MR L ALI v DELMAC ACCOUNTANTS [2001] UKEAT 1421_00_0310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1421_00_0310Case No Appeal No. EAT/1421/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L ALIAPPELLANTDELMAC ACCOUNTANTSRESPONDENT
Before
His Honour Judge Peter Clark Mr P R A JacquesDate 3 October 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of the Respondent JUDGE PETER CLARK This is an appeal by Mr Ali, the Applicant before the Birmingham Employment Tribunal, against that Tribunal's Decision promulgated with Extended Reasons on 8 November 2000 dismissing, among other claims, his claim for a redundancy payment brought against his former employer, Delmac Accountants, the trading style of Mr David McHugh. The appeal was permitted at a preliminary hearing held on 9 May 2001, to proceed to this full hearing "solely on the redundancy payment issue". The Respondent has played no part in these appeal proceedings and by Order of the Registrar dated 16 July has been debarred from taking further part in the appeal. Today Mr Ali has failed to attend this full appeal hearing without explanation.[2]By way of background, the Appellant was employed by the Respondent as a bookkeeper/accountant from 1 July 1997 until 13 October 1999. On that day the offices of the Respondent were raided by police officers from the Merseyside Fraud Squad. The Appellant was shocked by this turn of events and decided that he did not wish to be involved in a firm that was not operating legitimately, so he decided to leave the employment. He told no-one but never returned to work.[3]In these circumstances he presented an Originating Application to the Employment Tribunal on 2 March 2000 claiming redundancy pay, notice pay, salary and holiday pay.[4]On 24 March 2000 the Respondent entered a Notice of Appearance contending that the claim was out of time and denying that the Appellant was unfairly dismissed or made redundant by the Respondent.[5]Before the Employment Tribunal on 22 August 2000 the Appellant appeared; the Respondent did not. The Tribunal took into account the contents of the Notice of Appearance.[6]As to the claim for a redundancy payment, the Tribunal said this at paragraph 3.3 of their Extended Reasons:
"The applicant accepted that it was the complete loss of trust and confidence in the respondent as a result of the raid which caused him to leave. The applicant accepted that this amounted to a constructive dismissal but that it did not amount to dismissal by reason of redundancy. The claim for a redundancy payment was in consequence dismissed."
[7]In this appeal the question raised at the preliminary hearing was whether or not the reason for the Appellant's constructive dismissal was redundancy as defined in Section 139(1) of the Employment Rights Act 1996. That raises a potentially interesting question of law.[8]However, it seems to us that the Appellant has a difficulty. As appears from paragraph 3.3 of the Tribunal's Reasons (not disputed by the Appellant in the Skeleton Argument which he prepared for the preliminary hearing and which is before us,) he accepted from the Employment Tribunal that he was not dismissed by reason of redundancy. Consequently that part of his claim was dismissed.[9]The Court of Appeal has made clear, particularly in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 , that a concession once made before the Employment Tribunal cannot be withdrawn on appeal, save in exceptional circumstances.[10]No exceptional circumstances have been advanced before us; indeed the Appellant has not thought it necessary to attend this full hearing.[11]In these circumstances, we feel constrained by binding authority to conclude that it is not open to us to investigate the question as to whether or not this Appellant's constructive dismissal was by reason of redundancy within the meaning of the Act. Consequently the appeal must be dismissed.