MR P D MORGAN v T G JEARY LTD [2001] UKEAT 0539_00_3110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0539_00_3110Case No Appeal No. EAT/0539/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P D MORGANAPPELLANTT G JEARY LTDRESPONDENT
Before
His Honour Judge Peter Clark Miss A MackieDate 31 October 2001
[1]APPEARANCES For the Appellant MR A KORN (Of Counsel) Instructed by Messrs Hamilton Davies Solicitors 28 High Street Stevenage Herts SG1 3HF For the Respondent MISS J EADY (Of Counsel) Instructed by Messrs Wansbroughs Solicitors Northgate House Devies Wiltshire SN10 1JX JUDGE PETER CLARK This is an appeal by Mr Morgan, the Applicant before the Bristol Employment Tribunal under the chairmanship of Mr A C Tickle held on 11 February 2000, against that Tribunal's decision promulgated with Extended Reasons on 7 March 2000, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent T G Jeary Ltd.[2]The factual background, as found by the Employment Tribunal, may be shortly summarised in this way. The Respondent was a family business, supplying retail products to farmers. From the start of his employment in May 1979 the Appellant had been employed as company secretary. From time to time he was a member of the Board of Directors of the company.[3]At a board meeting held in February 1998 it was resolved that fresh employment contracts should be negotiated with certain senior members of the company who then held long-term contracts with a view to making the business more appealing to prospective purchasers. As a result the Appellant was served with contractual notice, 18 months notice of termination to expire on 12 August 1999. The intention, as the Appellant understood, was that new contractual terms would be negotiated. In the event(a) the proposed sale of the business fell through and(b) the parties were unable to agree the terms of a new contract for the Appellant. Accordingly his employment terminated by dismissal on 12 August 1999.[4]The Employment Tribunal found that since the prospective sale of the business had fallen through the provisions of the TUPE Regulations 1981, and in particular Regulation 8, did not apply in this case. Applying the ordinary principles of unfair dismissal, to be found in Section 98 of the Employment Rights Act 1996, they concluded:(1) that the Appellant had been dismissed for a potentially fair reason, some other substantial reason, and(2) that the dismissal was fair, applying the test in Section 98(4).[5]Against that decision the Appellant, then acting in person, entered a notice of appeal dated 11 April 2000. His grounds of appeal fell under 2 heads, first that the Tribunal had not properly conducted itself, both at the original hearing and by the chairman, himself dismissing an application for review made by the Appellant (the misconduct grounds); secondly, that the Employment Tribunal had erred in disaplying the provisions of TUPE. By a skeleton argument the Appellant drew particular attention to Regulation 8 which provides in summary that where either before or after a relevant transfer an employee is dismissed by reason of the transfer he shall be treated as unfairly dismissed unless the employer can show an economic technical or organisational ETO reason for the dismissal, in which case the ordinary principles of fairness contained in what is now Section 98(4) of the 1996 Act came into play.[6]The appeal came on for Preliminary Hearing before a division presided over by Charles J on 8 November 2000. On that occasion the Appellant was represented by Counsel, Mr Matthew Chapman, under the ELAAS pro bono scheme.[7]As appears from the judgment delivered by Charles J an that day the Employment Appeal Tribunal considered and rejected the misconduct grounds; Counsel conceded that TUPE and in particular Regulation 8, could not apply directly in this case since no relevant transfer took place. The Employment Appeal Tribunal accepted that that concession was properly made.[8]Pausing there, those findings would appear to have disposed of each ground of appeal advanced by and on behalf of the Appellant. The appeal failed. However, that was not the end of the matter. Counsel advanced further arguments of his own, none of which found favour with the Employment Appeal Tribunal. Again that would appear to have brought it to an end. But it did not.[9]It seems that the ingenuity of the bench produced a further point which was gratefully adopted by Counsel. It is identified and formulated at paragraph 24 of the judgment and since, in the event, it was the only ground on which the appeal was allowed to proceed to this full hearing, with the Respondent present, and since no amendment to the Notice of Appeal to plead the point was thought necessary, we should set out that paragraph in full:
"24 A further point raised during the course of the hearing and adopted by Counsel was the question whether it is arguable that in determining either (a) whether or not a reason that satisfied section 98 of the Employment Rights Act 1996 had been given, or (b) the decision to dismiss was reasonable. TUPE (and in particular paragraph 8 thereof) should have been taken into account. In other words in applying s.98 Employment Rights Ac 1996 is there an inter relationship between it and TUPE when a notice of termination is served for the purposes of effecting an alteration (by agreement) of the terms of a contract in circumstances such as those that existed here; namely as is set out in paragraphs 4, 5 and 6 of the Extended Reasons, that the board were considering selling the company and long-term contracts would not be attractive."
[10]Having raised the point, the Court acknowledged that the Respondent, or indeed this division of our own motion, may wish to take the preliminary objection that this is a new point, not taken below, which ought not to be allowed to be taken for the first time on appeal. We need not exercise our own powers; the point is fairly and squarely taken by Miss Eady for the Respondent, it having been raised at the first opportunity in the Respondent's Answer.[11]We had therefore taken that issue as a preliminary point, inviting Miss Eady to address us first on that aspect of the case.[12]She has referred us to the comparatively recent Court of Appeal learning on this question to be found in Jones v Governing Body of Burdett Coutts School [1999] ICR 38 and Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 , which in turn review the earlier authorities.[13]From those cases the following principles emerge:(1) whilst the Employment Appeal Tribunal has a discretion to allow new points to be raised on appeal for the first time it is a discretion which should only be exercised in exceptional circumstances and for compelling reasons, particularly if the result would be to open up fresh issues of fact which would require further investigation by the Employment Tribunal.(2) lack of skill or experience on the part of the Appellant or his representative below does not constitute exceptional circumstances or compelling reasons for allowing the new point to be taken on appeal. Approving Kumchyk v Derby City Council [1978] ICRI 116.(3) the public policy considerations behind this general rule lie in the principle of finality of litigation.[14]Miss Eady submits that the proposition articulated by Charles J was not advanced below.[15]In these circumstances she submits:(1) that no exceptional circumstances for allowing the new point arise(2) that if the new point is allowed to be taken it will be necessary for further fact-finding to be carried out by the Employment Tribunal.[16]She developed the latter submission, by reference to the, as yet untested proposition formulated by the Employment Appeal Tribunal at the Preliminary Hearing, by pointing out that it would be necessary to argue, and therefore adduce evidence for the propositions that:(1) what was being envisaged by the Respondent in early 1998 would not have constituted a relevant transfer within the meaning of the Regulations and(2) what was envisaged could have given rise to an ETO reason for dismissal(3) the reason for dismissal and its reasonableness must be viewed both when notice is given and at the effective date of termination – see Parkinson v March Consulting Ltd [1997] IRLR 508.[17]In response, Mr Korn seeks to draw a distinction between the reason for dismissal and its reasonabless, sub-paragraphs (a) and (b) of paragraph 24 of the Preliminary Hearing judgment. As to the latter he accepts that it is a new point; as to the former he does not. We are quite unable to discern any distinction. The point articulated by Charles J was whether, in the case of an incomplete transfer, the TUPE provisions ought to be considered in answering both statutory questions under s98 of the Employment Rights Act 1996. We are quite satisfied that the whole of the substantive appeal permitted to proceed to this full hearing raises a new point, not taken below. That is hardly surprising. Both parties appeared unrepresented below. Chalres J acknowledged that the point raised at the Preliminary Hearing was novel and a lawyer's point.[18]It is, we think, fair to say that it would not have occurred to us, nor indeed to experienced Counsel appearing before us. It certainly did not occur to Counsel appearing at the Preliminary Hearing until it fell from the bench.[19]Mr Korn further accepts the principles to be found in Jones and Glennie . However, he contends that further evidence would not be necessary to determine the TUPE aspect, assuming that the point is good in law. We reject that submission. For the reasons given by Miss Eady there is no doubt, in our minds, that further evidence and findings of fact would be necessary in order to apply the proposition articulated by Charles J at the Preliminary Hearing, again assuming, without at this stage deciding, that it is good in law.[20]In these circumstances the present case is quite different from that of London Clubs Management Ltd v Hood [2001] IRLR 719, to which Mr Korn referred us. At paragraph 24 of the Report Miss Recorder Elizabeth Slade QC explained why a pure point of construction of s6(11) of the Disability Discrimination Act 1995 was allowed to be taken on appeal for the first time. No fresh evidence was required and no prejudice was caused. Again, assuming that the Employment Appeal Tribunal's approach in that case conformed with binding Court of Appeal authority, it is plainly distinguishable from the facts and circumstances of the present case before us.[21]Finally, Mr Korn nevertheless invites us to exercise our discretion in favour of allowing the Appellant to advance the new point here on the basis of exceptional circumstances or compelling reasons to do so. He raises 2 factors; first, that neither party was represented below; secondly, that it is a lawyer's point. In short, we are quite unable to see that either factor begins to amount to the sort of exceptional circumstances which will allow us to exercise our discretion in favour of committing the new point to be argued on appeal.[22]On the contrary, we think that this is precisely the sort of case where the ordinary rule against allowing new points to be argued on appeal applies. It would involve the Respondent in a rehearing when they believed that the case had been disposed of, subject to an appeal directed to the issues which the Employment Tribunal was asked to determine. That appeal failed at the Preliminary Hearing stage. It would be quite wrong to restart the case on the basis of a wholly novel point of law, as yet untested.[23]This appeal must be dismissed.