Appeal No.	 EAT/311/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
LORD GLADWIN OF CLEE CBE JP
MISS A MACKIE OBE

MR U KHALID T/A ZODIAC ENGINEERING CO	APPELLANTS

MR D WISELY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE OR
REPRESENTATION BY
OR ON BEHALF OF 
THE APPELLANTS	
For the Respondent	MR M KESSLER
(of Counsel)
Messrs Glanvilles
16 Landport Terrace
Portsmouth
Hampshire
PO1 2QT	

	MR JUSTICE MORISON:  This is an appeal against a decision of an Industrial Tribunal which adjudicated in favour of the employee.  It held that he had been unfairly dismissed by his former employers, Mr U.Khalid t/a Zodiac Engineering Company, and awarded him £8,725 in compensation.

	By Notice of Appeal the employers have appealed against that decision.  Their main ground of appeal was that the Tribunal which heard the case had been biased against the Respondents.  In accordance with our normal practice an affidavit from the Respondents was demanded and the Chairman was invited to give his comments.  It was not without significance that in his comments the Chairman drew attention to the fact that that Tribunal had previously had experience of another case brought against the same Respondent and which had the same result and led to the same allegation of bias.  

	When the matter came before us by way of a preliminary hearing to determine whether the Notice of Appeal raised any arguable point of law, the Employment Appeal Tribunal ruled that there were two, and only two points of law, which were fit to go for a full hearing, namely the contention that the period of loss which the Industrial Tribunal had used was wrong, bearing in mind that the Appellants’ business had closed on 1 June 1995 and secondly, the award of £200 compensation for loss of statutory industrial rights, having regard to the fact that the employee, after his dismissal, had taken up full-time consultancy work as a self-employed person, and having regard to his age, which is 64.

	Those two points have come before us at a substantive hearing.  The Appellants have not appeared on the hearing of this appeal to advance it, but we have looked with care at the Notice of Appeal which they have filed.

	We deal with the two points separately.  As to the first, that is the period over which the employee’s loss was assessed, it is significant, in our view, that nowhere in their original decision did the Industrial Tribunal make a finding that the Appellants’ business had closed on 1 June 1995.  

	It seems to us that that is an allegation which has been raised in the Notice of Appeal.  It has been responded to by the employee who has produced, or has had produced on his behalf, an affidavit which sets out the circumstances in which the Appellants’ business closed, which show that the Transfer of Undertakings Regulations applied to the circumstances in which the business closed, and therefore the Tribunal were perfectly entitled to treat as the period of loss flowing from the unfair dismissal, the period which they themselves took into account, that is from 1 April 1995 to 15 December 1995.  Accordingly, it seems to us that there is no ground on which we should disturb the finding made by the Industrial Tribunal in that respect.

	We deal with the second point.  As to the award of £200 compensation for loss of statutory industrial rights, it does seem to us that the Industrial Tribunal fell into error in making that award on the special facts of this case.  The employee has, as we have indicated, become self-employed.  It is unrealistic at his age (if we might respectfully say so) to assume that he is going to undertake any employment in the future of significance for which he should be awarded compensation for loss of statutory industrial rights.

	Accordingly, we think that the award should be reduced by £200 which will mean that the total award is now £8,525 and we are satisfied that to that extent this appeal should be allowed.

	There is an application for costs in this case.  It seems to us that it was wholly unreasonable of the Appellant to assert, as he has in his Notice of Appeal, that his business closed on 1 June 1995, and the Tribunal were wrong to take the period of loss which they did.  It was wholly unreasonable for them to have raised it in the Notice of Appeal and not to have raised it before the Industrial Tribunal in a way in which they could deal with it.  Further, it is a wholly false point, having regard to the affidavit which we have read which was filed on the employee’s behalf.

	In those circumstances it does seem to us that the Appellant has been guilty of unreasonable conduct in that he has made an allegation, which was, in any event, quite unsupportable, for the first time in his Notice of Appeal.  That seems to us to bring into play our discretion under our Rules to make a costs order, where there has been unreasonable conduct in the pursuit of the appeal.  On the other hand, of course, as we have indicated the appeal has succeeded in part.

	Accordingly, it would not be right for all the costs to be awarded, but we do consider that this is a case where a substantial part of the employee’s costs of attending this hearing today should be paid by the Appellants.  We discussed with Counsel what form that order should take.

	We have been informed by Counsel that the costs for today are of the order of £900 excluding VAT and an application is made that the whole, or a substantial part of that sum should be awarded on the basis that had the main point not been raised by the employers in this case, the small matter of £200 could have been dealt with by agreement.  Whilst we see the force of that, it does seem to us that the amount being claimed in this case is on the high side.  In the exercise of our discretion contained in Rule 34(2), having decided that it is appropriate to make an order for costs, we assess the sum to be paid by the Appellants to the Respondent at £500 and will therefore include that in our order.