United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 536_94_0202

Appeal No. EAT/536/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2nd February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

MISS J W COLLERSON

MR D G DAVIES

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MR J A FEATHERSTONE          APPELLANT

ST HELENS METROPOLITAN BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR S GORTON

(of Counsel)

Mr K A Jones

The Solicitor

St Helens MBC

Town Hall

St Helens WA10 1HD

Miss G B Lyons

Solicitor

Weightman Rutherfords

Richmond House

Rumford Place

LIVERPOOL L3 9QW

MR R HILL

(of Counsel)


 


MR JUSTICE MUMMERY (PRESIDENT) Mr James Featherstone was employed as an Education Officer (Further Education, Planning and Monitoring - post compulsory education) in the Education Department of the Local Education Authority, St Helens Metropolitan Borough Council ("the Council"). He was dismissed from his employment on 16th April 1993.

The Council's case is that he was dismissed by reason of redundancy. Mr Featherstone claims unfair dismissal on the transfer of an undertaking by the Council on 1st April 1993 to the newly incorporated and independent St Helens College of Further Education pursuant to the Further and Higher Education Act 1992. He also relies on the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("the 1981 Regulations") and on the Acquired Rights Directive (EC/77/187) ("the Directive").

Procedural History

As the present appeal arises out of a procedural tangle, it is necessary to outline the course of the proceedings to date:

(1) On 28th April 1993 Mr Featherstone presented his Originating Application to the Industrial Tribunal claiming unfair dismissal and redundancy. At that time he was represented by his Union representative, Mr McEvoy of MSF. There were three respondents to the application - the Council, St Helens College of Further Education ("the College") and the Secretary of State for Education who had signed the transfer order and, on Mr Featherstone's case, had been misled into doing so. Mr Featherstone expressly relied on the 1992 Act, the 1981 Regulations and the Directive.

(2) In a Notice of Appearance dated 19th May 1993 the Council resisted the application, claiming to be the only employer at the date of dismissal for redundancy and disputing the applicability of the 1992 Act, the 1981 Regulations and the Directive.

(3) Particulars were provided of Mr Featherstone's employment history between 1991, when his post was deleted on a departmental review and he refused an offer of assimilation with a new post within the Department of Assistant Education Officer (Continuing Education) at a protected salary, though with a lower grade, and the date of the alleged transfer on 1st April 1993. On 22nd January 1992, Mr Featherstone had been transferred to the Council's central deployment pool as a supernumerary employee. He was then placed on a 12 month temporary project in the Environmental and Design Services Department. In December 1992 the Council withdrew funding from the supernumerary pool. Mr Featherstone, along with four other employees in the pool, was declared in a redundancy situation. He was dismissed on 16th April 1993.

(4) The IT3 served by the College on 27th May 1993 resisted the application on the ground that Mr Featherstone (a) was not an employee of the College and (b) was not working in the undertaking at the date of the transfer on 1st April 1993, so that he never became an employee of, or acquired rights or claims against, the College under S.26 of the 1992 Act, the 1981 Regulations or the Directive.

(5) On 12th October 1993 the Industrial Tribunal at Liverpool held a hearing to determine a preliminary issue as to who was Mr Featherstone's employer at the relevant time. The Industrial Tribunal heard submissions from Mr McEvoy on behalf of Mr Featherstone, from a solicitor representing the Council and the College and from counsel for the Secretary of State. The Industrial Tribunal heard no oral evidence from Mr Featherstone or from anyone else and did not deal with the merits of his claim. The Tribunal heard only legal argument and submissions.

(6) In the Full Reasons notified to the parties on 9th November 1993, the Industrial Tribunal decided that Mr Featherstone's employer at the relevant time was the Council. That was the correct Respondent. In exercise of its powers under Rule 14(2) of the Industrial Tribunal (Rules of Procedure) Regulations 1985, then in force, the College and the Secretary of State were dismissed from the proceedings. The Industrial Tribunal held that it had no jurisdiction to make any order against the Secretary of State who had made the designation order under S.26(1)(b) of the 1992 Act excluding Mr Featherstone. The Tribunal stated that the Secretary of State was never Mr Featherstone's employer. Mr Featherstone's complaints against the Secretary of State were, if anything, matters for judicial review. As far as the Council were concerned, they conceded that Mr Featherstone was their employee at the relevant time (ie 16th April 1993). As far as the College was concerned the Tribunal stated the position as follows in paragraphs 5 and 6 of the decision.

"5. Finally, in relation to the St Helens College which, in consequence of the provisions of the Higher and Further Education Act 1992, was taken out of the control of the Local Authority. The College became an independent Corporation as from 1 April 1993.

The applicant's duties, for the 18 months or so prior to the above changes had, we find, no direct relationship to the College.

The criteria contained in Section 26 of the Act, in relation to the transfer were not, we find, fulfilled by the applicant. He was not transferred to the College, and our conclusion is, therefore, that the College should not be a party to these proceedings. We order accordingly.

6. Finally, may we make it clear that, in making the above findings, we do not say that the applicant has no cause for complaint at all in relation to the foregoing matters, but rather that it is misconceived to seek to deal with them through the Industrial Tribunal, which lacks jurisdiction to do so. The applicant's claim is one of alleged unfair dismissal, and that is properly directed against the body which was his employer at the relevant time, namely St Helens Metropolitan Borough Council."

There is no reference in those paragraphs to the provisions of the 1981 Regulations or of the Directive, although the Tribunal stated in paragraph 1 of its decision that it had considered "... the possible relevance" of them.

(7) Mr Featherstone did not appeal against that decision within the 42 day period allowed by Rule 3 of the Employment Appeal Tribunal Regulations 1980, then in force.

(8) At the subsequent hearing of the originating application on 16th and 17th March 1994 a ruling was requested by Mr Gorton, on behalf of the Council, as to how far Mr Featherstone was entitled, in the context of the unappealed decision notified on 9th November 1993, to argue his claim under the 1981 Regulations, the Directive and the 1992 Act. In response to that request the Tribunal, differently constituted from the first Tribunal, made the following ruling -

"RULING

In the light of the decision of an Industrial Tribunal dated 4th November 1993 this Tribunal rules that:-

The applicant cannot continue his case before this Tribunal on the basis that

(i) the Further and Higher Education Act 1992 applied to him, and/or

(ii) the Transfer of Undertakings (Protection of Employment) Regulations 1991 applied to him and/or

(iii) the Acquired Rights Directive 1977/187 applied to him and/or

(iv) the above three, or any of them, would have applied to him if he had not been assigned to the supernumerary pool."

(9) In the Full Reasons for that ruling the Tribunal made it clear that their ruling would not prevent Mr Featherstone from arguing that he was unfairly selected for redundancy or from challenging the reasonableness of his dismissal under S.57(3) of the 1978 Act.

(10) The Industrial Tribunal refused an application for review of the first decision made by Mr McEvoy, on the ground that the application was out of time. The Tribunal agreed, however, to grant an adjournment to enable Mr Featherstone to appeal against the ruling. By his Notice of Appeal served on 7th June 1994 Mr Featherstone appealed against both the ruling and the earlier decision notified on 9th November 1993. It is common ground that his notice of appeal was out of time for appealing against the first decision, but is in time for appealing against the ruling.

The Issues

Mr Featherstone, who has a law degree, conducted his appeal in person, buttressed by a 32 page skeleton argument and two large bundles of copy documents. He made many submissions on Community Law, national law and the facts of his case. It is neither necessary nor appropriate to make decisions on this appeal on many of the points raised by him. Mr Featherstone's enthusiasm for his cause has led him to spend a great deal time and effort in researching matters irrelevant to the determination of this appeal, though they may be relevant to a later hearing in the Industrial Tribunal.

It should be emphasised that the issues on this appeal are limited as follows:-

(1) Extension of time for appealing. The first issue is whether the Appeal Tribunal should extend Mr Featherstone's time for appealing against the decision at the preliminary hearing as to who were the proper respondents?

(2) Challenge to ruling. The second issue is whether the Industrial Tribunal correctly ruled that the effect of the earlier decision was to preclude Mr Featherstone from arguing his case under the 1981 Regulations, the Directive and the 1992 Act.

Extension of time. In our judgment, Mr Featherstone should not be granted an extension of time for appealing against the decision made at the preliminary hearing. His appeal was lodged long after the expiration of the 42 days stipulated by the Rules. No written explanation has been provided as to the reason for not appealing in time. The explanation offered to us by Mr Featherstone is that he did not appeal because he believed that, as no evidence had been given at the preliminary hearing (for example, about the reorganisation within the Council, about the Council's undertaking and about the circumstances of the transfer) he would have a chance when the full hearing took place to present all his evidence and argue his entire case, including his arguments on the effect of the provisions concerning the transfer of undertakings. This is an explanation for failing to appeal, but does not, in our view, amount to a good excuse which would justify this Tribunal exercising its discretion to grant an extension of time.

Challenge to the ruling. In our judgment, the Tribunal erred in law in its later ruling on the effect of the decision at the preliminary hearing and in holding that he was precluded by the earlier decision from continuing his case on the 1992 Act, the 1981 Regulations and the Directive.

The Council's Submissions

On behalf of the Council, Mr Gorton sought to defend the ruling and contended that it contained no error of law. In summary, he argued that -

(1) Mr Featherstone was out of time for challenging the findings of fact and conclusions of law in the decision on the preliminary hearing and, unless time for appealing is extended, the Appeal Tribunal has no jurisdiction to hear that appeal.

(2) The principle of res judicata applied, so that, at the second hearing, the Industrial Tribunal was bound by the facts and conclusions of the Tribunal at the preliminary hearing. The crucial findings of fact were that Mr Featherstone was employed by the Council when he was made redundant on 16th April 1993; that his employment was not transferred to the College by virtue of S.26 of the 1992 Act; and that during the 18 months prior to 1st April 1993 his duties had no direct relationship to the College.

(3) In the light of these findings (in particular, the finding that only the Council was Mr Featherstone's employer) Mr Featherstone's submissions on the 1981 Regulations, the Directive and the transfer provisions in S.26 of the 1992 Act were bad in law. The Tribunal had found there was no transfer.

(4) Mr Featherstone was not, therefore, entitled to conduct his case at second hearing on the basis of those matters already been concluded against him. The ruling was correct. It did not prevent him from arguing his case for unfair dismissal under S.57 of the 1978 Act.

Mr Featherstone's Submissions

In his oral presentation Mr Featherstone made many points and referred to some of the numerous case summaries contained in his bundle of documents. The essence of his complaint on this appeal was that his case had been effectively rejected by both Tribunals without either Tribunal having heard evidence to justify their conclusions. He said that at the preliminary hearing there had been no oral evidence and no detailed consideration of documentary evidence. Insufficient time had been allowed for the hearing, which took only the afternoon. He had been denied his basic right to present evidence to the Tribunal relevant to his claims under Community Law and domestic law on the transfer of undertakings. On page 14 of his skeleton argument Mr Featherstone made this submission.

"The time allowed for the preliminary hearing on 12th October 1993 was such that no reasonable Tribunal could have determined the relevant facts or considered the relevant law in the remaining time available that day.

The hearing was listed for one day commencing at 9.45 a.m. The hearing did not take place in the morning. The hearing did not take place after lunch or in the early part of the afternoon. Late afternoon MSF Union representative for the appellant, approached the Tribunal office and the respondents' representatives to suggest that the hearing be held on another occasion as very little time remained to commence a hearing.

Counsel for the Secretary of State for Education, Mr A G Moran, had travelled from London and stated that he would remain to see if the case was called that day.

After the enquiries of the Tribunal office, the preliminary hearing was convened and the Chairman, Mr A M Coventry, apologised for the delay.

The Chairman stated that this was a preliminary hearing to determine who was the employer. The appellant's Trade Union representative requested the appellant to take notes of the oral submission by respondents solicitors and counsel.

These contemporaneous notes are included in the text (Appendix 1) as evidence. These oral submissions were brief, no witnesses were called and no documentary evidence submitted by either of the three respondents.

All the recorded submissions were rejected by the appellant and it was stated they would be dealt with at the full hearing. The Tribunal members were supplied with a copy of the appellant's contract of employment and job description as Education Officer; Further Education, Planning and Monitoring.

The hearing was concluded at the sole discretion of the Chairman, without hearing the challenge of the appellant or receiving the abundant documentary evidence, or hearing any witnesses, including the Appellant."

For those reasons Mr Featherstone submitted that the Tribunal had erred in law by denying him the basic right to present his oral and documentary evidence to the Tribunal.

He added that, as far as the Secretary of State was concerned, he wished to join him as a party because the Secretary of State had made the order for transfer which had failed to include Mr Featherstone's name.

Conclusions

In our view the Industrial Tribunal ruling did contain an error of law. As far as the Secretary of State was concerned, the Tribunal correctly ruled that Mr Featherstone could not continue his case against him. At the preliminary hearing the Tribunal had dismissed the Secretary of State from the proceedings on the basis that it had no jurisdiction to make an order against him, because Mr Featherstone was never employed by the Department of Education (see paragraph 3 of the first decision). Further, the complaint in relation to the making of the transfer or order under S.26 of the 1992 Act was a complaint outside the jurisdiction of the Industrial Tribunal. It was a matter of public law for judicial review and was not affected by the provisions of the 1981 Regulations or the Directive.

In our judgment, however, the ruling was not legally correct in relation to the College. The effect of the first decision was that the College was dismissed from the proceedings on the basis that the Council was the only correct Respondent, as it was Mr Featherstone's employer at the relevant time. Mr Featherstone had, however, always made it clear in his case that he was seeking to make the College liable by reason of the transfer of an undertaking. Hence his claim not only under the 1992 Act but also under the 1981 Regulations and the Directive. Although the Tribunal at the preliminary hearing held that Mr Featherstone was "not transferred to the College" that finding appears to us to have been only in the context of S.26 of the 1992 Act. It does not appear from paragraphs 5 and 6 of the first decision that the Tribunal addressed the question whether there was a transfer of an undertaking within the Regulations or the Directive. There were no clear findings of fact in relation to such a transfer. This is not surprising if the Industrial Tribunal had no evidence from either side about the circumstances of Mr Featherstone's employment or the circumstances of the alleged transfer from the Council to the College. In brief, the ruling is flawed because it precludes Mr Featherstone from arguing points which were not fully explored at the first hearing in which the Tribunal concentrated on the question who was Mr Featherstone's employer at the relevant time and does not seem to have sufficiently appreciated that oral and documentary evidence, as well as legal argument, were relevant to the specific questions regarding a transfer of an undertaking within the meaning of the Regulations and the Directive. As a result, the effect of the ruling is that a substantial part of Mr Featherstone's case has been held to have been decided against him without his having a proper opportunity to give evidence, to challenge the evidence of the Council and the College and to present full argument on the relevant issues. The ruling appears to treat the decision as to who are the proper Respondents as deciding the whole of that part of the case against Mr Featherstone. In our view, he should be free to argue at the full hearing on the merits of his case on the transfer of an undertaking from the Council to the College.

For these reasons, we allow the appeal to the extent of varying the ruling so that it does not prevent Mr Featherstone from continuing his case before the Tribunal against the College, as well as against the Council, on the basis that the matters specified in subparagraphs (i) to (iv) of the ruling applied to him. The ruling stands, however, so far as the Secretary of State is concerned.

We recognise that the consequence of this variation of the ruling is that the College will now be concerned to participate in the full hearing if they wish to challenge Mr Featherstone's arguments. They should apply, before the full hearing is resumed, to be joined as a respondent. The Secretary of State, however, remains effectively dismissed from the proceedings pursuant to the order made on the preliminary hearing.