United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Mr D Ibekwe (Representative)


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in relation to an appeal concerning a decision of the Employment Tribunal sitting at London South whereby they held that the Applicants and in particular Mr Boamah had no right to bring claims against the Respondents that they were in breach of regulation 10 of the TUPE Regulations. Secondly, they found that he had not brought his claim within the three month limitation period or within a reasonable time thereafter. Thirdly, they decided that the proceedings had been conducted unreasonably by those representing the Applicants and accordingly they ordered each Applicant set out in Schedule 2 to pay £20 towards the Respondents' costs.

We have had difficulty in understanding the argument before the Employment Tribunal. In particular, we do not see the basis upon which the Employment Tribunal found that the TUPE Regulations applied at all. They made no findings as to this although, in their IT3s, the Respondents do not admit that the TUPE Regulations apply. It would seem as if the Employment Tribunal decided to leave that issue on one side and proceed to consider the applications on the basis that they did apply. In the result, they concluded that the Applicants had no claim under those regulations in any event. We think that is the way this matter must have proceeded. Accordingly, we feel that this matter must go forward to a full hearing so that this issue can be sorted out with the help of the Respondents.

We also think an arguable point arises on the TUPE Regulations if they apply. Regulation 11(1) of the TUPE Regulations provides that where a company which is being transferred fails to provide the appropriate information to certain bodies in advance so that consultation can be conducted about the transfer in good time, there is a claim thereafter by those bodies named in that Regulation. It designates three categories of persons who can make complaint if the failure relates to them. One is the employees' elected representatives (if there are any), secondly a trade union representative (if there is one) and thirdly, in any other case the employees themselves, but the latter category has a claim it would seem only where there are no employee representatives appointed and where there is no trade union representing the Applicants at the time of transfer. In this case, however, an unusual situation arose because of the time lapse between the transfer and the date the employees learned of it. At the date of the alleged transfer the TGWU was representing the Applicants. By the time the Applicants discovered there had been a transfer, the Applicants had changed their union. They had left the Transport General Workers Union and joined the Public Transport Staff Consortium, a union not recognised by the employers. In consequence, looking again at the section, it would seem that the TGWU were not the people who could have brought a claim in April 1997 because they were no longer representing the employees. Likewise, the claim could not have been brought by the PTSC because they were not representing the employees at the time of the transfer and furthermore, they were not a recognised union any way.

In those circumstances, is it really the intention of the legislation and the directives which inspired it that the employees themselves would have no claim? We think there is an arguable case that the phrase, "in any other case" might cover the situation. That is something we think should be ventilated before a full hearing at the Tribunal. In all the circumstances therefore, we allow this matter to proceed to a full hearing on this second point.

There is then an argument about the time limitation. Were these applications brought forward timeously?. Mr Ibekwe has told us of the considerable difficulties the Applicants encountered following the disclosure in April 1997 of a possible transfer. Their first problem was discovering whether it was a relevant transfer. Their second problem was discovering whether the employers had engaged in the appropriate consultation as required by the TUPE Regulations.

We have been told that obtaining legal advice about the applicability of the TUPE Regs took between April and August. Applications were then made for the amendment of the Originating Application in order to cover the situation where there had been a relevant transfer but that application was refused by the Tribunal Chairman. In due course, when ultimately the Applicants made the decision to lodge a fresh Originating Application, they were met with a refusal by the Employment Tribunal to accept that Originating Application. There was further discussion between Mr Ibekwe and the Chairman of the Employment Tribunal, as to whether the Originating Application was admissible. This delayed matters until 21 January when ultimately the Originating Application was accepted for filing.

These are all facts about which Mr Ibekwe has told us. They are not covered in any way by the findings of the Employment Tribunal who dealt with this matter. We think they give rise to a further issue which should be considered at the full hearing. To facilitate the argument on that occasion, we direct that Mr Ibekwe file an affidavit in which he sets out the particulars of the difficulties the Applicants had in ascertaining legal advice in the period between April and August as well as relating to the difficulties he says he encountered in lodging the Originating Application between November 1997 and January 1998. This should exhibit all correspondence, orders of the Tribunals and other documents which his narrative relies upon. When all those facts are before the Employment Appeal Tribunal, they will be in a position to understand better the basis upon which the Employment Tribunal itself came to the decision it did.

There remains one last point of appeal. This relates to the order for costs. In view of the fact the order made must depend upon the main substantive points which are now proceeding to a full hearing, we think the order for costs should also be considered by the Employment Appeal Tribunal.