H GROUP PRECISION LTD v MR S BOWERS [1999] UKEAT 551_99_1207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 551_99_1207Case No Appeal No. EAT/551/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
H GROUP PRECISION LTDAPPELLANTMR S BOWERSRESPONDENT
Before
His Honour Judge D M LevyDate 12 July 1999
[1]APPEARANCES For the Appellants MR A HUNTER (Managing Director) 'H' Group Precision Ltd Blanche Street Bradford BD4 8DA JUDGE LEVY: Under the PHD system, this is an appeal by the employer of Mr S Bowers (the Appellant), in these circumstances. By an application to an Industrial Tribunal received on 25 September 1998. Mr Bowers made claims that redundancy pay, holiday pay and pay in lieu of notice had not been paid. The Appellant in their IT3 claimed that if proper financial records had been kept by it before it was controlled by those who later controlled it, there was money due to the Appellant to be set off against the claims made by Mr Bowers.[2]There was a hearing before an Industrial Tribunal sitting at Leeds on 4 December 1998. The panel met again on 4 January 1999. The decision was sent to the parties on 23 February 1999. The unanimous decision of the Tribunal to amend the name of the Appellant, and order that the Appellant pay Mr Bowers a sum of £9,591.22. The Appellant's claim against Mr Bowers for breach of contract was dismissed.[3]At the Tribunal hearing, both parties appeared "in person", the Appellant here being represented by the Managing Director, as it has been by us at this hearing this morning. From the decision of the Tribunal, a Notice of Appeal was received here on 28 April 1999 from which it was apparent that the Appellant claimed that the findings of fact which were made by the Tribunal were ones which it was not entitled to make, and it was alleged that the judgment was perverse. This summarises briefly what is in the Notice of Appeal.[4]Mr Hunter has addressed us this morning. He told us frankly that there had been a previous case in which the Company had succeeded and therefore he had perhaps been less than thorough in preparing the case which he presented on behalf of the Company to the Tribunal when it sat at Leeds.[5]We have carefully looked at the extended reasons of the Tribunal. One of the findings which Mr Hunter submitted was wrong was that the Respondent was an employee. Mr Hunter submitted to us that he was in fact the Managing Director and not an employee, if the facts were properly analysed. However, there is an important finding in paragraph 3 of the extended reasons in these terms:
"However, despite the title, the control of the Company remained effectively in the Applicant's father's hands and he had the final word on any major decisions."
That is a finding of fact which the Tribunal was entitled to make having heard evidence. As we have explained to Mr Hunter in the course of this hearing, there can be no appeal against finding of facts which were available to a Tribunal to make on the evidence before it. Looking at the four corners of decision, that finding was one that it was entitled to make.[6]Complaints are made about the findings in paragraph 4 of the extended reasons. By way of example one sentence reads:
"The Tribunal concludes, and there was no dispute about this, that there was a transfer of undertaking for the purpose of the legislation."
It is clear to us that what the Tribunal was saying that apart from the change in the ownership of the shares, nothing thereafter changed within the Appellant as a company. It is clear from reading the decision in that sense the Tribunal is referring to a transfer of undertaking in this sense only.[7]We have considered individually all the submissions Mr Hunter has made to us, but at the end of the day, we are satisfied that the findings of fact, which were made were such as to entitle the Tribunal to come to the decision that it did make, and therefore this appeal would have no chance of success if it was going to go forward to a full hearing. In the circumstances it is appropriate that we should dismiss it at this stage.