Gilburn Ltd v Smith & Ors [1996] UKEAT 1099_95_2005

EAT

Gilburn Ltd v Smith & Ors

[1996] UKEAT 1099_95_2005 · 1996-05-20

MR JUSTICE BUTTERFIELD : This is an appeal from a decision of the Industrial Tribunal sitting at Birmingham which, in a decision promulgated on 28 February 1995, held that the four Respondents were unfairly dismissed and made awards of compensation in their favour against Gilburn Ltd, the Appellants. The Industrial Tribunal also ordered the Appellants to pay additional sums to the four Respondents under the Wages Act 1986.

This matter comes before this Tribunal by way of preliminary hearing to determine whether there are any arguable grounds of law disclosed in the notice of appeal to justify the matter going forward to a full hearing at which both parties would be represented.

The Appellants are not represented today. They have had notice of this hearing and have not attended. Efforts have been made to seek to contact their representative but to no avail. The matter, therefore, proceeds in the absence of any representations.

This was a case in which the Transfer of Undertakings (Protection of Employment) Regulations 1981 was said to apply. The four Respondents all worked in various capacities at the Cherry Trees Hotel, Alcester in Warwickshire, which was run by Teamleader Associates Ltd. Teamleader Associates Ltd ran into financial difficulties in early 1994. When the Respondents reported for work on 5 April 1994, they found the electricity had been disconnected because of non-payment of the electricity bill. All four again returned to work at the Hotel to find that Teamleader Associates were no longer in charge and that the Appellants had taken over the lease.

After hearing evidence from the Respondents, Mrs Robinson on behalf of the Appellant, and other witnesses, the Industrial Tribunal concluded that the business of the Hotel was transferred to the Appellants on 11 April 1994. The Tribunal further concluded that there was a business or undertaking capable of being transferred within the meaning of the Regulations. That is to a great extent a question of fact for the Tribunal correctly directing itself on the appropriate law. In our judgment it is clear that the Industrial Tribunal carefully considered the relevant law and all material circumstances and concluded that there was a transfer of an undertaking pursuant to the Regulations. Thus, the dismissal of any employee who was employed immediately before the transfer is automatically unfair unless the proviso applies. The Industrial Tribunal considered the proviso and found that it did not apply. The Tribunal found on the evidence before it:

"We are satisfied the applicants were all employed by the first respondent immediately before the transfer."

It is on that ground that the Appellants seek leave to appeal.

By a notice of appeal received on 11 April 1995, the Appellants assert as follows:

"We have since located the former manager of The Cherry Trees a Mr Leslie Evans who was employed by [Teamleader Associates Ltd] who confirms that the applicants were formally dismissed by a director of [Teamleader Associates] prior to the 25th March and prior to the business ceasing to trade and that the applicants did attend the premises at an agreed date and time in order to collect their P45s ... And it is incorrect in their statement when they claim they returned to work on the 11th of April. They did not attempt to work nor indeed did they have any intention of working. Mr Evans is prepared to confirm this arrangement. [The Appellants] therefore wish to take legal advice as to its position."

The matter came before this Tribunal on 7 March 1996. The Appellants did not appear on that occasion but sent a letter explaining that documents that they had been using for the purposes of the appeal had been stolen from the motor car of Mrs Robinson. On that occasion the preliminary hearing was adjourned and the Tribunal ordered that seven days before the return date the Appellants serve upon the Tribunal an affidavit, sworn on their behalf, specifying the nature of any fresh evidence relied upon, its relevance to the issues and the circumstances in which such evidence was not adduced before the Industrial Tribunal but is now available.

No such affidavit has been received by the Tribunal. There is, therefore, no matter of fresh evidence for us to consider, no other error of law is disclosed in the decision before us and for those reasons this appeal is dismissed.