United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	THE APPELLANT WAS NOT PRESENT OR REPRESENTED


 


JUDGE PUGSLEY: In this case the matter has been listed for a preliminary hearing to see whether or not there is an issue which should be argued before the full tribunal. In a decision heard by the Chairman alone, the Chairman determined that the applicant was entitled to a redundancy payment of £216.34 and that the employer was in breach of the applicant's contract of service by failing to give him notice of termination, and was ordered to pay damages in the sum of £283.12.

The employer has appealed on the basis set out in his grounds of appeal which can be summarised as the history of trading which they said took place. They say they never terminated the applicant's employment. We have considered the written submissions made in a letter dated 21st September 1996.

In their decision the tribunal made a number of findings of fact. They found that the respondent company was run by Mr Mortimer who held the majority of shares, and the business of the company was the sale, development and distribution of computers and computer games. They found the applicant's employment started in October 1991; they found that the undertaking was sold to a company called "Exciting Times" in June 1994, and that the applicant was employed by the new owner doing exactly the same work he had hitherto done for the respondent, and the respondents supplied that new company with its merchandise. Sadly, the proprietor of Exciting Times disappeared after a few weeks. Then the tribunal find that the applicant's employment was continued by Mr Mortimer in the respondent company. In December 1994 the respondents sold its undertaking to another company which traded in the name of "Microcentre". The applicant was employed, as had happened before, by the new owners and the original employer continued to supply that new company with its merchandise. Microcentre stopped trading in June 1995, and again the respondent took over the undertaking, and the applicant continued to work until 29th January 1996 when the shop was closed down. The tribunal found for understandable reasons that the applicant did not want to take the alternative employment at the shop in Wigston, Leicestershire and they found such an offer did not constitute suitable alternative employment.

The tribunal do not set out in any great detail their findings as to what happened. But we believe that it is perfectly open for us to take the view that the tribunal having heard the evidence decided that what effectively happened on 29th January was an express dismissal of the employee by the respondent company, and it was not a case of constructive dismissal but express. The tribunal decided that he was dismissed on 29th January 1996 and the reason was redundancy.

One can understand the feelings behind the homespun letter from the employers because it is possible we suspect they are innocent of the refinements of the Transfer of Undertaking Regulations. But in paragraph 4(a) the Chairman says:

"(a) There was a transfer of an undertaking from the respondent to "Exciting Times" in June 1994, from "Exciting Times" to the respondent in 1994 when "Exciting Times" ceased to trade, from the respondent to Microcentre in December 1994 and from Microcentre to the respondent in June 1995. Throughout this period, the applicant continued to be employed in the undertaking. He has continuous service with the respondent, as a result of the various transfers, since October 1991."

On that basis, and on those findings of fact, we can see no error of law. We think that the tribunal correctly considered the issues as to redundancy, also payment of money in lieu of his net wages, and that the tribunal has properly determined the matter. In those circumstances there is in our view, no arguable ground of appeal. We have looked at Telegames's letter. We suspect that they have not appreciated that as a result of European legislation which was defined in the Transfer of Undertaking Regulations, this is a case where there is continuity of service and they are liable to the employee who they originally engaged, but from time to time whose functions were discharged to others.