United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R BUTLER (of Counsel) Messrs Lucas Baron Jacobs Solicitors 803 High Road Leyton London E10 7AA


 


JUDGE PETER CLARK: The facts here, in the absence of any evidence called by the parties, were found by a Chairman, Ms A M Lewzey, sitting alone at the Stratford Industrial Tribunal on 16 July 1997, to be as follows.

The first Applicant, Mr Collins, was employed by Executive Cleaning Services Plc (Executive) as resident engineer and housekeeper from 1968 until 9 September 1996 and the second Applicant, Mr Hansen, was employed by Executive as day security and receptionist from 1979 until 9 September 1996.

Prior to 6 September 1996 Executive held a contract entered into with Edgecombe Holdings/Town and Commercial Properties Limited (Edgecombe) to provide a variety of services including engineering, building maintenance, security and cleaning (the Edgecombe contract), at an office block, North House, Romford, owned by Edgecombe. Both Applicants worked at North House, carrying out the terms of their respective employment with Executive.

On 7 August 1996 Edgecombe's managing agents, Nelson Bakewell Ltd (NBL) gave Executive one month's notice of termination of the Edgecombe contract.

KS Group Limited (KS) were appointed by NBL to provide the services of a building manager for North House under a new contract with Edgecombe, commencing on 9 September 1996. At the same time NBL appointed a company, Britannia, to provide cleaning services at North House.

On 28 August 1996 Executive wrote to each Applicant, informing them that the Edgecombe contract was coming to an end on 6 September, and informing them that although the identity of their new employer was unknown, that new employer would, under the law, be deemed to employ them on their existing terms and conditions of employment with Executive.

On 9 September NBL wrote to each Applicant, informing them that on and after 6 September 1996 they would not be employed by NBL; the responsibility for continued employment rested with Executive, who were liable for any termination payments should they no longer continue their employment.

On that day both Applicants attended for work at North House. They were escorted off the premises.

Consequently, both Applicants presented originating applications to an Industrial Tribunal on 19 November 1996, claiming unfair dismissal, redundancy payments, pay in lieu of notice and unpaid wages.

The Respondents to those applications before the Chairman were (1) Executive, (2) NBL and (3) KS.

The preliminary issue which came before the Chairman was to determine whether a relevant transfer had taken place between Executive and some other and, if so, which employer.

Having set out the material facts based on submissions made on behalf of the parties, the Chairman referred to the European Court Justice decision in Suzen [1997] IRLR 255 and the subsequent judgment of the Court of Appeal in Betts v Brintel Helicopters [1997] IRLR 361.

She concluded that no economic entity was transferred from Executive to any other employer when the Edgecombe contract ended and new contracts were let by NBL on behalf of Edgecombe to, respectively, KS in respect of building management and Britannia in respect of cleaning services. In any event, NBL, as managing agents, never employed the Applicants.

In these circumstances she held that there was no relevant transfer affecting the Applicant's employment with Executive. Accordingly, Executive was the correct Respondent to the complaints brought by the Applicants. NBL and KS were dismissed from the proceedings.

Against that decision, promulgated with extended reasons on 26 August 1997, Executive now appeal. This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go to a full appeal hearing.

Mr Butler, on behalf of Executive, has sought to contend that the Chairman ought not to have proceeded on the basis of submissions made on behalf of the parties. She ought to have required them to call evidence or at least present her with a statement of agreed facts. That is to import an inquisitorial role into an adversarial procedure. In our judgment she was entitled to proceed on the basis advanced by the parties.

On the material before her we are quite satisfied that she correctly applied the law as it is presently understood. The mere loss of a service contract does not of itself indicate the existence of a transfer. It is material that in this labour-intensive sector a majority of the employees were not taken on by the new contractors. No economic entity was transferred on these facts. The Chairman reached a permissible conclusion. Accordingly, this appeal must be dismissed.