United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P JOHNSON (SOLICITOR) Oldham Law Centre 1st Floor, Archway House Bridge Street Oldham OL1 1ED


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the Manchester Employment Tribunal, Mr Goddard against that Tribunal's decision that he was unfairly dismissed by his Employer, Mr Lucisano on 10th April 1998. Compensation for that unfair dismissal was agreed between the parties at £2,300.

It was common ground that on 20th April 1998, a relevant transfer of the public house business, in which the Appellant was then employed by Mr Lucisano as a chef, took place. The transferee was Mr Ivor Hargreaves. Prior to that transfer on 1st April 1998 the Appellant left work and did not return. Mr Lucisano telephoned him at 9.00 pm that evening. During that conversation the Appellant clearly indicated to Mr Lucisano, on the Tribunal's findings of fact, that he was not coming back to work and furthermore, that he was not going to work for Mr Hargreaves, to whom the business was going to be transferred on 20th April. The Appellant had formerly been employed by Mr Hargreaves in the same business from 1st February 1995 until 20th March 1997, when Mr Hargreaves had transferred the business to Mr Lucisano. It was coming back to Mr Hargreaves a year or so later. Mr Lucisano took that to mean that the Appellant would not return to work at all. He told the Appellant to attend the premises the following morning at 9.00 am. The Appellant did not attend at that time, nor did he contact Mr Lucisano in any way. Mr Lucisano took that to mean that he did not, as he had said the previous evening, intend to return to work.

On the following day, a sick note arrived following a telephone call from the Appellant's girlfriend to say that he had visited the doctor. The Tribunal found that Mr Lucisano genuinely believed that that was not a genuine sick note. On 4th April Mr Lucisano visited the Appellant at his girlfriend's house. He tried to persuade him to reconsider his expressed intention not to work for Mr Hargreaves. The Appellant did not indicate that he had changed his mind on that occasion. On 10th April, the Appellant attended the premises to collect his wages. He gave no indication then that he had changed his mind about working for Mr Hargreaves or that he wished to return to work for Mr Lucisano. On 19th April the Appellant telephoned Mr Lucisano about statutory sick pay to be told that his employment had ended on 10th April.

On those facts the Tribunal, in extended reasons dated 11th December 1998, found that the Appellant had been dismissed by Mr Lucisano on 10th April but not for a reason related to or connected with the transfer, so as to render the dismissal automatically unfair under Regulation 8.1 of the Transfer Of Undertakings (Protection Of Employment) Regulations 1981 (TUPE). The Tribunal went on to find that although dismissal was for a reason related to the Appellant's conduct, that is, his declaration that he would not work for Mr Hargreaves again, the dismissal was unfair under the provisions of Section 98(4) of the Employment Rights Act 1996. Compensation for that unfair dismissal was then, as we have indicated, agreed between the parties.

In this appeal Mr Johnson, on behalf of the Appellant, seeks to challenge the Tribunal's finding that the dismissal was not for a reason connected with the transfer, applying the approach of the House of Lords to the provisions of Regulation 5 of TUPE contained in Litster -v- Forth Dry Dock [1989] IRLR 161. His purpose is ultimately to obtain a judgment against Mr Hargreaves in circumstances where he tells us frankly that Mr Lucisano is not good for the money. However, we put to him that if he is correct in that submission that would bring into operation the provisions of Regulation 5(4A) and (4B), disapplying the provisions of Regulation 5(1) and (2). On the facts as found by the Tribunal the Appellant informed the transferor, Mr Lucisano, that he objected to being employed by the transferee, Mr Hargreaves (see Hay -v- George Hanson Building Contractors Ltd [1996] IRLR 427). The result would then be that he would not be treated as having been dismissed either by the transferor or the transferee. His claim for unfair dismissal would accordingly, fail. Mr Johnson did not advance any argument to rebut that proposition. It therefore appears to us that this appeal is wholly misconceived on the Appellant's case, as presently advanced, that he was employed in the business immediately before the transfer on 20th April 1998 and dismissed for a reason connected with the transfer. It must follow from the Tribunal's clear findings of fact that he objected to being employed by the transferee and if that be right he was disentitled from being treated as employed and dismissed by Mr Hargreaves or dismissed by Mr Lucisano, under the provisions of Regulation 5(4A) and (4B). In these circumstances, we shall dismiss this appeal.