Ejiofor (T/A Mitchell and Co Solicitors) v Sullivan and Others: EAT 22 May 2014

EAT Transfer of Undertakings : Transfer – PRACTICE AND PROCEDURE – Case management
The ET found that there had been a TUPE transfer of a solicitors’ practice. The App employer maintained in the EAT that because there had been periods when the business was not carried on lawfully (because the solicitor in charge had been struck off) there could be no transfer of the business under TUPE. It was not clear if the point had been taken below but the EAT was satisfied on the facts as found that it could not be said that the business was carried on for an unlawful purpose as such and that it could therefore be transferred for the purposes of TUPE.
Following the hearing on TUPE in the ET there was a further hearing to deal (basically) with remedies while the App was seeking to appeal on the TUPE issue. The App sought unsuccessfully to adjourn that hearing on the basis of the prospective appeal. He had chosen not put in any evidence in relation to remedies. On the morning of the hearing, the App did not attend and sent in a sick note. Counsel and the App’s associate did attend but it was clear they were only in a position to apply again for an adjournment and there were no plans to challenge the remedies sought by the C. The EJ was suspicious of the sick note and found that the app for an adjournment on the basis of the App’s non-attendance was simply designed to add spurious weight to the application on basis of the proposed appeal. He did not adjourn to make further enquiries in relation to his suspicions about the sick note and the App said that this was an obvious step which should have been taken in fairness to him.
The EAT found that this was one of those (possibly rare) cases where fairness did not require such a step. The crucial considerations were:
(1) there was no indication that the App’s personal attendance was in fact necessary or what he was going to ‘bring to the party’;
(2) the App’s associate who had been closely involved in the case was present and representing the App and the EJ’s grounds of suspicion were aired by the C’s rep and the EJ in front of him; but he made no application for further time to deal with the points relied on;
(3) in the circs the EJ was entitled to make his finding of fact about the true motivation of the App.

Shanks HHJ
[2014] UKEAT 0268 – 13 – 2205
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.536433