United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE PETER CLARK: The applicant before the Industrial Tribunal, Mrs Chilcott-Barnes, was employed at the Jubilee Service Station, Guston Wood, Dover, from 1st November 1994 until 14th September 1995.

On 14th September 1995 that undertaking was transferred from a Mr Adeniya to Mrs Smallman. Mr Adeniya gave her notice of dismissal on one days notice. When Mrs Smallman took over the business she required the applicant to change her shift patterns if she were to remain in employment. That, the applicant was not prepared to do. She left, claiming that she had been unfairly dismissed.

Her complaint came before an Industrial Tribunal sitting at Ashford under the chairmanship of Mr MC Hall-Smith on 18th December 1995 ["the first tribunal"], held to hear a preliminary issue as to whether or not the applicant was disqualified from bringing a complaint because she had not completed two years service. See section 64(1)(a) of the Employment Protection (Consolidation) Act 1978.

The first tribunal, basing itself on the decision of this Employment Appeal Tribunal in Milligan v Securicor Cleaning Ltd [1995] IRLR 288, held that since the dismissal was by reason of a relevant transfer, it was not necessary for the applicant to have two years continuous service in order to bring her complaint. Further, the position was not affected by the subsequent Collective Redundancies and Transfer of Undertakings (Protection of Employment) Regulations 1995, designed to reverse the ruling in Milligan. A corrected decision with extended reasons was promulgated by the first tribunal on 29th April 1996.

The matter then proceeded to a second Industrial Tribunal hearing at Ashford under the chairmanship of Mr DE de Saxe on 13th May 1996. That tribunal found that the applicant was unfairly dismissed by Mrs Smallman, the transferee, and awarded compensation totalling £5,184. Extended reasons for the second Industrial Tribunal decision were dated 23rd May 1996.

Against both Industrial Tribunal decisions Mrs Smallman appealed by a Notice dated 5th June 1996, in which it was contended that both decisions were wrong in law.

The appeal came on for a preliminary hearing before this appeal tribunal on 10th July 1996 (Judge Hull QC presiding). The appeal was allowed to proceed to a full hearing on two grounds with which we need not now be concerned.

Unknown to the division of the Employment Appeal Tribunal holding the preliminary hearing, on 9th July the Court of Appeal gave judgment in MRS Environmental Services Ltd v Marsh and Harvey [The Times 22nd July 1996]. We have considered the transcript of that judgment and invited submissions on it.

In short, Milligan was overruled. The decision of the Court of Appeal is binding upon us. It follows that the tribunal decisions in this case were based on an erroneous view of the law, namely that propounded in Milligan. That is the cornerstone of the tribunal assuming jurisdiction in this case. Without it, the claim must fail, since it is common ground that the applicant had not completed two years continuous service at the time of her dismissal.

In these circumstances we do not find it necessary to adjourn this appeal as the applicant's solicitors have asked us to do due to problems apparently in obtaining legal aid. There is no answer to the appeal.

Accordingly it succeeds. We shall substitute a declaration that the Industrial Tribunal had not jurisdiction to entertain this complaint of unfair dismissal. It is dismissed.