United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS B MORRIS (of Counsel) Instructed by: Messrs Thompsons Solicitors 18 Lawford Street Bristol BS2 ODZ
For the Second Respondent	MR M DULOVIC (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors 48-52 Baldwin Street Bristol BS1 1QD

SUMMARY TRANSFER OF UNDERTAKINGS TRADE UNION RIGHTS

Liability under a continuation order (s. 164 of TULRA) does not transfer to transferee under TUPE.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal against the Decision of Dr Rachel Davies, sitting as Chairman alone, at the Cardiff Employment Tribunal, promulgated on 11 September, after a hearing on 29 August, 2003, by which she dismissed the second Respondent (Berkeley Logistics Ltd) to an application by the Applicant (Mr M Dowling) from the proceedings.
2. The Applicant was employed by the first Respondent, M E Ilic (trading as M E Ilic Haulage), as a driver's mate. He was dismissed for what Ilic alleged to have been gross misconduct, on 15 December 2002. He was a shop steward, and alleged that the circumstances of his dismissal were such that the reason or principal reason was his participation in trade union activities, within s152 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"). He issued an Originating Application on 20 December 2002, claiming unfair dismissal, including unfair dismissal within s152, and breach of contract/wrongful dismissal. Where there is a claim within s152 then, exceptionally, an applicant may apply to the employment tribunal for interim relief under s161, which must be heard promptly by the tribunal (s162).
3. Sections 163 and 164 of the 1992 Act then apply, which read in material part as follows:

"163(1) If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates … it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply:

(2) The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint –

(a) to reinstate the employee, that is to say, to treat him in all respects as if he had not been dismissed, or

(b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

(3) For this purpose "terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed" means as regards seniority, pension rights and other similar rights that the period prior to the dismissal shall be regarded as continuous with his employment following the dismissal.

(4) If the employer states that he is willing to reinstate the employer, the tribunal shall make an order to that effect.

(5) If the employer states that he is willing to re-engage the employee in another job … the tribunal shall ask the employee whether he is willing …; and –

(a) if the employee is willing … the tribunal shall make an order to that effect and

(b) if he is not then, if the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and otherwise the tribunal shall make no order.

(6) If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him …, the tribunal shall make an order for the continuation of the employee's contract of employment.

164(1) An order under s163 for the continuation of a contract of employment is an order that the contract of employment continue in force –

(a) for the purposes of pay or any benefit derived from the employment, seniority, pension rights and other similar matters, and

(b) for the purpose of determining for any purpose the period for which the employee has been continuously employed,

from the date of its termination (whether before or after the making of the order) until the termination or settlement of the complaint.

(2) Where the tribunal makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint.

(3) … the amount so specified shall be that which the employee could reasonably have been expected to earn during that period … and shall be paid … (a) … on the normal pay day …

(5) Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period or part of any such period, shall go towards discharging the employer's liability in respect of that period under subsection (2); and conversely any payment under that subsection in respect of a period shall go towards discharging any liability of the employer under, or in respect of the breach of, the contract of employment in respect of that period."

4. There are three further relevant ancillary sections, which should be set out:

"165(1) At any time between the making of an order under s163 and the determination or settlement of the complaint, the employer or the employee may apply to an employment tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.

166(1) If on the application of an employee an employment tribunal is satisfied that the employer has not complied with the terms of an order for reinstatement or re-engagement of the employee under s163(4) or (5), the tribunal shall –

(a) make an order for the continuation of the employee's contract of employment and

(b) order the employer to pay the employee such compensation as the tribunal considers just and equitable …

(3) If on the application of an employee an employment tribunal is satisfied that the employer has not complied with the terms of an order for the continuation of a contract of employment, the following provisions apply.

(4) If the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the tribunal shall determine the amount owed by the employer on the date of the determination …

(5) In any other case, the tribunal shall order the employer to pay the employee such compensation as the tribunal considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non-compliance."

5. The Applicant's application for interim relief against Ilic came on before Dr Davies, as Chairman sitting alone, on 3 February 2003, when she made a Continuation Order under s164. The Respondent, Ilic, is recorded as having been present in person, and there is no reference, in the brief reasons given as part of the Chairman's Decision, to s163, so it is to be assumed that, although present, Ilic was not willing to reinstate or re-engage. The Order was made in what is presumably standard form as follows:

"In the exercise of my power under section 164 of the … [1992 Act] I hereby order the respondents [Ilic] to continue the applicant's contract of employment for the purpose of pay and determination of the period of employment and other factors if relevant referred to in section 164(1)(a) and (b) pending the hearing of his unfair dismissal complaint."

6. Her reasoning was that the Applicant's claim under s152 had a better than 50% chance of success. It seems that the hearing of the Applicant's claim was listed for 22 April 2003.
7. Meanwhile, by a course of events which had nothing whatever to do with the dismissal of the Applicant, 85% of the business of Ilic was acquired by Berkeley on 14 April 2003. It was not disputed that this was a transfer of an undertaking falling within the ambit of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE").
8. The relevant provisions of TUPE so far as concerns the effect of a relevant transfer on a contract of employment (defined by Regulation 2(1) as "any agreement between an employee and his employer determining the terms and conditions of his employment", while "employee" is defined by the same Regulation ( 2(1)) as "any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services") is set out in Regulation 5, which reads in material part as follows:

"(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.

(2) Without prejudice to paragraph (1) above … on the completion of a relevant transfer –

(a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this Regulation to the transferee …

(3) Any reference in paragraph (1) or (2) above to a person employed in an undertaking or part of one transferred by a relevant transfer is a reference to a person so employed immediately before the transfer …"

9. It was never suggested, and was not the case, that the dismissal of the Applicant had anything to do with, or was in any way by reason of, the transfer which in the event occurred, four months later. Had such been the case, then Regulation 8 would or might have been applicable:

"8(1) Where either before or after a relevant transfer, any employee of the transferor … is dismissed, that employee shall be treated … as unfairly dismissed if the transfer or a reason connected with it is the reason or principal reason for his dismissal."

10. The Applicant claimed that the obligations under the Continuation Order transferred to Berkeley, the transferee, by virtue of Regulation 5(1) of TUPE, and hence Berkeley was joined as second Respondent to the Applicant's claim. It was Berkeley's application to be dismissed from the proceedings which led to the hearing, again before Dr Davies, on 29 August 2003, from which this appeal is now brought by Mr Dowling against the order which Dr Davies made so dismissing them.
11. The reasoning in Dr Davies' concise and cogent Decision can be summarised as follows by reference to the identified paragraphs of her Decision:

11.1 (Paragraphs 5 and 6 of the Decision) Section 164(1) of the 1992 Act "refers to "from the date of its termination", thus recognising that the contract of employment has been terminated, and it implies statutory continuation for two specific purposes only and no more", being the two purposes identified in (a) and (b) of that subsection.

11.2 (Paragraphs 6 to 8) "The consequent relationship is purely statutory and unilateral: it is a 'contract of employment' for the purpose of the interim relief provisions only". No benefits or rights are provided to the employer: there is no quid pro quo in the form of provision of labour or any other service. The relationship thus created is not a contract of employment as defined by s230 of the Employment Rights Act 1996 (under which Act the Applicant was, by express reference in section 167(1) of the 1992 Act, claiming unfair dismissal) namely:

"In this Act, 'contracts of employment' means a contract of service … , whether express or implied and (if it is express) whether oral or in writing."

The Chairman concluded that "under the interim order Mr Dowling was not required to serve. An 'employee' is defined by the [1996] Act as 'an individual who has entered into or works under a contract of employment". Mr Dowling neither entered into nor worked under the statutorily continued contract. The contract as defined by s230 came to an end in December 2002." She continued: "Nor is the relationship a contract of employment as defined by Regulation 2 of [TUPE] which requires determination of terms and conditions by agreement not by statute. The agreed terms and conditions came to an end in December 2002."

11.3 (Paragraph 11). She was satisfied that the continuity of employment imposed by the Interim Order could not be transferred to anyone against whom the Order had not been made.

11.4 (Paragraph 13). Had she held that the Interim Order could be transferred, she would have found that there was no such transfer "in that 'immediately before the transfer' of the undertaking. Mr Dowling was not an 'employee' under any agreement between him and [Ilic]".

12. It can be seen that the main basis of the argument below, which found favour with Dr Davies, challenged by Miss Morris as Counsel for the Applicant both below and again before me on this appeal, was that the Continuation Order did not create or continue a contract of employment between the Applicant and Ilic, within the meaning of Regulation 2(1) and 5(1) of TUPE, which was in existence at the date of the transfer. The consequence thus was that the liability simply remained with Ilic to make the payments under the Order, until the substantive hearing of the claim for unfair dismissal.
13. It appeared to me however, upon reading the papers prior to the hearing, that there was another point to be considered. I put in writing a question to both Counsel for them to consider prior to the hearing, namely whether the contract in question, taking into account the terms of the Continuation Order under s164(1), was a contract "which would otherwise have been terminated by the transfer", given that this appeared to be a requirement for a transfer within Regulation 5(1), and that the contract created or continued by the Continuation Order (if it was a contract of employment) by virtue both of its terms and of s164 would not, indeed could not, be terminated by the transfer, but would "continue in force … until the determination or settlement of the complaint". Mr Dulovic, who has appeared as Counsel for the Respondent before me, but did not appear below, sought at the hearing to adopt this alternative or supplementary argument, and hence to seek permission to amend his Respondent's Answer.
14. Miss Morris naturally took what can be called a "Kumchyk point", by reference to the well known case of Kumchyk v Derby City Council [1978] ICR 1116, which established that this Appeal Tribunal will not normally allow on appeal a point which was not run below. However she accepted that there are exceptions to this principle, and particularly so where the point is one of law, but certainly one of jurisdiction, and where no new facts or evidence are required (see House v Emerson Electric Industrial Control [1980] ICR 795 per Talbot J at 800A-E, Barber v Thames Television plc [1991] ICR 253 per Knox J at 266-268 and most recently in the Court of Appeal in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 per Brooke LJ at paragraphs 12-16, and Laws LJ at paragraph 18. The issue here is plainly one of jurisdiction, namely jurisdiction to establish a claim against Berkeley as transferee at all, and is one requiring no further evidence. Miss Morris did not suggest that she was prejudiced or unready to deal with the argument. Consequently I gave permission to amend.
15. I seek to gather together and summarise what Miss Morris on behalf of the Applicant ably put forward, and to categorise them as six submissions.
16. First Submission. The policy and purpose of the Council Directive "on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfer of undertakings etc" (2001/23/EC) is dedicated to exactly that. By Article 2(1)(d) "employee" is defined as "any person who, in the Member State concerned, is protected as an employee under national employment law", and Article 3(1) straightforwardly provides that:

"The transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on a date of a transfer shall, by reason of such transfer, be transferred to the transferee."

Miss Morris does not submit that in this case there was anything which could be described as an "employment relationship", but is content to rely on the alternative provision for protection of a "contract of employment", which is of course expressly what is covered in Regulation 5(1) of TUPE. Her submission is however that the definition of an employee, whose rights are thus by the Directive to be safeguarded, should not be narrowly construed.

17. Second Submission. This follows on from the above, but is specifically by reference to the decision of the Court of Appeal in Bernardone v Pall Mall Services Group [2000] IRLR 487, in which it was clear that the Court of Appeal accepted that TUPE must be given "a purposive constructive having regard to, and, so far as possible, consistently with, the Directive" (per Peter Gibson LJ at paragraph 16, and further at paragraph 42). Lord Oliver in Litster and Others v Forth Dry Dock and Engineering Co Ltd [1989] ICR 341 at 371 stated that "it has always to be borne in mind that the purpose of the Directive and of the Regulations was and is to 'safeguard' the rights of employees on a transfer and that there is a mandatory obligation to provide remedies which are effective and not merely symbolic to which the Regulations were intended to give effect".
18. Third Submission. There is no reason why a contract of employment within Regulation 2(1) of TUPE (set out in paragraph 8 above) which on the face of it refers to an agreement "between an employee and his employer determining the terms and conditions of his employment" should not include one which is statutorily imposed or continued. Similarly, although Miss Morris accepts that on its face the definition of employee, in the combination of subsection 230(1) and (2) referred to in paragraph 11.2 above, would seem to exclude a contract under which no service is to be offered by the employee, as is the case under s164, as only the employer must provide the benefits while there is no corresponding obligation on the employee to supply any service, nevertheless Regulations 2(1) and therefore 5(1) of TUPE can and should be construed purposively and more widely. An employee who is entitled (perhaps only statutorily, in the absence of any express contractual provision) to be away from work and providing no service but receiving benefits e.g. if on maternity leave, or long term sickness, would nevertheless be covered by the provisions of Regulation 5(1) of TUPE, and the same should apply to someone who is the subject of a Continuation Order.
19. Fourth Submission. Reinstatement is (although it cannot be enforced, save by increased compensation under s117 of the 1996 Act) nevertheless to be regarded (see the wording of s112(4) of that Act) as the primary remedy for unfair dismissal. The purpose of s163 and, she submits, also s164, is to facilitate such reinstatement. This would not be possible (as it would not have been in this case) if during the currency of a Continuation Order, there is a transfer of undertaking and the "employment", or liability under the Continuation Order, does not transfer to the transferee.
20. Fifth Submission. As the purpose of s163 is to encourage an employer to offer voluntary reinstatement or re-engagement, there should be no distinction between the situation in which such voluntary reinstatement or re-engagement is offered and accepted, when the albeit temporarily installed employee would transfer to the transferee, and that in the absence of such agreement by an employer, when the effect of a Continuation Order would be, if this decision is correct, that there would be no transfer. Miss Morris submitted that there should be no disincentive to employers to make a s163 offer, nor should the consequence to an employee be different dependent upon which course was taken.
21. Sixth Submission. There is no natural dichotomy between a contract of employment entirely created consensually between the parties and one that is statutorily continued (perhaps like a statutory tenancy). In Litster the question being addressed was the situation in which the Applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer (as provided in Regulation 8(1) of TUPE, set out in paragraph 9 above). The question was whether the liability for unfair dismissal compensation transferred to the transferee. Lord Keith at 349H -350A said:

"In these circumstances it is the duty of the court to give to regulation 5 a construction which accords with the decisions of the European Court upon the corresponding provisions of the Directive to which the regulation was intended by Parliament to give effect. The precedent established by Pickstone v Freemans plc [[1988] ICR 697] indicates that this is to be done by implying the words necessary to achieve that result. So there must be implied in regulation 5(3) words indicating that where a person has been unfairly dismissed in the circumstances described in regulation 8(1) he is to be deemed to have been employed in the undertaking immediately before the transfer."

22. Lord Templeman similarly construed Regulation 5(3) at page 353. Lord Oliver (at 371) similarly makes in Regulation 5(3) "such an implication which is entirely consistent with the general scheme of the Regulations and which is necessary if they are effectively to fulfil the purpose for which they were made of giving effect to the provisions of the Directive". He then describes what he considers that the Law Lords have thus done, at paragraph 372B, as follows:

"It follows from the construction that I attach to regulation 5(3) that where an employee is dismissed before and by reason of the transfer the employment is statutorily continued with the transferee by virtue of the Regulations."

23. Miss Morris submits that just as there is one form of statutory continuation of an employment contract for the purpose of one kind of automatically unfair dismissal, that within Regulation 8 of TUPE, so too, by virtue of the Continuation Order, in relation to another kind, that by reference to s152 of the 1992 Act.
24. These are persuasive submissions, but I am not persuaded by them. I set out my reasons as follows:

24.1 I am satisfied that what is effected by the Continuation Order is not only not a contract of employment within s230 of the 1996 Act or Regulation 2(1) of TUPE because of what Dr Davies called the "purely statutory and unilateral [because no service was required]" nature of it. It is wholly different from the examples referred to in Miss Morris' third submission, of employees whose contracts of employment have not terminated but in which they are absolved from providing services under the contract by the terms of it, or some statutory implication into it. Those who are the subject of a Continuation Order are ex-employees, whose contracts have terminated, such that, as Mr Dulovic put it, there is no subsisting contract of employment upon which Regulation 5(1) can have any effect (as in Secretary of State for Employment v Spence [1986] ICR 651). The Continuation Order could be revoked by application under s165(1) of the 1992 Act, set out in paragraph 4 above "on the ground of a relevant change of circumstances since the making of the order".

24.2 Interpretation or construction of Regulation 5(1) in order to accommodate a Continuation Order, to imply a statutory continuation of the contract of employment (but without the obligation to serve) would be very much more difficult than in the case of Litster, the subject of Miss Morris' third submission, where the case (pace the precise terminology used by Lord Oliver) was one of construction of the inter-relationship of Regulations 8 and 5, and thus avoiding an evasion of TUPE, which on any basis Regulation 8 was dedicated to prevent.

24.3 In any event it is, in my judgment, quite plain that the Continuation Order is not intended to and does not effect a statutory continuation of the contract of employment, even allowing for the fact that it would need to be varied by exclusion of a most significant element of it, namely the obligation to serve, as discussed above. Section 164 is careful in its terminology. It prescribes that there are two purposes for which the contract of employment continues in force, the first ((a)) for the purposes of pay and benefits, with the applicant being paid an amount to "be determined as if he had not been dismissed [s164(7)]" and also ((b)) "for the purpose of determining for any purpose the period for which the employee has been continuously employed". Miss Morris accepted that these two purposes are the exclusive purposes of s164(1): it is to be noted that in s79(1) of the Employment Protection Act 1975 (the immediate predecessor of the consolidating Act of 1992), to which Miss Morris herself referred, and which she accepted fell to be interpreted in the same way as s164 in the consolidating Act, the slightly different formulation of the same provision makes it clear that the continuation was "only" for the two purposes. The first purpose therefore is quite clearly only related to protecting the employees' rights to payment and benefits. The second purpose was also at any rate expressed as if it was intended to be only one dedicated to be towards calculation, i.e. calculation or determination of the period of continuous employment. This meant for example that, as and when the unfair dismissal claim was heard, although the effective date of termination would still remain the same, the calculation, and entitlement, based on continuity would not be based on that date.

24.4 This leads me to consider Miss Morris' fourth submission. It may be that at the eventual unfair dismissal hearing there could be an order for reinstatement. This is theoretically just as possible to where there has been a s163 order, but perhaps less likely, given that the employer had not agreed to voluntary reinstatement, which may mean that a case for reinstatement may be more difficult to make out on the facts. However there can be reinstatement, and this will not be as a result of anything contained in s164 or indeed s163, nor will it be affected by the construction of s164 here in issue; for the availability of reinstatement does not depend on either s163 or s164, but upon the general provisions, once unfair dismissal be established at the eventual hearing, of s114 of the 1996 Act (or, if it be re-engagement, s115). All that is addressed by s164(1)(b), as discussed, is the question of calculation of continuity. It does not in any way facilitate a subsequent order being made for reinstatement under s114, for, if reinstatement is ordered under s114, it will itself cope with the question of continuity, automatically, by virtue of the reinstatement order, which would ignore the interim period entirely, whether there had been an order under s163 or s164 or no order at all in the interim. Similarly, if an order is only made for re-engagement under s115, then again any question of whether there is continuity will depend upon the nature of that order, and not the pre-existence of any interim orders. What must be considered, in response to Miss Morris' fifth submission, is the very carefully limited ambit of the order under s164(1). It does not provide for the continuation of the contract of employment for all purposes as if he had not been dismissed, save that the determination of the fairness of the dismissal would still be made as at the date when the employer sought to terminate it. Whereas if a voluntary reinstatement order is made under s163, by subparagraph (3) his rights will be such that "the period prior to the dismissal should be regarded as continuous with his employment following the dismissal". The words of s164(1) are far more narrow.

24.5 There is, in those circumstances, nothing in the general construction of s163 and s164 which could lead one to Miss Morris' solution, unless it is simply by reference to the fact that in one situation and one situation alone, namely the coincidence of a TUPE transfer during the period of the Continuation Order, the embryonic possibility of a reinstatement order (which the employer could in any event fail or refuse to comply with) is preserved in the event of an order under s163, but not, on the construction contended for by the Respondent and found by the Tribunal, in the event of an order under s164. That is the only situation in which the otherwise natural approach, discussed and examined above, needs to be reconsidered, and that is of course the context of this case. It is in that very context, however, that the provisions of Regulation 5(1) itself must be considered, by reference to the amended ground in the Respondent's Answer. For the duration of the Continuation Order under s164, the employer can do nothing which terminates its obligation under s164. There is no way in which it can be said that, for example, any such contract between the employer and the employee would be frustrated, or repudiated, by a change of circumstance, such as the merger of the business, the closing down of the factory, the closing down of the business or liquidation of the company, certainly not by a simple change in the personnel running the business, such as might otherwise lead to an argument of repudiation, which needs to be statutorily ousted by the express provisions of Regulation 5(1) of TUPE. The only course that could be taken would be an application on the basis of change of circumstances under s165(1), which might or might not succeed. But the "contract" created or continued by the Continuation Order would not, indeed could not, be terminated in the event of a transfer of the business. Thus it is not a "contract which would otherwise have been terminated by the transfer", such as falls within Regulation 5(1) of TUPE: it continues (subject to any application under s165(1)) "until the determination or settlement of the complaint". I speculated with Counsel during the course of argument as to why such a contract should have been expressly excluded from the ambit of Regulation 5(1). It seems to me that the answer may be that it underlines the nature of the contract of employment, for any contract of personal services would be likely to be terminated in the event of a TUPE transfer, as opposed to a contract which did not involve any services and simply involved the payment of money, which could survive a total change of personality in the employer. If such be the case, then it emphases what the Continuation Order in fact, in my judgment, is, namely simply the preservation for the employee, and protection of the employee, in relation to his continued receipt of payment and benefits until the eventual hearing of his or her complaint. There is thus only a financial liability on the part of the employer, and that financial liability does not transfer to the transferee.

25. I turn therefore to consider Miss Morris' first and second submissions. Whereas the impact of TUPE on a contract of employment must be construed favourably to an employee, and its terms purposively interpreted so as to safeguard an employee's rights, these conceptual requirements do not imply if, as I am satisfied was the case here, absent a voluntary order under s163, the employee becomes an ex-employee, but with financial protection. The financial obligation of the transferor to such ex-employee is not within Regulation 5(1), however purposively interpreted, for there is no continuing contract of employment after the determination (s164 being limited in its effect) and, in any event, even if it is a contract of employment, it is not a contract which "would otherwise have been terminated by the transfer".
26. For these reasons I dismiss the appeal.