United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J EADY (of Counsel) Instructed by: Messrs Lewis Silkin Solicitors King Charles House Park End Street Oxford OX1 1JD
For the First Respondent: For the Second and Third Respondents: For the Fourth Respondent	MR N SWANTON (the Respondent in Person) No Appearance or Representation By or on Behalf of the Respondents MR I BESANT (Solicitor) Messrs Wright Hassall Solicitors 9 Clarendon Place Leamington Spa Warwickshire CV32 5QP

SUMMARY

Transfer of Undertakings

TUPE Regulations – has stable economic identity transferred? Entity identified but not transferred.


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal arising out of a preliminary hearing before a London (South) Tribunal on 5 November 2003, who in a decision promulgated to the parties on 5 February 2004 unanimously decided that there was a transfer of undertaking from Specialist Computer Centres plc (“SCC”) to the Appellants, Computacenter (UK) Ltd (“Computacenter”), which affected the contracts of employment of the 3 Applicants, Messrs Swanton, Astin and O'Hanlon (“the employees”). In other words, was there a Transfer of Undertaking (Protection of Employment) Regulations 1981 (“TUPE”) transfer from SCC to Computacenter on or about February 2003.
2. Following the approach adopted by the EAT in Cheesman v R Brewer Contracts Ltd [2001] IRLR 144, it was agreed that the Employment Tribunal had to determine two questions:

(1) Whether there had been an undertaking (a stable economic entity) in the hands of SCC prior to February 2003 and, if so, how is that entity to be identified?

(2) If such a stable economic entity had been identified, was there a transfer of it from SCC to Computacenter in or about early February 2003, i.e. a transfer such that the entity in question retained its identity?

3. The appeal relates to the Tribunal's finding on the second question, namely that the entity identified had indeed being transferred.
4. The background facts are that IBM provides a computer maintenance service to Lloyds TSB Bank and in January 2001 SCC entered into a contract with IBM to provide the computer maintenance services to Lloyds TSB, pursuant to a lengthy and detailed written contract between the parties. Under the contract SCC undertook to service computers that were still subject to the manufacturer's warranty, although it was later agreed that they would also cover computers that were out of warranty.
5. The Tribunal found that SCC had a total of 8 employees specifically designated to this contract, comprising a Service Delivery Manager based in London, five on-site engineers based at sites in London, Bristol and Andover, and two Call Administrators, one in Manchester and one in Birmingham.
6. On 14 October 2002 IBM gave notice of termination of the contract with SCC to take effect from 4 February 2003. SCC unsuccessfully re-tendered for the contract which in due course was awarded to Computacenter. The contract was in all material respects identical to the SCC contract, save for two matters: firstly, the Computacenter contract specifically included out of warranty work; and, secondly, SCC's contract provided that they would have as a minimum a dedicated Service Delivery Manager whereas Computacenter only had to provide a nominated Service Delivery Manager.
7. Paragraph 10 of the Tribunal's decision dealt with the manner in which Computacenter dealt with the new contract as follows:

“10. The First Respondent's contract with IBM terminated at 6.00 pm on 4 February 2003. The Second Respondent's contract commenced immediately thereafter. The Second Respondent implemented the contract with IBM as follows. The Second Respondent has a number of contracts with Lloyds TSB. It [employs] Mr Searle a senior service manager who is responsible for all the Second Respondent's contracts relating to Lloyds TSB, including its contract with IBM. He is the nominated service delivery manager. The Second Respondent employs some 80 field engineers none of whom are based at Lloyds TSB sites, or dedicated to the IBM contract. Some of those engineers have received particular training in servicing Lloyds TSB computers. They are the engineers of choice, but if none of them are available another engineer will be allocated a Lloyds TSB referral. None of the Second Respondent's engineers has spent more than approximately 40% of their time on the IBM contract. There are no significant differences in the number of Lloyds TSB sites serviced by the First and Second Respondent. The initial referral mechanism is the same, that is to say Lloyds TSB telephone IBM to decide whether or not the referral falls within the remit of the Second Respondent's contract. If it does, the IBM administrator will phone one of the Second Respondents call centre staff, none of whom are dedicated to the contract with IBM.”

8. The Tribunal's conclusions were contained in paragraph 11 onwards, and in paragraph 12 they first of all determined whether there was an undertaking in the hands of the first Respondent and they concluded as follows:

“12. We first asked ourselves whether there had been an undertaking in the hands of the First Respondent. The Tribunal found that there had been a stable economic entity whose activity was not limited to performing a specific works contract. There was an organised group of employees who were specifically and permanently assigned to the common task of repairing LIoyds TSB computers pursuant to the First Respondent's contract with IBM. This organised group of employees pursued an economic goal, namely the performance of the IBM contract. The Tribunal concluded that the persons and resources associated with the performance of the IBM contract constituted an undertaking within the meaning of Regulation 3.”

9. They then went onto consider the relevant factors before and after the contract was in the hands of SCC and their conclusions were contained in paragraphs 16 and 17:

“16. The contract entered into between IBM and the Second Respondent was in all material respects identical, save for the two matters described in paragraph 7 above. In our view those differences are not of any real significance. Although the contract with the Second Respondent included out of warranty repairs as part of the contract subject matter, in practice the First Respondent had been performing out of warranty repairs from the outset. IBM's expectations of the First Respondent, and the manner in which the First Respondent performed the out of warranty repairs did not significantly differ from the manner in which those repairs were dealt with in the contract with the Second Respondent. The First Respondent had a dedicated service delivery manager, while the Second Respondent had a nominated service delivery manager. In our view this was not a significant difference. So far as IBM were concerned, there was a single identifiable person responsible for the contract to whom IBM could turn. The Second Respondent's customers were the same, namely IBM and Lloyds TSB. The activity performed by the Second Respondent was the same, namely the repairing of Lloyds TSB's computers. There was no interruption of service. The Second Respondent took over responsibility for the repairs immediately after the cessation of IBM's contract with the First Respondent. The allocation of staff to the performance of the contract by the Second Respondent was different to the allocation by the First Respondent. Unlike the First Respondent, the Second Respondent did not dedicate any engineers or call centre staff to the performance of the contract. We had regard to the fact that none of the First Respondent's employees were employed by the Second Respondent. We did not regard that as a significant factor in this case, as the reason why none of the employees were taken on was because of the Second Respondent's belief that this was not a transfer of an undertaking, and it therefore believed that it was not obliged to employ any of the First Respondent's employees.

17. The only significant difference was the allocation of staff to perform the contract. That factor together with the other relevant factors, cannot be considered in isolation. Looking at the picture as a whole, our overall assessment is that the undertaking had retained its identity. We concluded that there was a transfer of an undertaking within the meaning of regulation 3 from the First to the Second Respondent on 4 February 2003 which affected the Applicants' contracts of employment.”

10. Miss Eady's complaint concerning the Tribunal's decision can be set out as follows. She submitted that the undertaking identified by the Tribunal in paragraph 12 was “an organised group of employees who were specifically and permanently assigned to the common task of repairing Lloyds TSB computers pursuant to the First Respondent's contract with IBM.” She argued that this specific and permanently assigned group was not part of Computacenter's undertaking and yet the Tribunal found that the undertaking as defined by the Tribunal had retained its identity and been transferred. In particular she pointed to the Tribunal's findings that Computacenter “did not dedicate any engineers or call centre staff to the performance of the contract.”

The Law

11. Regulation 5 (1) of the Transfer of Undertaking (Protection of Employment) Regulations 1981 provides that:

“5. (1) Except where objection is made under paragraph 4A below, 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 transfer so employed and the transferee.”

A relevant transfer is defined by section 3 (1), namely:

“3. (1) Subject to the provisions of these Regulations, these Regulations apply to a transfer from one person to another of an undertaking situated immediately before the transfer in the United Kingdom or a part of one which is so situated.”

These regulations represented the domestic implementation of Council Directive 77/187/EEC.

12. In Suzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice [1997] ICR 662 the ECJ dealt with the issue of defining an undertaking and its transfer in the following way:

“13. For Directive (77/187/E.E.C.) to be applicable, however, the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract: see Ledernes Hovedorganisation v Dansk Arbejdsgiverforening (Rygaard's Case) (Case C-48/94) [1996] I.C.R. 333, 346, para. 20. The term entity thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective.

14. In order to determine whether the conditions for the transfer of an entity are met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business; whether or not its tangible assets, such as buildings and movable property, are transferred; the value of its intangible assets at the time of the transfer; whether or not the majority of its employees are taken over by the new employer; whether or not its customers are transferred; the degree of similarity between the activities carried on before and after the transfer, and the period; if any, for which those activities were suspended. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation: see, in particular, Spijkers [1986] ECR 1119, JI28-1129, para. 13 and Dr. Sophie Redmond Stichting [1992] E.C.R. 1::3189, 3220, para.24.

15. As observed by most of the parties who commented on this point, the mere fact that the service provided by the old and the new awardees of a contract is similar does not therefore-support the conclusion that an economic entity has been transferred. An entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce; its management staff; the way in which its work is organised; its operating methods, or indeed, where appropriate, the operational resources available to it.

16. The mere loss of a service contract to a competitor cannot therefore by itself indicate the existence of a transfer within the meaning of Directive (77/187/E.E.C.). In those circumstances, the service undertaking previously entrusted with the contract does not, on losing a customer, thereby cease fully to exist, and a business or part of a business belonging to it cannot be considered to have been transferred to the new awardee of the contract.”

13. In the Cheesman case Lindsay J, giving the decision of the EAT, reviewed a number of decisions, both from our jurisdiction and from the ECJ, and gave the following helpful guidance, both in defining the undertaking and as to whether there had been a transfer:

10. From those four cases we distil the following. We shall attempt, although it is not always a clear distinction, to divide considerations between those going to whether there is an undertaking and those, if there is an undertaking, going to whether it has been transferred. The paragraph numbers we give are references to the numbering in the IRLR reports of the ECJ's judgments. Thus:

(i) As to whether there is an undertaking, there needs to be found a stable economic entity whose activity is not limited to performing one specific works contract, an organised grouping of persons and of assets enabling (or facilitating) the exercise of an economic activity which pursues a specific objective - Sanchez Hidalgo [1999] IRLR 136 paragraph 25; Allen [2000] IRLR 119 paragraph 24 and Vidal [1999] IRLR 132 para 6 (which, confusingly, places the reference to “an economic activity” a little differently). It has been held that the reference to “one specific works contract” is to be restricted to a contract for building works - see Argyll Training [2000] IRLR 630, infra EAT at paras 14-19.

(ii) In order to be such an undertaking it must be sufficiently structured and autonomous but will not necessarily have significant assets, tangible or intangible - Vidal [1999] IRLR 132 paragraph 27; Sanchez Hidalgo [1999] IRLR 136 paragraph 26.

(iii) In certain sectors such as cleaning and surveillance the assets are often reduced to their most basic and the activity is essentially based on manpower - Sanchez Hidalgo [1999] IRLR 136 paragraph 26.

(iv) An organised grouping of wage-earners who are specifically and permanently assigned to a common task may in the absence of other factors of production, amount to an economic entity - Vidal [1999] IRLR 132 paragraph 27; Sanchez Hidalgo [1999] IRLR 136 paragraph 26.

(v) An activity of itself is not an entity; the identity of an entity emerges from other factors such as its workforce, management staff, the way in which its work is organised, its operating methods and, where appropriate, the operational resources available to it - Vidal [1999] IRLR 132 paragraph 30; Sanchez Hidalgo [1999] IRLR 136 paragraph 30; Allen [2000] IRLR paragraph 27.

11. As for whether there has been a transfer:-

(i) As to whether there is any relevant sense a transfer, the decisive criterion for establishing the existence of a transfer is whether the entity in question retains its identity, as indicated, inter alia, by the fact that its operation is actually continued or resumed - Vidal [1999] IRLR 132 paragraph 22 and the case there cited; Spijkers -v- Gebrobroeders Benedik Abattoir C.V. [1986] ECR 1119 ECJ; Schmidt -v- Spar-und Leihkasse [1994] IRLR 302 ECJ para 17; Sanchez Hidalgo [1999] IRLR 136 paragraph 21; Allen [2000] IRLR paragraph 23.

(ii) In a labour intensive sector it is to be recognised that an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessors to that task. That follows from the fact that in certain labour intensive sectors a group of workers engaged in the joint activity on a permanent basis may constitute an economic entity - Sanchez Hidalgo [1999] IRLR 136 paragraph 32.

(iii) In considering whether the conditions for existence of a transfer are met it is necessary to consider all the factors characterising the transaction in question but each is a single factor and none is to be considered in isolation - Vidal [1999] IRLR 132 paragraph 29; Sanchez Hidalgo [1999] IRLR 136 paragraph 29; Allen [2000] IRLR paragraph 26. However, whilst no authority so holds, it may, presumably, not be an error of law to consider “the decisive criterion” in (i) above in isolation; that, surely, is an aspect of its being “decisive”, although, as one sees from the “inter alia” in (i) above, “the decisive criterion” is not itself said to depend on a single factor.

(iv) Amongst the matters thus falling for consideration are the type of undertaking, whether or not its tangible assets are transferred, the value of its intangible assets at the time of transfer, whether or not the majority of its employees are taken over by the new company, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, in which they are suspended - Sanchez Hidalgo [1999] IRLR 136 paragraph 29; Allen [2000] IRLR paragraph 26.

(v) In determining whether or not there has been a transfer, account has to be taken, inter alia, of the type of undertaking or business in issue, and the degree of importance to be attached to the several criteria will necessarily vary according to the activity carried on - Vidal [1999] IRLR 132 paragraph 31; Sanchez Hidalgo [1999] IRLR 136 paragraph 31; Allen [2000] IRLR paragraph 28.

(vi) Where an economic entity is able to function without any significant tangible or intangible assets, the maintenance of its identity following the transaction being examined cannot logically depend on the transfer of such assets - Vidal [1999] IRLR 132 paragraph 31; Sanchez Hidalgo [1999] IRLR 136 paragraph 31; Allen [2000] IRLR paragraph 28.

(vii) Even where assets are owned and are required to run the undertaking, the fact that they do not pass does not preclude a transfer - Allen [2000] IRLR paragraph 30.

(viii) Where maintenance work is carried out by a cleaning firm and then next by the owner of the premises concerned, that mere fact does not justify the conclusion that there has been a transfer - Vidal [1999] IRLR 132 paragraph 35.

(ix) More broadly, the mere fact that the service provided by the old and new undertaking providing a contracted-out service or the old and new contract-holder are similar does not justify the conclusion that there has been a transfer of an economic entity between predecessor and successor - Sanchez Hidalgo [1999] IRLR 136 paragraph 30.

(x) The absence of any contractual link between transferor and transferee may be evidence that there has been no relevant transfer but it is certainly not conclusive as there is no need for any such direct contractual relationship Sanchez Hidalgo [1999] IRLR 136 paragraphs 22 and 23.

(xi) When no employees are transferred, the reasons why that is the case can be relevant as to whether or not there was a transfer - ECM page 1169 e-f.

(xii) The fact that the work is performed continuously with no interruption or change in the manner or performance is a normal feature of transfers of undertakings but there is no particular importance to be attached to a gap between the end of the work by one sub-contractor and the start by the successor - Allen [2000] IRLR paragraphs  32-33.

14. In RCO Support Services v UNISON [2002] ICR 751 the Court of Appeal also considered the approach to be taken to the question of whether or not there had been a relevant transfer in contracting out cases and again placed emphasis upon the need eventually for the undertaking to be retained whilst reaffirming the multifactorial approach of the earlier ECJ decision in Spijkers v Gebroeders Benedik Abattoir C.V. [1986] ECR 1119. Mummery LJ at paragraph 24 said this:

“24. I agree that it has become clear from Suzen and later judgments that the Court of Justice now interprets the Directive as setting limits to its application in contracting out cases, which were not expressly identified in Spijkers [1986] ECR 1119, or in Schmidt and other earlier judgments of the Court of Justice. In particular, the mere fact that the putative transferee carries on the same activities or supplies the same services as the putative transferor had done does not by itself support the conclusion that an entity retains its identity. It is not correct to treat that single circumstance as determinative in favour of a transfer. Indeed, there may be no scope for the application of the Directive in a case where, although the same labour-intensive activities are continued or the same services are supplied by a new contractor, none of the workforce has been taken on.

25. I am, however, unable to accept RCO's submissions that the limits on the application of the Directive set in Suzen mean that, as a matter of Community law, there can never be a transfer of an undertaking in a contracting out case if neither assets nor workforce are transferred; that the only legally permissible conclusion on the facts of this case was that, as none of the workforce were taken on by RCO, no transfer could have taken place; and that the Employment Tribunal must have erred in law in concluding that there were in fact transfers within the meaning of TUPE.

26. I do not read Suzen as singling out, to the exclusion of all other circumstances, the particular circumstance of none of the workforce being taken on and treating that as determinative of the transfer issue in every case. That interpretation of the Directive would run counter to what is described in RCO's submissions as the "multifactorial approach" to the retention of identity test in Spijkers. Whether or not the majority of employees are taken on by the new employer is only one of all the facts, which must be considered by the national court in making an overall assessment of the facts characterising the transaction. Single factors must not be considered in isolation.”

15. Arising out of these authorities Miss Eady made the following submissions:

(1) The mere continuation of an activity or service without more does not support a finding that there has been a relevant transfer. She criticised, therefore, the Tribunal's approach, particularly in paragraph 16, in seeking to focus on the similarities and differences between the contracts entered into by IBM with SCC and Computacenter, and submitted that the key issue was not whether there were any significant differences between the two contracts, but rather whether the economic entity the Tribunal had identified in the hands of SCC was preserved in the hands of Computacenter. She argued, therefore, that the Tribunal erroneously focused upon the purpose of the contracts rather than the way in which they were staffed and operated.

(2) Whilst the Tribunal's decision, in identifying the economic entity, referred in paragraph 12 to both “persons and resources associated with the performance of the IBM contract” nowhere did the Tribunal seek to identify those resources and, moreover, there is no finding that any of those unidentified resources existed within the entity run by Computacenter.

(3) In the absence of defining any resources, the only defining quality of the entity identified by the Tribunal was in respect of the group of 8 persons associated with the contract who comprised the “organised group of employees who were specifically and permanently assigned”. Having identified the identity of the undertaking in terms of those 8 employees and their organisation she submitted the question of whether that “organised group of employees” had transferred, would be pivotal in determining whether or not the business had retained its identity. She submitted that the Tribunal made clear findings that Computacenter's organisation of employees was different and indeed found in paragraph 17 that there was “significant difference” in the allocation of staff performing the contract. She submitted that those findings in themselves would be sufficient to negate the suggestion that the organised structure continued and yet she submits the Tribunal perversely in paragraph 17 then dismissed that factor but sought to rely on other unidentified factors in coming to the conclusion that the undertaking had retained its identity. She argued that the only other factors the Tribunal had identified related simply to the nature of the activity or contract which, taken by itself, cannot be sufficient to support an argument that the undertaking has been transferred.

(4) Further, she criticised the Tribunal's conclusions that it was not a significant factor that none of SCC's employees were employed by Computacenter. She argued that in the absence of a finding that this had been done deliberately by Computacenter to avoid its TUPE obligations, the fact that neither assets nor staff had been transferred were significant factors that the Tribunal failed to take into account.

16. For SCC Mr Besant argues that whilst the organisational structure of the staff may not have been exactly the same, he points to the findings that the Computacenter engineers did have to receive particular training in servicing Lloyds TSB computers and were the engineers of choice on this contract, although if none of them were available other engineers would be allocated and also the fact that they could spend up to 40% of their time on the IBM contract. He also pointed to the reference to resources in paragraph 12, although accepted that they were not identified in the Tribunal's findings. He submitted that they were by inference referred to by the Tribunal when they referred in paragraph 17 to “looking at the picture as a whole”.
17. He submitted that even though the staff may not have been dedicated to the contract in the same manner, the fact remains that there was a team of engineers, a Service Manager and call centre operators which in the Tribunal's view had sufficient similarities to the manner in which they had been organised under the previous contract.
18. We accept the submissions made by Miss Eady. The Tribunal defined the stable economic entity that was capable of being transferred as the “organised group of employees who were specifically and permanently assigned to the common task of repairing Lloyds TSB computers” pursuant to SCC's contract. Although in paragraph 12 the Tribunal mentioned resources linked to the contract as constituting the undertaking, no resources were identified as being part either of the SCC contract or the Computacenter contract. There was no contractual link between SCC and Computacenter, no employees were transferred, no assets were transferred and there was no finding that Computacenter had in any way deliberately not taken on SCC employees to avoid their obligations under the TUPE Regulations.
19. In the absence of those 4 key features, which are identified in Cheesman and other authorities, the only feature which was capable of being replicated was the organised group of employees specifically and permanently assigned to the contract, and yet the Tribunal found that Computacenter “did not dedicate any engineers or call centre staff to the performance of the contract”. It seems to us therefore that the Tribunal were clearly in error in seeking to find that the undertaking had been transferred.
20. The only issue that remains is whether we should substitute a decision that there was no transfer pursuant to the TUPE Regulations or remit the matter back for a rehearing. Mr Besant urged to remit the matter back to the same Tribunal since he contends that there was evidence given before the Tribunal in relation to resources that were common to both contracts, although these appeared to relate to the facilities provided by Lloyds Bank for the engineers.
21. Following the hearing of this appeal and having sought representations from the parties we wrote to the Chairman of the Employment Tribunal raising the following two issues:

“(1) In paragraph 12 what were the resources found to constitute the undertaking

(2) In paragraph 17 what were the 'other relevant factors' that caused the ET to come to the conclusion that the undertaking had retained its identity (other than those matters already mentioned in paragraph 16).”

The Tribunal responded in the following terms:

“(1) We did not make any finding of fact that the undertaking included any tangible assets solely used in the undertaking. Our reference to 'resources' in paragraph 12 is to the facilities that IBM made available for the performance of the work. I refer to paragraph 14 of Mr Moyle's witness statement.

(2) The reference in paragraph 17 to 'the other relevant factors' is solely to the matters already mentioned in paragraph 16.”

22. As to resources identified, neither party in the course of the appeal referred us to Mr Moyle's witness statement which was not included on the appeal bundle. In any event, since the resource appears to belong to IBM we cannot see that it is of relevance in determining whether the stable economic entity has transferred.
23. What is of more significance in our view is the fact that no additional factors were identified by the Tribunal. The Tribunal have decided the case primarily on the similarity of service provided by the old and new awardees of the contract thereby falling into the trap identified in the Suzen case. Moreover, the Tribunal's decision is clearly perverse in that having in paragraph 12 identified the organisation of the staff as the key factor in the stable economic identity, they were prepared to ignore the 'significant difference' in the allocation of staff performing the contract.
24. In our view it was not open to the Employment Tribunal on the findings of fact they found to conclude that there had been a relevant transfer for TUPE purposes. We therefore allow this appeal and substitute a decision that there was not a relevant transfer of undertaking for the purposes of the Regulations.