United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


JUDGE WILKIE QC:

1. This is the appeal by Alternative Cure Ltd against a decision of the Employment Tribunal sitting at Leeds, the decision was sent to the parties on 7 February 2000. The decision was that there was a transfer of an undertaking from the First Respondent, Regency Health Care (Halifax) Ltd to the second respondent, Alternative Cure Ltd and that in relation to the particular applicants, set out in the schedule, they were entitled to be paid by the second Respondents, the various sums set out in that schedule. The second Respondent has lodged two appeals. The first, by notice date of 20 March appears to have asserted that it had never been served with a notice for claim brought by Mrs J Fountain. The second Notice of Appeal dated the same date by the same Respondent asserted that the Industrial Tribunal erred in law in determining that there had been a transfer of undertaking from the first to the second Respondent.
2. The second Respondent does not attend today. A Dr Belkova, who had been a Director of or employed by the second Respondent and whose name had appeared at the foot of the Notice of Appeal, wrote to the Employment Appeal Tribunal on 29 June informing it that she no longer worked for that company, that the office's of the company were not in the UK and indicated that the points of law were expressed in the written submission and that the skeleton of her argument was already set out in the Notice of Appeal.
3. As far as the appeal of substance is concerned, the Employment Tribunal in paragraph 9 of its decision set out a series of findings of fact. Inter alia it found that the two companies consecutively operated the same nursing home. The first did so up to 31 March 1999 and the second did so from 1 April 1999. There was no change in the residents at the residential Nursing Home between those two dates. All, save one or two, staff remained continuously in employment at the Nursing Home throughout the period. All the stock, materials and supplies used by the first Respondent, were adopted and used by the second Respondent on and after 1 April. In effect, it was exactly the same business that was continued to be operated on 1 April, as had been operated on 31 March.

4. On the basis of these findings of fact and on the basis of the many, well known, authorities, including decisions of the European Court of Justice, the Tribunal was satisfied that up to and including 31 March there was an economic entity which was almost entirely identical to the entity which was carried on by the second Respondent on 1 April. Accordingly, it was satisfied that there was a relevant transfer as required by regulation 3 of the Regulations, the effect of which under r.5 of the regulations was to transfer the employment of all employees employed immediately before the transfer. The Notice of Appeal takes issue with that conclusion and, in effect, seems to concentrate on the point that the Employment Tribunal failed to take into account that ownership of assets whether tangible or non tangible had not transferred from the first to the second Respondent. It also asserted that the Tribunal had failed to give sufficient reasons for their decision and such as were given were scant in their nature, simplistic and wrong.
5. It asserted that there was a completely new business on 1 April arising from the fact that there had to be a new registration certificate and that the second Respondent only agreed to accept such a certification if the Health Authority gave assurance that care payments would be made to it. In the light of that it is asserted that the conclusion was perverse. In our judgment none of these grounds of appeal provide a reasonably arguable point for this appeal to be worthy of going to an inter-parties hearing. In our judgment on the basis of the findings of fact, the Employment Tribunal addressed itself to the correct issues, and reached a conclusion, which was open to it on the facts found. We cannot find a sensible basis for suggesting that this decision was either perverse or wrong in law and therefore we dismiss that appeal.
6. As far as the case of Mrs Fountain was concerned that was the subject of a separate decision, dated 7 February in respect of a hearing conducted at the Leeds Employment Tribunal on Tuesday 4 and Wednesday 5 January - in other words, the same date as the hearing of the other applications, they having been heard on 5 January. It is clear from the record that the second Respondent attended on 5 January through counsel. It is also clear from the summary reasons given in respect of Mrs Fountain's case, that there was no appearance by the second Respondent on the file. It is clear moreover that the Tribunal considered this case in conjunction with the other case because it was on all fours with it and the evidence was exactly the same. The second Respondent appeals from that decision on the basis that the second Respondent had never been served with the Notice of Claim.
7. In her Notice of Appeal Dr Belkova says that IT1, which was served, was served, she says, on the solicitors for the second Respondent whom the Tribunal found not liable. She then goes on to say that the Respondent did not instruct the solicitors of the second Respondent at all and in the circumstances, the decision is perverse. Quite apart from the fact that this Notice of Appeal was extremely hard to understand, what appears to be the reasoning is that the solicitors for the second Respondent were not instructed by the first Respondent. However that may be it is clear that the same Tribunal heard this application on the same date as the others, on the same evidence and on the same issues. This was a hearing at which the second Respondent was present was represented by counsel and was found liable after having full opportunity to participate.
8. There is no hint in the summary reasons that there was any application to have the hearing of that application separated from the hearing in respect of all the others or that any point of non service was taken. We therefore conclude that there is no reasonable argument in support of the ground of appeal which the second Respondent has submitted in respect of those particular proceedings and therefore we dismiss that appeal without the need for it to go to an inter-partes hearing.