Freeman (t/a Cleveland Crane & Plant Hire) v Freeman [1996] UKEAT 844_96_1911

EAT

Freeman (t/a Cleveland Crane & Plant Hire) v Freeman

[1996] UKEAT 844_96_1911 · 1996-11-19

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in the appeal which the employers wish to make against a decision of an Industrial Tribunal held on 6 June 1996 by which they ruled in the employee's favour that he had been unfairly dismissed and awarded him £2,710.13 compensation.

The issue before the Industrial Tribunal was not just the question of whether the dismissal was fair or unfair but there was a jurisdictional issue which the Tribunal had to confront as to whether there was the requisite period of continuous employment, whether he had served for a sufficient period of time so as to enable the Tribunal to take jurisdiction. It was argued before the Industrial Tribunal that as a result of a week's absence from work the continuity of employment was broken. The Tribunal deal with that at paragraph 4 of their decision. What they say there is that although he had a period off work continuity of service was maintained because of the provisions of paragraph 24(1) of Schedule 13 of the Employment Protection (Consolidation) Act 1978. I quote:

"It is therefore unnecessary to go into the reasons for the Applicant's short absence. It should be noted however that he was paid throughout."

It seems to us that that was a decision which they were fully entitled to arrive at and we have no reason for thinking that their conclusion was erroneous in law, and there is no arguable case that it was wrong in law.

In a facsimile which was sent to us this morning, the prospective Appellants, not appearing, as is their entitlement, through their solicitors have made a number of submissions in support of the appeal. Their first submission is that the Tribunal failed properly to address the legal issue. We do not agree. We think they plainly have addressed the legal issue. Then they contend that the working week was not a working week in which the normal working hours exceeded 16 and they say this does not appear to have been commented upon or even considered by the Industrial Tribunal, "which we consider to be a failing". With respect, we do not consider it to be a failing. The Tribunal are required to address the points as they arise before them and not to address points which did not arise.

Mr. Freeman, it is said, was not legally represented at the hearing. It is our experience that unrepresented litigants are invariably given a courteous and fair hearing before Industrial Tribunals. We do not have any reason to believe that this Tribunal was any different from those others.

Then it is said that in any event the Tribunal were not properly approaching the matter from the right avenue. That we take to be a contention that they have somehow misdirected themselves in law, having regard to the House of Lords decision to which reference is made in this facsimile. We have already dealt with that. We think that their approach was correct.

They then say that the fact that he was paid in that week was irrelevant. We do not agree. The question they had to ask themselves was whether continuity had been preserved under that paragraph and that was a factor which they were entitled to have regard to. The final point in the solicitors' letter was:

"All told, we feel that our legal issues need to be addressed with expert Counsel and as we have not yet got the detailed reasons for the refusal for our client's application for legal aid we are not in a position to take any further steps towards securing funding for our client's appeal immediately."

We do not regard that as amounting to anything. Many Appellants here do not have the benefit of legal representation and are quite capable of advancing and formulating points of law as, indeed, the solicitors themselves have purported to do in this letter. No amount of further research is going to enable them to produce an arguable point of law against a short but convincing decision of an Industrial Tribunal. Accordingly, we are of the view, having regard to the material which has been presented to us, that there is no arguable point of law and we dismiss this appeal.