Appeal No.	EAT/1081/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 December 2001

Before
HIS HONOUR JUDGE D PUGSLEY
MRS A GALLICO
LORD GLADWIN OF CLEE CBE JP

MRS J WALKER	APPELLANT

MR J L BRIERLEY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DAN IBEKWE
(Friend)
	
For the Respondent	MR DAMIEN BROWN
(of Counsel)
Instructed By:
Messrs Baxter Caulfield 
Solicitors
13 Station Street
Huddersfield
HD1 1LY	

JUDGE D PUGSLEY:

1	This matter came before an Employment Appeal Tribunal in which the judgment was given by Mr Recorder Burke QC sitting with Mr Parker and Mrs Prosser.  The Tribunal then outlined the various matters and gave leave on effectively one issue.  The one issue related to the amount of the redundancy payment and, if I may quote from paragraph 10 of that preliminary judgment:

“There appears to be no doubt on the face of the documents that we have seen, that the redundancy payment which was awarded, was awarded on the basis of a length of service of two years.  It seems to have amounted to 2 times one half of a weeks’ basic salary, one half of a week being appropriate for each year of Ms Walker’s service because she was during that service under the age of 22 at which an employee becomes entitled for each year to one full week as opposed to one half weeks salary by way of redundancy payment.  Ms Walker set out the dates of her employment as 1 October 1996 to 22 October 1999; in other words she claimed that she had been employed as the date of dismissal for 3 weeks over 3 years, not 2 years; and those dates are accepted … as being correct.  Furthermore the employers’ witness statement refers to those dates ….  It appears to us then, on the face of the documents we have seen, that is at the very least arguable and it may be very clear that Ms Walker was employed not for 2 years but for 3 years and ought to have had an extra half weeks basic salary on top of the redundancy payment … .  Thus there is an arguable point.”

2	With the greatest respect to the learned Recorder and the distinguished members of the preliminary panel, that is an error on the Employment Appeal Tribunal’s behalf.  The error is set out very clearly in the skeleton argument and was also set out in the answer which was filed in or about June by the Respondents.

3	The position is that the Appellant was aged 20 at the effective date of termination.  She had been employed for three years but a period of continuous service does not begin until the age of 18, pursuant to section 211(2) of the Employment Rights Act 1996.  She therefore had two years’ continuous service and received the correct payment.

4	In effect Mr Ibekwe who appears for the Appellant has conceded that before us.  He says he wants to argue certain of the grounds that were before the preliminary tribunal but he accepts that he was not given leave on those and there was only that one issue.  Irrespective of any concession by Mr Ibekwe, we would find (if I may use the old-fashioned parlance) Homer nodded on the day of the preliminary hearing.  There clearly is only an entitlement to that which was allowed by the employer because only from the age of 18 does that count for the purposes of continuity.  There is a publication of the Employment Tribunal Practice and Procedure which has the table but in all conscience it ought to be said that the table is, I think, in the Redundancy Handbook which is obtainable from the Stationery Office, which is, free and from ACAS and it is generally a matter that should not really have got this far.

5	Mr Damien Brown has argued we should order Ms Walker to pay the costs.  Putting this matter as tactfully as I can, I think it is only right to say that we are concerned about the way in which this case has been presented.  We can all make mistakes and the fact one may have professional qualification is not a ground for thinking you do not make mistakes.  We can all overlook things, but really from the time when that answer was filed it should have been obvious that the argument that had been placed before the Employment Appeal Tribunal on behalf of Ms Walker was misconceived.  

6	We are concerned that exactly on the basis that the Applicant, who is not here, is represented by Mr Ibekwe, the address for documents is given as Goldington Avenue, Oakes, Huddersfield.  That, we understand, to be the address of Mr Nicholls.  The Union given is PTSC.  What we are told by Mr Ibekwe, who appears here, is that he only appears as a friend, there is no possible question of payment and he does not appear in his capacity of representing a union.  We have to say that that is rather different from the impression given by the Originating Application and we do not think we can take the matter any further than that.  

7	We are concerned that this matter did proceed as though the Applicant was being represented by an official body on the basis of some membership.  In the context of this case Mr Brown, who impresses us by his realism, does not argue that we can in fact make an order against a representative but we do think it would not be appropriate to make an order without knowing anything of the means of the Applicant, Ms Walker.  We do not feel we can take, if we may say, the comforting and comfortable slogan of the law that she has her remedy elsewhere because we are not sure she would have as a matter of reality rather than pure theory.  

8	We have the profoundest sympathy for the Respondents because they have been brought here unnecessarily.  We all make mistakes but if there is a mistake being made, as this was pointed out it was, Mr Ibekwe has not argued to the contrary today that this appeal should have been withdrawn.  

9	In the circumstances of the case we dismiss the appeal and dismiss the Respondent’s application for costs.