United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	In person.


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Newcastle whose extended reasons were promulgated on 16 November 1999. The hearing in Newcastle was itself a preliminary issue on the question of whether Mr Winton was an employee of the respondents, STM Recruitment trading as Meridian Business Support, within the meaning of s.231 Employment Rights Act 1996. By his originating application dated 18 June 1999 Mr Winton had claimed that he was unfairly selected for redundancy. He claimed the redundancy payment, claimed that he was unfairly dismissed and claimed that his statutory right to reasons for his dismissal had not been given him.
2. The brief history is that he had been a temporary forklift truck driver employed by Proctor & Gamble from 1995 to 1996. The tribunal accepted that his relations with Proctor & Gamble were governed by a contract of employment. In 1996 Proctor & Gamble decided that they would outsource the work of about 200 employees including the appellant by having it all delivered through an employment agency. The respondents, STM Recruitment, took over this responsibility in May 1996. In fact it made very little if any practical difference to Mr Winton because he stayed on at Proctor & Gamble doing exactly the same work, under the exactly the same conditions, under the control of exactly the same management as he did before. The only difference was that he had entered into formal contractual arrangements with STM Recruitment which, if the formality reflected the legal substance, meant that he was self employed with his services being provided to Proctor & Gamble through the means of an employment agency.
3. The tribunal had two points to consider: whether there was in May 1996 a transfer of a undertaking for the purpose of the 1981 regulations and alternatively, whether or not the contractual arrangements after 1996 constituted a contract of employment. They decided both those claims against Mr Winton.
4. The first ground of appeal is in relation to the Transfer of Undertakings (Protection of Employment) Regulations 1981. There is a criticism of the finding of the tribunal at paragraph 9:

"However, we were constrained to agree with Ms Meek that in order to come within the 1981 Regulations, an undertaking cannot consist solely of employees."

5. We think that it is reasonably arguable that the tribunal misdirected themselves in allowing them to be governed by that understanding as a principle of law. Our attention has been drawn to the decision of the European Court of Justice in Hernandez v Perez [1999] IRLR 132 where it was pointed out that in the case of labour intensive activities, a relevant transfer may be one which involves simply an economic entity comprising an organised grouping of persons and assets, enabling an economic activity which pursues a specific objective to be exercised and the fact that only employees were transferred would not prevent the transfer of an economic entity for the purposes of the regulations.
6. The second ground of appeal is that the tribunal looked too much at the form and not enough at the substance when deciding that the relationship between Mr Winton and STM was not one of employment. In a skeleton argument dated 10 March 2000, the employment tribunal caseworker at the Blyth Valley Citizens Advice Bureau who was representing Mr Winton said that this ground of appeal was to be withdrawn. Mr Winton has represented himself this morning and is not quite sure why that concession has been made. In the circumstances we think that it would be unfair to assume that this ground of appeal should be withdrawn. We think that Mr Winton ought to have an opportunity to argue both points at a full hearing.