POWDERSHIRE LTD v MS M DESIR [1999] UKEAT 1100_98_2605
[1]) Messrs Grunfeld Davis & Co 18 Princeton Street Red Lion Square London WC1R 4BB HIS HONOUR JUDGE CLARK: The issue before the London (North) Employment Tribunal sitting on 3 rd July 1998 was whether the Appellant, Ms Desir had completed 2 years continuous service with the Respondent, Powdershire Ltd entitling her to bring her complaint of unfair dismissal presented to the Tribunal on 4 th December 1995. The Tribunal found that she had been continuously employed by the Respondent and their predecessor, Courtyard Designs Ltd ("Courtyard") from January 1993 until her dismissal, effective on 30 th October 1995. Accordingly, the Tribunal had jurisdiction to entertain her complaint. Against that decision, promulgated with extended reasons on 16 th July 1998, this Appeal is brought. Two points are taken by Amended Notice of Appeal, leave for which was granted by this Tribunal on 2 nd December 1998. The first is described as the "Starting Date Point" and the second, as the "Transfer Point". Starting Date[2]It was the Appellant's evidence contained in her Witness Statement which formed part of her evidence in chief before the Tribunal, that she began work for Courtyard under an oral contract in December 1992 and that in January 1993 she signed a written contract with Courtyard. At the Hearing, she produced a typed statement of Terms & Conditions of Employment purporting to show her employment with Courtyard as commencing on 4 th January 1993. That document is signed by the Appellant and dated 10/3/93 and purportedly signed on behalf of Courtyard by S Thackur and similarly dated. The Respondent pointed out that the name "Thackur" was misspelt and the signature differed from the signature purporting to be that of Ms Cherie Thackur appearing on a Deed of Assignment dated 9 th August 1994. The Tribunal observed, at para 4, their reasons that the evidence was unsatisfactory and inconsistent. However, they appear to make no express findings as to whether the purported signature on the statement of Terms & Conditions was false. It is, we think, arguable that in failing to make that material finding of fact the Tribunal fell into error, (see Levy –v- Marrable [1984] ICR 583).[3]In the light of other unsatisfactory aspects of the Appellant's evidence, identified by Mr Roe in his skeleton argument and oral submissions before us, we shall allow the Appeal to proceed on this first ground as set out in the Amended Notice of Appeal. Transfer[4]We are just satisfied that the Appeal is arguable on this ground also. It is not for this Appeal Tribunal to retry the factual questions which were before the Employment Tribunal. However, where findings of fact are unsupported by or contrary to the evidence before the Employment Tribunal an error of law will be made out, (see Piggott Bros -v- Jackson [1991] IRLR 309.)[5]That is the nature of the submission in relation to this point coupled with argument based on the premise that even if the Tribunal's findings of fact in relation to the transfer point are sustainable, nevertheless, the finding that a relevant transfer of the undertaking of Courtyard to Powdershire took place is perverse. In these circumstances, we shall allow the matter to proceed to a Full Hearing. It will be listed for ½ day, category C. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the Full Appeal Hearing. Chairman's notes of evidence have already been obtained. There are no further directions.