United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR MARTYN BARKLEM (of Counsel) IRPC Group Ltd Stockwell House New Building Hinckley Leicestershire LE10 1HW


 


JUDGE PETER CLARK: The question in this appeal is whether the respondent employees were employed in the material business immediately before its transfer by administrative receivers to the appellant company within the meaning of Regulation 5(3) of the TUPE Regulations 1981.

The business of Hobbs Welch Ltd became subject to an administration order on 26th January 1998. On that date the receiver, Mr Hall, gave notice of termination to all employees of Hobbs Welch to take effect the following day. It was then anticipated that if the business was to be sold as a going concern it would probably be sold to the directors of Hobbs Welch, Mr and Mrs Goodman. The sale of the business to the appellant, a shelf company purchased by Mr and Mrs Goodman, took place on 11th February 1998. It was common ground that a relevant transfer within the meaning of the Regulations then took place to the appellant.

By a decision with extended reasons promulgated on 8th December 1998, an Employment Tribunal sitting at Southampton, Chairman: Mr N Jenkinson, held that the respondents had been unfairly dismissed for a reason connected with the transfer, and thus were employed in the undertaking immediately before the transfer. Litster v Forth Dry Dock [1989] IRLR 161. Against that decision the appellant now appeals.

Mr Barklem who has appeared today on behalf of the appellant, has crystallised the point of law which he seeks to argue, effectively against the Secretary of State, in this way. Whether having regard to the finding that the administrator's decision was for financial reasons to do with the business' ability to pay employees, rather than the impending transfer, the dismissal falls within Regulation 8(1) and therefore Regulation 5(3) of the Regulations, particularly, where the tribunal's findings indicate no element of collusion between the prospective transferee and the administrator.

It seems to us that this is a matter which ought to go forward to a full appeal hearing. For that purpose, we give the following directions:

(1) The appellant is to lodge proposed amended grounds of appeal with this tribunal, marked for my attention, within 14 days of today.

(2) The case will be listed for a full hearing, Category B, for ½ a day.

There are no further directions at this stage.