United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WALKER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY: Mr Thomas appeals against the decision of the Industrial Tribunal, under the chairmanship of Dr Rachel Davies and two members, that was promulgated on 14 November 1996. That decision was that Mr Thomas's dismissal was fair. The appeal comes before us for preliminary hearing.

On 27 November 1996, when represented by Solicitors, Mr Thomas sought a review of that decision on grounds which were then specified. On 2 December, Dr Rachel Davies alone heard that review application or at least dealt with that review application and determined to dismiss the application for a review on the grounds that it had no reasonable prospects of success; written reasons for that conclusion were given.

There has been no appeal against that refusal to review but, on 17 December 1996, Mr Thomas then (I think) in person, lodged a Notice of Appeal against the decision of 14 November and he put in a typed skeleton argument in support of his appeal. Fortunately for him that typed skeleton has been burnished and improved and we have had the advantage of being addressed by Mr Walker on behalf of Mr Thomas.

The nature of the dismissal of Mr Thomas involved the transfer of an undertaking. He was dismissed before the first Respondent, Castle Leisure Ltd ("Castle") transferred its business to the second Respondent, Dolmor Ltd ("Dolmor"). Castle had said to the Industrial Tribunal, and it was accepted by the Industrial Tribunal, that that dismissal was a direct result of the transfer, meaning by that it was a direct result of the impending proposed transfer; the transfer had not happened at the time when Mr Thomas was dismissed.

It was clear to the Industrial Tribunal, and they so held, that if the transfer went through then Mr Thomas's job would disappear. They dealt with that as follows. Speaking of Dolmor, the proposed transferee, they said:

"Dolmor explained in negotiations that they intended restructuring the club's management system and that under the new system the post of general manager would be eliminated. The assistant manager would report directly to a Mr Rowley as general manager of both Porth and Dolmor's existing club at Aberdare. It was clear therefore that if the transaction was finalised Mr Thomas's post would disappear."

And it was accordingly held by the Industrial Tribunal that it was therefore an organisational reason within Regulation 8(2) which was the principal reason for Mr Thomas's dismissal. Therefore, by way of the Regulations, it was to be taken by the Industrial Tribunal that the decision to dismiss had been taken for a substantial reason within Section 57(1)(b).

The Industrial Tribunal then considered, in the light of there being a substantial reason for the dismissal, whether, for all that, in the light of equity and in all the relevant surrounding circumstances, the dismissal was fair and, as we have indicated, held that it was.

The point that Mr Walker chiefly presses on us today derives mainly from the case Wheeler v Patel [1987] IRLR 211, a decision of Scott J and two members of the Employment Appeal Tribunal. The Regulations at 8(2) speak of economic, technical or organisational reasons entailing change in the workforce of either the transferor or the transferee before or after a relevant transfer and they deal with the situation where that is the reason, or the principal reason, for dismissing an employee.

The decision of the Wheeler case, so far as relevant, dealt with a Scottish case that had ruled upon the meaning of the word "economic" in that Regulation and what was held in Wheeler v Patel was as follows:

"The reference to 'technical' and to 'organisational' reasons seem to us to be references to reasons which relate to the conduct of the business. In our view, the adjective, 'economic' must be construed ejusdem generis with the adjectives 'technical' and 'organisational'. The economic reasons apt to bring the case within para (2) must, in our view, be reasons which relate to the conduct of the business. If the economic reason were no more than a desire to obtain an enhanced price, or no more than a desire to achieve a sale, it would not be a reason which related to the conduct of the business."

Looking at that last sentence "no more than a desire to obtain an enhanced price, or no more than a desire to achieve a sale", Mr Walker says that, equally, an organisational reason must, if it is to be regarded as related to the conduct of the business, be unrelated to simply a desire to obtain an enhanced price, or a desire to achieve a sale. But here, as we have indicated, the proposal was that the transferee would have a different structure for running its business such that as an organisational matter Mr Thomas's post would disappear.

There is no finding of fact that the dismissal was arranged as no more than an aspect of obtaining an enhanced price, or no more than simply an aspect of desire to achieve a sale. Had such findings existed there might have been some mileage available to Mr Thomas within the Wheeler case but, in the absence of any such finding and against the clear finding of an organisational reason, truly, as it seems, related to the conduct of the business, we see no force in the argument that has been put before us.

The terms of Regulation 8(2)(b) relate expressly to changes in the workforce, either of the transferor or the transferee and those changes can be before or after the relevant transfer. I should add that Regulation 8(3) says that: "The provisions of the Regulation apply whether or not the employee in question is employed in the undertaking or part of the undertaking, transferred or to be transferred".

It seems to us that the reasoning of the Industrial Tribunal was correct. We see no point of law emerging in Mr Thomas's favour. We do not see this as appropriate to go to a full hearing. Accordingly, we dismiss the appeal.