United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 423_93_2802

Appeal No. EAT/423/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J H GALBRAITH CB

MRS P TURNER OBE

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NATIONAL UNION OF PUBLIC EMPLOYEES          APPELLANTS

DEVON COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR ANTHONY WHITE

(Of Counsel)

Messrs Robin Thompson & Partners

28 Lawford Street

Bristol

BS2 ODZ

For the Respondents NO ATTENDANCE BY           RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the hearing of an appeal from the decision of the Industrial Tribunal held at Exeter on 7 April 1993. The appeal is by NUPE. For the full reasons notified to the parties on 16 April 1993 the majority decision of the Tribunal was that the complaint of NUPE of breach of Regulation 10 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and breach of Article 6 of the Directive 77/187 should be dismissed.

The claim of NUPE stated in the originating application presented on 4 February 1993 rested primarily on the submission that there was a transfer of undertakings within the meaning of the Regulations and the Directive. The Tribunal found that there was no transfer of undertaking. The reasoning in support of that decision is to be found primarily in paragraphs 30 and 31 of the full reasons. NUPE appealed against the decision by a Notice of Appeal served on 26 May 1993, but an order was made by the EAT on 3 November by consent was that the proceedings on the appeal should be stayed, pending the decision of the Court of Appeal in the case of Dines v Initial Health Service and Pall Mall Services Group Ltd whereupon either party is to be at liberty to apply for a further hearing date for the EAT.

The Court of Appeal gave judgment in the case of Dines last May. The parties then reached an agreement on the terms of a consent order and asked the Industrial Tribunal to make that order and also asked whether it was possible for it to be made without a formal appearance. The parties were informed that the practice of the Tribunal was to require an appearance by at least one of the parties when the consent order provided for an appeal to be allowed and for matters to be remitted to the Industrial Tribunal. On the hearing this morning Mr White appeared for the Appellants and asked us to allow the appeal, on the basis that, in the light of the decision of the Court of Appeal in Dines, there is an error of law in paragraphs 30 and 31 of the Industrial Tribunal decision. We are satisfied that he is correct in that submission. The appeal ought, therefore, to be allowed. He has also satisfied us, on the basis of the Court of Appeal's judgment given by Lord Justice Neill, that we should also make an order substituting for the finding of the majority in the Industrial Tribunal, a finding that, in the case of the letting of each of the contracts for school and related cleaning let by the Council to contractors, identified in the schedule, the same constituted the transfer of an undertaking or part thereof for the purposes of the Regulations. We are told that, as in Dines, there was no material dispute about the facts relevant to a transfer of an undertaking. There would be no point in remitting the matter to the Industrial Tribunal to determine whether there was a transfer. We therefore make an order in the terms of paragraphs 1 and 2. Paragraph 3 provides that the complaint is to be remitted to the Industrial Tribunal to determine certain matters relating to alleged breach of the duty to consult under Regulation 10, the amount of compensation to be paid under Regulation 11.11 and to whom the compensation is due to be paid under Regulation 11.4. These are outstanding matters on the complaint. They were not dealt with at all by the Industrial Tribunal, because the questions did not arise after they had found that there was no transfer of an undertaking. As we are substituting a contrary decision those are now live issues. We think it right to remit those matters to the Industrial Tribunal to decide.

The only amendment we make to the draft consent order is that in 3A the words "on the facts" is omitted, since otherwise there may arise a misunderstanding as to what are the facts on which the Tribunal determines those questions. We are told there is an agreed statement of facts. We have not seen it, so we do not know what facts are referred to. In our view, the Tribunal should exercise its own powers to decide on what facts it makes those decisions. If the parties arrive at an agreed statement of facts, the Tribunal may act on that. It does not have to do so. It may require evidence.

The other matter which we add by an amendment is a new 3D. In order to avoid us putting the Industrial Tribunal into a straightjacket in dealing with these complaints, we shall provide in 3D the following "any other matters which it may consider appropriate in relation to the complaint". It has been agreed there will be no order as to costs. We make an order in the terms of the consent order, with those amendments to 3A and the addition of 3D.