United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D PIEVSKY (of Counsel) Instructed by Pinsent Masons CityPoint One Ropemaker Street London EC2Y 9AH
For the Respondent	MR J TINDAL (of Counsel) Instructed by Rowley Ashworth 1 Snow Hill Plaza St Chad's Queensway Birmingham B4 6JG


 


SUMMARY

Transfer of Undertakings: Dismissal

Approach to regulation 8 of the TUPE Regs 1981 SI 1981 No. 1794, where transferee is neither on the scene nor identified at the date of the dismissals, Morris v John Grose Group Ltd [1998] ICR 655 considered.


 


MR JUSTICE BEATSON

1. This is an appeal from the decision of an Employment Tribunal at a pre-hearing review on 21 March 2007. The Tribunal decided that the Claimants' dismissal by RDS Automotive Interiors Ltd (hereafter "Interiors") on 6 May 2005 was automatically unfair by virtue of regulation 8(1) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 SI No.1794.
2. Interiors manufactured interiors for motor vehicles. Over 50 per cent of its business was with MG Rover. On 8 April 2005 MG Rover went into administration. Less than a month later, on 4 May 2005, Interiors also went into administration. Its assets were subsequently transferred to Inglethorpe Ltd, which later became CAB Automotive Ltd (hereafter "CAB"). The Employment Tribunal found that the Claimants were dismissed by reason of the transfer by Interiors to the undertaking that became CAB. By a notice of appeal filed on 2 May 2007 CAB appeals against that decision.

The facts

3. The Tribunal's primary findings of fact are contained in paragraphs 3(1) –3(15) of its decision. The material findings can be summarised as follows. On 8 April 2005 when MG Rover went into administration it owed Interiors £1.7 million. That day Interiors released all temporary staff and laid off full-time employees who were working on the MG Rover production lines. Interiors sought alternative sources of work and had other contracts, including one with Jaguar/Land Rover. However, as a consequence of the MG Rover's administration, its suppliers severely limited its credit and pressed for payment of sums due. This produced severe cash flow problems.
4. On 13 April 2005 Interiors announced further possible redundancies. A proposal that the remaining employees take a temporary reduction in salary was turned down. By mid April the directors of Interiors had taken advice from Grant Thornton and, at the end of April, from Mr Morris, an insolvency practitioner with the Till Morris Partnership. Mr Morris advised the directors that Interiors would not be able to pay its debts. As a result, at board meetings on 28 April and 4 May Interiors' directors resolved to put the company into administration. They appointed Mr Morris as administrator and he nominated his colleague Mr Mitchell to handle the administration. Mr Mitchell and Mr Griffiths, a consultant responsible for Interiors' day-to-day management, gave evidence. The Tribunal's findings, however, focus on Mr Griffiths' evidence and statement. We accept Mr Tindal's submission that there was no material difference between their evidence.
5. On 5 May Mr Mitchell visited Interiors and spoke to Mr Griffiths. Mr Griffiths' evidence was that Mr Mitchell told him that "his role was to tidy up the business to sell to somebody else". The Tribunal refers to the Administrator's identification of three possible objectives for the administration. Of those, he stated "achieving a better result for the company's creditors as a whole [than] would be likely if the company were wound up (without first being in administration)" was his objective.
6. Mr Mitchell instructed Mr Griffiths to arrange a meeting with senior managers the next day. At the meeting on 6 May Mr Mitchell told the managers they needed to cut the business "back to the bone and that, save for those employees who were involved in the operational needs of the sustainable business, all other employees should be dismissed on grounds of redundancy". The Tribunal found that on that morning the Administrator:

"… was intent on reducing the substantial overhead of the employees' wages so that for the purposes of the administration and its future conduct he was left with a sufficient number of people required in the operation to meet the needs of a sustainable business".

7. Mr Griffiths stated that Mr Mitchell said he "just wanted the business to be a very lean operation". The managers were instructed to select the employees who were involved in the operational needs of the sustainable business within an hour and a half. The managers applied selection criteria which had previously been used in the company. They did not limit consideration to those employees involved in the MG Rover contract. Seventy-two employees were selected for redundancy. Some had little or no previous involvement with the MG Rover contract. After the selection, there were separate meetings that morning with the group to be made redundant and with the group who were to be retained. The directors of Interiors were not consulted and not involved in the meetings between Mr Mitchell and management.
8. In 3 May, very shortly before Interiors went into administration RDS Automotive Ltd (hereafter "Automotive"), a company involved in designing interiors for motor vehicles, went into administration. All its employees were made redundant. Automotive had a contract with Jaguar/Land Rover for the design of the interior for the new Land Rover Defender. There was an overlap between the management of Automotive and the management of Interiors. Mr Miles, one of the Directors of Interiors, was also a director of Automotive. Mr Thompson, another of the directors of Interiors, together with his family, had a controlling interest in the RDS Group of which Automotive was part. Mr Thompson had formed a new company, RDS Advanced Limited (hereafter "Advanced"). Advanced agreed to purchase studio and design areas from Automotive with a view to continuing Automotive's contract for the design of the interior for the new Land Rover Defender.
9. On 4 May 2005, the day after Automotive went into administration and the day Interiors went into administration, Advanced completed its purchase of Automotive's studio and design areas. At that time there was no agreement between Advanced and Jaguar/Land Rover for Advanced to take over the design contract for the Land Rover Defender. On either 5 or 6 May Mr Thompson was asked to attend Jaguar/Land Rover with a business plan to discuss the proposal that Advanced took over that contract. At that stage Jaguar/Land Rover was not satisfied with the business plan he put forward.
10. On 6 May, after the completion of the redundancy exercise at Interiors and the dismissal of the Claimants, Mr Griffiths informed Jaguar/Land Rover what had happened. He was called to a meeting at Jaguar/Land Rover that afternoon and told that Jaguar/Land Rover had not accepted Mr Thompson's plan. It was, however, suggested to him that Jaguar/Land Rover would consider a novation of the design contract if Interiors could in some way combine with Automotive.
11. Over the weekend of 7 and 8 May Mr Griffiths, Mr Miles (a director of both Interiors and Automotive), Mr McCullock (Interiors' Financial Controller) and Mr Smith, who worked for Automotive, sought to put together a viable business plan enabling the contracts for both the design and the manufacture of the interior of the new Land Rover Defender to be acquired. Mr Thompson was prepared to sell the assets of Advanced to a new company. At a meeting on Monday 9 May they put proposals to Jaguar/Land Rover and Jaguar/Land Rover reacted positively to the proposals.
12. Interiors attempted to run its Jaguar/Land Rover production line using managers and other members of the workforce but on 9 May it became apparent that this was not possible. Mr Griffiths employed a number of temporary agency workers to carry out the work rather than re-employing some of those made redundant on the Friday.
13. On 12 May Jaguar/Land Rover wrote to Mr Griffiths confirming its agreement to working with a new company formed from Interiors and Automotive. On 11 May Messrs Griffiths, Miles, McCullock and Smith purchased the shares of an existing company, Inglethorpe Ltd. On that day Jaguar/Land Rover confirmed their agreement to the novation of the design contract to the new company and Mr Smith entered into an agreement with Mr Thompson to purchase Automotive's assets. On 13 May Inglethorpe acquired the assets of Advanced and agreed with the Administrator of Interiors that it would acquire Interiors' assets and its residual workforce. Inglethorpe's name was changed to CAB Automotive Ltd. The plan was that CAB would continue the contracts in particular that with Jaguar/Land Rover for the interior design of the new Land Rover Defender, and that, in due course, it would enter into a contract to manufacture the interior. On 3 August 2005 the dismissed employees instituted a claim complaining of unfair dismissal by Interiors or alternative by CAB.

The legislative framework

14. The relevant law is contained in regulations 8(1) and 8(2) of the Transfer of Undertakings Regulations 1981. These provide:

"(1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part V of the 1978 Act and Articles 20-41 of the 1976 Order (Unfair Dismissal) as unfairly dismissed if the transfer or a reason connected with it is the reason or principal reason for his dismissal.

(2) Where an economic, technical organisational reason entailing changes in the workforce in either the transferor or transferee before or after a relevant transfer is the reason or principal reason for dismissing an employee-

(a) paragraph (1) above shall not apply to his dismissal; but

(b) without prejudice to the application of section 57(3) of the 1978 Act or Article 22(10) of the 1976 Order (test of fair dismissal), the dismissal shall be for the purposes of section 57(1)(b) of that Act and Article 22(1)(b) of that Order (substantial reason for dismissal) be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."

15. The Tribunal set out these provisions in paragraph 4 of its decision. In one respect it did so wrongly. The last phrase of regulation 8(1) is stated to be "if the transfer or a reason connected with it is a reason or principal reason for his dismissal" rather than "if the transfer or a reason connected with it is the reason or principal reason for his dismissal" (emphasis added).

The Tribunal's decision

16. The Judgment of the Tribunal states that:

"The unanimous judgment of the Tribunal is that the claimants were not dismissed for an economic, technical or organisational reason within Regulation 8(2), Transfer of Undertakings Regulations, 1981 but that the principal reason for dismissal was within Regulation 8(1)."

The reasons for this conclusion are contained in paragraphs 6(1) – 6(5) of the decision. The Tribunal rejected the primary submission made by Mr Tindal on behalf of the dismissed employees that the group that formed CAB had formulated a plan in advance of the redundancy to induce the Administrator to reduce the workforce so they could then purchase a slimmed-down company: paragraph 6(1). It found that, although the transfer plan arose shortly after the dismissals, the decision to dismiss was that of the Administrator: paragraph 6(2). It found that at the time of the dismissals on 6 May CAB's owners did not know whether Mr Thompson's efforts to secure the design contract with Jaguar/Land Rover by acquiring Automotive's assets had failed. By the time they knew this, the decision to dismiss the selected employees had already been put into effect: paragraph 6(2).

17. The Tribunal found that the Administrator was acting in a totally independent capacity and, although things happened with great rapidity, that was not unusual where a company had gone into administration and efforts were being made to preserve a continuing commercial relationship. It considered the Administrator's stated intention "to tidy up the business to sell to somebody else" and said it was clear from his evidence and also from the creditor's report that his intention had been to continue to trade the company whilst he sought a buyer: paragraph 6(4).
18. On the assumption that the Claimants' submission that there was collusion between the Administrator and the controllers of the transferee company was rejected, their submission was (see paragraph 5(2)) that it was part of the Administrator's job to identify a buyer for the business in its slimmed-down form, he hoped to find a buyer and, in the light of the decision in Morris v John Grose Group Ltd [1998] ICR 655, this sufficed for the dismissals to have been "in connection with the transfer" within regulation 8(1). Mr Tindal had submitted that the transfer was more than a remote possibility. He also relied on the decision in Wheeler v Patel [1987] IRLR 211 for the proposition that, in the absence of an intention to continue the business, the reason for a dismissal would not have related to the future conduct of the business which was a requirement for the dismissal to have the benefit of the saving provisions of regulation 8(2). The Tribunal summarised Mr Tindal's submission as: "to engage in dismissal as a cost cutting exercise with a view to a possible sale, does not bring the dismissals within regulation 8(2)".
19. Paragraph 6(5) is crucial. The Tribunal states that it drew particular assistance from the decision of the EAT in Morris v John Grose Group Ltd. [1998] ICR 655. In that case receivers were appointed on 27 September 1976 and the Claimant was selected for redundancy and dismissed on 30 September. The receiver continued trading and negotiated a sale of the business assets on 5 November. The Tribunal in that case found that, on the date of the redundancies, the receiver had in mind the possibility of a transfer and had hoped to identify a possible purchaser. The EAT presided over by Bell J stated, at page 666C, that in order for regulation 8(1) to apply at all there must have been a relevant transfer which means that:

"the identity of the transferee, the date of the transfer, and the terms of the actual transfer have all been decided by the time the matter comes before an industrial tribunal."

The EAT formulated the correct approach as follows. It stated (at page 667G-H) that on its construction of Regulation 8(1) the question a Tribunal should ask is:

"whether a transfer to any transferee who might appear, or a reason connected with such a transfer, was the reason or principal reason for the dismissal."

It held that the Tribunal in that case:

"erred in law in asking whether the transfer to John Grose Group Ltd., or a reason connected with the transfer to John Grose Group Ltd, was the reason for the Applicant's dismissal."

In this case the Tribunal's decision is contained in the last part of paragraph 6(5). It states:

"With the benefit of the judgment in the Morris case and considering the evidence in particular of Mr Griffiths and Mr Mitchell as to the intentions of the administrator, the Tribunal does not conclude that his decisions fell within Regulation 8(2) being an economic, technical or organisational reason as the administrator was not simply intent on engaging in an exercise of reducing the overhead because of a cash flow problem. His clearly stated intention was to slim down the company with a view to sale. In consequence the exercise which was carried out at his direction on the morning of 6 May resulted in dismissals which were connected with the transfer, even thought the actual identity of the transferee was not known until negotiations had been concluded in the following week."

The grounds of appeal

20. CAB raises five grounds of appeal. The first is that the Tribunal erred in law in not approaching the issues in the light of the structure and content of regulation 8. On behalf of CAB, Mr Pievsky submitted that the Tribunal treated the provisions of regulation 8(1) and 8(2) as mutually exclusive, contrary to the decision in Warner Adnet Ltd [1998] ICR 1056 at 1064 and 1067.
21. The second ground is that the decision in Morris v John Grose Group Ltd is wrong. Mr Pievsky submitted that the EAT erred in deciding that regulation 8(1) can apply where, at the time of dismissal, no offer has been made to buy the assets of the transferor company and the transferee and the transfer only emerged later. He invited us to prefer the approach of the EAT presided over by Morison J in Ibex Trading Co v Weldon [1994] ICR 907.
22. Alternatively, Mr Pievsky submitted, the Tribunal erred in failing to apply the decision in Morris v John Grose Group Ltd correctly because that case makes it clear that regulation 8(1) will not apply if, at the date of dismissal, a transfer is no more than a "remote possibility" or "a twinkle in the eye": see [1998] ICR 655 at 666G and 667C-D. Additionally Mr Pievsky submitted that the Tribunal's decision proceeded on the erroneous assumption that, in Morris's case, the EAT found that regulation 8(1) applied and that regulation 8(2) did not.
23. The fourth ground of appeal is that the Tribunal erred by focusing unduly on the inferred generalised intention of Interiors' Administrator at the moment of his appointment on 5 May. The fifth ground of appeal is that the Tribunal failed to take into account relevant considerations and acted perversely in considering whether regulations 8(1) and 8(2) applied, and in concluding that the Administrator's intention in dismissing the Claimants was to sell the business to a third party.
24. Mr Tindal submitted that the majority of these grounds seek to reopen factual issues, in particular the Tribunal's decision that what the Administrator did was not just a cost cutting exercise but was "to slim down the company with a view to sale". He accepted that the first and second grounds raise questions of law, but submitted that the first is essentially no more than a criticism of the articulation and drafting of the Tribunal's reasoning. In the light of the guidance in Jones v Mid-Glamorgan County Council [1997] IRLR 685, he said the Tribunal's reasoning ought not to be subjected to an unduly critical analysis. Waite LJ stated in Jones's case that, when considering the reasons of a Tribunal at an appellate level, the guiding principle must be that, if it has directed itself properly in law and reached a conclusion which is open to it on the evidence, "the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit no explanation save error of law". Mr Tindal also relied on Shamoon v Chief Constable of the RUC [2003] IRLR 285 at paragraph 59 per Lord Hope.
25. Mr Tindal submitted that the second ground of appeal, the correctness of the decision in Morris v John Grose Group Ltd, is closely connected with the third ground, and that is primarily a factual assertion. He argued that the third ground is principally a submission that there was no evidential basis for the Tribunal to conclude that at the time of the dismissals a transfer was "more than a remote possibility".
26. As to the fourth ground, Mr Tindal submitted that it essentially contends that the Tribunal should not have drawn the conclusion it did with regard to the Administrator's intent. He submitted the Tribunal was entitled to find, as it did, that the supposed intention of the Administrator at the time of his appointment on 5 May was determinative of both the regulation 8(1) and regulation 8(2) issues. Finally, Mr Tindal submitted that the fifth ground of appeal essentially attacks the weighing of the evidence by the Tribunal.

Discussion and decision

27. We remind ourselves of the fact that the scope of appeal from an Employment Tribunal to this Tribunal is limited to questions of law. The EAT can only interfere where it is satisfied that a Tribunal has misdirected itself as to the applicable law, if there is no evidence to support a particular finding of fact since the absence of evidence is regarded as a question of law, or if the decision is perverse: see British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 35 per Lord Donaldson MR.
28. We first deal with the fifth ground of appeal. The formulation of this ground does not squarely allege that there was no evidence to support a particular finding or there is an error of law. Paragraph 31 of Mr Pievsky's skeleton argument lists four facts and one item of evidence. He submitted the Tribunal should have assessed their significance but did not. In substance this is a submission that the decision is perverse. We remind ourselves of the well known statement of Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraph 93 that a ground of appeal based on perversity

"…ought only to succeed where an overwhelming case is made out but the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care' …"

29. We do not consider this ground has been made out. We accept Mr Tindal's submission that Mr Pievsky's argument was in effect a submission that the Tribunal should have weighed the evidence differently. There was evidence by Mr Mitchell and Mr Griffiths from which the Tribunal could conclude that the Administrator's intention was not simply cost cutting, but was to slim down the company with a view to its sale. It is wholly misconceived to submit, as Mr Pievsky did, that the Tribunal's treatment of the significance of Mr Mitchell's evidence during cross-examination indicated either error of law or perversity. Moreover, this ground relies in part on the significance of Jaguar/Land Rover's willingness on 9 May to continue with some of the work done by Interiors. That, however, was only apparent after the decision to dismiss the employees.
30. It is convenient to treat grounds one and four together. The Tribunal found that the dismissals were "with a view to sale" and was, in our view, entitled to consider the intention of the Administrator in relation to both the regulation 8(1) and the regulation 8(2) issues. The language of the decision is, however, somewhat compressed. In view of the guidance in Jones v Mid-Glamorgan County Council that, on its own, would not have sufficed. However, we have been persuaded that the Tribunal did not adequately consider the question necessitated by the terms of regulation 8(1): that is whether the transfer or a reason connected with it was the reason or principal reason for the Claimants' dismissal. The final sentence of paragraph 6(5) of the Tribunal's reasons states that the dismissals were "connected with a transfer". This is not the same as, and lacks the essential requirement of, identifying the reason for dismissal. In the light of the misquotation of regulation 8(1) to which we have referred, we consider that in this respect the Tribunal, in the final sentence of paragraph 6(5), erred in law.
31. We also accept Mr Pievsky's submission that it appears from paragraph 6(5) of the Tribunal's reasons and the terms of its Judgment (set out in paragraph 16 above) that it wrongly thought that regulations 8(1) and 8(2) were alternatives. The position, as Mummery LJ stated in Warner Adnet Ltd [1998] ICR 1056 at 1064 is that they are not:-

"There would be no point in including the concept of an economic, technical organisational reason in … [the regulations] … if a finding that a dismissal was by reason of a transfer was determinative of an employee's claim for unfair dismissal. If the transfer is not the reason, there is no need to enquire further. If it is the reason, regulation 8(2) may apply. If it does, regulation 8(1) is then disapplied and the dismissal is not automatically unfair."

Unless a Tribunal addresses the question necessitated by the terms of regulation 8(1) and answers it affirmatively so that regulation 8(1) is engaged, regulation 8(2) is irrelevant. The Tribunal did not do so and its decision must be set aside.

32. In the light of our conclusion on the first ground of appeal, it is not necessary for us to reach a decision on the second and third grounds. However, in the light of the differences between what was stated in Morris v John Grose Group Ltd and in Ibex Trading Ltd v Weldon we consider we should make a number of observations. First we would have rejected the invitation to rule that the decision in Morris's case was wrong. It is the most recent decision of this Tribunal on this issue. It decided to follow Harrison Bowden Ltd v Bowden [1994] ICR 186 rather than Ibex Trading Co Ltd v Walton [1994] ICR 907 and did so after reviewing the relevant authorities with the exception of Sidney Smith v Hill EAT 17 February 1998. (See page 666D). The approach taken in Morris's case is also more consistent than that in Ibex's case with the broad scope of Directive 77/187/EEC which the 1981 regulations implement.
33. Mr Pievsky accepted that there does not have to be a concluded contract to buy the assets for regulation 8(1) to apply. He, however, suggested that where, at the time of the dismissal, no offer has been made to buy the assets of the transferor company and the transferee is not on the scene, regulation 8(1) can only apply where there had previously been a potential transferee who had dropped out. We reject this suggestion. We consider that regulation 8(1) can apply, for example, where a number of potential transferees are interested but, at the time of the dismissal matters were at a very early stage.
34. With regard to the third ground of appeal, the Tribunal relied on an analogy with the facts of Morris's case for its overall conclusions. It does appear from this that it may have proceeded on the assumption that in Morris's case the EAT found that regulation 8(1) applied and regulation 8(2) did not. In fact the EAT did not decide anything about regulation 8(2) save that it might potentially be in play. However, this would not, in itself, have sufficed to justify us remitting the case.
35. The more significant part of this ground of appeal is the submission that the Tribunal did not make a finding that on 6 May 2005 any transfer was more than "a remote possibility". This is bound up with the Tribunal's approach to the regulation 8(1) question. Mr Tindal submitted the phrase "more than a remote possibility" was not part of the test formulated in Morris's case. The test formulated was that the transfer or a reason connected with it must be "the reason or principal reason" for dismissal. Mr Tindal's skeleton argument (in paragraph 37(ii)) states only that it is implicit from the Tribunal's finding that Mr Mitchell's intention was to slim down with a view to sale that it found he not only felt that transfer was a realistic possibility but that he made the dismissals to encourage transfer. In the context of the failure that we have found to adequately articulate and consider the question necessitated by the terms of regulation 8(1), it is not possible for us to accept that this was implicit in the Tribunal's finding.
36. This appeal is therefore allowed. Mr Pievsky invited us not to remit the case but to find that regulation 8(1) does not apply in the circumstances of this case. We decline to do so. His alternative submission was that the case should be remitted for hearing before a different Tribunal. Mr Tindal, however, submitted that this was unnecessary and that this was an appropriate case for remission to the same Tribunal.
37. We have considered the principles discussed in Sinclair Roche and Temperley and Others v Heard and Fellows [2004] IRLR 763, a decision of this Tribunal presided over by the then President Burton J. We consider that, as in that case, although there will be a genuine rehearing with fresh evidence and fresh submissions time will be saved by leaving the evidence which has already been taken where it is, that is in the Tribunal's notes of evidence and, after sufficient refreshing of recollection, in the minds of the Tribunal and the parties. We are satisfied that, in the light of the factors set out in paragraph 46 of the decision in Sinclair Roche and Temperley's case and applied in paragraph 47, that this is a case where we can and should remit the matter to the same Tribunal. The decision was reached less than nine months ago. We are satisfied that this is not a case where either bias or partiality is or was involved or where the way the Tribunal handled the matter means that it is not appropriate to remit to the same Tribunal.
38. We are confident that, like any judicial body, this Tribunal will approach its task free of preconceptions and with an open mind in the light of the guidance in our decision. In Sinclair Roche and Temperley's case this Tribunal stated (paragraph 47.3) that the reopening of the Employment Tribunal's conclusions may not go only one way. That is the position here. The Appellants will seek to persuade the Tribunal that, on the proper approach to regulation 8(1), on the facts of this case, where at the time of the dismissal no offer was made to buy the assets of the transferor company and the transferee was not on the scene or identified, and had not even been formed, the transfer or a reason connected with it is not the reason or principal reason for the dismissals or that even if it is, regulation 8(2) applies in any event. The employees will be seeking to persuade the Tribunal not only that Mr Mitchell considered transfer was a realistic possibility but that he made the dismissals in order to encourage transfer. For these reasons we remit the matter to the same Tribunal.