United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E BEEVER (of Counsel) Messrs Rees Page Solicitors 9 Waterloo Road Wolverhampton West Midlands WV1 4DT


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of the employee's appeal against the decision of the Employment Tribunal sitting at Birmingham, chaired by Mr Rostant and sent to the parties with extended reasons on 14 December 2000. By that decision the employee's complaint of unfair dismissal was dismissed on the grounds that, at the date of his admitted dismissal, 15 June 2000, he had only been employed by the Respondents for some 9 months.
2. The background can be swiftly stated. The Tribunal found that from 1997 the employee was employed at a restaurant in Wolverhampton called Sofia's, which was owned and run by a company called Sofia's Wolverhampton Limited. He started as a waiter but was promoted to the position at Wolverhampton of assistant manager. Mr Beever, who has appeared for the employee today, tells us that although in the Respondent's IT3 the point that the employee did not have one years service was taken, that point was taken on the basis of the Respondents' argument that prior to October 1999, which was the date on which, according to the Respondents, the employee started employment with them, he had been employed at a different restaurant and by a different company, that different restaurant being in Walsall. However when the hearing before the Tribunal started, the Tribunal took the point that even if, as the employee alleged, he had only worked the occasional day on loan at Walsall but was in fact employed at Wolverhampton by the Wolverhampton company to which we have referred, (there being a chain of Sofia's restaurants, each run under the aegis of a different company) nonetheless he did not have sufficient continuity of employment, even at Wolverhampton, because there had been a change in employer in October 1999. That change as we will describe in a moment, attracted the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (the "TUPE regulations") but under those regulations it might have appeared from the facts which the Tribunal was considering that the employee did not transfer.
3. On 16 October 1999 the owner of Sofia's Wolverhampton Limited granted a franchise to the Respondents pursuant to which the Respondents took over the business of running the Wolverhampton restaurant. The owner continued to run the Wolverhampton company as franchisor and as supplier of various roles to the restaurants, for example bookkeeping, general management etc. It was accepted by the Respondents that the TUPE regulations applied to the takeover. The issue, once it had been formulated by the Tribunal as Mr Beever tells us occurred, was whether the employee's contract of employment was transferred from the Wolverhampton company to the Respondents with the business of running the Wolverhampton restaurant pursuant to Regulation 5 of the TUPE Regulations, as the employee contended, or whether it did not transfer because he was excluded from the transfer and his contract was terminated about a week or so thereafter by the Wolverhampton company, as a result of which the employee then entered a new contract of employment with them. If the former prevailed, then there was continuous employment from 1997; if not and a new employment contract was entered into between the employee and the Respondents then the employee, it was argued, did not have the requisite continuous employment with the Respondents.
4. A similar point would have arisen under Section 218 of the Employment Rights Act 1996; whether that Section was referred to at the hearing before the Tribunal is a matter which may have to be debated hereafter. If it was not referred to, whether it should have been may also have to be considered, bearing in mind that the transfer point was one which only arose, according to Mr Beever, when it was taken by the Tribunal itself at the beginning of a one day hearing.
5. The Tribunal concluded in favour of the Respondents' argument. It concluded that there had been no prior agreement between the franchisor and franchisee to seek to evade the TUPE regulations and that therefore the employee, (although it did not quite put it this way) had not been an employee whose employment would otherwise have been terminated by the transfer under Regulation 5(1) of the TUPE Regulations.
6. Mr Beever today has put forward, orally and in his skeleton, a number of grounds as to why those conclusions should properly be challenged on appeal. We take the view that this is a case which should go forward for a full hearing.
7. First of all it appears to us to be arguable that the Tribunal erred in concluding that there was a dismissal by the Wolverhampton company and reemployment by the Respondents as it found because there appears, at least on the face of the decision, to have been no evidence that the employee was ever dismissed or rehired, or indeed that these matters were in any way discussed with him as opposed to being discussed between the two employers. Secondly the Tribunal found that he understood what was going on; it is said that there was no evidence of that; and that too seems to us to be arguable, although even if he did understand that does not necessarily amount to his actually taking part in a consensual rehiring by a different employer. Thirdly, it seems to us to be arguable that, in considering whether what was happening was part of the arrangements for the transfer for the purposes either of the TUPE Regulations or Section 218 of the 1996 Act, the Tribunal concentrated excessively on the actual moment of time when the franchise deal was signed rather than looking at the matter as a whole and deciding, on the facts, what activities formed part of the transfer and what did not.
8. For those reasons we take the view, as we have said, that this is a case which should go for a full hearing on all of the grounds which appear in the notice of appeal.