United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M WEST (Representative) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY


 


JUDGE PETER CLARK: The three Applicants before the London (South) Industrial Tribunal were employed as Service Engineers by Ellis Tylin Benham (Ellis). Until 30 April 1995 they worked pursuant to a contract made between Ellis and City of Westminster Council (Westminster) for the provision by Ellis of general mechanical and electrical work in what were then designated by Westminister as Housing Areas A and B. The third Housing Area, Area C, within Westminster's boundaries, was serviced by its own Direct Services Organisation (DSO).

Prior to 30 April these and other services were put out to competitive tender. Ellis lost their contract; so too did the DSO. The mechanical and electrical services were parcelled out to three new contractors; OCO (the Appellants before us), Seaflame and Goddard Building Ltd.

Taking into account the overlaps between the pre-transfer breakdown of services, and the new contractual boundaries, Ellis did their best to assign their staff allocated to the Westminster contract to the three incoming contractors. Some went to Goddard; some to Seaflame and the three Applicants were assigned to OCO.

The Tribunal found that at a meeting held at OCO's offices on 25 April 1995, attended by the three Applicants and Mr Harrison, an OCO Manager, the Applicants were told that they would start with OCO on 1 May 1995. When asked, Mr Harrison accepted that TUPE applied. Accordingly, when the Applicants left OCO's offices that day, they were clear that they would be starting on 1 May with OCO and that their employment would be continuous.

However, that arrangement was upset by Westminster, who found as D-day approached that they would be left with three extra DSO staff. So, as a condition of finally granting the contract to OCO, Westminster required OCO to take not four, but seven DSO employees. That meant that OCO would inherit three extra staff they did not need. So they turned the Ellis men, these Applicants, away, when they presented themselves for work on 1 May.

The Tribunal found, on the Applicants' complaints of unfair dismissal, that there was a relevant transfer from Ellis to OCO of that part of Ellis' undertaking in which these Applicants were employed. Therefore, under the TUPE Regulations, their contracts of employment were transferred from Ellis to OCO at midnight on 30 April/1 May 1995.

Against that decision OCO now appeal.

The first point taken by Mr West is that the finding by the Industrial Tribunal that at the meeting on 25 April the three Applicants were offered employment on a continuous basis with OCO is perverse.

In support of that contention he seeks to compare and contrast the Tribunal's finding that the three men left the meeting "clear in their minds that they would be starting on 1 May 1995 with OCO", with the content of a letter by fax dated 28 April from Ellis to OCO.

That letter reads, so far is as material:

"On a separate issue, the three engineers transferring to you are not clear as to where they should attend on Monday morning. Could you please clarify."

Mr West submitted that this letter is wholly absent from the Industrial Tribunal's 25 page extended reasons and that appears to be correct. It also appears to be, in those circumstances, one of the very few letters which was not set out in extenso by the Tribunal. At any rate, OCO's reply to that letter dated 1 May is set out at paragraph 5 (xvii) of the reasons.

He argues that the Tribunal's reasons are flawed because that letter is not dealt with nor account taken of it.

We ask ourselves what is the significance of the letter? In our judgment the letter is entirely consistent with the Tribunal's finding as to the Applicant's clear understanding when they left the meeting of 25 April. The only outstanding question was where they were to attend for work. In these circumstances we think there is nothing in the point and we reject it.

The substantive point argued by Mr West is that the Industrial Tribunal failed to identify that part of the undertaking of Ellis in which these Applicants were employed which was transferred to OCO. The case raises, we think for the first time, the difficulty where an existing work pattern is broken up into different contracts in circumstances where the employees under the old arrangement worked across the board.

It is a point we think which ought to be argued at a full appeal hearing and consequently we shall grant leave for the matter to proceed to a full hearing on that point alone. Category B; listing time estimate one day, skeleton arguments to be exchanged between the parties, not less than 14 days before the date fixed for the full hearing and copies of those skeleton arguments to be submitted to this Tribunal.

We emphasise that direction. This is a case in which we think we will be greatly assisted by skeleton arguments from all parties.