United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS E MELVILLE (Of Counsel) Instructed by: Messrs Thompsons Solicitors The McLaren Building 35 Dale End Birmingham B4 7LF

JUDGE J. McMULLEN QC

1. This an appeal by the Applicant against the decision of an Employment Tribunal sitting at Nottingham, Chairman Mr J W Calladine over 4 days in 2001 promulgated with Extended Reasons consisting of 21 pages on 27 July 2001. A review was sought but refused on 24 September 2001 by the Chairman except for one issue which he accepted justified further comment.
2. The Applicant and the Respondent were represented by Counsel. The Tribunal paid tribute to the careful submissions oral and written of both Counsel. The Applicant is represented again by Miss Melville and we too pay tribute to the careful way in which she has set out the arguments in support of the appeal, to such an extent that having read them we did not need to call upon her.
3. The issues before the Tribunal following the Applicant's claim for unfair dismissal arising out of relevant transfer pursuant to TUPE were: Was there any economic entity? Was there a transfer of the entity or part of it from the Respondent to Boston Mayflower? If so, was the Applicant assigned to the part transferred? Was there a dismissal and if so was it fair? Very quickly the issues became crystallised and the evidence focussed upon whether or not the Applicant was assigned to a part transferred from the Respondent to Mayflower. The Tribunal concluded that he was not a part of that transfer, and that the dismissal by the Applicant was in breach of TUPE Regulation 8(1) and no reliance was placed on Regulation 8(2)
4. There is no appeal against that finding. There is an appeal against the remedy. The Respondent is a local authority. The Applicant was employed by it as a solicitor. He had initially worked generally, but became the senior solicitor and was engaged to work on the transfer of the Respondent's housing stock to Mayflower. He had flagged up his resistance to being assigned to that work, which might connote a relevant transfer of his employment. The Tribunal upheld his assertion after hearing evidence on it.
5. As a precaution, the Applicant entered into a compromise agreement under section 203 of the Employment Rights Act 1996 together with the settlement agreement for the sum of £3000 both with Mayflower. This was to protect his position in case he was wrong in his assertion that there was no transfer, as Miss Melville puts it in her argument, but we think more realistically she means that notwithstanding a transfer, he was not assigned to the part so transferred.
6. The arguments which she addresses are comprehensively set out by reference to the statute and to the authorities in her skeleton argument identifying an error of law pursuant to section 123 of the Employment Rights Act. Principally she takes issue with the Tribunal's reliance on Courage Take-Home Trade Ltd v Keys [1986] IRLR 427 and distinguishes we think reasonably arguably the facts in the instant case
7. She further argues that the payments made under the compromise and settlement agreements fall outside those kinds of payments for which credit must be given in mitigation by a claimant. Authorities are cited for that. Again we consider those grounds are reasonably arguable. The first point therefore will go forward.
8. The second ground of appeal relates to what is in shorthand described as double deduction. It had been anticipated by the Chairman's decision on review that this issue might have been resolved but it is not. If it remains unresolved before the appeal then we see reasonably arguable grounds for it to be the subject of a full hearing. The compromise agreement indicates that the parties accepted that payment of £18,046 odd was in part settlement of the sums to be paid to the Applicant by Mayflower under the terms of the agreement. We consider this point set out in paragraphs 17 – 20 of Miss Melville's skeleton are reasonably arguable and should go forward.
9. The third ground on which she sought to argue (failure to mitigate and perversity) is not pursued today and therefore it is dismissed without the necessity for us to give reasons therefore. Listing directions Category C. Chairman's notes are not required.