United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P GILROY (of Counsel) Messrs Halliwell Landau Solicitors St James Court Brown Street Manchester M2 2JF
For the Respondent	MR S GORTON (of Counsel) Messrs Hill Dickinson Solicitors Pearl Assurance House Derby Square Liverpool L2 9XA


 


MR JUSTICE MORISON (PRESIDENT): This is a directions hearing in relation to an appeal against an Industrial Tribunal's decision which was sent to the parties on 21st October 1997. It was a preliminary hearing before the Industrial Tribunal Chairman sitting alone in relation to Mr Oaten's complaint of unfair dismissal brought against his former employers, Blackpool Victoria Hospital NHS Trust.

He had become employed by the Trust following the re-organisation of the Health Service. On the occasion of that re-organisation, a new contract was entered into between him and the Trust for a fixed period of three years which included within that contract an exclusion of the provisions of unfair dismissal in the Employment Rights Act in the event that his contract expired by a fluxion of time and was not renewed.

It was contended on behalf of the applicant that that clause in his contract was of no effect, because of the operation of Regulation 12 of the Transfer of Undertakings Regulations. The Industrial Tribunal Chairman indicated that in his judgment by reason of the Regulations the exclusion of the right to claim was ineffective, and accordingly, in his jurisdiction to entertain the complaint. In arriving at his conclusion, he had first to address the question as to whether the re-organisation of the Health Service involved, in this particular case, a transfer of an undertaking within the meaning of the Regulations. He concluded that issue in favour of the applicant and then went on to consider whether the variation of the contract in the sense that he had a different contract before and after the re-organisation, was caused by the transfer, and if so, whether it was effective. He concluded that the variation in the contract was caused by the transfer, both in the direct sense and in the sense of causation on the basis of causa sine que non. He accordingly, indicated that the tribunal had jurisdiction.

The respondents to the application put in a Notice of Appeal indicating that there were three preliminary questions before the Industrial Tribunal, namely, was there a transfer, if so, was the employee transferred to that part of the undertaking transferred, which the tribunal answered in the affirmative; and if yes, was the employee bound by the provision of the fixed-term contract excluding his right to claim unfair dismissal. The Notice of Appeal is directed, essentially, to the third issue. Reference is made to the decision of the Court of Appeal in the related cases of Wilson and other v St Helens Borough Council and Meade and Baxendale v British Fuels Ltd [1997] IRLR 505.

The Employment Appeal Tribunal have directed that the appeal should be stayed until after the decision in Wilson and Meade has been determined by the House of Lords. The position is that the appeal has already had one day in front of their lordships, but the matter is either going to restart completely, or is going to resume later on in June for three days.

The position of the Trust is somewhat conflicting. They say on the one hand, this is a matter of considerable importance as a matter of principle to them; and they say on the other hand, that nonetheless, they would wish to contest Mr Oaten's claim on its merits.

Since it is not at all clear when the House of Lords will feel able to give judgment in the appeal which is going to be before them, nor that they will feel able to deal with the case without referring it the European Court of Justice, the question of a stay may have a very long-term effect. As has been rightly pointed out by Mr Gorton on Mr Oaten's behalf, that may mean that the merits of his claim will be outstanding for some very considerable period of time which, if there are issues of fact to be resolved, is obviously undesirable. Mr Gorton would also wish to argue that the appeal is hopeless as it is presently constituted because the Industrial Tribunal Chairman has decided the issue of causation in favour of the applicant in such a way that whatever the outcome of Wilson and Meade, Mr Oaten is bound to succeed on the variation question.

As a result, I have to confess possibly of prompting from the Court, Mr Gilroy on behalf of the Trust, would wish to amend the Notice of Appeal to argue that the provisions of the Regulations do not apply either because of the way that the re-organisation took place pursuant to statue, that is the NHS and Community Care Act 1990, and in particular, the provisions of ss. 6, 7 and 8; or because of the decision of the European Court of Justice in the case of Henke v Gemeinde Schierke and Verwaltungsgemeinschaft "Brocken" [1996] IRLR 701. The Industrial Tribunal concluded that there was a transfer, as I have said, and distinguished the case of Henke and that may be matter which will fall for consideration by the Employment Appeal Tribunal.

These cases cause very difficult problems for the due administration of justice. If Mr Oaten's case is held back pending a determination of the Wilson and Meade point, as I say, he may be kept away from arguing the merits of his complaint for some considerable period of time. On the other hand, if the case proceeds in the Industrial Tribunal, and it were to transpire that the matters in the Notice of Appeal are to be successful, then the parties will have wasted their time and effort by going to the Industrial Tribunal. This court is never well placed on a matter such as this to form a good view as to the prospects of success of an appeal, particularly bearing in mind that its outcome is bound to be, to some extent, influenced by what is said by the House of Lords and/or by the European Court of Justice in relation to Wilson and Meade. But it seems to me that if the Trust wish to maintain what appears to me to be possibly inconsistent positions, namely that they say Mr Oaten's case will not succeed on the merits quite apart from the preliminary points of law, and that there is a point of principle which they want to have determined in any event, that they must face the consequences. It seems to me, that so long as they maintain that position, it would not be right to prevent Mr Oaten from continuing with his complaint in the Industrial Tribunal, despite the pendancy of this appeal. It would also seem to me to be sensible that the hearing of this appeal should in any event await the outcome of the House of Lords ruling in Wilson and Meade. If they feel it necessary to refer that question to the European Court of Justice or say things in their decision referring the matter to Europe, which has a bearing on this case, then obviously there will be liberty to apply. If they refer the matter to Europe simplicita, then obviously there will be liberty to apply, but it seems to me that what must now happen so long as the Trust wishes to contest the merits of Mr Oaten's complaint, is that the case should be heard and determined by the Industrial Tribunal as soon as possible, regardless of the existence of this appeal. As the law stands at the moment, the Chairman has ruled that he has jurisdiction, therefore, the case should be heard. If it should transpire that that has been an unnecessary step, well that is the product of the Trust adopting this inconsistent position.

I give leave to amend, provided that an amendment to the Notice of Appeal is made within 14 days. I stay the appeal only to enable the merits of Mr Oaten's complaint to be adjudicated upon by the Industrial Tribunal and pending any ruling by the House of Lords whether of a preliminary nature or if it refers the question to Europe. I will keep this case under review. The parties have liberty to apply. It may well be that after the merits of the case have been heard and determined by the Industrial Tribunal Chairman, that it will be better to wait until the final position is known in relation to Wilson and Meade, but I am not prepared to say that that will be so. I will keep an open mind about it.