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THE INDUSTRIAL TRIBUNALS

CASE REF: 3688/01

APPLICANT: Raymond Bell

RESPONDENTS: 1. Heatons Limited

2. Meadowlands Limited

DECISION ON A PRELIMINARY QUESTION

The unanimous decision of the Tribunal is that there was a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981.

Appearances:

The applicant was represented Ms J Wilson, Barrister-at-Law, instructed by Reid Black, Solicitor.

The respondent was represented by Mr A Ferguson, Personnel Training Services.

Ms Wilson advised the tribunal that following discussions between the parties it was agreed that Heatons Limited should not be a party to the proceedings. Mr Ferguson indicated his agreement and the tribunal agreed to remove Heatons Limited as a party to these proceedings.

The applicant had been employed by Montgomery Distribution and over a period of time had progressed to the position of Operations Manager in the Belfast Depot. Mr Merville Boyd was the Managing Director of Montgomery Transport of which Montgomery Distribution was a subsidiary.

Mr Boyd approached the applicant in May 1999 with regard to the setting up of the distribution centre in Antrim solely for Heatons' retail chain. The applicant was duly appointed Operations Manager and took up the post in June 2001. In July the applicant heard that Mr Boyd had left the company and set up his own company called Merthe Logistic Solutions ('MLS'). The applicant was told by Heatons that they wanted to retain MLS as a consultant.

On 24 October 2001 the applicant was told that Montgomery Distribution had lost the Heatons' contract and that all twenty-eight staff in Antrim were being made redundant. All employees were offered interviews with MLS, who had been awarded the contract, but were also advised that the jobs would be advertised in the local Job Market.

The applicant was told that the transfer of undertakings did not apply and if he was interested in a job he should contact Mr Boyd or the Antrim Job Market.

The applicant stated that virtually all the staff in the distribution centre were re-employed by Mr Boyd.

Mr Ferguson advised the tribunal that the contract between Montgomery Distribution and Heatons was never put into writing and it was terminated by the giving of one week's notice. The applicant had been informed on 24 October regarding redundancies which were to operate on 31 October.

On 26 October, Mr Boyd came to the Antrim Centre and observed a Jim Darragh giving redundancy notices to all employees. At that time, Mr Boyd gave information sheets to all employees and those who were interested were advised to apply for employment with the new contractor, Meadowlands Limited. Those who responded to the invitation started work on 1 November 2001.

The applicant was informed by Mr Boyd that he would not require an Operations Manager as he would be taking over some of the duties himself and other duties would go to Supervisors. Mr Ferguson's instructions were that eighteen staff started on 1 November, but he was not aware as to whether all of those eighteen had been previously employed by Montgomery Distribution.

The tribunal were told that Heatons had purchased all the buildings and all the assets attaching to it. The contract being entered into was for the management of the centre, control of stock and distribution to Heatons' various premises.

Mr Ferguson submitted that following the European Court decision in Suzen that there had not been a transfer of an undertaking. There had been no transfer assets as Heatons owned them all. None of the staff had transferred, all having been dismissed by reason of redundancy and therefore no contracts of employment existed at the date of transfer. He also referred the tribunal to the case of Meade and Baxendale to support his contention.

Ms Wilson referred the tribunal to the case of Cheeseman v R Brewer Contracts Limited (2001) IRLR 144 which provided guidance on matters which should be taken into consideration in determining whether there had been a transfer of an undertaking.

She contended that the entity transferred retained its identity, the operation previously carried out continued and there had been no cessation in the operation. She pointed out that the new employers took over a major part of the workforce.

She drew the tribunal's attention to the fact that it should not treat any particular factor in isolation. In the present case the asset being transferred were the workers, the customers transferred and the activities were the same before and after the transfer. She submitted that the fact that no tangible assets transferred did not preclude a transfer.

The tribunal gave consideration to the guidance given by Mr Justice Lindsay in the Cheeseman case where it was stressed the tribunal needed to consider two separate questions:-

(i) Is there an undertaking? and

(ii) If so, has it been transferred?

The following principles can be distilled from the cases to assist the tribunal in determining whether there had been a transfer.

(a) The decisive criterion is whether the entity retains its identity by the fact its operation is actually continued or resumed;

(b) In a labour intensive sector an entity is capable of maintaining its identity after it has transferred where the new employers take over a major part of the workforce;

(c) In considering whether the conditions for existence of a transfer met, it is necessary to consider all the factors characterising the transaction;

(d) Each is a single factor and none is to be consider in isolation.

The tribunal in considering the question also noted the decision of the Court of Appeal in RCO Support Services v Unison (2002) IRLR 401 where Mummery LJ emphasised that Spikers was still good law. In the RCO case no staff transferred, but the tribunal had concluded there had been a relevant transfer. The Court of Appeal concluded that the tribunal had been entitled to take the multi-factorial approach and dismissed the appeal.

In this case the tribunal were of the opinion that the economic entity retained its identity and continued its operation immediately after the dates of dismissal. The tribunal were also of the opinion although only the employees transferred in this case it had retained its identity after it had transferred and also found that a major part of the workforce had transferred to the new company.

The tribunal also noted that similar considerations were given by the EAT in a recent case Pinnacle A/C Limited v Honeyman and Others EAT 13.6.02 which followed the decision of the Court of Appeal in the RCO case

The tribunal having taken into consideration all the relevant factors were of the unanimous opinion that there had been a relevant transfer.

Mr Ferguson at the conclusion of the hearing made an application that if the tribunal found there had been a relevant transfer that he wished to make an application for Montgomery Distribution to be joined as a party to any subsequent proceedings. The tribunal were of the opinion that Montgomery Distribution should be joined as a party and should be served with notice of any further proceedings.

Chairman:

Date and place of hearing: 17 October 2002, Belfast

Date decision recorded in register and issued to parties: