United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 47_95_1506

Appeal No. EAT/47/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15th June 1995

Judgment delivered on 3 October 1995

THE HONOURABLE MR JUSTICE MORISON

MRS R CHAPMAN

MR R TODD

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DUNCAN WEBB OFFSET (MAIDSTONE) LTD          APPELLANTS

(1) MR T COOPER

(2) MR P BATEMAN

(3) MRS S RUSSELL

(4) PASSMORE INTERNATIONAL LTD (INTERNATIONAL)

(5) PASSMORE WEB OFFSET (MAIDSTONE) LTD

(IN ADMINISTRATIVE RECEIVERSHIP)

(6) C J HUGHES AND N J VOIGHT (JOINT ADMINISTRATIVE

RECEIVERS)           RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR G DYSON

(Solicitor)

Burges Salmon

Narrow Quay House

Prince Street

Bristol

BS1 4AH

For the 1st, 2nd and 3rd Respondents MR P NICHOLLS

(of Counsel)

Whitehead Monckton

72 King Street

Maidstone

Kent

ME14 1BL

For the 4th, 5th and 6th Respondents MR P BARTLE

(of Counsel)

Clifford Chance

200 Aldersgate Street

London

EC1A 4JJ


 


MR JUSTICE MORISON: The three applicants, Mr Cooper, Mr Bateman and Mrs Russell, presented complaints to an Industrial Tribunal against five respondents arising out of the transfer of an undertaking on 21 March 1994, when the business of the second respondent whom we shall call "Maidstone", then in receivership, was transferred to the fifth respondent, whom we shall call Duncan. The Ashford Industrial Tribunal, after a hearing which extended over four days in the period from 8 September to 18 November 1994, identified the question before them as follows:

"whether the three applicants were employed in or assigned to the Maidstone undertaking, at the relevant time."

The respondents to the complaints, apart from Maidstone, were Passmore International Ltd [International], as first respondent; two administrative receivers, as third respondents [the receivers]; Duncan Webb Offset (Maidstone) Ltd, as fourth respondent; and Duncan Holdings Ltd [Duncan], as fifth respondent.

For the reasons contained in their written Decision, which was entered in the Register and sent to the parties on 21 December 1994, the Industrial Tribunal concluded that the answer to the question was 'yes' and that, therefore, their contracts of employment and statutory rights were passed to Duncan on 21 March 1994. By a Notice of Appeal dated 18 January 1995, Duncan appealed against that Decision and the matter has come before us.

We, first, set out the facts as they were found by the Industrial Tribunal. International was a parent company which owned a number of subsidiary companies in the printing industry. Maidstone was one such company; International acquired another in February 1993 which was located at Basildon and we shall call it that. For some time until August 1993, a company which we shall call St Albans was part of the group. International and Maidstone had separate offices in the town of Maidstone.

The facts relating to Mr Cooper were that he started off with a company which subsequently became Maidstone, where he rose to the position of purchasing manager. He was located at Maidstone's offices at Maidstone and was involved in the daily business of that company, such as the ordering of ink or paper. After Basildon had been acquired, he initially spent a considerable amount of time there, but when things had settled down he reverted to his former pattern of work. As purchasing manager for the group he would take part in strategy meetings and corporate policy. It was contemplated that his role would be expanded into purchasing paper for the group, but this was largely overtaken by the appointment of the receivers in early 1993. Thereafter, up until the transfer, he was based in Maidstone doing Maidstone work; the receivers continued to run Maidstone and Basildon as separate businesses.

Mr Bateman worked for a company in Hertfordshire, which subsequently became St Albans. When that company closed down in August 1993, he was told that his employment from then on would be with Maidstone. He became head of Human Resources there and that function was for both Maidstone and Basildon, but he estimated that he spent about 80% of his time at Maidstone. After the receivers were appointed he spent all his time at Maidstone.

Mrs Russell had been employed for some 18 years without a written contract of employment. She always viewed herself as working for Maidstone. In early 1993 she became the 'Divisional paper buyer' and later that year became 'Acting computer manager'. After St Albans closed down, she spent about 1 day a week at Basildon, the rest of the time she was based at Maidstone, and this continued after the receivers were appointed. When Maidstone was transferred she was asked to go across to Duncan to help them understand the computer systems, as she was the only person who understood them.

Both Mr Cooper and Mr Bateman were 'for administrative convenience' paid by International.

In accounting terms, the apportionment of the salaries of those such as the applicants who worked for more than one company, was based not on a time spent basis but rather on the basis of the amount of profit of each of the companies.

In the sale agreement by which it was agreed that Maidstone's business be transferred to Duncan, those employees to be transferred were identified in a schedule. The names of the three applicants had been included, but were then crossed through. The Managing Director of Duncan had previously been the managing director of International, and the Industrial Tribunal found that

"He took a pragmatic approach to the transfer and identified staff that he felt he would need at Duncan(s)."

The Industrial Tribunal concluded, on those facts, that the three applicants had been employed by Maidstone; that such of their work as was done for the group was not as a result of any contractual link with Basildon, and that none of them was under Basildon's control. Using the test put forward in the case of Gale v Northern General Hospital Trust [1994] IRLR 292, they concluded that the whole of Maidstone's business had been transferred and that the applicants were assigned to Maidstone. They noted that Mr Cooper and Mrs Russell had been employed by Maidstone for some years, and that when Mr Bateman was transferred to Maidstone his continuity of service was recognised and that he had, therefore, considerable service with Maidstone. They were based at Maidstone and carried out duties for other companies within the group "as employees of Maidstone".

Before turning to the arguments, we would wish to refer to paragraph 5 of the Transfer of Undertakings (Protection etc) Regulations 1981 ["the Regulations].

Regulation 5(1) provides that, subject to an exception which is non-applicable in this case:

".... a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee."

In order to illustrate our understanding of how Regulation 5 works in practice, it is helpful to consider three possible factual situations which might arise (no doubt there are many more):

1. X has a business in which he employs a number of people. X transfers part of his business to Y. In order to determine which employees were employed by X in the part transferred it is necessary to ask: which of X's employees were assigned to the part transferred - Botzen [1986] 2 CMLR page 50. In Gale, it was suggested that the question might be asked whether a particular employee was "part of the ... human resources" of the part transferred, which is the same thing put another way. The contracts of employment of those who were so assigned will, unless the employees object, pass over to the transferee, thus giving effect to the purpose of the Regulations and the Acquired Rights Directive, pursuant to which they were made, that an employee should not forfeit his job because of a change in the identity of his employer. There will often be difficult questions of fact for Industrial Tribunals to consider when deciding who was "assigned" and who was not. We were invited to give guidance to Industrial Tribunals about such a decision but decline to do so because the facts will vary so markedly from case to case. In the course of argument a number were suggested, such as the amount of time spent on one part of the business or the other; the amount of value given to each part by the employee; the terms of the contract of employment showing what the employee could be required to do; how the cost to the employer of the employee's services had been allocated between the different parts of the business. This is, plainly, not an exhaustive list; we are quite prepared to accept that these or some of these matters may well fall for consideration by an Industrial Tribunal which is seeking to determine to which part of his employers' business the employee had been assigned.
2. A person is employed by X to work on Y's business and Y transfers that business to Z. For Regulation 5 to apply the employee must be employed by the transferor. Prima facie, the Regulations would not apply so as to transfer the employee. However, Industrial tribunals will be astute to ensure that the provisions of the Regulations are not evaded by devices such as service companies, or by complicated group structures which conceal the true position. Thus, it may well be possible to say, in any given case, that if the person always and only worked on Y's business, then X was employing him on behalf of and as agent for Y. Alternatively, there may be circumstances in which X might be regarded as a party to the transfer, even if not expressly named in the contract of sale. Or, on the other hand, it may be that the employee remained employed by X, who had other work for him to do. Again, these are matters for the Industrial Tribunal and not for us.
3. X employs a number of people on X's sole business. The whole of that undertaking is transferred by X to Y. X is part of a group of companies. Some of X's employees worked partly for X and partly for other parts of the group. Here, it seems to us that almost certainly X's employees will be transferred; but we recognise that there may be cases where one could say that despite being employed by X they were in reality assigned to the business of another part of the group. This simply recognises that the contract of employment test is not the only matter for consideration. In other words, an employee might be employed by one company but be assigned to the business of another. Again, Tribunals will keep in mind the purpose of the Directive and the need to avoid complicated corporate structures from getting in the way of a result which gives effect to that purpose.

The situation here is that the employees are employed by X; the whole of X's business has been transferred; by reason of the transfer their contracts of employment would, but for the Regulations, have come to an end because X will have ceased to carry on the business in which they were employed and they would have neither a job to do nor an employer to employ them. If, despite being employed by Maidstone in Maidstone's business they had been employed by Maidstone solely, or perhaps predominantly, to do the business of the group other than Maidstone that might be different.

The real and only complaint about the decision of the Industrial Tribunal in this case, which is made on behalf of Duncan, is that the Industrial Tribunal are alleged to have reasoned as follows:

"The applicants were all employed by Maidstone under contracts of employment which required them to do work for the group and not just for Maidstone. Because all their work was done under their contract with Maidstone they were employed or assigned to Maidstone."

That complaint cannot, in our judgment be sustained.

Unquestionably, the Industrial Tribunal put considerable weight on the fact that the applicants were employed by Maidstone. They were quite entitled, and sensible, to do so. It would take some persuasive evidence to suggest that an employee was not assigned to the business of his employer, where the whole of his employer's only business was transferred. As was accepted in argument, such evidence would have to have shown, at the very least, that the bulk of the employees' time and responsibilities were devoted to other entities within the group. Yet the facts were wholly against that suggestion.

It seems to us that the Decision in this case was clear, well reasoned and right. Industrial Tribunals are not required to set out every point on which they rely in reaching their Decision, and their Decision is not to be finely combed for technical errors. Here, the Industrial Tribunal set out the facts, with clarity, and, in the light of those facts, their conclusion was inevitable. It is accepted that they asked the right question -we think they answered that question and not a different one as suggested in argument. What the tribunal were saying, on overwhelming evidence, was that the employees were assigned to the only business which their employers did, even though some of their time was spent looking after other parts of the group.

In the end, therefore, despite the interesting argument presented to us, we are all of the view that the Decision of the Industrial Tribunal cannot be faulted and we, therefore, as we announced at the end of the argument on behalf of Duncan, dismiss this appeal.