Leo Group International Ltd v Peter Rusworth & Ors

An Employment Tribunal is not required to reconstruct or rescue a represented party’s case. A party that deliberately fails to comply with case-management orders, gives no evidence and elects not to cross-examine cannot complain that the tribunal should have found a document and used it to undermine the opposing evidence. A tribunal may assist an unrepresented litigant, but must not take over a represented party’s case or attack the case advanced by the other side. In transfer-of-undertakings cases, a purposive approach prevents a vendor from dismissing employees after a sale is effectively agreed in order to avoid the purchaser’s responsibilities.

Former senior employees and directors of YCL claimed unfair dismissal after YCL entered administration and its European business was sold to the appellant, a Hong Kong company. They were dismissed on 13 January 2006. The sale contract was concluded on 16 January, and the Employment Tribunal found that the business continued in an identical manner apart from the relocation of its head office. The Tribunal found that the transfer-of-undertakings regulations applied, that the employees were deemed to have been employed by the appellant immediately before the transfer, and that their dismissals were unfair.

The appellant had substantially failed to comply with disclosure and witness-statement orders. Its application to postpone the hearing was refused, and it did not call evidence or meaningfully challenge the employees’ case. The Employment Appeal Tribunal determined the matter on 16 August 2007. The central issue was whether the Employment Tribunal had erred by failing to identify and examine the KPMG administrators’ report.

The Court of Appeal, comprising Lord Justice Buxton and Lady Justice Smith, refused the application for permission to appeal.

1. The Employment Tribunal had not misconducted the hearing. The appellant had deliberately chosen how to conduct its case, remained in total default of disclosure and witness-statement orders, gave no evidence and made no substantive case. It was therefore bound by the consequences of those decisions.
2. An Employment Tribunal may adopt an informal and helpful approach where an unrepresented litigant needs assistance in presenting a case. That does not extend to taking up a case which a represented employer has not advanced, or to investigating material in order to undermine the opposing party’s evidence. The Tribunal was not obliged to locate the KPMG report among the papers and construct a case from it.
3. The report could not justify appellate intervention. It was an administrators’ report, not a report prepared for the proceedings, and the proposed exercise would have required the Tribunal to make assumptions on behalf of the appellant. The criticisms of the Employment Tribunal’s findings were not open to the appellant in light of the way the hearing had been conducted.
4. In relation to the transfer, Buxton LJ regarded the Tribunal’s purposive construction of the transfer-of-undertakings regulations as required by the decision in Litster v Forth Dry Dock Engineering Co Ltd [1989] IRLR 710 CA. The purpose of that approach was to prevent a vendor from dismissing employees after a sale had been agreed in all but signed form so that the purchaser could avoid responsibility for redundancy. The Tribunal’s conclusion that the employees were employed by the appellant immediately before the transfer was regarded as inevitable, whether the transfer date was 13 or 16 January. This was substantive context and did not require reconsideration of the findings.
5. The appellant had also failed to discharge the burden of showing that the dismissals were for an appropriate economic, technical organisational reason and that it had acted reasonably. The application was refused. The Court expressed concern about the delay in progressing the remedies hearing.

• Court of Appeal (Civil Division) — The application for permission to appeal against the Employment Appeal Tribunal’s determination was refused: [2008] EWCA Civ 680.
• Employment Appeal Tribunal — Determination dated 16 August 2007, following an appeal from the Employment Tribunal. The outcome is not stated in the judgment.
• Employment Tribunal — In December 2006, the Tribunal found that the employees had been unfairly dismissed and that the transfer-of-undertakings regulations applied.