United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P NICHOLLS (of Counsel) Instructed by: The Legal Department UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE PETER CLARK: This appeal raises a question as to the proper construction of Regulation 10 of the Transfer of Undertakings Protection of Employment Regulations 1981. We see from their PHD form that the first respondent, Bacon's, accepts that the appeal raises a point of law of general importance. We agree.

The point may be shortly stated. At all relevant times the appellant was employed as sports centre manager at Bacon's College. He was a member of UNISON, a trade union not recognised by Bacons for collective bargaining purposes. On 12th June 1998 he was informed by the College principal that consideration was being given to contracting out the College sports facilities to Chartwells, who then provided catering services to the College and were second respondents to this application. On 31st August 1998 a transfer of the sports facilities to Chartwells took place. The appellant signed a contract of employment with Chartwells and remained in their employment. He was the only employee affected by that transfer.

On 8th September 1998 he presented an Originating Application to the Employment Tribunal complaining that his employment was transferred to a new employer without consultation as required by the Regulations, as amended by the Collective Redundancies and Transfer of Undertakings (Protections of Employment) Amendment Regulations 1995. Those amendments were made in order to comply with the European Court of Justice judgment in the enforcement proceedings, E C Commission v United Kingdom C-382/92 [1994] IRLR 392, wherein the Court held that in certain respects the original TUPE Regulations did not properly implement the Acquired Rights Directive 77/197.

By their decision promulgated with extended reasons on 8th December 1998, an Employment Tribunal sitting at London (South) held that there was no requirement under the Regulations for an employer to consult with the individual employees, nor was there an obligation on employers to invite employees affected by a proposed transfer to elect employee representatives for consultation purposes. If they were wrong on the first point, they would have found that there was a breach of Bacon's duty to provide information to the appellant under Regulation 10(2) and they would have made a declaration accordingly and awarded him compensation in the sum of £227.

Mr Nicholls, on behalf of the appellant, challenges both findings as a matter of construction and further relies upon the decision of Divisional Court in Regina v Secretary of State for Trade and Industry ex. parte UNISON [1996] ICR 1003.

As we indicated at the outset of this judgment, with the support of the first respondent, this appeal will now proceed to a full hearing. For that purpose, we shall list the case for ½ a day, Category B. There will be an exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full hearing. Copies of those skeleton arguments to be lodged with this tribunal at the same time. There are no other directions.