United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR W DIAMOND (Consultant)


 


MR JUSTICE MAURICE KAY:

1. This is a preliminary hearing of the appeal of the employers against part of a decision of an Employment Tribunal sitting at London South on 8 and 9 November 2000. On that occasion the Employment Tribunal reached one conclusion with the consent of the parties, namely, that the then applicants were unfairly dismissed for a reason connected with a relevant transfer. The Employment Tribunal then held that the then applicants were entitled to a basic award pursuant to section 122 of the Employment Rights Act 1996 and that in calculating the compensatory award pursuant to section 123, the Tribunal must apply the limit in section 124 to the then applicant's total loss after deducting any contractual or ex gratia sums paid by the first respondent.
2. Against those findings there is now no appeal being pursued, Mr Diamond having abandoned some grounds that were in his original notice. However, he persists with his appeal in relation to the remainder of the decision of the Employment Tribunal. That was to the effect that the employees were entitled to present a complaint that IPC Magazines Limited had failed to comply with its obligations under Regulation 10 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, had failed to comply with its obligation to inform or consult employee representatives as required by Regulation 10 and, as a result, the second then respondent, Sodexho Limited, was ordered to pay 4 weeks' pay to each of the employees.
3. The essence of the intended appeal goes to the proper construction of Regulations 10 and 11 as they were before the 1999 Amendments. They are set out in paragraph 24 of the decision of the Employment Tribunal.
4. The point Mr Diamond seeks to make is that the Employment Tribunal focussed on alleged defects in the electoral process which had produced the Staff Council. His submission is that those defects did not affect the legitimacy of the Staff Council for the purposes of consultation as set out in the Regulations. He submits that the only question that the Employment Tribunal was entitled to ask was whether the Staff Council was a proper body for the purposes of Regulation 11A and not whether there had been some defect in the prior election process.
5. In our view, his submissions on that point are at least arguable and in those circumstances we shall allow the matter to proceed to full hearing.