United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0267/15/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 19 to 21 January 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

(SITTING ALONE)

 

 

 

 

 

 

ARCH INITIATIVES                                                                                              APPELLANT

 

 

 

 

GREATER MANCHESTER WEST MENTAL HEALTH

NHS FOUNDATION TRUST & OTHERS                                                       RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

FOR THE APPELLANT: Arch Initiatives	MR SIMON GORTON QC (of Counsel) Instructed by: Brabners Chaffe Street LLP Horton House Exchange Flags Liverpool Merseyside L2 3YL
FOR THE RESPONDENTS: For Mrs J Aulton and Royal College of Nursing	MR RICHARD RYAN (of Counsel) Instructed by: Royal College of Nursing Legal Services 2nd Floor Avalon House St Catherines Court Sunderland Enterprise Park Sunderland Tyne and Wear SR5 3XJ
For Unison Respondents	MS MELANIE TETHER (of Counsel) Instructed by: Unison Legal Services Unison Centre 130 Euston Road London NW1 2AY

 

 

 

 

 

 

 

APPEARANCES (continued)

 

 

 

 

 

FOR THE RESPONDENTS: For Greater Manchester West Mental Health NHS Foundation Trust	MR PAUL GILROY QC (of Counsel) Instructed by: DAC Beachcroft LLP 3 Hardman Street Manchester Lancashire M3 3HF
For Lifeline Project	MR WILL CLAYTON (Solicitor) Messrs Knight & Sons Solicitors The Brampton Newcastle-under-Lyme Staffordshire ST5 0QW

 

 

SUMMARY

TRANSFER OF UNDERTAKINGS - Service Provision Change

 

1.                  The service provision change regime is not to be construed as requiring that all the activities carried out by the putative transferor before the relevant date for the client cease and are carried out by a single putative transferee after the change, save where there is a reduction or increase on a qualitative basis when there can be a division between more than one putative transferee.  “Activities” is undefined and unqualified and is not to be read as analogous or co-extensive with the word “service”.

 

2.                  The statutory words have their ordinary meaning and are to be applied in a straightforward, commonsense way to the facts properly found.

 

3.                  Provided there is no error of law in a Tribunal’s approach and no perversity the findings as to what constitutes “activities”, whether they are fundamentally the same, and what constitutes an organised grouping, are all questions of fact and degree for the fact finding Tribunal.

 

4.                  There was no error of law or impermissibly narrow approach adopted by the Employment Tribunal in this case.  Findings of fact supported by evidence were made on the critical questions and the Employment Tribunal reached factual conclusions that were open in the particular circumstances of the case.

 

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

 

Introduction

1.                  This appeal against a Judgment with Reasons of Employment Judge Franey promulgated on 27 July 2015 concerns the Regulations relating to service provisions changes in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).  It raises the principal question whether it was open to the Employment Judge to conclude that there were two sets of activities and two organised groupings comprised within the service provided to Bolton Council, the client in this case and referred to as “Bolton”, by the Greater Manchester West Mental Health NHS Foundation Trust, who was the transferor or putative transferor in this case and whom referred to as “the Trust”, both of which were the subject of a service provision change, or “SPC” as I shall refer to it.

 

2.                  The facts in overview can be summarised as follows.  For some years Bolton contracted out the provision of services to adults in the Bolton area who are alcohol and/or drug dependent.  Until 31 December 2012 the Trust provided the overwhelming majority of those services through its Alcohol and Drugs Directorate, although it procured certain services through independent providers.  The Drug and Alcohol Services were provided pursuant to or by reference to a contractual framework summarised by the Employment Judge at paragraphs 24 to 35.  The Trust employed all of the Claimants (both the group of Claimants referred to as the “Unison Claimants” and Julie Aulton) until 31 December 2012 within the Drug and Alcohol Directorate.

 

3.                  In 2011 Bolton decided to remodel the service by way of a re-tendering exercise.  The Employment Judge found that the tender process took the form of two parts.  Those interested in providing services were invited to complete a pre-qualification questionnaire, or PQQ.  Those potential providers who successfully passed the PQQ stage were invited to a bidders’ briefing presentation in May 2012 with bids made thereafter.  The tendered services were split into five “Lots”.  The Lots were described in various places in the documentation, but the Judge adopted the summary that appeared in the PQQ.  He held that the crux of the remodelling for his purposes was that there was a separation of the functions of, on the one hand assessment, recovery planning and case management, which formed Lot 1, from, on the other hand, the delivery of different kinds of interventions that a recovery plan might identify, which formed Lots 2 to 5.  Lot 1 was required to be independent of Lots 2 to 5 so that the successful applicant for Lot 1 could not be awarded any contract for the remaining Lots.  In other words, it was part of the re-tendering exercise that there should be a division of the two functions.

 

4.                  Lifeline Project Ltd, the Second Respondent before the Tribunal and referred to as “Lifeline”, was the successful tenderer in respect of Lots 2 to 5, the delivery of interventions.  The Appellant, Arch Initiatives, referred to as “Arch”, was the successful tenderer in respect of the case management function, Lot 1.  All of the Claimants and the Respondents before the Tribunal save for Arch argued that the nature of the Claimants’ case management roles - that is to say, all apart from Mrs Aulton - meant that there was an SPC of the case management function in Lot 1 that was a part of the Trust’s undertaking prior to 1 January 2013 and in which they claimed to be employed, with that function being transferred to Arch on 1 January 2013.  They also argued that they represented an organised grouping of employees for SPC purposes with the relevant principal purpose and were assigned to that organised grouping.  The Employment Judge accepted those arguments.  He decided that there was a relevant transfer that was an SPC from the Trust to Arch on 1 January 2013 and that there were two organised groupings of employees, the Claimants in one organised group and Mrs Aulton as a single organised group, each of which had as their principal purpose the carrying out of case management activities for the client, Bolton, and to which each Claimant including Mrs Aulton in relation to her group was assigned.  The effect of those conclusions, given that none of the Claimant employees were taken on by Arch, is that they will argue that this was an act of unfair dismissal by Arch.

 

5.                  Permission to appeal was granted by HHJ Eady QC on all grounds identified in the Notice of Appeal.  There are six grounds, all of which are asserted to be errors of law.  There is no cross-appeal by any of the Respondents to the appeal, but they all resist it.  Those six grounds overlap to a greater or lesser extent and raise, as the case was advanced on Arch’s behalf by Simon Gorton QC, three essential issues as follows: (i) whether the Employment Judge adopted an impermissibly narrow approach to the definition of “activities” and the question of whether the activities in the hands of the Trust were fundamentally or essentially the same as the activities in the hands of Arch (grounds 1, 2 and 4); (ii) whether the Employment Judge made a hard edged error of law in holding that there can be a transfer of part of a service or part of an activity under the SPC provisions (ground 3); and (iii) whether the Employment Judge erred in law in concluding that there were two organised groupings with the relevant principal purpose, the challenge here relating to both groupings found (if there was an error on this basis, it follows that there was also an error in relation to the issue of assignment) (grounds 5 and 6).

 

6.                  On this appeal, as ready indicated, Arch appears by Simon Gorton QC.  I have been provided with skeleton arguments and heard submissions from Melanie Tether for the Unison Claimants, Richard Ryan for Mrs Aulton, Paul Gilroy QC for the Trust, and Will Clayton for Lifeline.  Those skeleton arguments and oral submissions were lengthy but helpful.  I have had regard to everything provided to me and I hope I will be forgiven for not reflecting in detail what each counsel submitted.

 

The Applicable Legal Principles

7.                  Regulation 2 defines a relevant transfer as a transfer or an SPC to which the Regulations apply.  Only Mrs Aulton argued before the Tribunal that there was an old style business transfer of part of an undertaking from the Trust to Arch here.  That argument was rejected, and there is no challenge to that decision.  The appeal accordingly concerns the SPC regime alone.  Regulation 3(1), (2) and (3) are critical for these purposes and provide as follows:

“(1) These Regulations apply to -

(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;

(b) a service provision change, that is a situation in which -

(i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”);

(ii) activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client’s behalf; or

(iii) activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf,

and in which the conditions set out in paragraph (3) are satisfied.

(2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.

(3) The conditions referred to in paragraph (1)(b) are that -

(a) immediately before the service provision change -

(i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;

(ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and

(b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use.”

 

8.                  The only definition, accordingly, of an SPC is that identified by Regulation 3(1)(b) together with the conditions that are set out at paragraph (3).  The broad approach to this regime as set out in the cases on the SPC regime since its introduction is also not contentious.  The approach has been summarised helpfully in a number of cases.  Three references suffice at this stage.  First, in Churchill Dulwich Ltd v Metropolitan Resources Ltd [2009] ICR 1380 EAT, presided over by HHJ Burke QC, held at paragraph 27 as follows:

“27. “Service provision change” is a wholly new statutory concept.  It is not defined in terms of economic entity or of other concepts which have developed under the 1981 Regulations or by Community decisions on the Acquired Rights Directive prior to April 2006 when the new Regulations took effect.  The circumstances in which service provision change is established are, in my judgment, comprehensively and clearly set out in regulation 3(1)(b) itself and regulation 3(3); if there was, immediately before the change relied upon, an organised grouping of employees which had as its principal purpose the carrying out of the activities in question, the client intends that those activities will be carried out by the alleged transferee, other than in connection with a single specific event or a task of short term duration, and the activities do not consist totally or mainly of the supply of goods for the client’s use, and if those activities cease to be carried out by the alleged transferor and are carried out instead by the alleged transferee, a relevant transfer exists.  In contrast to the words used to define transfer in the 1981 Regulations the new provisions appear to be straightforward; and their application to an individual case is, in my judgment, essentially one of fact.”

 

9.                  At paragraph 30 he continued:

“30. The statutory words require the employment tribunal to concentrate upon the relevant activities; and tribunals will inevitably be faced, as in this case, with arguments that the activities carried on by the alleged transferee are not identical to the activities carried on by the alleged transferor because there are detailed differences between what the former does and what the latter did or in the manner in which the former performs and the latter performed the relevant tasks.  However it cannot, in my judgment, have been the intention of the introduction of the new concept of service provision change that that concept should not apply because of some minor difference or differences between the nature of the tasks carried on after what is said to have been a service provision change as compared with before it or in the way in which they are performed as compared with the nature or mode of performance of those tasks in the hands of the alleged transferor.  A common sense and pragmatic approach is required to enable a case in which problems of this nature arise to be appropriately decided, as was adopted by the tribunal in the present case.  The tribunal needs to ask itself whether the activities carried on by the alleged transferee are fundamentally or essentially the same as those carried out by the alleged transferor.  The answer to that question will be one of fact and degree, to be assessed by the tribunal on the evidence in the individual case before it.”

 

10.              In Kimberley Group Housing Ltd v Hambley and Ors [2008] IRLR 682, which also concerned the provision of accommodation and related services, for asylum seekers in the North East of England, the transferor provided such services in Middlesbrough and Stockton under a contract with the Home Office.  On the expiry of the transferor’s contract, successor contracts were awarded to two different organisations, each of which was to operate in both towns.  The Tribunal found that there was no old style transfer under Regulation 3(1)(a) but that there was an SPC within Regulation 3(1)(b).  Although, as Mr Gorton emphasised, the case concerned Regulation 4, a number of paragraphs are helpful in relation to the proper approach to Regulation 3(1)(b).  In particular, at paragraphs 27 and 28 the Employment Appeal Tribunal, presided over by Langstaff J, held:

“27. If, however, one is looking at reg. 3(1)(b) having excluded reg. 3(1)(a) (as the tribunal here did in conclusions which, on that, are not appealed from and so we do not revisit) it seems to us that the first question for the tribunal is to identify the relevant activities, or as it may be relevant activity.  It is only when that has been done, very much as if this were a reg. 3(1)(a) transfer, where a tribunal would begin by seeking to identify the relevant economic entity, that the tribunal can see whether or not those activities come within reg. 3(1)(b)(ii), in this case as being activities which cease to be carried out by a contractor on a client’s behalf and are carried out instead by another person on the client’s behalf.

28. As to whether there was here a service provision change the tribunal identified the activities as we have described and no one challenges that description.  It seems to us that care may need to be taken by a tribunal in deciding what it is that constitutes the relevant activities.  If, for instance, here the relevant activities had been described as ‘maintenance operations’ then it is possible that there might have been a different conclusion, but we cannot consider that further.  The tribunal found that the activities of providing suitable accommodation and related supported services to asylum seekers in the town concerned had been carried out by a contractor on a client’s behalf.  That is all that reg. 3(1)(b)(ii) looks at: to see that those activities have ceased.”

 

11.              Then, at paragraph 35, the EAT said:

“35. We conclude that the tribunal here was entitled to come to the view that there was a service provision change.  It may be that there are some circumstances in which a service which is being provided by one contractor to a client is in the event so fragmented that nothing which one can properly determine as being a service provision change has taken place.  This tribunal considered whether that was the case here and concluded it was not.  We think that since there are two overlapping contracts now providing for activities which were previously provided by one provider that the tribunal was entitled to come to that view.  Having come to that view the question then turns to what the consequence is.  We observe that when a tribunal is examining the question whether there is a service provision change or not it is of course entitled to, and must, look at all the facts and their implications in the round, and it may be that a tribunal wishes to take into account as indicating that there is no service provision change any difficulties in determining who should take responsibility for an employee’s contract after any given date.  But as a matter of clarity and logical progression having taken that into account in determining whether there is a service provision change, as this tribunal here in our view was entitled to do, we turn now to what the consequence is and how reg. 4 operates.”

 

12.              Finally, in Enterprise Management Services Ltd v Connect-Up Ltd and Ors [2012] IRLR 190 the EAT, presided over by HHJ Peter Clark, summarised the proper approach as follows (paragraph 8):

“8. …

(2) The expression ‘activities’ is not defined in the Regulations.  Thus the first task for the employment tribunal is to identify the relevant activities carried out by the original contractor: see Kimberley, paragraph 28; Metropolitan, paragraphs 29-30.  That was the issue on appeal in OCS [Group v Jones UKEAT/0038/09] where the appellant’s challenge to the activities identified by the employment tribunal failed.

(3) The next (critical) question for present purposes is whether the activities carried on by the subsequent contractor after the relevant date, here 1 April 2009, are fundamentally or essentially the same as those carried on by the original contractor.  Minor differences may properly be disregarded.  This is essentially a question of fact and degree for the employment tribunal (Metropolitan, paragraph 30).

(4) Cases may arise (e.g. Clearsprings [Management Ltd v Ankers UKEAT/0054/08]) where the division of services after the relevant date, known as fragmentation, amongst a number of different contractors means that the case falls outside the SPC regime, as explained in Kimberley (paragraph 35).

(5) Even where the activities remain essentially the same before and after the putative transfer date as performed by the original and subsequent contractors an SPC [sic] will only take place if the following conditions are satisfied:

(i) there is an organised grouping of employees in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client;

(ii) the client intends that the transferee, post-SPC, will not carry out the activities in connection with a single event of short-term duration;

(iii) the activities are not wholly or mainly the supply of goods (rather than services) for the client’s use.

See reg. 3(3).  (Neither of (ii) and (iii) arise in this case.)

(6) Finally, by reg. 4(1) the employment tribunal must decide whether each claimant was assigned to the organised grouping of employees.”

 

13.              All of these authorities emphasise the fact that a Tribunal’s task in an SPC case is one of assessing the evidence and making findings of fact.

 

14.              Against that background I turn to address the three issues raised on this appeal.  I deal more particularly with Employment Judge Franey’s findings of fact and conclusions drawn from those facts in the context of the issues.  Since issue 2 raises a hard edged and contentious point of law that affects the approach to issues 1 and 3, I deal with that first.

 

Issue 2: Ground 3

15.              Mr Gorton submits that the case advanced by the Claimants was that they were part of a case management team readily discernible in the hands of the Trust before 1 January 2013 and replicated in the Single Point of Access and Assessment (“SPAA”) Service with Arch after the change.  That was accepted by the Employment Judge and is, as Mr Gorton contends, an argument that part of a service is capable of transferring as an SPC whereas as a matter of law, he contends, on a proper construction of the Regulations relating to SPCs that is wholly impermissible.  In his submission, as a matter of the natural construction of the Regulations, Regulation 3(1) draws a clear distinction between a business transfer under Regulation 3(1)(a) and an SPC under Regulation 3(1)(b) so far as the transfer of part of an undertaking, service or activity is concerned.  He submits that Regulation 3(1)(a) makes express provision allowing for the transfer of part of an undertaking whereas under the SPC regime no such provision is made.  The draftsman could have provided for the part-transfer of an activity but did not.  Indeed Parliament amended the TUPE Regulations, making the distinction between the two regimes even clearer by codifying the test in the Metropolitan Resources case by way of amendment introduced by Regulation 3(2A), which provides that references in paragraph 3(1)(b) to activities being carried out instead by another person, including the client, are to activities that are fundamentally the same as the activities carried out by the person who has ceased to carry them out.  Accordingly, what is required under the SPC regime is a simple comparative analysis of the activities carried out before and after the putative transfer, and in this regard “activities” is the same as and can be equated with the word “service” so that the word “service” in Regulation 3(1)(b) really adds nothing to it.

 

16.              That contention, he argues, does not mean that there cannot be more than one transferee in a particular case, as there was in the Kimberley case, since a quantitative division of the whole of the activities in the hands of the transferor will lead to a replication of the same activities, albeit on a reduced quantitative basis, in the hands of two or more transferees.  In his submission, the same is not true where there is a splitting of constituent elements or functions of a service and of the activities along such constituent or functional lines, as happened in this case, where case management was split from the delivery of interventions.  In Mr Gorton’s submission, there are good policy reasons for that.  SPCs are aimed at removing the uncertainty in labour intensive sectors and others that are frequently the subject of contract awards and changes where the retention of identity test was determined by a multi-factorial approach that gave rise to much uncertainty.  That uncertainty, he submits, was addressed with the introduction of this regime, which is dependent on activities being carried out before and after a putative transfer that are fundamentally the same.  He argues that part of an undertaking can transfer but part of an activity expressly cannot. This achieves relative certainty.  The test depends on satisfaction of the requirement that the activities remain fundamentally the same as between the transferor and transferee with minor differences only being ignored.  The simple purpose of the SPC regime that employees go with the work (see Eddie Stobart Ltd v Moreman [2012] ICR 919) is preserved.  If the work is split in a way that means two or more parts of a former service are transferred, the SPC regime is simply unavailable and does not apply.  To apply it in those circumstances would run contrary to its very purpose.

 

17.              I do not accept these submissions.  As Mr Gorton submits, the starting point must be the Regulations themselves.  These are domestic provisions that do not depend on any finding that there was a discrete economic entity in the hands of the transferor with or without functional autonomy.  For that reason, the interesting question raised by Mr Gorton and posed by the apparent difference in approach reflected in the Court of Appeal’s decision in Fairhurst Ward Abbotts Ltd v Botes Building Ltd [2004] EWCA Civ 83 on the one hand and the Court of Justice of the European Union’s decision in Amatori and Ors v Telecom Italia [2014] IRLR 400 simply does not arise here.  Instead, Regulation 3(1)(b)(ii) identifies an SPC as a situation in which “activities” cease to be carried out by the outgoing provider and are carried out instead by another person.  The word “activities” is not defined, and nor is it qualified in any way by words that could have been used to qualify it.  For example, the provision could have said “the activities”, “all of the activities” or “the principal activities”.  There is nothing in the Regulations that expressly requires that the relevant activities should constitute “all of the activities” carried out by the outgoing contractor.

 

18.              Nor, in my judgment, is there any justification for substituting or equating the word “activities” with the word “service”.  That could have been done, but it was not.  It seems to me that the fact that the service that is subject to an SPC can comprise “activities” connotes that the relevant activates in a particular case may be a subset of the whole of the activities carried out by the transferor, as Ms Tether submits.  Mr Gorton’s reliance on the absence of any express reference to “part of an activity” in contrast to the reference to “part of an undertaking” does not support his argument in light of the wording of the Regulations.  Given that this Regulation is framed by reference to “activities” rather than “the service”, it was unnecessary to provide expressly that there can be an SPC in relation to part only.  Since “activities” is undefined, there is nothing in principle to prevent some only of the activities that form part of service from being considered in the context of an SPC.

 

19.              As the Regulations and the authorities to which I have been referred and some of which I have referred to above make clear, the first question for a Tribunal in every SPC case is whether the activities that cease to be carried out by the outgoing person and are carried out instead by the incoming person after the relevant date are fundamentally or essentially the same, and that question is a question of fact for the fact finding Tribunal.  There is no need to read in any limitation such as Mr Gorton contends for because limiting conditions are expressly provided by the SPC regime itself.  The limiting conditions are those identified at Regulation 3(3).  Of particular relevance in this case and in most cases is the requirement that immediately before the relevant date there must be an organised grouping of employees that has as its principal purpose the carrying out of the activities concerned on behalf of the client.  In other words, not only must the activities be fundamentally the same both before and after the putative transfer date, but there must be an organised grouping of employees, and that organised grouping of employees must have as its principal purpose the carrying out of the activities that cease and are carried out instead by the incoming person.  The words of Regulations 3(1)(b) and 3(3) have their ordinary straightforward meaning, and their application to an individual case is one of fact and degree for the assessment of the fact finding Tribunal.

 

20.              In Kimberley Langstaff J rejected the argument that Regulation 3(1)(b) can only apply when there is one transferee to whom the activities transfer, invoking section 6 of the Interpretation Act 1978 to the effect that words in the singular include the plural.  He held that the Tribunal in that case was entitled to conclude that there was an SPC where two overlapping contracts awarded to two transferees provided for activities previously provided by one provider.  Although in that case the division of activities involved a quantitative split, I can see no reason why the SPC provisions should not in principle apply in a case involving a division on functional lines.  The ways in which the activities of a service may be organised are infinitely variable.  They may be organised geographically, in teams, in departments or by reference to particular functions or processes.

 

21.              Equally, it is commonplace for contract awarding bodies to split a service into different components or functions when re-tendering, each of which is assigned to a different incoming contractor.  Whether or not the SPC provisions in fact apply in any of these circumstances will depend on the application of the particular conditions within the SPC regime to the facts of the particular case.  A split or change in activities is plainly a relevant consideration in assessing whether the activities cease in relation to the outgoing contractor and whether fundamentally the same activities are carried on by the incoming contractor for the same client, but at the end of the day in each case the question is one of fact and degree.

 

22.              Moreover, once a Tribunal has decided that there is a sufficient degree of similarity between the activities of the service in the hands of the putative transferee as compared with those in the hands of the transferor before the putative transfer, then the question will be whether before the change there existed an organised grouping of employees whose principal purpose was the carrying out of the activities for the client.  That, again, will be a question of fact and degree, and there is no reason in principle to limit the number of organised groupings of employees to one in any SPC case.

 

23.              I reach those conclusions without regard to the purpose of the SPC regime but by adopting a straightforward and natural reading of the words used within the Regulations.  To the extent that the aim or purpose is relevant, in my judgment this construction is consistent with the aim of the regime, which is to remove or reduce the uncertainties and difficulties created by the need under the old style transfer provisions to establish a transfer of a stable economic entity that retained its identity in the hands of the putative transferee by introducing a new definition of relevant transfer that covers three situations: outsourcing, insourcing and a change in contractors - all of which caused problems under TUPE.  If, as Mr Gorton contends, the SPC regime applies only where the whole of the activities carried out by the outgoing person are replicated in the hands of the incoming person, the range of situations in which the SPC provisions are capable of applying would be substantially restricted and it would be easy for the provisions to be circumvented so as to frustrate the purpose of the SPC regime.

 

24.              I also derive some small measure of comfort from the fact that my conclusion accords with the Department for Business, Innovation and Skills guidance, albeit that guidance is non-binding and is certainly not decisive in any way as to the true meaning of the Regulations.

 

25.              The Employment Judge concluded that there was nothing in Regulation 3(1)(b) to prevent an SPC occurring where activities are split between more than one new contactor and where there is more than one organised grouping of employees.  Although my reasons are not the same as those he gave, in my judgment there is no error of law in his conclusion on this point, and this ground of appeal is accordingly dismissed.

 

Issue 1: Grounds 1, 2 and 4

26.              In relation to these three grounds, Mr Gorton submits that although the Employment Judge gave himself a correct self-direction at paragraph 200 that direction was promptly ignored at paragraph 201 onwards and he took a wholly narrow and impermissible view of what the activities were that were being carried out by the Trust before the change and by Arch afterwards.  He submits that the Employment Judge wrongly focused on the Claimant’s activities - that is to say, the case management functional services - rather than carrying out an analysis of the whole of the activities carried out by the Trust.  This was necessary in order for the comparative analysis that had then to be carried out, namely whether the activities carried out by the putative transferor remained essentially or fundamentally the same in the hands of the putative transferee.  Mr Gorton contends that this error is most evident in the Employment Judge’s summary of the service at paragraph 207, where the intervention element of the activity is effectively relegated to a sub-clause, when in fact the intervention side of the service made up about 50 per cent of the workforce and represented the lion’s share of the contract values.  Although in oral argument Mr Gorton submitted that the delivery of interventions identified at paragraph 207(c)(ii) should have been broken down to reflect the specific interventions available, such as the specialist medical or nursing interventions, he was otherwise unable to point by reference to paragraph 207 to any additional activity that formed part of the service provided by the Trust to Bolton that did not form part of the Claimants’ activities and had accordingly been left out of account by the Tribunal.

 

27.              Mr Gorton also relies on the Employment Judge’s treatment of the alcohol part of the service and submits that there is a complete absence of analysis in relation to the alcohol side, save for a reference to what Mrs Aulton said, and the Tribunal accepted, were her individual job responsibilities.  That demonstrates an impermissibly narrow focus on the critical issue of activity and meant that when the Employment Judge asked himself the critical question whether after the alleged transfer the activities were the same in the hands of Arch the inevitable answer would be yes in relation to all of the Claimants.  Mr Gorton submits that this argument is made all the stronger by the way in which the Employment Judge dealt with the position after 1 January 2013 and completely failed to analyse what happened to the whole of the service, focusing instead on the activities carried out by Arch within SPAA, which was too narrow, and ignoring the wealth of evidence that showed how fundamentally different the service and the activities were in the hands of both Arch and Lifeline in comparison with the position before.

 

28.              Once again, I do not accept Mr Gorton submissions.  The Employment Judge gave himself an entirely proper self-direction at paragraph 200 that the important question for him was a consideration of what activities were undertaken by the Trust on behalf of Bolton.  Moreover, he expressly referred to the need to be mindful of not taking too narrow a view of the issue, and when he came to set out his findings as to what the activities were at paragraph 207 he made clear that he had taken a broad holistic view.  In his findings and his assessment of the evidence the Employment Judge examined carefully all of the activities that were undertaken by the Trust on Bolton’s behalf up to 31 December 2012 including in particular the delivery of interventions, which was properly explored.  The Judge found as a fact that all of the activities listed at paragraph 207 ceased and with the exception of the delivery of interventions ((c)(ii)) the other activities described at paragraph 207 were carried out by Arch from 1 January 2013.  There was evidence to support the findings of fact made in the earlier part of the Employment Judge’s Judgment and that supported those conclusions.

 

29.              Moreover, in my judgment, the Employment Judge was entitled to make his findings by reference to that broad assessment of the evidence and not to regard, as Mr Gorton submits he should have done, the contract values or the number of staff in post as determining the nature of the relevant activities.  Significantly, Employment Judge Franey made findings, in what is a careful and detailed Judgment that correctly recognised the task required of him and that was not focused too narrowly or indeed focused only on the activities carried out by the Claimants. These are as follows:

(1)     The service provided by the Trust to Bolton was found to be the management and provision of Drug and Alcohol Treatment Services in the Bolton area (see paragraph 199).

(2)     Mrs Aulton was a Registered Nurse and a Band 7 employee who the Trust appointed to the role of Team Manager of the Community Alcohol Team, otherwise referred to as the “CAT”, in 2006.  She dealt with alcohol services (see paragraph 36).  Findings about the CAT by reference to the contractual framework were made at paragraphs 25 to 27.  From at least May 2010 the Employment Judge found by reference to a template for the Alcohol Service, which described the Alcohol Service as a tiered service in line with the national model, that tier 3 represented the CAT involvement, and the Substance Misuse Practitioner was referred to as a keyworker or care manager (see paragraph 26).  In the national model, tier 3 is defined as including the provision of community based specialised alcohol misuse assessment and alcohol treatment that is care co-ordinated and care planned.  The Employment Judge found that this re-focusing on assessment and case management within the Alcohol Team was mirrored by similar changes over time in the drugs side of the service.

(3)     The remaining Claimants were in the drugs side of the service and worked as either Senior Substance Misuse Practitioners (“SSMPs”) or as Substance Misuse Practitioners (“SMPs”), whose principal role, they argued and the Judge ultimately accepted, was to case manage the clients whilst also providing on a reducing basis, interventions or treatments to clients mostly known as psycho-social interventions.  Two of the Claimants were in the Core Team, which is also at various points described as the Community Drugs Team, and the remainder were in the Criminal Justice Intervention Team (“CJIT”).

(4)     At paragraph 245 the Employment Judge found by reference to staff in post reports, some of which Mr Gorton relied on in the course of his submissions, that 14 names appeared on these reports as SSMPs or SMPs within CJIT.  In other words, there were 14 case managers, which included the eight Claimants, and five others not ultimately allocated to Lot 1, the Lot awarded to Arch and that comprised the SPAA.  At paragraph 241 the Employment Judge found that the anomaly represented by five was explained in a way that did not undermine the contention that there was an organised grouping of those case managers.

(5)     The fact that there was a blurring or mixing of work on the Drug and Alcohol Service and the extent of it was both recognised and addressed by the Employment Judge at paragraphs 39 to 41.  He also dealt with the fact that there was a mix in relation to where individual substance misusers came from by reference to community cases and those coming in through the Criminal Justice System.

(6)     At paragraphs 42 to 57 the Employment Judge made findings about changes in the way in which the Drugs Service was organised and delivered.  He said that this was a staged process first by reference to the Todd diagram, then by reference to the Barrett report, followed by the Rodgers transition plan.  In summary, the functions of the team that included the Claimants at the time of the Todd diagram included care planning and delivery of interventions, though all were described as case managers.  There was a restructure under Barrett that led to an increased emphasis on case management and less focus on interventions.  At paragraph 45 the Employment Judge held:

“45. The Barrett report went on to identify a treatment pathway for service users (page A1025) which included the allocation of

“… a Case Manager who would complete an assessment, a risk assessment and a TOPS [treatment outcome profile]; they would also start to develop the Recovery Action Plan (RAP) with the service user.”

…

47. The new structure envisaged in the Barrett report was implemented in the summer of 2011.”

(7)     At paragraph 48 the Employment Judge dealt with certain practical consequences of the CAT moving into Bentley House to join the Drugs Service.  He described the seating plan as not reflecting the distinctions whether functional or otherwise in the activities carried out by the different people within the service, and in particular he said at each bank of desks there was a person from each of CJIT, the Core Team and CAT together with a Nurse or Nurse Practitioner.  He found that the managers, Mrs Aulton and a number of others, were located in a different office on the first floor.

(8)     The Rodgers transition plan for the termination of shared care to be implemented by July 2012, had, on the Employment Judge’s findings, a significant consequence for the activities of SSMPs and SMPs.  It significantly reduced the time spent on interventions to as little as 5 per cent.  Instead, the SSMPs and SMPs were concentrating on the management of the care plan or recovery plan in other words, on case management and assessment.  At paragraph 216, just as there was that shift in emphasis and focus on the drugs side, there was a similar reconfiguring and refocus in the Alcohol Team (paragraph 216):

“216. The focus on recovery rather than maintenance was a significant feature of the new specification in the minds of the commissioners, but seemed to me to be a minor difference in the sense that it was a change of emphasis rather than any change to the activities themselves.  It was the bringing to further prominence of an element already present in the previous activities.  As one would expect, the contractual framework under the previous arrangements anticipated that users would exit treatment rather than remain within it indefinitely.  In relation to alcohol, that was inherent in the provision for the CAT to refer users completing treatment to ADS [the Alcohol & Drug Service] for moving on services.  Mrs Aulton’s description of her role in her letter of 1 October 2012 at page 467 made reference to “promoting recovery”.  In her oral evidence Mrs Aulton described how the alcohol service had been reconfigured in 2008, as evidenced by the document at pages A976b-A976e.  The intention was to redesign the treatment pathway, and the final stage was the completion of Tier 3 and 4 interventions before a referral back to ADS for a programme of support/aftercare focused group work.”

 

30.              The Employment Judge made detailed findings about the re-tendering process, the bid outcomes and the approach of both Lifeline and Arch as a consequence and also having been selected as the successful bidders.  These start at paragraph 58 and continue to paragraph 157.  I do not summarise these in detail but highlight the following:

(1)     Paragraphs 64 to 66 explain how the Trust’s service was divided into five Lots, Lot 1 being the SPAA.  This was defined at paragraph 66 as follows:

“Lot 1 - Single Point of Access and Assessment (“SPAA”).  This Lot aimed to provide a single point of contact for access and assessment for people with drug and alcohol problems in Bolton.  All users would come through [from] SPAA into the service and be assessed there.  SPAA would coordinate the interventions to be provided by the other Lots.”

(2)     The SPAA specification is described at paragraphs 75 to 78 by Employment Judge Franey with reference to the definition given of “case management” as the process by which the customer and the practitioner work together on the various aspects of the customer’s life that influence the customer’s health and social functioning and as including the planning, co-ordination, monitoring and evaluation of interventions delivered to address the customer’s needs.  “Psycho-social intervention” is also defined, together with what is the definition of a recovery action plan.

(3)     The way the Trust allocated employees to the different Lots is dealt with in detail by the Employment Judge and how and why that allocation changed subsequently is also described (see, in particular, paragraphs 116 to 119, 121 and 122).

(4)     Important findings are made by the Employment Judge about the mis-description by the Trust of Mrs Aulton’s role (see paragraphs 92 to 94 and 107).  The Employment Judge accepted Mrs Aulton’s description.  Significantly, it is clear from these paragraphs, as the Employment Judge accepted, that: (a) Mrs Aulton’s job description was provided by Bolton, and her post was funded by Bolton; and (b) her role was not to manage a brief intervention service but fitted better within the SPAA and case management service.

(5)     Lifeline’s view was recorded at paragraph 109 by the Employment Judge that there was a clear parallel between the terms of the service specification for the CJIT contract and Lot 1 awarded to Arch so that in Lifeline’s view those assigned to the CJIT should transfer to Arch.

(6)     At paragraph 110 the Employment Judge referred to an advert for a case manager within the SPAA service on Arch’s website with a job description that reflected case management and assessment functions.

(7)     At paragraphs 150 and 151 the Employment Judge made the following findings about the SPAA structure:

“150. The structure for the SPAA which Arch would adopt from 1 January 2013 was evident from two documents in the bundle, page 497 and page 2237-2238.  Miss Hall [the Eighth Respondent to the appeal] confirmed in re-examination that she had seen the version at page 497, but the date of its production was unclear.  The other version appeared in candidate information dated October 2012 and was preceded by the following:

“The SPAA is one department and will be split into two teams.  One team will focus on drugs and the other alcohol.  The management structure of this service is outlined overleaf …”

151. The structure then showed a Regional Director to whom reported a Department (Service) Manager, to whom reported the managers of Team 1 and Team 2 respectively.  Each team was comprised of “Recovery Co-ordinators”.  The structure did not identify whether Team 1 or Team 2 would focus on drugs or alcohol respectively.”

 

31.              The Employment Judge’s conclusions based on those findings start at paragraph 199 to which I have already referred, where he concluded that the service provided by the Trust to Bolton had two streams of activity - a management stream and the provision stream - in provision to both drug and alcohol treatment.  Again, as I have already indicated, there was the clear and careful self-direction at paragraph 200, which makes it highly unlikely, as Mr Gilroy submitted, that that self-direction was immediately ignored.  Then at paragraph 201 the Employment Judge made it clear that the exercise that he was about to embark upon was an exercise that would enable him to decide “what activities were performed by the Trust on behalf of Bolton”.  He identified four categories of evidence that he would assess as part of this process.  The first category was the view of third parties dealt with at paragraphs 202 and 203.  Here, the Employment Judge dealt with the evidence given by the Trust and Arch witnesses about the activities and about their view of what the Claimants did.  For the reasons the Judge gave, he was entitled to give little weight to that evidence, and these paragraphs more than adequately explain why no express reference was made to Mr Townsley’s evidence and the attempt in the course of cross-examination by Mr Gorton to reintroduce Mrs Saunders’ evidence through Mr Townsley.

32.              The second category of evidence was the service specification documents dealt with by the Employment Judge at paragraph 204, and this category of evidence shows clearly that the Judge had a wider focus than just the Claimants.  He was looking at areas of activity that were quite obviously broader than just the Claimants’ activities here.

 

33.              The third category of evidence he referred to was contemporaneous documents created during the currency of the service contracts.  This was addressed at paragraph 205, where he summarised by reference to contemporaneous documents the overall effect of the changes that they reflected and that he found to be consistent with the activities he identified ultimately.  The fourth category of evidence was the evidence of the Claimants themselves as to the activities in which they and their colleagues were engaged.  He accepted Mrs Aulton’s letter of 1 October as setting out an accurate record of her main responsibilities managing a multi-disciplinary team of Nurses, Social Workers and Substance Misuse Practitioners to deliver a treatment service at Tier 3 for those who drank alcohol dependently.  So far as the Claimants were concerned, he found that they worked in the drugs rather than the CAT Team and that their evidence was consistent with what the Barrett report envisaged would emerge in the refocusing of the service, including assessment, recovery action planning and the delivery of some interventions, all functions regarded by Mrs Barrett as within the remit of case managers.

 

34.              At paragraph 207 the Employment Judge put all of that together and expressly took a broad holistic view of the activities undertaken by the Trust for Bolton.  He found that the activities were:

“(a) the assessment of an alcohol or drug user’s needs;

(b) the preparation of a plan of action to address those needs and promote recovery;

(c) managing the execution of the plan through

(i) referral for interventions (which required liaison with external agencies), and

(ii) the delivery of interventions;

(d) monitoring and review of the plan, and

(e) completion of the plan and discharge of the user from treatment.”

 

35.              That finding related to both the drug and alcohol sides and was, in my judgment, amply supported by the evidence and the findings he made earlier.  At paragraph 208 the Employment Judge rejected the arguments advanced by Arch that only the CJIT workers had any formal element of case management.  He accepted that the contractual documentation for CJIT recognised case management in a way that other documents did not but concluded that that was a question of terminology, and, looking beyond terminology to substance, he reached the conclusion that the Claimants and their colleagues were managing the cases of their service users within the SPAA definition that he had earlier set out.

 

36.              Having made those findings in relation to the position up to 31 December 2012, the Judge correctly considered the question of the similarity or otherwise of the activities in the hands of the incoming contractors.  This is dealt with at paragraphs 209 to 222, and the Judge made two critical findings: first, that the activities set out at paragraph 207 except (c)(ii) ceased to be carried out by the Trust and were carried out after the relevant date by Arch (see paragraph 211) as the SPAA; and secondly, the activities within (c)(ii), namely the delivery of interventions, as described in Lots 2 to 5 also ceased to be carried out by the Trust and were carried out after the relevant date by Lifeline.  Although Mr Gorton argued both before the Tribunal and on this appeal that the service in Lifeline’s hands was fundamentally different to the service or activities in the hands of the Trust before the change, which was not the case advanced by Lifeline.  Lifeline accepted an SPC and accepted transferring employees.  Mr Gorton relied on a ‘measures’ letter to support his contention that the activities were, however, radically different, but it seems to me that the letter demonstrates that the measures Lifeline proposed to take after the change identified the potential for economic, technical or organisational changes in the workforce rather than demonstrating that the service in the hands of Lifeline was fundamentally different.

 

37.              In those circumstances, and since no claims were made against Lifeline and no issue arose in relation to Lifeline, it is unsurprising that there was less focus on the activities in the hands of Lifeline in the Employment Judge’s Reasons than there was in relation to Arch.  Nevertheless, the Employment Judge expressly addressed the division of functions between Lifeline and Arch at paragraph 222 and the question of fragmentation at paragraphs 223 to 225.  Indeed, the differences relied on by Arch in relation to its activities as compared with the Trust’s activities for Bolton were fully addressed both in detail and in turn at paragraphs 211 to 222.  At paragraph 222, as I have just indicated, the Judge recognised the possibility that the fact that there was a division in the service might mean that the activities in the hands of the incoming contractors might not be fundamentally the same.  He addressed that at paragraph 222 as follows:

“222. … Given that by the end of January 2012 the number of interventions personally delivered by the case managers employed by the Trust had substantially reduced as a consequence of the Todd restructuring, the Barrett report and the termination of Shared Care services, the activities performed by Arch were in my judgment fundamentally or essentially the same as those performed by the Trust as described in paragraph 207 above (save for activity c(ii)). …”

 

The Judge also found that the other differences, Arch relying on four main differences, did not undermine that conclusion.

 

38.              Those findings and conclusions reflect an entirely proper focus on the activities in the hands of the Trust that ceased to be carried out for Bolton and were, after 1 January 2013, carried out for Bolton by Arch and Lifeline, split by way of case management on the one hand and interventions on the other.  Although, as I have indicated, I accept that there was greater focus on Arch than on Lifeline and on the drugs side than on the alcohol side, in my judgment there were amply sufficient findings in relation to the Alcohol Service and in relation to the activities after 1 January 2013 in the hands of both incoming contractors.  The Employment Judge conducted a holistic assessment of the critical task entrusted to him, that of identifying the relevant activities.  He had regard to all of the evidence in the round.  He was alert to the risk posed by adopting too narrow a focus of what the activities were, and his findings demonstrate that he avoided that danger.  He conscientiously addressed points of difference and similarity in the activities both before and after the change, recognising the division of activities as between case management and interventions after the change and indeed the other arguments relied on by Arch as demonstrating fundamental differences.  The clear conclusions to which he ultimately came were, in my judgment, open to him.  They are findings of fact and degree that disclose no error of law or perversity.  They are, accordingly, to be respected by this Appeal Tribunal.

 

39.              As Mr Gorton acknowledges, if that is my conclusion, his challenge to the fragmentation point falls to be dismissed with those grounds, and I need not address it further.  Grounds 1, 2 and 4, accordingly, fail.

 

Issue 3: Grounds 5 and 6

40.              This issue concerns the finding that there were two organised groupings of employees with the relevant purpose.  There is also, a challenge to the finding in relation to assignment, which is parasitic on this challenge.  The question of organised grouping and assignment is dealt with by the Employment Judge in his Reasons at paragraphs 231 to 251.  The Employment Judge made a finding that there could be and were two organised groupings that were, first, Mrs Aulton on her own and, secondly, the remaining Claimants.  Mr Gorton contends that the Regulations do not cater for more than one organised grouping of employees but proceed on the basis that there can only be one that services or delivers the activity; to have more than one group is to have more than one activity, and that is not what the Regulations provide.  As he acknowledges, this argument shades into the ‘part of an activity’ argument that I have already addressed and rejected.  Accordingly, I deal with that argument no further.

 

41.              In addition, Mr Gorton submits that the argument that Mrs Aulton is an organised grouping of one is flawed.  First, because, in his submission, there were no material findings in respect of the Alcohol Team so that this conclusion is fatally undermined.  I disagree.  Both sides of the service, as I have already summarised, are the subject of proper findings of fact supported by evidence, and although the drugs side has a greater focus in the reasoning at paragraphs 201 onwards, there was adequate analysis of the alcohol side for the Employment Judge’s purposes.  Secondly, Mr Gorton submits that it is clear that Mrs Aulton was not and could not be regarded as an organised grouping of one since she managed the team and was therefore part of the CAT, as shown conclusively, he submits, by her 1 October letter listing her responsibilities.  This was a wholly integrated role so that the Employment Judge’s disaggregation of Mrs Aulton into a group of one was in error.  Mr Gorton QC relies heavily in relation to this submission on Seawell Ltd v Ceva Freight (UK) Ltd [2013] IRLR 726 at paragraphs 29 to 34.

 

42.              As to that contention, the Employment Judge dealt with Mrs Aulton’s organised grouping at paragraph 233 as follows:

“233. Dealing firstly with Mrs Aulton, I was satisfied that as Team Manager of the CAT she formed an organised grouping of one which had as its principal purpose the activities carried out by the Trust save for activity (c)(ii) in paragraph 207 above.  Her letter of 1 October 2012 made clear that she was managing a multi-disciplinary team to deliver the Tier 3 treatment service, ensuring care was planned and risk managed, and she was either undertaking the planning herself or supervising those who did so.  Regulation 2 recognises that there can be an organised grouping of a single employee, and plainly it was a matter of design rather than happenstance that she filled that role of “Team Manager” and had as her principal purpose the carrying out of those activities on behalf of Bolton.”

 

Thus the Employment Judge found, applying the clear words of Regulation 3(3) and the principles established in Eddie Stobart, that she: (i) was managing the CAT as Team Manager, (ii) that this was a matter of design not happenstance, and (iii) that her principal purpose was the carrying out of the Team Manager role for Bolton.  The law was correctly applied.  The Employment Judge’s factual conclusions are sufficiently supported by the evidence and the earlier findings (see, for example, my summary by reference to paragraphs 92 to 94 and 107).  At paragraph 206 the Employment Judge accepted the accuracy of Mrs Aulton’s letter dated 1 October as setting out her role and activities; in other words, by reference to that letter as it is described earlier, she was put in place by Bolton as the Team Manager for CAT on behalf of Bolton and nobody else.  At paragraph 216, just as on the drugs side the emphasis changed, the Employment Judge found that the emphasis had changed in the Alcohol Service.  In Rynda (UK) Ltd v Rhijnsburger [2015] ICR 1300 the Court of Appeal upheld a finding on the particular facts that a single employee constituted an organised grouping.  The Court of Appeal held that the case differed critically from the facts in Eddie Stobart and Seawell (see paragraphs 51 to 53 of Rynda).  In the same way as the Court of Appeal held in that case that the facts differed critically, so they do here on the Employment Judge’s findings.  First, Mrs Aulton was put in place as the Team Manager of CAT; secondly, Mrs Aulton was not doing the role for any other client than Bolton; and thirdly, nobody else was, on the Tribunal’s findings, assisting her in that singleton management role.  Those conclusions inevitably involved a finding that there was deliberate planning and organisation both by the Trust and Bolton in that regard.

 

43.              Once again, these were pre-eminently findings of fact and degree for the Employment Judge.  Another Tribunal might well have taken a different view of these facts without any error, nor is it necessary that this Appeal Tribunal should agree with the finding.  Once it is accepted that the legal approach adopted by the Tribunal is correct and the findings of fact are not perverse, the Employment Judge’s assessment must be respected.  This conclusion should not be read as any encouragement to litigants or Tribunals more generally to regard a situation in which an employee is managing a team as subject to disaggregation of that employee from the team and as inviting a conclusion that he or she is an organised grouping of one.  Rather, on the particular facts of this case, my conclusion should be read as doing no more than saying the Employment Judge was entitled to come to his conclusion on these facts.

 

44.              Finally in relation to Mrs Aulton’s organised grouping, and for the sake of completeness, a natural justice point was made by Mr Gorton.  He argued despite the point not being raised in his Notice of Appeal that Mrs Aulton never asserted that she was a group of one and that it was a point taken by the Employment Judge without any opportunity for Arch to respond.  In fact, the point was advanced by Mrs Aulton, in Mr Ryan’s opening skeleton (see paragraph 18(d)), and, though not raised expressly in written submissions, in closing reference was made to that opening skeleton, which was adopted at the outset, and the point was not expressly abandoned.  Arch was represented by a QC and had the opportunity, accordingly, to address that point.  In any event, Mr Gorton position was refined by the end of the appeal hearing and to the extent that the point was maintained, he submitted that it was relevant only to disposal.  In light of my conclusions, it does not arise.

 

45.              So far as the remaining Claimants are concerned and the question of their organised grouping, Mr Gorton contended that the errors identified in relation to Mrs Aulton in micro form also amounted to errors in relation to the finding that they were an organised grouping with the relevant principal purpose.  I do not accept that submission.  The Employment Judge made the clearest of findings: first, that the Claimants had the relevant principal purpose (see paragraphs 234 to 236); and secondly, that they were an organised grouping of case managers (see paragraph 237).  In making the finding at paragraph 237, the Employment Judge expressly weighed the evidence for and against that conclusion.  He dealt with the evidence and arguments against at paragraphs 238 to 241 and in favour at paragraphs 242 to 247.  However strongly Arch disagrees with those findings, they are, as all of the Respondents to this appeal contend, unassailable findings of fact that were open to this Judge, who conscientiously considered all of the points raised that could have led to a contrary factual conclusion.  For all of those reasons, ground 5 accordingly fails and is dismissed.

 

46.              In light of my conclusions on ground 5, ground 6 also fails and is dismissed.

 

47.              Finally, a Meek v City of Birmingham District Council [1987] IRLR 250 argument was raised in writing though not advanced orally.  In my judgment, Mr Gorton was correct not to advance it orally.  The Employment Judge’s Judgment and Reasons reveal a most careful and detailed consideration of the evidence.  The critical findings are supported by clear, coherent and conscientious reasons that address the points in favour as well as those made against the particular finding.  No legitimate complaint can be made on this basis.

 

Conclusion

48.              For all those reasons and despite the forceful case advanced on behalf of Arch by Mr Gorton this appeal fails and must be dismissed.