Acorn Packaging v Carroll (Jurisdictional Points)

An appellate tribunal need not research and formulate unadvanced grounds of appeal, particularly where neither party attends or makes adequate submissions. An appellant must identify material capable of demonstrating an arguable error of law. Where its notice and skeleton argument do not do so, the appeal may be dismissed without resolving potentially interesting questions arising from the statutory scheme.

The claimant had been awarded a redundancy payment by the Birmingham Employment Tribunal on 13 June 2011. The Tribunal treated his employment as continuous notwithstanding a ten-day interval between an earlier employment ending on his sixty-fifth birthday and a subsequent short-term contract.

The employer appealed. It contended that the later contract was expressly non-continuous and that a letter suggesting otherwise had been forged. At the full appeal hearing neither party attended and neither had supplied submissions adequately addressing the statutory continuity issue. The central issue was whether the appeal disclosed an arguable basis for overturning the redundancy award.

1. Appeal dismissed. The employer's notice and skeleton argument did not advance an arguable ground capable of persuading the Employment Appeal Tribunal that the Employment Tribunal had erred in law.
2. The Employment Appeal Tribunal recognised that there were potentially substantial issues concerning the interaction of Employment Rights Act 1996 provisions on redundancy, re-engagement and continuity of employment. The Employment Tribunal had relied on section 138, although it had initially referred to section 139, to treat the claimant's employment as continuous. The earlier employment had apparently ended on the claimant's sixty-fifth birthday rather than by redundancy.
3. Slade J had identified, at the preliminary stage, an arguable contention that section 138 was confined to redundancy-dismissal rights and did not itself preserve continuity, which was addressed by section 213(2). Those observations did not determine the point at the full hearing.
4. Judge Serota QC declined to undertake independent legal research or construct arguments which the absent parties had not chosen to advance. The appeal therefore stood dismissed, without a determination of the substantive continuity issue.

• Employment Appeal Tribunal: appeal dismissed in [2012] UKEAT 0534_11_2606 because the appellant advanced no arguable ground and neither party made adequate submissions at the hearing.
• Employment Tribunal, Birmingham: on 13 June 2011, Employment Judge Ashton held that the claimant had continuous employment and awarded a redundancy payment of £1,190.28.