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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bezant & Anor v. Tertiary Enterprises Ltd [2002] UKEAT 1308_01_0807 (8 July 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1308_01_0807.html Cite as: [2002] UKEAT 1308_1_807, [2002] UKEAT 1308_01_0807

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APPEARANCES

 

For the Appellant	MR R J BEZANT & DR L M BEZANT (the Appellants in Person)


 


MR JUTICE NELSON

1. This is a Preliminary Hearing of an appeal by Mr Bezant and his wife Dr Bezant against two decisions of the Employment Tribunal at Ashford in Kent, the first of 19 September 2001 when it was found that the contracts of employment between the Applicants and the Respondent were vitiated by illegality and the second, a decision of 6 December 2001 when the same Tribunal refused to review that decision.
2. The Applicants worked for the Respondent for over 20 years, Mr Bezant as Managing Director of Professor Hans Rausing's farm enterprises which were operated through the Respondent company and Dr Bezant for the selling of speciality foods prepared by the Respondents. She was also her husband's assistant.
3. Professor Rausing decided to sell one of the main farms in September 2000. Mr Bezant acted, it was alleged, not merely with great disappointment but, it is said, with some vigour and hinted that he had information on files about the Respondent company and its owners which he was prepared to use, in effect, as a bargaining factor in discussions as to how he should be treated if his employment came to an end.
4. He was dismissed because of his implied threats to disclose information in files and his wife was also dismissed. They both sued for unfair dismissal and, by amendment, wrongful dismissal.
5. They were ordered to put in a schedule of loss for their claims which they did. The schedule included many items, not just of income but items described as:

"perquisites and benefits"

relating to, for example, council tax and water rates (being paid by the Respondent Company on the home that they provided for the Applicants to live in), heating, telephone, cleaning expenses and others.

6. On seeing this schedule the Respondents alleged that the benefits had not been declared to the Inland Revenue on Form P11D as they should have been and that that rendered the contracts illegal. This prevented the Applicants, it was submitted, making any claim for unfair or wrongful dismissal.
7. The illegality point having been raised it was heard as a preliminary issue before the Employment Tribunal and the Respondent succeeded. The Tribunal rejected the evidence of both Mr Bezant and Dr Bezant and found that they – not the Respondent's auditors upon whom the Applicants said they had relied for the filling in of the forms – were responsible for what went into P11D. The Tribunal found that Mr Bezant and Dr Bezant knew perfectly well that certain items of benefit should have been included in the tax return and they were not.
8. There are, therefore, strong findings of fact which the Applicants will face difficulty in challenging. Nevertheless, we are satisfied that some of the grounds of appeal are arguable and the matter should go to a full hearing.
9. The Applicants failed, they told us today, out of ignorance, to put their new evidence before the Employment Tribunal at the review hearing but we have seen some of that material today.
10. There are three matters which we consider are worthy of consideration at the full hearing. We deal with both their applications together in relation to both the main decision and the review.
11. Firstly, the new evidence, particularly that which Mr Andrew Hill (an accountant who used to work with the Respondent's auditors) gives, that prima facie, the auditors did know, from his perusal of the files, of all the benefits from their audit and should, therefore, have been fully aware of the benefits which the Applicants received. As the auditors were the ones who actually filled in the P11D they should have inserted that information in the form.
12. The evidence called before the Employment Tribunal, from the auditors, we are told by the Applicants, suggested that the benefits in the schedule of loss took them by surprise and had been kept from them by the Applicants.
13. The evidence of Mr Hill, therefore, goes, fundamentally, to the issue which was found against the Applicants, and as a matter which is arguable in the interests of justice should be put forward by way of new evidence for consideration of the full hearing.
14. Secondly, there was no clear evidence before the Tribunal as to what benefits should have been disclosed and what should not. For example, the Tribunal found that council tax and water rates should have been disclosed to the Inland Revenue, when the Applicants today have produced copies of the Inland Revenue Regulations stating that such benefits were exempt where certain conditions, which were satisfied here, applied, namely the Applicants having to live in a particular home for the course of their employment.
15. Thirdly, the Respondents have apparent contradictions in their case. On the one hand they say that the benefits were contractual benefits which should have been disclosed to the Inland Revenue and on the other hand they say that they were not in fact benefits at all but dishonest misappropriations to which the Applicants were not entitled at all. This inconsistency, it is submitted, was not considered or dealt with by the Tribunal.
16. We look therefore to the grounds. In so far as the main appeal is concerned (i), (ii) and (iii) of the Skeleton Argument, where the grounds are helpfully set out, are arguable, but (iv) and (v) are not. As to (iv) there is no evidence of bias on the part of the Tribunal whatsoever, as the response of each of the three members indicates.
17. There may well be, on the part of Mr Bezant and Dr Bezant, disappointment at the result but that should not lead to allegations of this kind being made. Furthermore, there is no point of law on the burden of proof, as set out in Ground (iv) in the main action, which the Tribunal place correctly upon the employer.
18. As to the application in relation to the refusal of a review, we consider that the Employment Appeal Tribunal, at a full hearing, should have before it, for its consideration in order for it to decide whether they should be admitted or not, the evidence of Mr Hill in such statements as the Applicants wish to rely upon, and the P11D Form 2000/2001 prepared by the Respondents after the Applicants had ceased work.
19. We have been shown copies of those today. Copies, as I have indicated, which are to be relied upon, should be made available for the court and t he Respondents. None of the rest of the evidence has been put forward to us and there is not, on the face of any argument we have heard, any sufficient basis upon which that can be considered.
20. We therefore give permission for the matter to go to a full hearing on the grounds indicated. I should point out to Mr Bezant and Dr Bezant that they must ensure that full copies of each and every one of those documents, namely the statements of Mr Hill and the P11D for 2000/2001, must be prepared and served upon both the court and the Respondents.
21. I would also reinforce something I said earlier in the course of this judgment, that they must, of course, at all times appreciate that strong findings of fact were made against them.