United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr I M Tysh (Ref: IT/14241.1.0) Messrs Berry & Berry Solicitors 11 Church Road Tunbridge Wells Kent TN1 1JA


 


JUDGE PETER CLARK: By an Originating Application dated 26th June 1998 the Appellant brought a complaint of unfair dismissal and/or redundancy and failure to consult over the transfer of a business against the Respondent John Ansell & Partners Limited.

The background: The Appellant was employed from 1987 by a firm called MacDonald Daines Insurance Brokers ("MacDonalds") at their offices in Tunbridge Wells. She lives in Ticehurst, East Sussex. MacDonalds got into financial difficulties and on 1st April 1998 it was eventually conceded by the Respondent that a relevant transfer of MacDonalds' undertaking to the Respondent took place. The Appellant was on holiday from 27th March until 13th April 1998. On her return to work she agreed to work in the Respondent's Central London offices. The offices of MacDonalds at Tunbridge Wells were closed. However, dissatisified with the additional travel from her home to Central London she resigned from the employment on 11th May.

The Employment Tribunal found (1) that she was constructively dismissed; (2) that the reason for dismissal was redundancy. She was awarded a redundancy payment of £2,420; (3) there was no breach of the duty to consult under Regulations 10 and 11 of the Transfer of Undertakings Protection of Employment Regulations 1981 (TUPE).

The decision of the Tribunal sitting at London North under the Chairmanship of Mrs E M Prevezer, was promulgated with extended reasons on 21st October 1998. That decision makes no express finding as to her complaint of unfair dismissal. At para 10 of the reasons, it is recorded:

"The Applicant also argued that there was a change in the workplace ... was a fundamental breach of the contract and argued that it was not an economic technical organisational reasons for redundancy and it did not come within Section 8.2. That must entail changes in the workforce. He argued that it was a dismissal connected with the transfer and therefore, automatically unfair under Regulation 8.1."

In their subsequent reasoning, the Tribunal arguably wholly fail to address that issue but the upshot of the decision is that the unfair dismissal complaint failed. In this appeal, the Appellant takes the point, first, that the Tribunal has failed in its duty to provide reasons for its dismissal of the unfair dismissal complaint in accordance with the judgment of Lord Justice Bingham in Meek -v- Birmingham District Council [1987] IRLR 250. Secondly, the submission is made that on such facts as were found by the Tribunal, this was an automatically unfair dismissal under the provisions of Regulation 8.1 of TUPE. The Employer's defence under Regulation 8.2 did not apply because there was no change in the workforce. (See Berriman -v- Delabole Slate [1985] ICR 546)

It seems to us that both these points are arguable and the matter will be permitted to proceed to a full hearing on those two issues. For that purpose, we direct the Appellant to lodge a draft Amended Notice of Appeal within 7 days setting out in particular the contention that the Tribunal failed to give adequate reasons. In the original Notice of Appeal, a further ground challenging the Tribunal's finding on lack of consultation, is set out. Mr Tysh, on behalf of the Appellant, has formally abandoned that ground of appeal and therefore we dismiss that ground of appeal.

So far as the full Hearing is concerned, the case will be listed for 2 hours, Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full Appeal Hearing. Copies of those skeleton arguments to be lodged timelessly with this Tribunal.

Finally, Mr Tysh has made application for limited Chairman's notes of evidence in relation to the question "What happened to the three employees of MacDonalds after the transfer?"; those being the employees referred to in para 3 of the Tribunal's reasons. We have considered that application but we are not a fact-finding body and it seems to us that that would be the only purpose of putting the evidence before us. In these circumstances, we shall make no order for Chairman's notes.