United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M SAHEID IN PERSON AND ON BEHALF OF MRS SAHEID
For the Respondent	MISS M LAZURUS (of Counsel) Messrs Marsh Ferriman & Cheale Solicitors 11 Liverpool Gardens Worthing West Sussex BN11 1SD


 


JUDGE PETER CLARK: The issue before the Brighton Employment Tribunal in this case was whether the applicant/employee, Mrs Churchill's period of continuous employment with the respondents, Mr and Mrs Saheid, began for the purposes of calculating her entitlement to a redundancy payment following her dismissal by the respondents by reason of redundancy on 9th April 1997, in 1984, as the applicant alleged, or in July 1992, as the respondents alleged. By a decision with extended reasons dated 29th October 1997 the tribunal found that she was continuously employed from December 1984. Against the tribunal's finding this appeal is brought by the respondents.

The difficulty in this case relates to the evidential history of her employment. We have been assisted by the Chairman's Notes of Evidence and the documentary evidence which was before the tribunal.

Background

The applicant commenced employment as a care assistant at the Lyndhurst House Nursing Home in December 1984.

In November 1985 she went to work in a similar capacity at a residential home in Worthing called Hythe House. In 1992 the patients at Hythe House transferred, with one exception, transferred to Lyndhurst House and the applicant and two others went to work at Lyndhurst House. In 1995 the Lyndhurst House business was acquired by the respondents, and the applicant continued to work there until that home closed down and all staff were made redundant in April 1997.

The relevant employers

It is common ground between the parties that between 1984 and July 1992 the applicant was employed by Mrs Eastwood, who was the owner of Hythe House. See her letter, before the Employment Tribunal, dated 15th September 1997.

Equally, it is common ground that from 20th July 1992 the applicant was employed by a company, Carewell Residential Homes Ltd ["Carewell"]. That company had been active since 1987. It owned Lyndhurst House and another home with which we are not concerned, and the principal and director of that company was Mr Ahmet. Carewell subsequently transferred the business of Lyndhurst House to the respondents in 1995.

Continuity of employment

Thus, the principal question before the tribunal was whether continuity of employment was preserved after July 1992. The oral evidence before the tribunal, so far as is material, came first from the applicant who said that in 1992 Mrs Eastwood and Mr Ahmet, who had a close personal relationship, told her that Hythe House was to close; the staff would not lose their jobs, the staff and patients were to transfer to Lyndhurst House. That was what happened. Her daughter, Mrs Maskell, who was also working at Hythe House, also transferred to Lyndhurst House. Three weeks prior to transferring over, her wages were paid by Carewell. Mr Ahmet, in evidence, said that Mrs Eastwood decided that Hythe House was not profitable and she decided to convert it into a youth hostel. The residents, with one exception, all transferred to Lyndhurst House. The exception was a person who did not want to move without there being a private room. The staff were told that they could apply for a job at Lyndhurst House. Three did so, including the applicant. Mr Ahmet accepted that during the last two weeks prior to moving to Lyndhurst House the Hythe House staff were paid by Carewell.

Based on that evidence the tribunal found in effect, that there was a relevant transfer of the business or part of the business then operated by Mrs Eastwood at Hythe House to Carewell. Hence there was continuity of employment.

The Appeal

Mr Saheid has pointed to various documents in the evidence before the tribunal which he submits indicate that no relevant transfer took place in July 1992. Instead, the residential home business of Mrs Eastwood closed. The residents were then taken by Carewell to Lyndhurst House. The applicant applied for and was given a job at Lyndhurst House. He relies on the job application form completed by the applicant on 3rd April 1994; the statement of terms and conditions of employment issued by Carewell to the applicant showing that her employment with Carewell commenced on 20th July 1992 and the form P45 issued to the applicant by Mrs Eastwood showing that her employment ended in August 1992. Mr Saheid invites us to hold, on this evidence, that it was not open to the tribunal to conclude that a relevant transfer took place between Mrs Eastwood and Carewell in July 1992, thus preserving the applicant's continuity of employment.

Conclusion

Whether or not a relevant transfer took place in July 1992 is a question of law, applying the provisions of Regulation 5 of the Transfer of Undertakings Protection of Employment Regulations 1981 to the facts as found. It seems to us that there was evidence before the tribunal on which it was open to the tribunal to decide the issue either way. However it accepted the oral evidence to which we have referred in preference to the indications arguably given by the documentary evidence on which Mr Saheid relies. On that evidence and those findings, a relevant transfer could, in our judgment, properly be said to have taken place. In these circumstances we can discern no error of law in the tribunal's approach. Accordingly, this appeal must be dismissed.