United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R BRITTEN (Solicitor) Legal Services Directorate B Secretary of State for Trade & Industry Room 212a, 10-18 Victoria Street London SW1H 0NN


 


JUDGE H WILSON: This has been the preliminary hearing of the appeal which the Secretary of State wishes to bring against the finding of the Tribunal, which was sent to the parties on 1 September 1998, that the Secretary of State was liable for redundancy payments to the Respondents to this appeal. We have had the advantage of Mr Britten's skeleton argument and his amplification of it and he urges us to find that there is an issue of law where the Employment Tribunal misdirected itself in apparently finding that one cannot have a transfer of undertakings if there is a Creditor's Voluntary Liquidation. The decision of the Employment Tribunal referred to the European Court of Justices Decision in D'Urso v Ercole Marelli Elettromeccanica Generale SpA (in special administration) [1992] IRLR 137 in the course of its judgment.

It seems to us that that reference is in fact irrelevant to the conclusions reached by the Employment Tribunal and in particular in light of the findings of fact in paragraphs 7 and 17. I quote from paragraph 7:

".......The important finding of fact, however, is that there was no plan on the part of Mr Vallely and Mr Palmer simultaneously to put Pegasus into liquidation and, on the back of that exercise, to create Vallely Aircraft Services. In order words, we have accepted as true the account of events given to us by Messrs Vallely and Palmer, not least because there is no evidence to contradict what they have told us and the story they told seemed coherent and probable."

In paragraph 17, the Tribunal clearly went on to analyse the factual basis to which they had referred earlier in their decision and in the context of the Transfer of Undertakings Regulations, which they found did not apply, they said, and we quote from paragraph 17:

".....Factually, we find that the old business of Pegasus was put into liquidation with a view to its assets being sold for distribution to the creditors. What was created shortly thereafter was a new business in the shape of Vallely Aircraft Services. There was not, on that analysis, a transfer of undertaking by Pegasus to Vallely Aviation Services."

Those were findings of fact and conclusions drawn from findings of fact which are attacked on grounds of perversity but which we find were open to the Employment Tribunal to reach. In those circumstances, we find no merit in the grounds of appeal and it is dismissed.