MR STUART LANDON v MR J E LILL [2002] UKEAT 1486_00_2502

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1486_00_2502

Case No Appeal No. EAT/1486/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR STUART LANDONAPPELLANT

MR J E LILLRESPONDENT

Before

His Honour Judge Wilkie

Lord Gladwin of Clee

Date 25 February 2002

[1]APPEARANCES For the Appellant MR UNDERWOOD (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE WILKIE QC : This is an appeal by Mr Landon against a decision of the Employment Tribunal held at Boston on 13 October 2000, in which it upheld certain claims made by Mr Lill, namely non-payment of redundancy payment, breach of contract and unlawful deduction from wages. In consequence of that Mr Landon was ordered to pay Mr Lill a redundancy payment of £4,483.20, damages for breach of contract of £1,738 and compensation for unlawful deduction from wages in the sum of £186.80.

[2]We have found this a troubling case. Mr Landon was represented by solicitors, who entered a Notice of Appeal against that decision of the Employment Tribunal, the sole ground of appeal being one of perversity. Today Mr Landon has had the advantage of representation of Mr Underwood under the ELAAS Scheme and he has, perfectly properly, addressed us on the issue of perversity.

[3]The claim by Mr Lill arose out of the termination of his employment at Seacroft Garage in Skegness. He had been employed there from March 1977 until February 2000, when he was dismissed by reason of redundancy on account of the fact that the garage ceased to trade. He was not paid the relevant sums for which his claim was made in the tribunal. He said that he was employed by Mr Landon personally; hence his claim was against Mr Landon.

[4]Mr Landon had submitted a Notice of Appearance to the Employment Tribunal on 5 July 2000. The Notice of Appearance is handwritten and contains at the top the following:

"Following conversation 3/7/00 business has gone into liquidation, limited company liquidators responsible for giving any redundancy." and he then named the respondent as being a person at a firm of Accountants, Pannell Kerr Forster, at their address in Leicester. There was apparently some further discussion with the tribunal in the form of a letter sent to Mr Landon dated 11 September, following which he had a telephone conversation with the tribunal. This appears to be the case, because on 12 September he wrote a letter of that date to the tribunal in which he refers to the letter of 11 September and the telephone conversation on 12 September and says: "

I am writing to inform you that Seacroft Garage whom Mr Lill previously worked for is currently in liquidation. Mr Landon is not personally responsible for Mr Lill's redundancy payments as the company was a Limited Company. The liquidators details are as follows. [he then sets out the same information about Pannell Ker Forster as contained in his ET 3]."

[5]Mr Landon did not attend the hearing of the Employment Tribunal on 13 October. Mr Lill did. Mr Lill plainly gave evidence to the effect that, as far as he was concerned, he was always employed by Mr Landon personally. However, Mr Lill had produced for the tribunal the last three payslips which named the employer as Stuart Landon Ltd. However, his evidence was that there had been no communication about any change in the status of his employer and, as far as he was concerned, his employer remained Mr Landon in person.

[6]The tribunal had made enquiries with Companies House and they showed that no insolvency proceedings had been commenced against Stuart Landon Ltd and, furthermore, apparently enquiries were made of Pannell Kerr Forster who denied that it was in liquidation. The tribunal found that Mr Landon had acquired the business in November 1998, some 15 months or so before the redundancy and therefore some 14 months, or thereabouts, before the date of the three most recent payslips.

[7]Faced with that evidence, the tribunal decided that Mr Landon was the correct respondent and it is that finding which, in order to succeed in this appeal, Mr Landon has to demonstrate was perverse, that is to say one to which no reasonable tribunal could have come, given the information which the tribunal had before it on 13 October.

[8]We regard this as a very troubling case, essentially because subsequent to the tribunal hearing, and in order to seek a review of the decision, a quantity of documentation of various sorts has been produced by Mr Landon which, on its face, tends to suggest that, indeed, the company was the employer, that there had been an acquisition by a company and therefore, for PAYE and other statutory purposes, the paper work was all consistent with the company being the employer. Plainly all of this evidence was available, or could have been made available, to be presented before the Employment Tribunal at its initial hearing and there is very clear and repeated authority that if such evidence is available, then it cannot form the basis of a review under the heading either that new evidence has become available or that the interests of justice require a review. For that reason (and we perfectly understand why) Mr Underwood has not sought to persuade us to consider that the refusal of the review by the tribunal on 28 November was anything other than perfectly proper. The focus of his appeal is, and has to be, the decision of 13 October and has to be on the basis that, in the light of the material then available to the tribunal, it was perverse,

[9]We regret to say that, having regard to the limitation upon our powers, we are forced to the conclusion that there is no reasonably arguable case on this appeal and therefore it must be dismissed.

[10]Mr Landon has suggested, and indeed did suggest, that he had been rather let down by those from whom he had sought advice. In particular, he has suggested that the reason for his non-attendance at the original tribunal hearing was on the advice of Accountants, by implication Pannell Kerr Forster. That may or may not be the case and, if it be the case that it was bad advice, it may or may not be that he has any remedy against them, depending upon whether they were acting for him or were acting for others who had taken steps to have them appointed in some capacity in respect of this failing business. That, however, is not something which can persuade us that this is an appeal that should succeed.

[11]Similarly, undoubtedly Mr Landon did have conversations with the tribunal office in which, no doubt, the question of who was the correct respondent and the status of the employer was the subject of some discussion. Mr Landon has asserted that his understanding was that he was being told that he need not attend the tribunal hearing. That has been the subject of an enquiry set in train by another panel of this tribunal, when the appeal first came on earlier last year. The response of the tribunal is that, whilst there are no telephone message notes, the Regional Secretary has said that she was certain that no member of the tribunal staff would tell a party that they need not attend if they were not the true employer. We agree with that. It would be extraordinary advice for someone to give and it may well be that Mr Landon has taken the wrong message from what the tribunal office was saying. Certainly, once again that is not a matter which we take into consideration in dismissing this appeal which, as we say, we dismiss with some degree of regret by reason of the extremely limited nature of our jurisdiction. However, it is clear that the appeal has to be dismissed.

[12]At the conclusion of the appeal based on perversity, Mr Underwood has raised a point, which was not taken in the Notice of Appearance by Mr Landon, nor was it taken in the Notice of Appeal which affects the breach of contract award and the unlawful deduction from wages, but does not affect the redundancy claim and that is, that it appears on the face of the ET 1 that the application in respect of those two matters, namely the 12 weeks' pay in lieu of notice and the one week's holiday pay, was brought out of time in the sense that the employment terminated on 4 February 2000, the application was received by the tribunal on 25 May 2000 and there is an inflexible three month time limit unless it was not reasonably practicable for the application to be brought within it. It seems to us that, although it is raised very much at the last moment, it is a jurisdictional matter and one which, particularly where both parties are lay people, it is arguable that the tribunal ought to have been astute to the point and taken it of its motion and, if it had, that those claims might not have succeeded.

[13]Therefore, we do give permission to Mr Landon, no doubt through the good offices of Mr Underwood, to amend the Notice of Appeal to add this jurisdictional point. We will give him seven days to do so and no doubt Mr Underwood can effectively do it for him. That matter, and that matter alone, will go forward to a full hearing, the appeal in respect of the redundancy payment being dismissed in its entirely and the appeal in respect of the deduction of wages and breach of contract claim being dismissed insofar as it is based on an allegation of perversity.