John Dee Ltd (In Administration) v Mayfield [1997] UKEAT 673_97_3010

EAT
John Dee Ltd (In Administration) v Mayfield
[1997] UKEAT 673_97_3010 · 1997-10-30
MR JUSTICE MORISON (PRESIDENT) : This is an appeal from a decision of an Industrial Tribunal which concluded that the respondent to this appeal, Mr Mayfield, had been unfairly dismissed by the appellants, John Dee Ltd (In Administration). Having concluded that Mr Mayfield had been unfairly dismissed, he was awarded a total monetary award of £6,909 and that was the compensation which was ordered.The appellants did not enter a Notice of Appearance, and did not take any part in the Industrial Tribunal proceedings. The first ground of their appeal is that no details of the Originating Application were sent to the appellants. That is a proposition which is plainly not correct as the documents make clear. In his IT1 the respondent to this appeal, the employee, identified the company as his employers and gave the address of the company and named an individual at the company who could be contacted, he also gave a telephone number for the company. There is a document in our papers which makes it plain that the Originating Application was indeed received, but which was then returned to the Industrial Tribunal. Accordingly, the first statement that no details of the Originating Application were sent to the appellants, is not correct. Furthermore, if the Notice of Appeal was implying that the company was unaware of the proceedings, that cannot be right either. After service of an Originating Application, the tribunal then proceed to fix a date for hearing by giving notice of hearing date to both parties. Then, at the hearing, after a written decision had been prepared, that decision was sent to the parties. In this case, the decision was sent to the parties at the address which the Industrial Tribunal had been given on the Originating Application and which plainly was received by the appellant company as they were able to put in a Notice of Appeal in relation to it. It seems to us, therefore, improbable in the extreme, that the company was not aware of the hearing date on the assumption that notice of the hearing was sent to the address to which the decision had been sent.Before dealing with the second point, it is as well to recite in brief the basis on which Mr Mayfield succeeded in his complaint. Apparently on 6th December a document was received by all the employees from what is described as the Company's administration. This was apparently that the Company had gone into administration on 5th November. He was not concerned about what he read, because he had been told that the status quo as far as his job was concerned would remain. That letter said that he had been made redundant on 5th December, whereas Mr Mayfield knew that that simply was not true in his case, because he had been dismissed the previous Monday on 2nd December by reason of his reasonable refusal to work night shifts as from that moment. The Industrial Tribunal concluded that he had been dismissed on 2nd December; that he was given no warning of the change of shift; that his employers had not acted reasonably towards him and that without doubt he had been therefore manifestly unfairly dismissed.Mr Mayfield told the Industrial Tribunal that his former colleagues were still in their jobs, although working for a different company which he said came on the scene and took over the business in around January 1997. The Industrial Tribunal noted that Mr Mayfield thought the new firm was called Trans European Distribution.The second ground of appeal which is put in by the appellants, is this:
"the appellant was in administration when the original application to the industrial tribunal was made. Under Section 11(3)(d) of the Insolvency Act 1986 such an application requires leave of the High Court before being heard as per: Carr v British International Helicopters Ltd [1993] BC855 ."
S.11 is dealing with the effect of the making an administration order, and provides that during the period for which such an order is in force no proceedings or execution or other legal process may be commenced or continued against the company or its property except with the consent of the administrator or the leave of the Court.The appellants have not appeared before us today, but have asked us to take account of the Notice of Appeal together with their written submission dated 22nd July 1997. In that submission they say this:
"The Company was in administration when the original application to the industrial tribunal was made."
It is to be noted that the company did not tell the Industrial Tribunal what the position was. As we have indicated, they entered no Notice of Appearance. They have not indicated to us when any administration order was made, if any, administration order was in fact made. We have been provided with no details of any such order.Accordingly, we are not prepared to act on the basis of the mere say so of the accountants who have written on behalf of the company. It seems to us that if they had a point to make in relation to administration they should have made it the Industrial Tribunal. Having received the decision they should have applied to the Industrial Tribunal for a review, if there was any merit in the point which they are making; and if they intended to run an appeal on this basis, then we would have expected them to have provided some conclusive evidence that an administration order had in fact been made. It seems to us that in the circumstances the only course which we should follow in this case is to dismiss the appeal, as neither ground has been credibly advanced before us.Before leaving this case, we should say that there might have been questions which could arise as to the liability of the new company, Trans European Distribution, as a result of the application or possible application on the facts of this case of the Transfer of Undertakings (Protection of Employment) Regulations. But as that matter was not investigated by the Industrial Tribunal, we are not in a position to make any comment about its applicability or the potential liability of that company to Mr Mayfield. It suffices for present purposes, simply to dismiss this appeal.