United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the 1st Appellant	No Appearance Nor Representation
For the 2nd Appellant For the 1st Respondent For the 2nd Respondent	No Appearance Nor Representation No Appearance Nor Representation No Appearance Nor Representation

SUMMARY
TRANSFER OF UNDERTAKINGS

Transfer

Consultation and other information

The claimants, administrative staff in a general practitioner's surgery, claimed unfair (constructive) dismissal, which failing redundancy, when the practice was transferred on their employer's retiral. The Tribunal found that they had no claim against the transferee practice since they had objected to the transfer and never entered its employment. Also, having objected to the transfer, they had no dismissal based claim against the transferor. They sought, on appeal, to overturn the Tribunal's decision under reference to the TUPE duty to inform and consult. The EAT held that it was too late for the claimants to advance a claim for compensation for a failure to do so and that the issue was otherwise irrelevant. The appeal was dismissed.

THE HONOURABLE LADY SMITH:

Preliminaries

1. This case involves claims having been made to the Employment Tribunal by the applicants that they were unfairly dismissed by both Respondents.
2. The judgment represents the views of all three members who have pre-read the relevant papers.
3. We will refer to the parties as Claimants and first and second Respondents.

Introduction

4. This is an appeal by the Claimants in those proceedings against the Decision of an Employment Tribunal, sitting at Dundee, Chairman Mr A Worthington which was registered with Extended Reasons on 30 June 2004. The Claimants represented themselves there and have submitted written submissions in support of their appeal. The first Respondents were represented there by Mr SG McLaren, Solicitor and the second Respondents were represented there by Mr D Reid, Solicitor. They too have submitted written submissions in response to the appeal. All parties are content that we proceed without a hearing, on the basis of their written submissions.
5. Before the Employment Tribunal, the Claimants claimed that they had been unfairly dismissed by the two Respondents, the detail in their applications being that their complaint against the first Respondents was one of fundamental breach of trust resulting in constructive dismissal and that their complaint against the second Respondent was that, on the assumption that there had been no transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended) ('TUPE') applied, they had an entitlement to statutory redundancy pay.
6. The first Respondents contended that the Claimants had never transferred into their employment, so the claim was irrelevant. The Claimants could not have resigned from employment that had never commenced. The second Respondent contended that the Claimants had not been dismissed by her in respect that their employment with the second Respondent had ended either because they transferred to the first Respondents or because they objected to doing so, neither of which involved dismissal by the second Respondent.

The issues

7. The hearing before the Employment Tribunal proceeded as a preliminary determination upon what are referred to in the extended reasons as the issues of competency that arose from the Respondents' contentions. Those issues were set out in the documents at p.55-7 of the bundle and were: Whether the Claimants were ever employees of the first Respondents and whether they have otherwise a right to make a claim for unfair (constructive) dismissal against the first Respondents; and whether the Claimants had been dismissed by the second Respondent, the answer to which depended on whether or not it was established that they had objected to the transfer of their employment.

The Decision

8. The Employment Tribunal decided that the applications were incompetent in respect that the Claimants fell to be regarded as having terminated their own employment, having objected to their employment being transferred in advance of the transfer date. It was held, accordingly, that they had not been dismissed by either of the Respondents.

The appeal

9. The Claimants appeal against that decision.

EAT Directions

10. Directions sending this appeal to a full hearing were given in Chambers by The Hon. Lord Johnston.

Employment Tribunal directions

11. The tribunal directed itself by reference to the relevant provisions of the TUPE and the leading authorities which are cited in its extended reasons namely:-

Sita (GB) Limited v Burton & Others [1997] IRLR 501 (EAT)

Hay v George Hanson (Building Contractors) Limited [1996] IRLR 427 (EAT)

The Facts

12. The first Respondents are a practice of general medical practitioners. The second Respondent was, until her retirement, a single handed general practitioner practising in Perth. She was compulsorily retired on 24 November 2003, the date of her seventieth birthday. The first Respondents were appointed as successors to her practice by Tayside Primary Care NHS Trust and took it over on 25^th November 2003.
13. The Claimants were employed by the second Respondent as receptionists until she retired.
14. The decision to transfer the practice to the first Respondents was taken by NHS Tayside on 8 September 2003 and intimated to the second Respondent by letter dated 11 September. A meeting took place at the first Respondents' premises on 12 September, which was attended by the second Respondent and the Claimants. Evidently, the meeting did not go well. The Claimants state that the first Respondents' practice manager advised them that TUPE did not apply. It was their position that it did. They appear to have been concerned that working conditions, including hours, might not be the same.
15. By letter dated 31^st October, the first Respondents' Dr McWilliam wrote confirming that they would be taking over the second Respondent's staff and that there would be no redundancies. The first Claimant responded in a letter dated 5 November, on behalf of all remaining members of staff of the second Respondent, setting out her understanding of their rights under TUPE (including the right to object to transfer) and indicating that, although they had attended the meeting at the first Respondents' practice in good faith, they had been left with the feeling that they were not welcome and would be better to look for employment elsewhere than to expect suitable terms from the first Respondents.
16. By letter dated 13 November to each Claimant, the first Respondents made a formal offer to them to transfer to their practice.
17. The second Respondent wrote to the Claimants by letter dated 17 November indicating that it gave her peace of mind to know that they had been offered continuity of employment under the TUPE regulations.
18. By letter dated 18 November 2003 addressed to the second Respondent, the Claimants objected to the transfer, giving as their reason for doing so the "irreparable breakdown in any future working relationship due to the actions of the future employer".
19. The transfer took place on 25 November 2003 but both Claimants declined to attend work on that date.
20. The second Claimant started work at another GP's practice on 25 November 2003.
21. In short, there is no doubt that the way in which the transfer of the second Respondent's practice to the first Respondents was handled upset the Claimants, who were left feeling that they would not be able to establish a working relationship with the latter.
22. The Employment Tribunal considered the agreed facts set out in paragraph 6 of the Extended Reasons, the documents there referred to, and heard evidence from the Claimants, which contains the above factual history. Having done so, they found that, as a matter of fact, the Claimants never entered the employment of the first Respondents leading to the inevitable conclusion that they could not, accordingly, be held to be in breach of contract with them. As regards their claim against the second Respondent, they were satisfied on the facts of the case that their employment terminated because of their own actions, namely their objections to transfer, not because of any action on the part of the second Respondent. In those circumstances, the effect of Regulation 5(4B) of TUPE was that they could not be treated as having been dismissed by the second Respondent. The claims were, accordingly, held to be incompetent.

Claimants' case

23. The Claimants' Notice of Appeal is in the following terms:

"The Employment Tribunal erred in law in that:

The decision does not address the failure by the 2nd Respondent to comply with the duty to inform and consult thirteen weeks prior to the transfer date. Contrary to TUPE, Regulation 10, the application of the TUPE Regulations was not accepted until 17th November 2003 (eight days prior to transfer) as narrated in the Applicant's Form IT1 and as referred to in the decision letter at paragraph 9 - which failure is not refuted by the Respondents."

On our reading of them, the written submissions seek to expand on that argument in the following manner:

Firstly, the Claimants disavow any attempt to raise a new point under reference to the narrative set out in their original application. They refer to the duty to inform and consult as being a technical requirement. They assert that early October 2003 was the latest date at which there should have been consultation but that it would have been possible to do so in September.

Secondly, in a passage which refers to the Respondents but must, given the context, be meant to relate only to the first Respondents, the Claimants submit that the first Respondent failed to comply with the spirit of TUPE by deliberately misrepresenting the position as regards the applicability of TUPE. This relates back to their allegation that the first Respondents' practice manager told them, at the meeting on 12 September 2003, that TUPE would not apply.

Thirdly, they express the view that the Respondents, having failed to perform their TUPE obligations, should be held accountable.

Generally, the target of the criticisms advanced in the Claimants' written submissions is clearly the first Respondents, not the second Respondent. It is not possible to identify any specific criticism of her. There is no statement of any claim for compensation under regulation 11 of TUPE.

Respondents' case

24. The Respondents' written submission can be summarised as follows:

Firstly, they found on the fact that in their application to the Employment Tribunal, the Claimants did not seek any remedy under TUPE. They sought findings of unfair dismissal. It is not now open to them to advance a new claim.

Secondly, if the reliance on the failure to consult is intended to be an aspect of the unfair dismissal claim, it is irrelevant. The claims fail because the Claimants validly objected to the transfer and no aspect of the fairness or otherwise of the procedures for giving information and consulting could have any bearing on that. The Claimants did not assert that failure to consult nullified their objections to transfer, which objections were made at a stage when they knew the factual circumstances surrounding the termination of the second Respondent's practice and, further, in circumstances where, as was evident from the terms of the letter of 5 November, they knew of the implications of TUPE.

Thirdly, they submit that the Claimants in any event, misapprehend the duty to inform and consult in suggesting that it was a duty to do so, thirteen weeks' prior to the transfer as no such requirement appears in the Regulations.

The legal principles

The legal principles to be applied appear to us to be as follows: firstly, the Claimants cannot claim that the first Respondents unfairly dismissed them unless they were employed by them. Secondly, whilst the parties to the transfer of an undertaking that is covered by TUPE have a duty to inform and consult 'affected employees' as is more fully set out in Regulation 10, that is a duty which is owed by them only to their own employees. Accordingly, the first Respondents owed no duty to the Claimants to inform and consult if they did not employ them. The duty to inform and consult applies as between employer and employee's representatives. Regulation 10 makes provision for the election of employee representatives in a case where appropriate representatives do not already exist and in the event of employees failing to elect a representative, for the duty to apply as between employer and individual employees. Thirdly, employees of the transferor employee in a transfer covered by TUPE, are entitled to object to being transferred into the employment of the transferee (see: Regulation 5(4A)). Fourthly, where an employee so objects, his contract of employment is terminated when the transfer is effected and he cannot, for any purpose, be treated as having been dismissed (see:Regulation 5 (4B)). Fifthly, contrary to what is suggested by the Claimants, there is no stated requirement for the informing and consulting provided for to take place at least thirteen weeks prior to the date of transfer.

25. We observe, in passing, that no argument was advanced at any stage that could be seen as an attempt to present a case that Regulation 5(5) applied so as to preserve the employees' right to claim, in certain circumstances, in respect of the termination of their contracts of employment.

Discussion:

We begin by observing that it was not argued before the Employment Tribunal that either Respondent had failed in its TUPE duty to inform and consult. No claim for compensation under Regulation 11 of TUPE was presented nor was it suggested that such failure had occurred or had any relevance to the issues under discussion.

Having given careful consideration to the terms of the original applications and to the terms of the Notice of Appeal, we are not satisfied that the former can be regarded as a claim for compensation under Regulation 11 of TUPE or that it would be appropriate to allow such a claim to be advanced at this late stage. We are not even sure that the Claimants do seek to do so.

However, for the avoidance of doubt, we consider that the layout and content of the original applications is clear. Box 1 is where the nature of the complaint made must, as a matter of fair notice to the Respondents, be specified. We not see that the Claimants could have been in any doubt about that or, indeed, about the importance of specifying the nature of their claim accurately; we note, for instance, that by letters dated 21 June 2004, they wrote seeking leave to amend the final date of their employment. We note the reference in the Claimants' written submission to the narrative but we are not prepared to regard what is said there as being notification of a claim for compensation for failure to inform and consult.

Further, we note that the Notice of Appeal does not state such a claim either. It goes only as far as submitting that the Employment Tribunal failed to address the failure to inform and consult without going further and stating that compensation would be due to them in respect of any such failure, perhaps borne of an awareness that no such claim had ever been advanced.

Turning then to the question of whether an allegation of failure to inform and consult is relevantly made, we are not satisfied that it is. Firstly, as we have already observed, the thrust of the allegations of that failure are directed at the first Respondents. The Claimants do not though seek to overturn the Tribunal's finding that they were not, at any time, employed by the first Respondents. In those circumstances, the first Respondents cannot be said to have owed them any duty under TUPE to inform and consult with them at all. As we have already explained, as transferees, they owed no such duties to the transferor's employees.

Secondly, the Claimants do not seek to overturn the Tribunal's finding that they validly objected to being transferred. The effect of that is, as we have observed, that the Claimants can have no claim against the second Respondent on any dismissal ground (which would include redundancy). The position is, accordingly, that, whatever the nature or degree of informing and consulting achieved, there was always going to be the objection by the Claimants and they were always, accordingly, going to be barred from making any dismissal based claim against the second Respondent. In these circumstances, we cannot see that questions of the giving of information and consultation were of any relevance to the matters that the Tribunal had to consider or that they are of any relevance now.

We would also observe, in passing, that the Claimants' complaints regarding the failure to inform and consult fail to recognise that the duty imposed by Regulation 10 is, in the first place, a duty to consult with employee's representatives, as defined by Regulation 10(2A). They have not addressed the question of whether there was an employee representative who qualified under those provisions or recognised that, if there was not, it would only have been on the failure of an election under Regulation 10(10A) that the employer's duty to inform and consult would be owed to an individual employee (see: Regulation 10(8A)).

Conclusions

26. In these circumstances, we reject the arguments of the Claimants and have decided that the appeal should be dismissed.