Burridge v C & H Tool Supplies Ltd [1993] UKEAT 618_92_1905

EAT
Burridge v C & H Tool Supplies Ltd
[1993] UKEAT 618_92_1905 · 1993-05-19
MR JUSTICE WOOD (PRESIDENT): Mr Robert Edward Burridge sought a redundancy payment from his employers, C & H Tool Supplies Limited, which we will call the Cambridge Company because it was based on Cambridge.An Industrial Tribunal sitting at Bury St Edmunds on the 27th February 1992, under the Chairmanship of Mr Williams, had to decide whether it had jurisdiction to hear that claim and in particular whether Mr Burridge had two years continuous service with the Company upon which to found the statutory jurisdiction. He appeared in person. The Company were represented by a solicitor Mr Ingle.The Tribunal decided against him. He appeals. We have received an indication from solicitors for the Cambridge Company, the Respondents, that it is now insolvent and in liquidation. The Company is therefore not represented before us.May we say at once that we share the anxiety felt by the Industrial Tribunal about this situation and we join them in having sympathy for Mr Burridge in the position in which he found himself. However, as the Tribunal realised, and we must accept, it is the law that must be applied to the facts as they appear. Indeed, Mr Burridge with frankness, which we appreciate, has admitted certain factors to us which are set out in the Notes of Evidence and which clearly are against any case that he might be able to put forward.Mr Burridge is a Sales Engineer. He joined the Cambridge Company in June 1983. He in fact lived near Wellingborough in Northamptonshire but he covered an area, which included Northamptonshire; a west bit of Cambridgeshire; a north bit of Bedfordshire and some of the east of Northamptonshire as well.After about five years it was thought to be a part of the expanding business that an office should be opened up at Wellingborough. We say "an office should be opened up" because that is the sort of expression that would be used if it was a branch office of the Cambridge Company. However, that was not the way in which that matter was handled.A fresh Company, which we will call the Northampton Company, was formed, it had five equal shareholders, Mr Burridge and his wife put their money into it and had a fifth of the shares and the other four shareholders each had a fifth. An office was set up at Wellingborough and from the 1st October 1988 it carried on business. Mr Burridge was appointed the Managing Director, his income was increased. The arrangement was that the Northampton Company paid a fee to the Cambridge Company and the administration took place at Cambridge. Thus, for instance, Mr Burridge kept the same car that he used before but this formed a part of the fee which was paid over to the Cambridge Company. The accounts, the invoicing, were all run from Cambridge, but Mr Burridge received his salary from the Northampton Company and he is insistent that his employment during the next few years was by the Northampton Company. As one can envisage the Northampton Company had certain basic outgoings or overheads; it first of all had the office; then it would have its staff, we understand that Mrs Burridge was employed part-time there; it had to service any over-draft; it had to pay its fee to the Cambridge Company for the administration, and so it was necessary to engender at least, a profit element, which would cover those overheads.By the Summer of 1990, now realised as the beginning of the recession so far as that particular business was concerned, the profits earned by the Northamptonshire Company simply would not cover the overheads to which we have already referred. As a result the operation was wholly from Cambridge at the offices of the Cambridge Company.The Northamptonshire Company eventually ceased trading by the 31st October 1990 at that time it owed some money to the Cambridge Company but it did not become insolvent it was able to pay its debts. It is still today in being although not trading, and in so far as its own stores were concerned it used the value of those stores to pay-off any debts it owed to the Cambridge Company. Thus from the 1st November 1990 the Northamptonshire Company had ceased business and thereafter the Cambridge Company continued to do business. Mr Burridge became employed by the Cambridge Company once more and worked there. He still called, largely in the same territory as he had before, and the customers became the customers of the Cambridge Company. He worked on until September 1991 when he was dismissed on the grounds of redundancy in a manner which is clearly open to criticism.Thus, the Industrial Tribunal at Bury St Edmunds had to decide whether, jobbing backwards from the 13th September 1991, Mr Burridge had been in continuous employment for a period of two years. They decided that he had not. But they looked at a number of matters. First of all they looked to see whether these companies were associated companies, they clearly were not. There can be no appeal, and nor is there sought to be any appeal on that matter.Then they looked to see whether there had been a transfer of undertakings under the Transfer Regulations and indeed under paragraph 17 of Schedule 13 of the Employment Protection (Consolidation) Act 1978 . The Tribunal deal with that aspect which is the aspect which Mr Burridge has raised on appeal before us. His argument is that because some of the customers, who had been the customers of Northamptonshire Company, became the customers of the Cambridge Company therefore there was a transfer of the business. The Tribunal deal with it in paragraphs 20 and 21, they say this:
"When it became clear in 1990 that the Northants company was no longer viable and that it could not justify its overheads from separate premises, in August of that year it was decided to move to Cambridge and operate from there. We cannot say that there was a transfer of a business in August 1990 because it was simply a case of the Northants company moving its location to Cambridge and operating as a separate entity from there. The same five shareholders ran that Northants company, whereas different shareholders (the senior and controlling one being C R Harris) ran the respondents.
The Northants company struggled on for about three months at Cambridge before it became clear that it was not a viable proposition and then it effectively closed down. It owed the respondents quite a bit of money. What we heard in evidence was that most of its assets were dispersed to various sources, i.e. other than the respondents, and the only thing the respondents `took over', as it were, were certain customers who in the main had to be dealt with in one-off transactions. There was a little continuous business but the respondents could hardly, on the evidence we heard, be said to have taken over anything that could remotely be described as a `going concern'. It was clear that business dwindled even further so that it was no long before the respondents were having to deal with a completely fresh batch of customers."There is no misdirection of law that we can find. This was an issue of fact and we have had time this morning during this appeal to see if there was any way in which, on the facts found, it could be argued that there was a transfer.During submissions one other aspect of the matter occurred to us which might have been a viable argument for Mr Burridge. The only written contract of employment which he received was one which he received dated 1st March 1988, that was issued by the Cambridge Company, it recites that his employment began on the 6th June 1983 and it had been continuous from then. That is the only document that he received. He denies he received a P45 when the Northamptonshire Company was formed and it seemed to us a possibility that the contract of employment with the Cambridge Company had continued throughout and that it had merely been a secondment, one uses that word appropriately, for Mr Burridge to work for the Northamptonshire Company. However, he himself, made it quite clear to us that that was not the situation. We then went to look at the Notes of Evidence in detail and it is quite clear that the Members of the Tribunal examined that aspect with the greatest care, obviously, with the same point in mind that we had, namely, that it might be possible to argue Mr Burridge's case in that way, he was unrepresented and therefore they were looking to see whether an appropriate argument could be founded on that submission. We have reached the conclusion that it cannot. There were various aspects investigated by the Industrial Tribunal and investigated again by us in asking Mr Burridge questions, I am afraid with no benefit to him. He clearly was employed by the Northamptonshire Company and that, in effect, broke the continuity of his employment with the Cambridge Company who are the present Respondents.The Industrial Tribunal gave the closest consideration to this case. We can find no error of law. They found the facts, they acted on those facts and we have no power to help Mr Burridge in the situation. This appeal will have to be dismissed.