ON APPEAL FROM THE MANCHESTER COUNTY COURT
Claim No. 0MA02292
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE PATTEN
| NEIL MARCROFT
|- and -
|HEARTLAND (MIDLANDS) LIMITED
MS JOANNE CONNOLLY (instructed by Chandler Harris LLP) for the Respondent
Hearing date: 11th March 2011
Crown Copyright ©
Lord Justice Mummery:
"…a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect as if originally made between the person so employed and the transferee."
"Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee."
Judgment of HHJ Platts
(1) Before 15 September when he handed in his notice he was "certainly assigned to the commercial insurance department."
(2) Between 15 and 25 September he still did commercial work and "remained assigned during that period, despite the fact that he had handed in his notice. The fact of handing in his notice did not alter the situation. "
(3) After 25 September he "remained on call should any problems or questions arise." The judge said that that did not mean that "he ceased to be part of the commercial insurance team. In fact, it seems to me that PMI were still entitled to rely on him if anything arose."
"…remained at all times assigned to that department and the part of the business which was transferred to the claimant on 2 October. After that, of course he was not assigned at all because there was nothing to be assigned to. "
"…It might seem somewhat surprising at first blush when I found that this was a result that was not intended, either by either party to the agreement nor by the defendant himself. But the regulations are not determined by the intention of the parties. Certainly as to the agreement to transfer, the intention for the parties, while relevant, cannot be determinative because the idea of the regulations is to provide protection to the employees who are not a party to that contract. Therefore that is not a relevant factor. Once the protection is provided to the employee then it must be right that the protection he has does not only protect him to his rights but it must carry with it any burdens that he has under the contract. So far as Mr Marcroft is concerned, if this sale had not taken place, he would have been bound by any restrictive covenant that he had and, in my judgment, the fact that the business was sold to Heartlands does not relieve him of that obligation for the reasons which I have given…"
Discussion and conclusions
Lord Justice Patten:
Lord Justice Elias: