Appeal No.	 EAT/945/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 1999

Before
HIS HONOUR JUDGE D PUGSLEY
MR P R A JACQUES CBE
MISS S M WILSON

CROCKFORDS HAIR HEALTH & BEAUTY	APPELLANTS

MRS H T SHIRLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	THE APPELLANTS NEITHER PRESENT NOR REPRESENTED	

	JUDGE PUGSLEY:		This is an appeal by the respondent employer.

1.	The circumstances are briefly stated. The respondent employer operated a health and beauty studio. The applicant, Mrs Shirley, was employed there from 9th September 1996 until November 1998. (In the original summary decision there is a typing error, which is rectified, in the extended reasons.)

2.	Mrs Shirley came before the tribunal in Birmingham on 12th May 1999 and the tribunal indicated that she was entitled to a redundancy payment and payment in lieu of notice. 

3.	Effectively, the respondent employers were told to vacate the building, which is what they did. They notified the accountant and ceased trading.

4.	In paragraph 3 of the decision the tribunal say that they have seen a letter from the Department of Trade and Industry dated 1 September of this year. We find that a little troubling since the decision was only delivered on 11th August (and those were the extended reasons) following the hearing of 12th May when summary reasons were given on 24th May. Be that as it may, the position is the tribunal analysed the situation and they said that the Department of Trade and Industry had been notified of the possible claim against themselves and that the representative from that Department had failed to appear. Having considered all the evidence, including the notice of appearance by the respondents and supporting documentation, the tribunal made certain findings of fact in paragraph 5.

5.	The net situation is this. The respondents found that the tribunal found that the respondent company, although it received a large amount on the surrender of the lease, that in fact they were in debt to unsecured creditors amounting to £5,713. The tribunal accepted that the company was not in a position to pay the applicant redundancy and notice money, and was not in a position to do so at the time when the employment was terminated.

6.	The applicant would wish to be paid by the Department of Trade and Industry in view of the respondents’ financial position.

7.	The appellant in this case, as we have indicated, is the respondent employer, who says that the decision is perverse because they do not have any money to pay the applicant. 

8.	However, we can see no objection to the way in which this Employment Tribunal has analysed ss. 182 and 183 of the Employment Rights Act 1996 in relation to the Act’s definition of insolvency. On the evidence before the tribunal they found that none of the requirements of s.183 (3) applied.

9.	The tribunal decided that the respondent company could meet the statutory requirements of the insolvency, and we are bound to say we see no grounds of appeal on that ground. We dismiss the appeal.

10.	However, we note in passing that that may not be the end of the matter. The tribunal were not invited to consider that the redundancy pay fell to be considered not by virtue of ss.183, but by virtue of s.166 of the 1996 Act. That states:

“(1) Where an employee claims that his employer is liable to pay to him an employer’s payment and either –
(a)	that the employee has taken all reasonable steps, other than legal proceedings, to recover the payment from the employer and the employer has refused or failed to pay it, or has paid part of it and has refused or failed to pay the balance, or
(b)	that the employer is insolvent and the whole or part of the payment remains unpaid.
the employee may apply to the Secretary of State for a payment under this section.”

11.	We therefore flag up to the original applicant, that irrespective of whether or not the employer was insolvent, there may be a claim under s.166(1)(a), namely the applicant has taken all reasonable steps to recover the payment from the employer. We therefore invite her to take legal advice about this matter.

12.	Apart from that, the respondent’s appeal is dismissed as we see no error of law.