United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R N CONNELLY Representative


 


MR JUSTICE WALL

1. This is the Preliminary Hearing of an appeal by Blue Diamond Services Limited against the decision of the Tribunal held at Leicester on 10 October 2001. The parties before the Tribunal were Mrs McNeish the claimant and there were 3 Respondents. They were respectively Clock Tower Services Ltd, secondly Blue Diamond Services Ltd and thirdly The North West Leicestershire District Council.
2. The case raises an important point under TUPE. In essence what happened in this case was that Blue Diamond, if I may use that shortened form, had a contract with North West Leicestershire District Council for the cleaning of certain premises. Mrs McNeish was the operative who carried out that contract. The evidence before the Tribunal was that Mrs McNeish was a conscientious woman who took considerable pride in her work. Unfortunately the Council appeared to have taken the view that Blue Diamond were charging too much for the cleaning contract and they decided to move it away from Blue Diamond to Clock Tower. It appears to be the case and with some legal justification that Blue Diamond's manager Mr Gladwin was of the view that the local authority was not entitled contractually to do this without giving a substantial period of notice and for that reason Mr Gladwin decided for perfectly understandable reasons and knowing how conscientious a woman Mrs McNeish was that he would not inform her of what was going on.
3. In the event, despite the legal argument the Council went ahead and transfered the contract to Clock Tower Services Ltd. The result in a nutshell was that Mrs McNeish knew nothing about what was going on. When she turned up for work and found that it had already been done she was, in layman's language "fobbed off" by Clock Tower Services Ltd and in due course dismissed by them.
4. Everyone agrees this is a transfer to which TUPE applies and the question for the Tribunal was: "who was liable to pay compensation to Mrs McNeish?" The Tribunal divided that into two parts because she had plainly been dismissed by Clock Tower Services Ltd. The Tribunal awarded her £1000 against Clock Tower Services Ltd for unfair dismissal. However, the second point the Tribunal had to decide was the question of consultation under TUPE. It found that Blue Diamond had failed to consult with Mrs McNeish in accordance with regulation 10 of TUPE and it ordered Blue Diamond to pay the sum of £560 to Mrs McNeish as compensation for the failure to consult. Other claims by Mrs McNeish were dismissed.
5. Blue Diamond appeals against the decision to pay Mrs McNeish £560. It is perhaps worth saying in perenthesis that Clock Tower Services Ltd had been struck out by the Tribunal at an earlier stage for breaches of orders for directions and they did not attend before the Tribunal. The difficulty in the argument in relation to the payment of compensation for failure to consult is that there appear to be 2 decisions of the Employment Appeal Tribunal which are in stark conflict, the one with the other. The complaint made this morning by Mr Connelly who appears on behalf of Blue Diamond is that the Employment Tribunal plumped for one without any reference to the other and without any discussion of the other. The case for which they plumped is the Transport for General Union v James McKinnon, JR (Haulage) Ltd and Others [2001] IRLR 597.
6. This is a decision of the Employment Appeal Tribunal sitting in Edinburgh presided over by Lord Johnston. That decision comes firmly to the view that the duty to consult does not transfer. So in this case Blue Diamond is liable for the payment.
7. The decision itself (TGWU v McKinnon) makes reference to an earlier decision of the Employment Appeal Tribunal in Kerry Foods v Creber [2000] IRLR 10 in which the Employment Tribunal presided over by Morrison J took the opposite view namely that liability for a failure to consult is a liability which passes across to the transferee under regulation 5(2) of TUPE. So there we have 2 conflicting decisions and Mr Connelly makes the legitimate point that in plumping for TGWU v McKinnon the Tribunal made no reference to the case of Kerry Foods.
8. It seems to us this is a point which needs resolution. Whilst making no comment on the merits and certainly no criticism of Clock Tower Services for the stance they took in not consulting with Mrs McNeish it is plain to us that this is a case where TUPE should operate to protect the individual worker who is disadvantaged by a transfer of the nature that has taken place in this case. However it looks as though Clock Tower - certainly from their behaviour before the Tribunal - have not taken any responsible part in the proceedings. Whether or not they have paid Mrs McNeish the money she is owed from them is a matter which is at the moment unknown.
9. In these circumstances it seems to us plainly an arguable point of law to go forward and we give permission for it to go forward to a full hearing. It is very much to be hoped that the matter will receive, as I am sure it will, a full hearing if not a definitive reading in the Employment Appeal Tribunal but it may be that sooner or later a case of this nature has to go to the Court of Appeal because if for example the Employment Appeal Tribunal were to follow the decision in Kerry Foods and that would still leave in existence as an authority Transport and General Workers Union v McKinnon and clearly the only Tribunal who can resolve that difficulty is the Court of Appeal itself.
10. In these circumstances we propose to consider whether the matter should in due course be listed before the President as it is a point of some considerable importance but in any event we will give permission for it to go through. We will direct the case to go through to a full hearing. It will be listed as Category A. Estimated time half a day and we will invite the President to consider an invitation to the Treasury Solicitor to instruct Counsel as friend of the Court. Alternatively it would be important to have argument from a neutral but interested party since, as the matter is currently constituted, only one side of the argument will be represented.