORISON: This is an appeal by employers against a refusal of an Industrial Tribunal Chairman to grant their application for a review of a decision which they had arrived at in which they had found the employers liable for unfair dismissal.On the 20 April 1993 there was a hearing at which they adjudicated that the employers had been guilty of unfair dismissal. Seven days later the employers applied for a review of that decision, effectively on the basis that the only error in the case, which they accepted was a genuine mistake, is the date of commencement of the Applicant's employment. In other words, they wished to argue that there was not the requisite two years of continuous service prior to the dismissal.The underlying facts may be shortly stated. The employee had worked for Mr Middleton, and I will use that as a neutral way of expressing what we have to say, since October 1989. At that stage Mr Middleton was part of a partnership which came to an end. He thereafter, with his wife, set up a Company which had a very similar name to that under which the partnership had been trading. The employee left, in circumstances in which we do not need to go at this stage, since this is an appeal only against the refusal to hold a review, and he claimed unfair dismissal in an IT1 which he presented to the Industrial Tribunal. Mindful of the needs of small businesses of which this is one, and the needs for people who run those businesses to be given proper opportunity to prepare themselves for such a hearing, and having regard to Mr Middleton's commitments abroad, there had been two significant and substantial adjournments of the hearing date of the application for unfair dismissal.I think it is plain now, from what we have been told, that Mr Middleton himself was able to deal with the matter, at least from the beginning of March, and it is to be noted that the hearing on April 20 1993 was several weeks thereafter. During that part of that period the Company's Solicitors had been involved and they supplied further and better particulars as requested and ordered by the Tribunal in which they indicated that the dates shown on the IT3 were correct; namely, that the employee, had started his employment with the Company as from October 1989. They enclosed also with those Further & Better Particulars a specimen particulars of terms and conditions of employment and that showed employment having commenced with the Company as from October 1989 and it appeared that there was, therefore, no dispute between the parties as to the dates of his employment.The matter came on for hearing on April 20 1993. At that stage the Company were not represented by Solicitors, but Mr Middleton appeared on behalf of the employers. It looks as though either because Mr Middleton did not make his position plain at the hearing, or because he did not mention it at all, the Industrial Tribunal proceeded on the basis that there had in fact been no dispute between the parties that they had jurisdiction to hear and determine the complaint which was being made against the employers. Accordingly, they considered the substantive matters which any Tribunal has to consider when there is a complaint of unfair dismissal and adjudicated in favour of the employee, and as we have already indicated there is no suggestion that the Tribunal erred in any way in the approach which they adopted to that decision.However, having lost that case, the employers then sought a review from the Industrial Tribunal by letter of the 27 April 1993. They blamed themselves for the error which had occurred saying in effect that it was due to pressure of time and that they were a small business and Mr Middleton had not been able to give it his full attention, at least until the beginning of March 1993. They asked for a review on the basis that there had in fact been no continuity of employment and they asked for an opportunity to present further evidence in support of that submission.It is clear and Mr Middleton should be aware of it, that you can have a transfer of an employment from one business to another even though one business was shut down and another started up again later. It all depends on the circumstances, but broadly speaking one of the major tests for deciding whether a transfer has taken place, owing to recent law from Europe, is to consider whether the employee has effectively continued to do the same job, both before and after the alleged transfer.Suffice it to say that the application was made to the Industrial Tribunal for a review and it was turned down by the Industrial Tribunal Chairman.

(d) and (c) of the Tribunal Rules; namely:

"(d) new evidence has become available since the conclusion of the hearing to which the decision relates provided that its existence could not have been reasonably known of or foreseen; or (e) the interests of justice require such a review."
In paragraph 1 of his decision, which was sent to the parties on the 17 June 1993, the learned Chairman said this:
"What he is endeavouring to do is to produce new evidence to the tribunal that if he had properly considered his case at the time he could have so produced. That evidence was available before the conclusion of the original hearing and its existence could have reasonably been known or foreseen. He has failed to show either of those two matters and therefore his application will fail."
In other words, the Industrial Tribunal Chairman took the view that this was material which could have been presented to the Industrial Tribunal on the 20 April and that in the circumstances he was not satisfied that its existence could not reasonably have been known of, or foreseen, before that date. He would have been entitled, and I am sure he would have taken into account, the fact that the Company itself had been represented by Solicitors. He also would have taken into account the fact that there had been two adjournments of the matter, so that there was an opportunity for proper consideration of the employers case.It seems to us that there is nothing that has been advanced before us to suggest that the Industrial Tribunal Chairman was in any way erring in law in the way in which he approached that part of his decision. We should emphasise that this is an Appeal Court which can only consider points of law. We are not here to review facts.The second ground; namely that the interest of justice required such a review was also addressed by the Industrial Tribunal Chairman in paragraph 2 of his decision. He indicated that the evidence which had been given by the Applicant was that he had commenced his service on the 23 October. That was not challenged by the employers, nor was any evidence in rebuttable produced by the employers.Then they go on to say that it appeared to them that in the circumstances there had been a transfer of a business under Schedule 13 paragraph 17 sub-paragraph 2, and sub-paragraph 5 of the 13 Schedule to the 1978 Act, and that a change in the business had effectively taken place as a result of which the employee had continuity of employment as his particulars of employment had stated and as indeed had been asserted, both by the Solicitors acting for the Company, and by the Company itself, in his IT3.It seems to us that the Industrial Tribunal Chairman was entirely right to ask himself the question whether the interest of justice required a review and we cannot fault the conclusion which he arrived at in paragraph 2 of his decision. We appreciate that Mr Middleton feels strongly about the decision which has been arrived at under this head, but it seems to us that, with great respect, he has nobody but himself and his Solicitors to blame for what has happened. There is a public interest in finality in proceedings. It is not appropriate that there should be two bits of the cherry in any case and it seems to us that the learned Industrial Tribunal Chairman was entirely justified in reaching the conclusion he did in deciding that there should be no review because any review stood no reasonable prospect of success.Accordingly, in our judgment this appeal must be dismissed.