Beale v Variety Floors Group [1995] UKEAT 863_95_2410

EAT
Beale v Variety Floors Group
[1995] UKEAT 863_95_2410 · 1995-10-24
MR JUSTICE MAURICE KAY : Mr Beale is a carpet fitter and floor layer who was employed for a number of years by a firm called Variety Floors in Reading. In November 1994 that firm seems to have run out of work for him to do.The history immediately after that is taken up with a letter written by Mr Beale to his employers on 12th January 1995, in which he contended that he was an employee and had been laid off for a period of more than four weeks. This prompted a response from his employers to the effect that he was not an employee at all and never had been, but rather that he had been a sub-contractor. Their letter concluded:
"in view of this we do not consider that you have a claim for redundancy and as in the past we will continue to consider you for work as a sub-contractor when such work is available."
Mr Beale then applied to the Industrial Tribunal. His IT1 said:

"NO REDUNDANCY PAY PAID. NO MONEY IN LIEU OF NOTICE"

In paragraph 10 of his IT1 he set out his case in a way which could be construed as setting up a claim pursuant to Section 88 of the Employment Protection (Consolidation) Act 1978 .When his case came before the Industrial Tribunal, the Tribunal dealt with it in two separate parts. First of all they heard evidence and submissions and gave a ruling on the question of whether or not he was an employee. The Tribunal decided that he was.Having decided that he was an employee, the Tribunal then went on to consider whether he was entitled to a redundancy payment. They decided that he was not.It is against that decision that he now appeals.This is where the case, and our task, become a little difficult. A reading of the decision of the Industrial Tribunal makes it appear that the case for Mr Beale at that hearing was that he qualified for a redundancy payment pursuant to the special provisions of Sections 88 and 89 of the 1978 Act by reason of lay off. The Tribunal came to the conclusion that he did not so qualify. Whilst we think that the Tribunal's reasoning in paragraph 21 may not be correct, it is apparent to us that he could not have qualified under Section 88 in any event, because he never gave notice of termination of his contract of employment pursuant to Section 88(2). If the matter rested there we would have dismissed this appeal here and now. However, what Mr Shepherd tells us is that, when he represented the appellant in the Industrial Tribunal, it was the employers who were raising the issue of Section 88, if only to knock it down on procedural and technical grounds. Mr Shepherd says that once the Tribunal had found Mr Beale to be an employee, it was Mr Beale's case that he had been dismissed by his employer in November 1994.If that is right, the basis upon which the Tribunal was being asked to award him a redundancy payment was that there had been a termination of his employment by his employer pursuant to Section 83(2)(a). We emphasise that Mr Shepherd assures us that that was how the case was being put in the Tribunal.If that is right, the Tribunal do not seem to have dealt with that submission. Whilst they say in paragraph 18 that:
"... there was no termination of employment as is normally required to establish the right to a redundancy payment,"
our impression is that their approach to the issue of a redundancy payment was limited to eligibility under Section 88.Because of this area of confusion, we do not think it would be right to close the door on Mr Beale's appeal at this stage. Accordingly, we shall allow it to proceed to a full hearing.It seems to us that the respondents and this Tribunal at the full hearing may be as confused as we were about the real basis of this appeal, unless Mr Beale amends his Notice of Appeal and ground of appeal, and unless the appellant, the respondents and this Tribunal receive a copy of this short judgment. Accordingly, we shall give leave for an amended Notice of Appeal to be served within fourteen days. A copy of this judgment will be made available to both parties and to this Tribunal. We shall order that the Chairman of the Industrial Tribunal be requested to supply a copy of his Notes of Evidence. We shall order that skeleton arguments be submitted at least fourteen days before the full hearing.