United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MRS M ASKHAM (Representative)


 


JUDGE LEVY: Towards the end of December last year, two ladies made a complaint to the Employment Tribunal that they had been unfairly dismissed and not been given a redundancy payment. Their IT1 made reference to a transfer of undertaking and wrongful dismissal. The complaint of each was that she:

" worked for Gardner Merchant Ltd at a café within the West Quay, Southampton store know as the Inventory (formerly known as The Source).

2. When the catering contract was competitively re-tendered during 1998 it was awarded to Chateau de Pain.

3. Following the loss of the catering contract Gardner Merchant claimed that their current staff could rely on continuity of employment with the new contract holders under the Transfer of Undertakings (Protection of Employment) Regulations 1981.

4. In a letter dated 16 November 1998 [one of the complainants] was informed by Gardner Merchant that [her] employment would transfer to Chateau de Pain with retention of all existing terms and conditions of employment and continuous service.

5. In a further letter dated 23 November 1998 Grander Merchant informed [her] that Chateau de Pain refused to accept that there was a transfer of undertaking and that [her] employment with Gardner Merchant would cease on 22 November 1998."

We will refer to the premises where the Respondent carried on business as "the café".

1. The two bodies named in the complaints were Respondents to the applications which were consolidated. There was a preliminary hearing at Southampton to decide whether the Transfer of Undertaking Regulations applied in which the two Respondents, Gardner Merchant Ltd and Chateau de Pain were represented (the first by Counsel, the second by a consultant). After a hearing that day, the decision was promulgated to the parties on 15 March 1999. The unanimous decision of the Tribunal was that the Transfer of Undertaking Regulations applied and the first Respondents were dismissed from the proceedings.
2. The second Respondents, the Chateau de Pain, the Appellants here, appealed from that decision by a Notice of Appeal received on 23 April 1999. Essentially, in their grounds of appeal they submitted that the TUPE provisions only applied where there was a transfer of single tangible or intangible assets, which can include the workforce, and submitted that the findings of fact by the Tribunal were perverse. A different consultant than the gentleman who appeared below appears before us this morning. In the Skeleton Argument and in oral argument she has submitted that there was no evidence to support the Tribunal's findings and that the Tribunal's decision was perverse. She submitted that because there was a café before and a café afterwards when the Respondents worked for the First and then the Second Respondent, the Tribunal had made two and two make five. However, we have carefully looked at the findings of the Tribunal in paragraph 19 of the Extended Reasons. The Tribunal said:

"The intangible assets that bear considerable importance in the finding of the Tribunal are the location and size of the area and the right to trade Without those rights, the [Appellants] would not have been able to operate their business. They were not given a different location, although they had to agree if necessary they would remove to another location."

In paragraph 20, they made the significant finding in these words:

"In the finding of the Tribunal those are significant intangible assets which clearly moved to the benefit of the [Appellant]from the First Respondents."

3. The reasons then set out another matter of significance, which the Tribunal considered in the light of the cases cited to them, namely, that the product served by the Respondents to customers of the café were similar. That led to the conclusion that there was a similar trading provision by the other Respondent below and the Appellant. The Tribunal was satisfied that there was an identified economic union unit in the provision of hot water and cold beverages and the provision of food. Both Respondents were trading to make a profit and that was accepted by each of them.
4. Clearly, as has been impressed upon us, the First Respondent might have been unsuccessful in making a profit, and clearly as was impressed upon us, there were different terms and conditions in the way the Appellant and its predecessors were permitted to trade at the café.
5. The Tribunal which heard this matter looked into it very thoroughly. There was a unanimous decision below. The Tribunal on the facts found were entitled to come to the decision it did. We can see nothing perverse in the decision reached. It would therefore be inappropriate to allow this matter to go to a full appeal accordingly. While we thank Ms Askham for her careful submissions made to us this morning, we must dismiss the appeal at this stage.