United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IAN GATT QC Messrs Herbert Smith LLP Solicitors Exchange House Primrose Street London EC2M 2HS
For the 1st Respondent	MR BENJAMIN BURGHER (Of Counsel) Instructed by: ProLegal Solicitors Ltd Dukes House 32-38 Dukes Place London EC3A 7LP
For the 2nd Respondent	NEITHER PRESENT NOR REPRESENTED


 


SUMMARY

Appeal raised issues of procedural irregularity at a PHR in a TUPE dismissal claim and a challenge to the Chairman's decision as to the date of transfer to the Appellants. Appeal allowed.


 


THE HONOURABLE MRS JUSTICE COX

1. INTRODUCTION

This is the full hearing of an appeal by the Second Respondents below, Primark Stores Limited (Primark) against a decision of the Birmingham Employment Tribunal, promulgated with written reasons on 20^th January 2006, in which the Chairman, sitting alone on a Pre-Hearing Review (PHR), decided that there was a transfer of the Claimant's employment from the First Respondents, Allders Department Stores Limited to Primark, by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE). He therefore dismissed the Claimant's claim against Allders and directed that her claims against Primark should proceed to a hearing.

2. There are, essentially, two grounds of appeal as follows:

"(1) The Chairman erred in proceeding to deal with the issue of whether there was a TUPE transfer at the PHR, given the expressed and limited scope of that hearing, as it was reasonably understood by Primark. There was therefore a procedural irregularity; Primark's representative was unprepared for what transpired and unfairly criticised by the Chairman.

(2) Having wrongly decided to proceed, the Chairman either failed to determine when the transfer had taken place or wrongly and perversely concluded that it had taken place on 11^th February 2005, before the termination of the Claimant's employment."

The Chairman's decision, that there was a relevant transfer of the Claimant's employment to Primark, is therefore said to be fundamentally flawed.

3. In resisting the appeal the Claimant contends that the Chairman was entitled to proceed to deal with the issue of transfer at the hearing and, to the extent that Primark's representative was unprepared, he was effectively the author of his own misfortune. The issue to be determined at the PHR was clear and the Chairman was entitled to proceed to decide it. He was also entitled to conclude as he did on the evidence he had before him and no error of law is disclosed in his decision that the Claimant's employment was transferred to Primark.
4. THE RELEVANT FACTS

In view of the alleged procedural irregularity below it is necessary for us to deal with material events before and after the hearing in more detail than would usually be the case so that the issues on appeal may be properly considered. The Claimant began her employment with Allders in July 2000 and she was department manager of the soft furnishings and linens department in their Coventry store. In January 2005 Allders went into Administration and Joint Administrators were appointed. The decision was taken to reduce the workforce and, on 11^th February 2005, the Claimant's employment was terminated without notice, as was the employment of a large number of other employees. The Claimant was not at work on 11^th February however and she was told about her dismissal when she went into work on the following day.

5. In her ET1, filed on 4^th May 2005, the Claimant, who has been legally represented throughout this litigation, complained of both automatically unfair (TUPE) dismissal and, alternatively, "ordinary" unfair dismissal on the basis that there was no genuine redundancy, or that she was unfairly selected for redundancy by the Joint Administrators. She named Allders as her employer and Primark as additional Respondents and gave her dates of employment as being from 24^th July 2000 to 11^th February 2005. In the details of her complaint she alleged, materially:

"(a) that she was dismissed on 11^th February by the Joint Administrators, who stated in the letter of dismissal that it was because Allders could no longer make payments for her services (paragraph 6);

(b) that on 11^th February the Joint Administrators sent an email to the Coventry store manager announcing that the Coventry store was to be taken over by Primark (paragraph 3);

(c) that the week after she was dismissed the Joint Administrators went on to engage temporary members of staff to work at the Coventry store during the closing down sale (paragraph 9); and

(d) that the Coventry store remained open until 24^th March 2005 and that "Primark took over the store on 11^th March 2005 along with the Allders employees who remained at that point." (paragraph 10)

6. By their ET3 Allders (in Administration) confirmed the Claimant's date of dismissal as 11^th February 2005 and alleged that she was dismissed as redundant on that date and was made aware of this on her return to work on 12^th February. They pleaded that the Coventry store was one of five stores that were "subsequently purchased by Primark" and that, following their agreement to purchase the store, Primark requested that the store be provided as "vacant at completion". For this specific purpose the Joint Administrators had recruited temporary sales assistants prior to completion and this could not have been predicted at the time the Claimant was made redundant. Allders disputed that the Claimant's dismissal was for a reason connected to the transfer and alleged that she was fairly dismissed as redundant.
7. Primark, in their ET3, admitted the dates of employment, contended that the Claimant was never an employee of Primark and pleaded, so far as is relevant, as follows:

"The Second Respondent entered into a contract with the Joint Administrators of the First Respondent, to acquire any stores, shortly before midnight on Friday 11 February 2005. The basic effect of the contract was (subject to certain conditions) to commit the Joint Administrators to sell and the Second Respondent to buy certain stores (including the Coventry store at which the Claimant alleges she worked) on 25 March 2005. The contract did not commit the Second Respondent to take on all employees of the Coventry store.

…

"The Second Respondent also contends that the Joint Administrators' dismissal of the Claimant was for an economic, technical or organisational reason entailing changes in the workforce of the First Respondent (an ETO Reason) (under Regulation 8(2) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE)).

…

"The Second Respondent accepts that the Coventry store remained open until 24 March 2005. However, the Second Respondent did not acquire the store until 25 March 2005 (in accordance with the terms of the contract dated 11 February 2005)

…

"The Second Respondent does not, at present, have sufficient information on which to accept or dispute the Claimant's assertion that she was unfairly dismissed contrary to the Employment Rights Act 1996. However, the Second Respondent does contend that the Claimant's dismissal was not automatically unfair under TUPE because it was for an ETO Reason arising out of a reduced requirement by the First Respondent for management employees."

8. It was therefore apparent from the pleadings that there were a number of undisputed facts. Firstly, all parties were agreed that the Claimant's employment had been terminated on 11^th February 2005. It is accepted before us that, as a matter of law, the effective date of her dismissal was 12^th February, when she was first made aware that she had been dismissed, but nothing turns on that matter in this appeal and we shall refer from now on to 12^th February as being the date of dismissal.
9. Secondly, it was not in dispute between the parties that Primark had not taken over the Coventry store until March 2005 and therefore after the date of the Claimant's dismissal by the Joint Administrators. The Claimant's pleaded case was that Primark took over the store a month later on 11^th March, whereas Primark's case was that they did so on 25^th March, on completion of the agreement to purchase. Nor was it in dispute that, after the Claimant's dismissal, the Joint Administrators continued to operate the Coventry store before Primark took over by recruiting temporary sales assistants to ensure that the store was delivered vacant at completion, as requested.
10. The Claimant's primary case was therefore that she was dismissed by the Joint Administrators of Allders before a TUPE transfer and for a reason connected with that transfer. Liability for that dismissal therefore transferred to Primark and the dismissal was automatically unfair. Alternatively the Claimant contended that her dismissal by the Joint Administrators was unfair on the basis that there was no genuine redundancy or that she was unfairly selected. Her allegations of both automatically unfair TUPE dismissal and ordinary unfair dismissal were disputed and would therefore need to be resolved at a hearing on evidence addressing, amongst other matters, the reason for the Claimant's dismissal.
11. There was no case management discussion between the parties and the Employment Tribunal before, on 25^th July 2005, a letter was sent to both parties' legal representatives from the Tribunal stating as follows:

"I have been directed by a Chairman, Mr S Ahmed, to outline that the case will now be listed for a Pre-Hearing Review, to determine whether the claimant was employed by the second respondent, Primark Stores Ltd. The hearing will be given a time estimate of one hour and will be heard by a Chairman sitting alone."

The stated purpose of the PHR, the time estimate of one hour and fact that the Chairman would be sitting alone were facts repeated in a subsequent letter from the Tribunal dated 18^th August and in the formal Notice of Hearing sent out on 1^st September 2005, which included the following:

"1. A chairman has directed that a pre-hearing review is to be held. The specific preliminary issue to be considered at the hearing is as follows: To determine whether the Claimant was employed by the Second Respondent.

2. The pre-hearing review will be heard by a chairman at 09:45 am on Tuesday, 25 October 2005 at 2nd Floor, Phoenix House, 1-3 Newhall Street, Birmingham, West Midlands, or as soon after that time as the chairman can hear it. It has been given a time allocation of 1 hour. If you feel that this is insufficient, please inform us in writing within 5 days of the date of this letter."

12. At no stage before the hearing on 25^th October were there any directions given by the Tribunal as to disclosure, exchange or filing of witness statements, or the preparation of document bundles and skeleton arguments. The only other communication from the Tribunal before the hearing came in a letter dated 20^th September 2005 in which it was stated:

"I have been directed by a Chairman, Mr S Ahmed, to say the Pre Hearing Review listed for 25^th October 2005 will only deal with the issue of whether the Claimant was employed by the second responded. The time estimate for the Pre Hearing Review should be half a day."

The alteration of the time estimate from one hour to half a day was unexplained and neither Mr. Gatt QC, appearing before us for Primark, nor Mr. Burgher, counsel for the Claimant who did not appear below, was able to assist as to the basis for it. In any event the Chairman was still to sit alone and no directions as to preparation for this hearing were given.

13. Mr. Taggart of Primark's solicitors, who appeared below, concluded that the issue to be determined at the PHR, namely whether the Claimant was employed by Primark, was a straightforward one, to be disposed of by a Chairman sitting alone at a short hearing, on the basis of the undisputed facts from the pleaded cases and without the need to adduce any evidence. Once that matter was formally disposed of the issues relating to the reason for the Claimant's dismissal and whether Primark were liable for unfair dismissal under the TUPE provisions would then proceed to a hearing, most probably before a Chairman and lay members, with appropriate directions being given for disclosure and evidence and as to the likely time estimate. As will become clear when we deal with the parties' submissions on appeal this was, in our judgment, a reasonable conclusion to draw, given the correspondence from the Tribunal and the contents of the pleaded cases. Whilst it is correct, as Mr. Burgher submits, that what is important at tribunal hearings is the evidence adduced rather than the parties' pleadings, parties are entitled to prepare for those hearings on the basis of the contents of the pleadings, which inform them as to the case they have to meet, and on the basis, where relevant, that particular pleaded facts are not in dispute. The requirements of cost effective preparation and concentration on the core issues to be tried at a hearing apply to all those involved in the conduct of litigation, including litigation in Employment Tribunals.
14. The only other events of relevance before the hearing on 25^th October were these. Firstly, on 18^th October, the Claimant's representatives wrote to Primark's solicitors requesting disclosure of specified documents, which they considered were relevant to the question whether the Claimant's dismissal was related to the transfer. In referring to the forthcoming PHR they stated that,

"The main issue to be decided at this hearing is the question of whether our client's employment transferred to your client. We note that your client's case is that her dismissal was unrelated to the transfer and as such her employment would not transfer. This is clearly a question of fact."

Subsequently, in their response to Primark's request for a review by the Chairman of his decision, the Claimant's representatives stated that they had understood the purpose of the PHR to be as follows:

"The purpose of the Pre-Hearing Review was to decide if the Claimant was employed by the Second Respondent. This clearly meant the Tribunal was to decide if the Second Respondent had any liability for the Claimant for the purposes of the claims she had brought, ie, if she was to be treated as employed by the Second Respondent for the purposes of enforcing her rights against them under TUPE."

Since whether the Claimant was employed by Primark is a different question from whether liability for her dismissal passed to Primark on transfer and whether she was therefore to be treated as employed by them, the view taken by Primark was that the hearing on 25^th October would be concerned only with the former question, as identified by the Tribunal, for which disclosure and exchange of evidence was unnecessary. They therefore did not disclose any of the documents requested before 25^th October. Nor did the Claimant's representatives seek any order for disclosure from the Tribunal before 25^th October. We note, in addition, that no information or documentation was sought by the Claimant's representatives from Primark, in this letter, as to when the transfer from Allders had taken place or was completed.

15. Secondly, the Claimant's representatives served on Primark's solicitors by fax, at 5.35 pm on the evening before the hearing, a witness statement from the Claimant. Nothing in this statement was inconsistent with the Claimant's pleaded case. In particular the Claimant referred expressly at paragraph 12 to the fact that the week after she left "… the Administrators started to employ temps to work in the store."
16. THE HEARING ON 25^th OCTOBER

Primark's solicitors have prepared a detailed Note of what took place at this hearing which, apart from one matter to which we shall refer later on, is agreed. Allders did not appear and were not represented. Nor have they taken any part in this appeal. Both Primark and the Claimant were legally represented, the Claimant by Mr. Uberoi and Primark by Mr. Taggart. It is clear from this Agreed Note that the Chairman's view as to the ambit of the issues he was to determine at this hearing was very different from that of Mr Taggart. After asking initially whether there were skeleton arguments (there were none from either side) the Chairman asked which witnesses were attending. Mr. Taggart indicated that there were no witnesses attending for the Respondents. The Note then shows that there was the following discussion:

"6. The Chairman asked Mr Taggart why no witnesses were attending for the First or Second Respondent and how the First and Second Respondent would adduce any evidence. Mr Taggart said that he intended to rely on the Claimant's evidence and that it would not be cost effective for witnesses for the First or Second Respondent to attend the pre-hearing review where the Claimant's evidence would be sufficient. Mr Taggart also said that, as far as he was aware, Andrew Pepper (one of the Administrators with some knowledge of the Coventry Store in which the Claimant was employed) was away on holiday. The Chairman asked whether Mr Taggart had applied for a postponement of the pre-hearing review or applied for a witness order against Mr Pepper. Mr Taggart confirmed that he had not made any such applications because he did not think they were necessary given the limited nature of the pre-hearing review."

17. The hearing proceeded and the Claimant was sworn. She confirmed the truth of her witness statement and was cross-examined by Mr. Taggart for approximately 15 minutes. During this cross-examination she confirmed that she was notified of her immediate dismissal on 12^th February and that the reason given was redundancy. There was no material re-examination. The Chairman then asked Mr. Taggart once again about his witnesses and we set out here in full the following passages in the Agreed Note, which are of importance in this appeal:

"13. The Chairman asked Mr Taggart again how he was going to adduce any evidence without any witnesses. Mr Taggart said that the Claimant had confirmed the content of her witness statement and had answered various questions on cross-examination and that he thought witnesses for the Second Respondent would, therefore be unnecessary at the pre-hearing review.

14. The Chairman asked about the sale and purchase agreement and when it was actually dated, to which Mr Taggart replied 11 February 2005. The Chairman asked Mr Taggart why he had only supplied a small part of this document. Mr Taggart replied that some of the terms are confidential. He confirmed he had not sought leave to exclude confidential documents. The Chairman said that was unacceptable. The Chairman also asked where the list of employees was in the document, to which Mr Taggart replied there was no list.

15. The Chairman asked Mr Taggart how he was going to adduce evidence as to whether or not the Second Respondent's acquisition of the Coventry store was or was not an acquisition to which TUPE could apply.

16. Mr Taggart said that he thought there was no need to adduce any such evidence. He said that the Claimant had confirmed that her employment had been terminated several weeks before the Second Respondent had taken possession of the store and, therefore, she could not have been employed by the Second Respondent.

17. The Chairman said that her employment could have transferred to the Second Respondent under TUPE. Mr Taggart said that could not have happened because, as the Claimant had confirmed, her employment had been terminated before the Coventry store had been acquired. He added that the question of whether the acquisition of the Coventry store was an acquisition to which TUPE could apply was unnecessary for the purposes of the pre-hearing review.

18. The Chairman said that liabilities for the Claimant's dismissal could have transferred under TUPE to the Second Respondent. Mr Taggart said that any consideration of whether such liabilities could have transferred to the Second Respondent would require consideration of the reason for the termination. Mr Taggart said that if the reason was unconnected to a TUPE transfer or if the reason was an ETO reason, then liabilities for the Claimant's dismissal could not have transferred under TUPE to the Second Respondent. In connection with "ETO" Mr Taggart noted that the Claimant had confirmed that her dismissal was for redundancy. Mr Taggart also said that the transfer of liabilities under TUPE was, however, beyond the scope of the pre-hearing review.

19. The Chairman said that he thought ETO was irrelevant for the purposes of the pre-hearing review, but that whether or not the acquisition of the Coventry store was an acquisition to which TUPE could apply was entirely relevant. He asked Mr Taggart which of the criteria from the ECJ authority "Spijkers" were or were not present in the acquisition.

20. Mr Taggart said he thought this question was irrelevant for the purposes of the pre-hearing review because of the scope of the pre-hearing review and the evidence given by the Claimant, namely that she was dismissed before the Second Respondent had acquired the Coventry store. Mr Taggart also said that there was no one in the Tribunal who could give evidence as to whether such criteria were or were not present in the acquisition.

21. The Chairman asked Mr Taggart again which of the criteria were or were not present. Mr Taggart said that in order to assist the Chairman he could refer to extracts from the sale and purchase agreement that was signed on 11 February 2005, but not completed until 25 March 2005, and could try to provide relevant information but that he was not giving evidence whether on behalf of the Second Respondent or anyone else. The Chairman reminded Mr Taggart that the only document he had produced had a date of 11 February 2005, and asked if he was suggesting that a company could be bought on an agreed date, and the transfer then be made on a later date. Mr Taggart repeated that the sale and purchase agreement was signed on 11 February 2005 but not completed until 25 March 2005, so any transfer would not have taken place until 25 March 2005.

22. The Chairman asked Mr Taggart what the business of the transferor was and what the business of the transferee was, whether any assets had been acquired, whether the majority of the employees had been taken over and whether any customers had been retained.

23. Mr Taggart said the First Respondent was a department store and that the Second Respondent was predominantly a clothing store, that the premises had been acquired but no stock, that around 1,000 employees had been employed in the 5 premises immediately before the Second Respondent had acquired them and that most of those employees had been dismissed as redundant by the Second Respondent shortly after the acquisition had completed at the end of March 2005.

24. The Chairman asked Mr Taggart whether he had any further submissions. Mr Taggart said that the information he had provided about the sale and purchase agreement had been to assist the Chairman and had not been submissions. Mr Taggart said that his submissions were that the Claimant had confirmed that her employment had been terminated before the acquisition of the Coventry store by the Second Respondent and the Claimant could not, therefore, have been employed by the Second Respondent.

25. The Chairman asked Mr Uberoi whether he had any submissions to make. Mr Uberoi commented that Mr Taggart had not brought any witnesses at all to the pre-hearing review and, therefore, did not adduce any evidence. Mr Uberoi suggested that without any evidence to the contrary from the Second Respondent the Chairman should prefer the Claimant's evidence and find that the Claimant had been an employee of the Second Respondent.

26. The Chairman retired briefly and then delivered his decision to the effect that the acquisition of the Coventry store was an acquisition to which TUPE applied, that the Claimant was employed at the time of the acquisition and was so employed by the Second Respondent and that, therefore, the Claimant's claims against the First Respondent should be struck out."

18. It is therefore clear that, notwithstanding Mr. Taggart's submissions that it was not in dispute that the Claimant's employment had been terminated several weeks before Primark had taken possession of the store, which appears not to have been challenged by either Mr. Uberoi or the Chairman, the Chairman expressed the view that her employment (as distinct from a liability in respect of its termination) could have been transferred to Primark under the TUPE provisions. He therefore decided to proceed to determine whether there had been a TUPE transfer. This however, on the basis of the pleadings and the undisputed facts, was irrelevant to the question whether the Claimant was employed by Primark, as Mr. Taggart endeavoured to point out to the Chairman on several occasions.
19. The short judgment of the Chairman to this effect, although not stating when the transfer was found to have occurred, was sent to the parties on 3^rd November 2005. In the circumstances, before seeking written reasons, Primark's solicitors by letter of 11^th November applied for a review of his decision in the interests of justice under Regulation 34(3)(e) of the 2004 Employment Tribunal Regulations. In their careful and detailed application Primark set out in full the reasons why they contended that a review was necessary. At paragraph 6.1 they stated:

"In summary, the Claimant could only have been employed by the Second Respondent if the alleged transfer took place before the Claimant's dismissal (and if TUPE applied to the transfer). All the evidence before the Tribunal was that the alleged transfer took place after the Claimant's dismissal. Therefore, the Tribunal was not entitled to find that the alleged transfer took place before the dismissal and, therefore, the issue of whether or not TUPE applied to the alleged transfer should not have arisen or been determined."

The judgment was described as being inconsistent with the pleadings, the Claimant's oral evidence, the relevant TUPE Regulations (Regulations 3, 5 and 8 of the 1981 Regulations were set out in full) and with the decisions in the following cases, with extracts from the relevant judgments being set out: Litster v Forth Dry Dock & Engineering Company Limited [1989] IRLR 161 HL; Wilson v St Helen's Borough Council [1989] IRLR 707 HL; Wheeler v Patel and J Golding Group of Companies [1987] IRLR 211 EAT; Celtec Limited v Astley [2005] IRLR 647 ECJ. It was contended that the TUPE issue was irrelevant to determine whether or not the Claimant was employed by the Second Respondent and that it fell outside the stated purpose of the PHR. The Second Respondent was therefore "not expecting to have to make submissions at the Pre-Hearing Review or bring evidence to the Pre-Hearing Review to deal with the TUPE issue". At paragraphs 6.7 and 6.8 Primark said as follows:

"6.7 The Second Respondent submitted that although liabilities under or in connection with connection with the Claimant's terminated employment contract could have transferred to the Second Respondent by virtue of TUPE, that was completely different from the Claimant's employment transferring to the Second Respondent by virtue of TUPE and fell outside the stated purpose of the pre-hearing review. The Second Respondent also submitted that any consideration of whether liabilities under or in connection with the Claimant's terminated employment contract could have transferred to the Second Respondent would also require the consideration of the reason for the termination. If the reason was unconnected to a TUPE transfer the liabilities under or in connection with the Claimant's terminated employment contract could not have transferred to the Second Respondent by virtue of TUPE. If the reason was connected to a TUPE transfer the liabilities could not have transferred if the reason was an economic, technical or organisational (ETO) reason entailing changes in the workforce of the First or Second Respondent. The Tribunal suggested that ETO was irrelevant and made no findings in relation to it.

6.8 The Judgment as it stands could also deprive the Claimant of the opportunity to pursue claims against the First Respondent if the Tribunal finds at the main hearing that the liabilities under or in connection with the Claimant's terminated employment contract with the First Respondent (including in relation to the termination of her employment) do not transfer to the Second Respondent by virtue of TUPE. This could occur if, for example, the Tribunal finds at the main hearing that the termination of the Claimant's employment was for an ETO reason."

The Chairman was therefore asked to revoke his judgment, to state that the Claimant was never employed by Primark and to reinstate her claims against Allders. It was expressly submitted that such a course would avoid the need for Primark to appeal against the judgment to the EAT, thereby avoiding unnecessary costs and delay.

20. The Claimant's representatives opposed the application however and, in a short judgment promulgated on 24^th November 2005, the Chairman refused to review the judgment, concluding that the Second Respondent:

"… has either already ventilated the matters referred to in his application for a review or could have done so at the hearing. There is nothing in the application to suggest that the interests of justice require the matter to be reviewed. The purpose of the hearing was precisely to determine whether there was a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and this was the issue that was determined."

Mr. Gatt submits, and we agree, that the issue said here to be precisely the issue to be determined at the PHR was not, in fact, the issue which was communicated to the parties in correspondence from the Tribunal and in the Notice of Hearing.

21. Following the Chairman's decision on the review application Primark applied for written reasons for his judgment on 25^th October. These were sent to the parties on 20^th January 2006. The following points arising from these written reasons are significant in this appeal. Firstly, in paragraph 2, the Chairman characterises the issue for the PHR as being,

"… whether or not there was a transfer of the claimant's employment from the first to the second respondent by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ('TUPE')."

We observe, once again, that this was not the issue which had been identified by the Tribunal in notifying the parties of the PHR.

22. Secondly, the Chairman was, at least impliedly, critical of Primark for not having adduced evidence before him. At paragraphs 7 and 8 he said:

"7 At the pre-hearing review, it emerged that there was a draft agreement dated 11 February 2005 between Allders, the administrators of Allders and Primark for the sale of some of the premises of Allders to Primark. The relatively few pages of the agreement that have been disclosed and put before the Tribunal show that (at paragraph 9.3) there is the following clause in the agreement:

'The administrators and the companies will co-operate in full with the purchaser in relation to each and every information and consultation procedure and redundancy and dismissal procedure which may be required under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE), the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) and the Employment Rights Act 1996 (ERA) regarding the employees and undertaken by the administrators and/or the companies and/or the purchaser (as the case may be).'

8 The first respondent, as I have indicated, has not attended the hearing nor has it been represented, despite giving its consent to the continuation of these proceedings. The second respondents have been represented but have not sought fit however to produce any oral evidence from witnesses. They have not produced any written witness statement. Mr. Taggart has produced only a few pages of the agreement between the administrators and Primark referred to above. That is clearly a relevant document. Mr Taggart's reasoning is that he did not consider it relevant to produce the rest of the document. Usually such agreements contain a list of employees who are regarded as having been transferred under TUPE. It is possible that such a list is set out in the document but it is certainly not before me. Although Mr Taggart has not given oral evidence himself, he has been able to give some information of relevance to the issue before me."

23. After referring in paragraph 9 to "an agreement on 11 February 2005 involving the sale of assets and stores of Allders to Primark" the Chairman stated that, in deciding whether there was a relevant transfer of the Claimant's employment, he had had regard principally to the case of Spijkers v Gebroeders Benedik Abattoir CV [1986] ECR 1119. He found at paragraph 13 that he was satisfied that Allders' tangible assets, such as buildings or movable property, were transferred, observing that:

"From the limited amount of information that I have, it is clear that the Coventry site where the Claimant was employed was purchased by Primark … it is not clear whether or not customers were transferred."

24. At paragraphs 16 and 17 he concluded as follows:

"16 Mr Taggart invites me to decide if the employee was dismissed prior to the transfer taking place. Having regard to the purposive approach set out in Litster -v- Forth Dry Dock & Engineering Co Ltd [1989] IRLR 161, I am satisfied that the claimant would have continued to remain in employment were it not for the transfer. In any event, the agreement is dated 11 February 2005 and the claimant was not dismissed until 14 February 2005, three days after the agreement, and was thus employed immediately before the transfer. It seems to me irrelevant whether the agreement was completed subsequently as Mr Taggart suggests, for which he produces no evidence. The fact remains that an agreement in principle was reached on 11 February 2005 which is why the document bears that date. If it had been no more than negotiations, the document would not have been dated.

17 For the reasons given, I am satisfied that there was a relevant transfer of the claimant's employment from the first to the second respondent and that accordingly, the first respondent should be dismissed from the proceedings and the matter shall proceed to a full hearing against the second respondent."

It is common ground that the Chairman's reference to 14^th February as the date of the Claimant's dismissal is erroneous.

25. THIS APPEAL

In responding to Primark's two grounds of appeal (see paragraph 2 above) Mr Burgher, in a series of attractively presented submissions on the Claimant's behalf, sought to persuade us firstly that Mr. Taggart had misjudged the position both before and during the hearing. If he was unprepared for what the Chairman clearly understood to be the issue to be decided or if he considered, as Mr. Gatt expressed it, that "the goal posts had been moved", then the proper course was to disengage from the proceedings and request an adjournment, and not, as occurred, to question the Chairman's assessment of the situation and challenge the basis upon which the parties were there. There was only one way in which the Claimant could have been employed by Primark, namely if there had been a TUPE transfer and it was therefore obvious, at least to the Claimant and her representatives and to the Chairman, that these issues, which were inextricably linked, would be determined at the PHR, in particular when, a month before the hearing, the Tribunal notified the parties that half a day had been allocated instead of the initial one hour listing. Mr. Taggart was therefore the author of his own misfortune in so far as there was any procedural irregularity and he cannot now rely upon his own misjudgement as a ground of appeal.

26. In response to Primark's second, substantive ground of appeal, Mr. Burgher contends that, as a result of Mr. Taggart's misjudgement and his failure to provide the Tribunal with relevant evidence and documentation, the Chairman had to arrive at his conclusions on the issue on the basis of the limited evidence which was available to him. He was therefore entitled to decide the matter on the basis of the Claimant's evidence and the extracts from the agreement produced to him and to conclude that there had been a transfer of assets from Allders to Primark before the Claimant had been dismissed. He was also justified in criticising Mr. Taggart for not assisting him and for not producing what information he had to suggest to the contrary. To the extent that the Chairman had no evidence as to the date of transfer completion before him this was the fault only of Primark and their representatives. Finality of litigation is important and it is too late now to seek to challenge the Chairman's judgment on appeal.
27. Well presented as these submissions were, however, we were unanimous in deciding that they should be rejected. In relation to the procedural irregularity it is clear from the Agreed Note, as Mr. Burgher fairly accepted, that as soon as the hearing began, and throughout the discussions which then took place, there was no meeting of minds between Mr. Taggart and the Chairman as to the scope of the issue to be determined and the reason for the PHR. We reject without hesitation, however, the suggestion that Mr. Taggart was himself at fault in some way in not understanding the "true" position.
28. On the Claimant's own, pleaded case she was dismissed on 12^th February 2005, approximately one month before, as she herself alleged, Primark took over the Coventry store where she worked on 11^th March; and after her dismissal the Joint Administrators for Allders continued to operate the store, at least in relation to their recruitment of necessary temporary sales assistants. The Claimant's pleaded case was consistent, in the main, with the pleaded cases of both Allders and Primark, though Primark's ET3 gave the date of completion of the store's transfer to them as 25^th and not 11^th March. On these pleaded facts, which were not in dispute, a TUPE transfer could not have transferred the Claimant's employment to Primark, but only Primark's liability for termination, the question of transfer and the reason for and fairness of the Claimant's dismissal being issues required to be determined at a hearing in the usual way. We agree with Mr. Burgher that the Claimant could only have been employed by Primark if there had been a TUPE transfer. However, on the pleadings and undisputed facts in this case, the Claimant was dismissed before the transfer took place.
29. It is common ground between the parties that the case of Wheeler v Patel and J Golding Group of Companies [1987] IRLR 211 EAT is authority for the proposition that, for the purposes of deciding when a TUPE transfer took place, the relevant date is the date when the contract for the transfer was completed. Similarly, it is not in dispute that in the case of Wilson v St Helen's Borough Council [1989] IRLR 707 HL, the House of Lords held that a dismissal for a reason connected with a transfer is legally effective and is not a nullity. A dismissed employee cannot compel the transferee to employ him. Where the transferee does not take on the transferor's employees because they have already been dismissed by the transferor then the transferee is obliged to meet all the transferor's contractual and statutory obligations unless there is an economic technical or organisational reason for the dismissal entailing changes in the workforce. The liability transferred by virtue of TUPE is a liability to pay damages for wrongful dismissal or to comply with an order under the relevant employment legislation for unfair dismissal.
30. Against this background the Tribunal's notification of a short PHR, with the Chairman sitting alone and with a time estimate of just one hour to determine whether the Claimant was employed by Primark and with no directions for disclosure or for exchange and filing of witness statements, would reasonably indicate and did indicate so to Primark, that this was a straightforward issue to be disposed of on the face of the pleadings, and when directions could thereafter be given as to the future conduct and hearing of the disputed issues in the claim. Further, when the Claimant gave evidence at the hearing, she confirmed the truth of her witness statement, thereby confirming her date of dismissal as 12^th February and the continuing role of the Joint Administrators thereafter in the recruitment of temporary sales staff. In our view the Chairman's subsequent reconstruction of the issue to be decided at the PHR, in both paragraph 2 of his written reasons and in paragraph 3 of his reasons for rejecting the review application, was in error. Whether there was a TUPE transfer was not the issue of which the parties were notified and did not arise in any event for determination on the pleadings and undisputed facts. In particular the issue for the PHR was not defined as "whether the Claimant was employed or was to be treated as employed by Primark"; and Mr. Taggart in our judgment is not legitimately to be criticised for failing to understand the issue in that way in the circumstances. Although the subsequent alteration of the time estimate for the hearing from one hour to half a day was odd, we do not consider that this unexplained alteration, without further information and directions as to disclosure and the filing of witness statements was sufficient to put Mr. Taggart on notice in advance of the 25^th October that the position had changed since the Tribunal sent out the Notice of Hearing containing the issue to be determined.
31. The Chairman would be aware both of the pleadings and of the way the issue had previously been defined in the correspondence. For reasons which are not entirely clear to us, however, he continued to make clear during the hearing that he intended to determine whether there had been a TUPE transfer, even after Mr. Taggart sought to explain the position and his difficulties, as is clear from the Agreed Note. In doing so, in our judgment, he was in error. Regrettably, in our view, the Chairman maintained this position even after Primark's detailed review application and when he would have had further time to revisit the file and reflect upon the situation. In circumstances where the Tribunal had itself contributed significantly to Primark's understanding of what was to be dealt with at the PHR, Mr. Taggart cannot be criticised in our view for not seeking an adjournment at the hearing but deciding, instead, to apply for a review of the Chairman's decision immediately afterwards. That in our view was an entirely appropriate course for him to take in the circumstances. It is a matter of regret that the opportunity to put the matter right was not taken at that stage.
32. In so finding, notwithstanding Mr. Burgher's submissions, we tend to agree with Mr. Gatt's observation that the Claimant's representatives had "seen a bandwagon rolling" at the hearing, had gratefully jumped on and then stayed on when responding to Primark's application for the review. In our judgment the Chairman erred in proceeding to determine the transfer issue in circumstances where it must have been clear to him that Primark had not come prepared to deal with that issue and where it meant that he would be enlarging the ambit of the hearing beyond the straightforward issue identified and as arose from the pleaded facts. In the circumstances he ought to have adjourned the hearing in the interests of fairness, to enable Primark to prepare accordingly, and to have given appropriate directions to the parties. For these reasons Primark's first ground of appeal succeeds.
33. We should mention for completeness the one disputed matter in the Agreed Note of the hearing. It is Primark's submission that, in cross-examination, the Claimant, when asked to confirm that Primark took over the Coventry store at the end of March 2005, confirmed that Primark "took possession of the store in which she worked during March 2005". The Claimant disputed that she had said this however and the Chairman was asked by the EAT to consult his notes of the Claimant's evidence and to indicate whether the Claimant had said this. The Chairman's response, dated 6^th June 2006, was that he had "no note of the Claimant saying that Primark took possession of the Coventry store" but that he "does have a note to this effect before evidence started". He enclosed a copy of this note. Mr. Gatt submitted that we should infer from the whole of the contents of what is otherwise an Agreed Note that the Claimant did in fact say this. We were unable to decide on the basis of the Chairman's response that she did. However, it was in our view unnecessary to determine this issue given our clear conclusions on the merits of this first ground of appeal, which succeeds for the reasons we have given.
34. In relation to the second, substantive ground of appeal we are all of the view that this ground too must succeed, for the following reasons. Firstly, we accept Mr. Gatt's submission that the Chairman failed to make a clear finding as to when the transfer from Allders to Primark took place. At best it is only implicit from his reasoning that he considered it to have taken place on 11^th February. Given the pleaded cases of the Claimant and both Respondents that the Joint Administrators were still running the store and hiring sales staff after 11^th February, in order to ensure that the store was vacant on completion, and given the Claimant's pleaded case that Primark had not taken over the store before 11^th March, it was incumbent on the Chairman to give clear reasons for any finding that transfer had been completed at any earlier date or on 11^th February. The only evidence before him was the Claimant's evidence in her witness statement that the Joint Administrators continued to recruit sales staff after her dismissal, which would be inconsistent with a transfer to Primark on 11^th February.
35. We agree in addition that the Chairman misdirected himself in concluding, at paragraph 16 of his reasons, that it was irrelevant whether the transfer agreement was completed subsequent to 11^th February. In addition to the decision in Wheeler the European Court of Justice decided in the case of Celtec Limited v Astley [2005] IRLR 647 ECJ, as is common ground before us, that the "date of a transfer" within the meaning of the EC Business Transfers Directive is the date on which responsibility as employer for carrying on the business of the unit transferred moves from transferor to transferee. To the extent that the Chairman drew an inference against Primark on this issue, as a result of their failure to call evidence upon it, this in our judgment was erroneous for the reasons that we have already given in addressing the first ground of appeal.
36. This appeal is therefore allowed. In relation to disposal in those circumstances, Mr. Gatt sought to persuade us that, on the information available to the Chairman, he ought to have concluded that transfer took place after the Claimant's dismissal and that we should therefore substitute our own decision that her employment was not therefore transferred to Primark. However, on this matter we prefer Mr. Burgher's submissions, if the appeal were to be allowed, that given the confusion below the only fair and proper course would now be for this case to be remitted to a fresh Employment Tribunal for a hearing on all the live issues between these parties. We agree. No doubt a case management discussion, attended by the parties' representatives, will be of benefit in defining clearly the issues to be determined and giving appropriate directions for the hearing.