United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS REBEKAH WILSON (of Counsel) Instructed by: Messrs Birchall Blackburn Solicitors Waldorf House 5 Cooper Street Manchester M2 2FW
For the Respondent	MR JACK MITCHELL (of Counsel) Instructed by: Messrs Henmans Solicitors 116 St. Aldgates Oxford OX1 114A


 


MR JUSTICE BURTON

1. This is an appeal by Shaun Moseley who was employed by the Respondents, Service Direct (UK) Plc, as a Telesales Executive, against the dismissal of his claim against them for unfair dismissal, by decision of the Employment Tribunal, chaired by Mr B J Doyle, on 14 June 2000.
2. The decision was originally given in Summary Reasons, but in circumstances which we have explained in our earlier judgment today in this case, Extended Reasons were subsequently delivered by the Tribunal.
3. In those circumstances, the original appeal of the Appellant against the refusal by the Employment Tribunal to give Extended Reasons has not needed to be proceeded with, and the appeal before us today is against the decision of the Tribunal as contained in those Reasons.
4. The Appellant worked as a Telemarketing Executive under a contract originally made with a company called Securicor Telecoms Ltd, which provided for him to start on 1 June 1998. In circumstance, which were not plain to the Tribunal and are certainly not plain to us, his employment as a Telemarketing Executive, in the Middleton office in Manchester, of the relevant telecoms company, transferred, probably at some stage in 1998, to another company, Samsung Telecoms (UK) Ltd.
5. As far as Samsung Telecoms (UK) Ltd are concerned, their then sales & marketing Director was Mr David Norton, their then Managing Director was Mr Nigel Russell and Head of the relevant telemarketing or telemarketing & sales department was Miss Alison Jones.
6. In May 1999 Alison Jones was transferred to sales, and thereafter there remained only two employees in the telemarketing department; the Appellant and a Mr Stephenson.
7. It appears that Samsung (as we shall call them) wished to sell off their service & maintenance department and that department had apparently operated under a trade name, Service Direct.
8. The business of Samsung is and was primarily in the supply of telecommunications equipment through a dealer or wholesaler network, and once the member of the public, or indeed a business, has purchased equipment, Samsung equipment, through the dealer, then thereafter the dealer will obviously be keen to sell them more and/or to sell to other potential customers, but the particular customer, once he has bought the equipment, will ordinarily have a service or maintenance contract with Service Direct, the then trade name of the service & maintenance department at Samsung.
9. Samsung would continue to try and market products and further equipment, not only as we have described, through the dealers, but also to its existing customer base, whose information and names it would retain through the maintenance database.
10. Mr Moseley, the Appellant, was, in his capacity as an employee of the telemarketing department, involved in attempting to sell more products and to further the name and reputation of his employer, Samsung. He did that by marketing to and through dealers and wholesalers and also, because he had the use of the maintenance database, to existing customers and those with ongoing service and maintenance arrangements with the service department, Service Direct.
11. Once it was proposed to sell off the service & maintenance department, then the employees of the service & maintenance department would be likely be, and were in the event, transferred with that department.
12. It appears that there was an agreement in fact made on 20 August 1999 between Samsung Telecoms (UK) Ltd as vendor and the Respondent, Service Direct (UK) Plc, as purchaser. It is not clear whether extracts from this agreement were before the Tribunal. In those circumstances we place no reliance upon the contents of the document, but simply record the fact that that was the date of the agreement of transfer.
13. The consequence of that was, of course, that arrangements had to be made in relation to the employees. It seems that on 15 September 1999 Mr Marino, the Managing Director of the purchasing company, the Respondent, had spoken to a number of the employees of Samsung.
14. By that time it was apparent that the 50 or so employees in the service & maintenance department would be transferred. The position became clear, however, to Mr Moseley and indeed Mr Stephenson, that they were not to be transferred.
15. On 23 September 1999 Mr Russell, the then Managing Director of Samsung, their then employer, made them redundant by serving a redundancy notice and giving them notice to terminate their employment, as of 1 December 1999. It thus became apparent that Samsung, while selling off their maintenance department, would be closing down its telemarketing department, at least in Manchester.
16. That, it seems, was the last that the Appellant heard about his position, and clearly that meant that he was from then on under notice, prior to the actual transfer itself and on by operation of the contract between the purchaser at midnight on 30 September 1999 the 50 employees in the service & maintenance department transferred to the Respondent.
17. However, the Appellant, and no doubt Mr Stephenson, carried on working in the telemarketing department at Samsung in Manchester. It appears that Mr Russell, who had just given a redundancy notice to Mr Moseley, suggested that he contacted Mr Marino, of the Respondent Company, to see whether the Respondent could offer him, and indeed Mr Stephenson, employment, notwithstanding that they were not transferred under the contract.
18. It appears that the Appellant did contact Mr Marino, and a meeting was arranged for 5 October. On 5 October Mr Marino of the Respondent agreed to take on the Appellant, and I think also Mr Stephenson, and offered him employment, which he accepted, as Telesales Executive for the Respondent Company. It seems that he brought with him a letter which was backdated to 24 September and when the Appellant accepted the offer, his acceptance was backdated to 30 September.
19. He was to be a Telesales Executive for the Respondent, which would involve a slightly different job specification (we need not describe precisely in what way), and we also understand a slightly different holiday arrangement, from that which he had previously had with Samsung, but otherwise he continued in the same office from which he had previously operated for Samsung.
20. On 11 October he sent an email to Samsung to tell them that he had resigned and started with the Respondent as from 1 October.
21. By 17 November, however, the Respondent had decided to close down its Manchester operation, which was effectively the office in which Mr Stephenson and the Appellant were operating their telesales function. On 17 November the Appellant was made redundant, after he had declined to consider alternatives of either becoming a Sales Representative for the Respondent or moving to London.
22. He was given variously references which were inconsistent the one with the other and, no doubt because of the somewhat unusual employment history that he had had, described him as having been, for example in one of the references employed from January 1998 to November 1999 as a Telemarketing Executive, and in another working for a period of one year for Samsung Telecoms as a Telesales Operator, and in another in permanent employment with Samsung Telecoms from 1 June 1998 to 30 September 1999.
23. His claim for unfair dismissal was put in his Originating Application on the basis that he had in fact been employed:

1 "…as a Telesales Executive by the Respondent [Service Direct (UK) Plc] from 1^st June 1998 until the 24^th November 1999."

which is on any basis inaccurate.

24. It was decided to hold a Preliminary Hearing and the issue was whether TUPE applied, that is the Transfer Undertaking Regulations. Paragraph 5 of the Transfer of Undertaking (Protection of Employment) Regulations 1981 reads as follows:

5 (1) "…a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee."

25. The case for the Appellant, who represented himself at the Employment Tribunal, was that, by virtue of the Regulations there had been a transfer of part of the business of Samsung, namely the Service Direct part (that is the service & maintenance department) of Samsung to the Respondent, and that consequently he should be deemed in law to have been transferred together with that part of the business, so that his employment should be deemed to have been continuous, and on that basis he would have served long enough to qualify for a claim for unfair dismissal.
26. The case for the Respondent was that his employment with Samsung had been terminated by his leaving them, while serving out his notice, after the redundancy notice had been served on him on 23 September 1999, to join the Respondent, and that he had only been employed by the Respondent from 1 October 1999 until he was made redundant on 17 November 1999. He was not transferred. His employment had not been rendered continuous by the transfer and his employment was not terminated by virtue of the transfer.
27. That issue then came before the Tribunal on 14 June 2000. The Tribunal indicates who was called before it. They had the benefit of evidence from Mr Russell, who had been the Managing Director of Samsung, as we have described, but who had in fact by the time of the Tribunal, early in 2000, joined Service Direct (UK) Plc as their Managing Director and thus was there as the representative of Service Direct (UK) Plc (the Respondent), who were, like the Claimant, not legally represented, as well as being a witness of fact in relation to what had occurred in September and October 1999.
28. He corroborated and confirmed a letter dated 7 June 2000 which had been sent to him and produced by him as part of the bundle of evidence before the Tribunal, from Mr Norton, to whom we have referred, who had been his No. 2 at Samsung, and was by the time he wrote the letter now himself Managing Director of Samsung, giving the story so far as Samsung was concerned.
29. Thus, the Tribunal was faced with what was on the face of it an un-evidenced letter, but that does not render it inadmissible, but simply means that it carries less weight, but one which was corroborated and expanded upon by the oral evidence of Mr Russell.
30. There was also, it seems, a witness statement by Alison Jones, to whom we have referred, but the Tribunal did not place much weight on it as, again, Alison Jones did not appear; and we have no idea as to its content because neither side were able to produce it before us today, and so we set it upon one side. Certainly there is no sign of any feature from it in the Decision of the Tribunal and if there was they clearly approached it correctly by allocating less weight to it.
31. There was then evidence from the Claimant himself, and there was the small bundle of documents which we have used for the purpose of summarising the chronology earlier in this judgment.
32. It is clear that the Tribunal preferred the evidence of Mr Russell. We have seen his short witness statement, and we have also seen the witness statement of the Appellant, but both Mr Russell and the Appellant gave oral evidence, and it would seem from paragraph 6 of the Decision that the Tribunal preferred Mr Russell's evidence because they said as follows:

6 "…the account of the relevant events given by Mr Russell on behalf of the Respondent appeared to be in accord with the documentation and was treated as more compelling by the Tribunal (or at least the majority)."

33. We should indicate at this stage that the decision of the Tribunal was a majority decision, there being a minority which concluded, in two paragraphs of the decision (paragraphs 29 and 30) that there was a transfer of undertaking and that the commencement of the Appellant's employment with the Respondent, on 1 October, was a consequence of the transfer of undertaking, and that the Appellant's contract of employment had transferred to the Respondent as a result, such that his employment was continuous.
34. The conclusion of the majority, having heard the evidence, was that there was no continuity of employment. They referred to certain concerns that the majority had had before reaching that conclusions, in paragraph 27 of the Decision, which we quote:

27 "The majority were alert to, but rejected, the possibilities (a) that the retention of the Applicant and his subsequent redundancy was merely a sham and (b) that the temporal connection with the transfer might indicate that there was an attempt to escape the application of the 1981 Regulations. The majority was troubled by the circumstances in which a backdated offer of employment with the Respondent was made to the Applicant and then accepted on a backdated basis. However, that did not disturb its analysis of what happened at the time of the transfer and immediately before it."

That is a finding of fact, after hearing the evidence, with which it is not possible for this Tribunal to interfere.

35. They concluded that there was no sham, and concluded that there was no attempt to escape the application of the 1981 Regulations, and concluded that the backdated offer of employment did not disturb the decision they otherwise made. Mr Mitchell, on behalf of the Respondent, has put forward a submission as to justification for such backdating, which is in line with the justification for what occurred, to which we are about to refer.
36. So long as the majority of the Tribunal considered those points, it appears to us, they were entitled to do so. The important question, and indeed that upon which the appeal by the Appellant has concentrated, does not relate to that, but relates to the question of whether there was, in law, a TUPE transfer.
37. Mr Mitchell submits, so far as facts are concerned, that what occurred here is straightforward. Once it was concluded that Samsung was going to sell off its service & maintenance department there was no call for a surviving telemarketing department, and those who, like the Appellant, were not part of the sales & maintenance department, were given notice.
38. But the opportunity was taken to seek to persuade the Respondent, who was buying the maintenance department, to take on those, like the Appellant, who would otherwise be made redundant; not as a matter of obligation of law, either contractually or as a result of the transfer of undertakings, but in case there might be a job to offer.
39. That job was offered, even to those who were not working in the business that was transferred, such as the Appellant, and thus Samsung's concerns about its employees were satisfied. In fact, sadly, the transferee wanted to close down its Manchester office, and was not, therefore, able to keep on the Appellant, although it did keep on Mr Stephenson because he was prepared to move from Manchester. That is the factual justification that is put forward by Mr Mitchell on behalf of the Respondent, which was that which was put before the Tribunal.
40. But of course, at the end of the day, what occurred as a matter of fact, or even as a matter of contractual arrangements between transferor and transferee is not determinative, because the Regulations impose a statutory solution, in the interests of protecting employees, whatever the transferor and transferee may have decided. It is therefore to the construction of the Transfer Regulations themselves, to which we now turn, having glanced briefly at the issues which the majority of the Tribunal resolved in paragraph 27 of its Decision, as to shams and effects.
41. The question for the decision of the majority of the Tribunal, so far as the applicability of paragraph 5 is concerned, and before us today, is whether the Appellant was a part of the business that was transferred.
42. Where what is transferred is in fact only a part of the business operated by a transferor, that can always be a problem. It is less of a problem, of course, if the whole business is transferred and then all the employees employed by the business go with it. If only a part of the business is transferred then it has to be analysed which employees were employed in that part.
43. The leading decision in this area is that of the European Court in Botzen v Rotterdamsche Droogdok Maatschappij B.V. [1986] 2 CMLR at 50. There, the Advocate General, Sir Gordon Slynn, had put forward in the course of his opinion to the Court the following suggestion:

"A basic working test, it seems to me, is to ask whether, if that part of the business had been separately owned before the transfer, the worker would have been employed by the owners of that part, or by the owners of the remaining part. The only exception I would admit to the requirement that an employee must be 'wholly' engaged in that part of the business would be where an employee was required to perform other duties to an extent which could fairly be described as de minimis. On the other hand, if a worker in fact is engaged in the activities of the whole business or in several parts then he cannot be regarded for the purpose of the directive as an employee 'of' the part of the business transferred."

44. That would suggest, if adopted, that in order to analyse whether an employee is an employee of the part of the business transferred he must either work wholly for that business, or very nearly wholly, all that de minimis. That does not appear to have been the test adopted, however, by the Court.
45. The Court, at paragraph 13 of the judgment referred to the proposition put forward by RDM (the Respondents in the case); namely that only employees working full time or substantially full time in a transferred part of the undertaking are covered by the Transfer of Employment Regulations to the exclusion of those engaged in partial tasks in various businesses or parts of businesses and those who, although working for several businesses or parts of businesses, form part of the remaining staff.
46. But the Commission argument is put on the other side in paragraph 14 of the judgment:

(14) "On the other hand, the Commission considers that the only decisive criterion in regarding the transfer of employees' rights and obligations is whether or not a transfer takes place of the department to which they were assigned and which formed the organisational framework within which their employment relationship took effect."

And in paragraph 15 the Court concluded:

(15) "The Commission's view must be upheld. An employment relationship is essentially characterised by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties. In order to decide whether the rights and obligations under an employment relationship are transferred…by reason of a transfer…it is therefore sufficient to establish to which part of the undertaking or business the employee was assigned."

47. It appears to us clear that means that, where this question arises, the Court or Tribunal deciding the issue has to conclude to which part of the whole business the employee was assigned and therefore decide, as a matter of fact, where the employment was assigned.
48. It is not an issue of saying that the employment will be assigned to a number of places; the Tribunal has to decide where it was assigned, and in particular whether the employment of the person in question was assigned to the part of the undertaking or business transferred. If the person in question was assigned to the part of the undertaking or business transferred, then he was not assigned to the part of the business that was not transferred.
49. It does not appear to us be open to conclude that he was assigned to both. The decision has to be to which he was assigned, or to which of many he may have been assigned, and then only to regard him as covered by the Regulations, if he is assigned to the part transferred.
50. Botzen has been considered and applied in a number of more recent TUPE cases, including Sunley Turriff Holdings Ltd v Thompson [1995] IRLR 184, Michael Peters Ltd v (1) Farnfield and (2) Michael Peters Group Plc [1995] IRLR 190 and Buchanan-Smith v Schleicher & Co International Ltd [1996] IRLR 547.
51. The most significant, however (although we shall be returning to Buchanan-Smith) is the decision in Duncan Webb Offset (Maidstone) Ltd v Cooper [1995] IRLR 633. That was a decision of the Employment Appeal Tribunal presided over by the then President Morrison J.
52. He made, in the course of the judgment, various suggestions which would assist a Tribunal in arriving at the conclusion as to whether the employee was assigned to a particular part and/or to which part of the business he was assigned. He said as follows:

15 "We were invited to give guidance to industrial Tribunals about such a decision, but decline to do so because the facts will vary so markedly from case to case. In the course of argument a number were suggested, such as the amount of time spent on one part of the business or the other; the amount of value given to each part by the employee; the terms of the contract of employment showing what the employee could be required to do; how the cost to the employer of the employee's services had been allocated between the different parts of the business. This is, plainly, not an exhaustive list; we are quite prepared to accept that these or some of these matters may well fall for consideration by an Industrial Tribunal which is seeking to determine to which part of his employers' business the employee had been assigned."

That of course, as those last few words indicate, identifies the question which the Tribunal had to ask itself in this case; to which part of the employers' business the employee had been assigned?

53. In Buchanan-Smith the Employment Tribunal had found that, in facts which are in some ways similar but in some ways different from the case before us:

"Only the service undertaking was transferred to [the transferee] and the Chairman and Tribunal held that [the Claimant] was not employed in the service part of the undertaking, although she had worked partly in that part of the organisation, as she did in several other parts of the organisation.

And he said, apparently, that, unless she could be figuratively cut into pieces he, the Chairman, did not see how he could conclude that the Applicant was employed in the undertaking that was transferred. He held that TUPE did not apply.

54. The Employment Appeal Tribunal, per Mummery J (the then President) overturned the decision of the Employment Tribunal, reiterating that the test for whether a person is employed in an undertaking or part, within the meaning of Regulation 5(1) is simply: was he assigned to that undertaking or part? That was said to be a question of fact to be determined by considering all the relevant circumstances.
55. The reason, it seems as a matter of fact, why the Employment Appeal Tribunal differed from the decision of the Tribunal below was that in fact it appears that Miss Buchanan-Smith was actually running the service department in question; running and organising the service part of the business, which was the part transferred.
56. At Paragraph 21 of the decision Mummery J said this:

21 "The reasons for concluding that Miss Buchanan-Smith was employed by [the transferor] 'in the undertaking or part transferred' and had continuity of employment with [the transferee] are briefly as follows:

(1) Miss Buchanan-smith was at all material times down to the date of the transfer employed by the transferor…

(2) She worked in the sales side and she also worked in the service side of its business which was transferred to [the transferee]. It was found as a fact that she organised and ran the service side.

(3) Whether the organisation and running of the service side meant she was assigned or allocated to that part of the business depends, as stated in Duncan Webb Offset…on all the facts of the case, i.e. time spent, value given, contractual terms, allocation of costs an so on."

and the Employment Appeal Tribunal, then on assessment of the facts, concluded that the Tribunal could not have found other than that she was assigned to the service department.

57. When we consider the position in relation to this Tribunal we must obviously begin by looking at the findings of fact which the Tribunal made by reference to, as we have indicated, their preference for the evidence of Mr Russell (presumably both of itself and as corroborating Mr Nelson's letter) over that of Mr Moseley, the Appellant.
58. It is certainly right to say that the Appellant, in paragraph 3 of his witness statement had said as follows:

3 "At all times whilst working for the above 3 companies [that is his successive employers] my job was to contact customers on the maintenance database and I had to confirm they were happy with the level of service that they were obtaining on that service contract and also to see if they were looking to upgrade the telephone system."

59. It is plain however that the Tribunal preferred the evidence of Mr Russell to the effect that that misdescribes or insufficiently describes his job which was in fact, as we have earlier indicated, to market through telesales, both in respect of the customers of the maintenance database, as being existing customers, not for the purpose of furthering repairs or service requirements but to attempt to sell further equipment or contracts to them or cause them to approach dealers for such purpose, but also contacting and furthering marketing projects with the dealers themselves; hence pursuing his overall obligation as a Telemarketing Executive in the telesales department.
60. The findings of the Tribunal appear in paragraphs 7, 8 & 12 of the decision. They read as follows. It is suggested by Miss Wilson who adopted the able Skeleton Argument prepared by her predecessor Ms Andrea Chute of Counsel, that it is significant that words used in the decision echo the contents of Mr Norton's letter, but, as we have indicated, that was no doubt because they had accepted the evidence of Mr Norton, corroborated and supported as it was by the oral evidence of Mr Russell, who was of course the Managing Director of Samsung at the relevant time.
61. Paragraph 7 says:

7 "On 30 April 1998 the Applicant was offered employment as a telemarketing executive by Securicor Telecoms Ltd…

8 In due course the business was acquired by Samsung…and the Applicant continued to be employed by that company at Middleton. Throughout the relevant times he worked in the telemarketing department. That department provided support to the dealer channel through sales lead generation projects and also ran a number of telephone campaigns into the maintenance base. It did not work exclusively for the company's service and maintenance section of its business and was not regarded as an integral part of that operation. The Applicant's job was to contact customers on the maintenance database to confirm that they were happy with the service being provided to them and to see whether they wished to upgrade their telephone system.

Interposing for a second: whereas it is true to say that much of the rest of the decision echoes the letter from Mr Norton, that sentence echoes the evidence of Mr Moseley.

62. In paragraph 12 the Tribunal continues as follows:

12 "In the event, Samsung…decided that the Applicant and another employee (Ray Stephenson), who were both employed in telemarketing or telesales, should not transfer but would be retained by Samsung…Samsung did not regard the service and maintenance business as a separate profit centre as some jobs straddles different parts of the undertaking. It was intended that the Applicant and Mr Stephenson would generate sales leads for Samsung…Samsung's…dealer network. Samsung…did not regard them as an integral part of the service and maintenance business. Only those employees who were wholly and exclusively concerned with the service and maintenance operation would transfer to Service Direct (UK) Ltd."

63. The central paragraph of the majority decision appears at paragraph 27, the latter part of which we have quoted, and it reads as follows:

27 "The reasoning of the majority was that, while there was a relevant transfer of an undertaking, for the purposes of Regulation 5(1) the Applicant was not employed in the part of the undertaking being transferred. The Applicant worked in the telemarketing department. That department did not work exclusively for the service and maintenance section of the business (the part of the undertaking being transferred). It was not an integral part of that operation. Therefore, Samsung…decided that the Applicant and another employee would not transfer but would be retained in its telemarketing department to generate sales leads for its dealer network. They were not regarded as an integral part of the service and maintenance business. Only those employees who were wholly and exclusively concerned with the service and maintenance operation transferred to the Respondent. That did not include the Applicant. Moreover, the Applicant's contract of employment with Samsung…did not terminate as a result of the transfer (so as to bring Regulation 8(1) into play), but because of an independent act of redundancy. The Applicant's subsequent engagement by the Respondent does not alter that analysis."

64. In the Skeleton Argument prepared by Ms Chute, which, as we have indicated Ms Wilson adopted, the primary case, apart from the point on the use of the Norton letter to which we have referred, on that paragraph is that there is, as it is put in paragraph 11 of the Skeleton Argument, "no indication that those matters which should have been taken account of, as set out in Duncan Webb Offset…were taken account of". And then the questions are raised which Morrison J suggested in Duncan Webb Offset might be relevant as questions which were not set out in the judgment.
65. That, at the end of the day, is the basis of the challenge and a perfectly understandable one; leave aside any of the peripheral arguments of fact, did the Tribunal ask itself the right question, and was there evidence upon which the Tribunal could and did answer that question. That was really what was before us today to decide.
66. Mr Mitchell, of Counsel, in his attractive presentation, has argued before us that, although there is no express mention of any of the cases to which we have referred in the decision of the Tribunal, nevertheless, it is apparent, this being the issue which the Tribunal had to decide, that they have asked themselves the right questions, and that it is not necessary in a hearing of this kind before an Employment Tribunal to trot out the old authorities, provided that the rules which they lay down, or the tests which they indicate should be operated, are indeed followed.
67. The test, he submits, is that set out in Botzen, namely: was this Appellant assigned to the service and maintenance department? It is apparent that this Appellant did work, namely by way of telemarketing, which involved the use both of the customer database compiled by the service and maintenance department and of approaches to dealers which would be wholly within the remit and ambit of the telemarketing department.
68. It is apparent also that the Appellant was not a part of the service and maintenance department, but was part of his own department, together with Mr Stephenson, namely the telemarketing department. But that of course is not decisive. The fact that nomenclature is used, which suggests that employees are in a different department, if in fact they are so closely attached to a department which is sold that they have no independent existence, will not save the employees in question from being regarded as assigned to the part of the business transferred.
69. It is also the case here, rather similarly to first sight to the facts of Buchanan-Smith that, once the service and maintenance department was transferred, it appears that there was little life left in the sales and marketing department, in the sense that Samsung simultaneously decided to make the members of its telemarketing department redundant.
70. Equally, once the Appellant and Mr Stephenson joined the Respondent, as they did, as from 1 October as a result of the agreement so far as the Appellant is concerned, or made orally with Mr Marino on 5 October, it appears that within 6 weeks at least, so far as the office in Manchester is concerned, the telemarketing department also came to an end.
71. Those two points cancel themselves out to an extent because it can hardly be said that the reason that the telesales department came to an end is the absence of a continuing service & maintenance department, when in fact the service & maintenance department did transfer to the Respondent, and so did the Appellant as a result of the arrangement with Mr Marino, yet he was still made redundant.
72. The explanation may or may not be the fact of the separate Manchester office, but it certainly cannot be said to be, as in Buchanan-Smith, the clear picture which, after all in any event, is one for the Tribunal in any event, that there is no independent existence in the sales & marketing department, once the service & maintenance department is transferred.
73. And so, what did the Tribunal conclude? The Tribunal concluded that the sales & marketing department (or in particular the telemarketing department) and the employees within the telemarketing department, were not an integral part of the service & maintenance department which was transferred.
74. Mr Mitchell submits that that is a sufficient finding. It is right to say that the words 'assigned to' are not used but in other authorities, such as Botzen itself and also such as Peters, the question is: was the Appellant part of the undertaking which was transferred?
75. This Tribunal came to the conclusion that the Appellant was not part of the department that was transferred, if that is what the Tribunal meant by saying he was not an integral part of the business transfer. Does it mean that they have not asked themselves the right questions: –

(a) because they did not use the words 'assigned to'

(b) because they added the word 'integral' to the word 'part'

(c) because they did not spell out the precise questions which Morrison J suggested might be helpful, although he is not making any suggestion that they should be regarded as a necessary rubric, as is plain from the passage which we have quoted?

76. We have come to the conclusion that we are unable to say that the Tribunal either erred in law or had no evidence upon which they could reach the conclusions they arrived at, and that the conclusion of the Tribunal, that the Appellant was not an integral part of the business that was transferred, is a sufficient finding to justify their conclusion that the TUPE Regulations consequently did not apply to him.
77. In those circumstances, although one could have wished for a longer analysis by the Tribunal, we are satisfied that they did not err in law, and consequently the decision cannot be interfered with and we dismiss the appeal.