Dougland Support Services Ltd v Englefield [1997] UKEAT 1072_96_1601

EAT
Dougland Support Services Ltd v Englefield
[1997] UKEAT 1072_96_1601 · 1997-01-16

JUDGE C SMITH QC :

This is an application for leave to proceed to a full hearing by the Appellant employers, Dougland Support Services Ltd, against a decision of an Industrial Tribunal sitting at Southampton on 10 May 1996 when the Industrial Tribunal decided that, in the case of a Mr D T Englefield, the Applicant before them, his contract of employment with Morangate Limited was transferred to the Appellants before us today on 7 October 1995 on the occasion of the transfer of the team of workers previously employed by Morangate Limited to clean the Wolsey Place Shopping Centre, Woking, Surrey, so that his rights as an employee were protected and so that the Applicant transferee company assumed the liabilities under his contract of employment.By its decision the Industrial Tribunal found that Mr Englefield was employed by Morangate Limited as a cleaning supervisor of the Centre on 20 December 1994, with a team of four workers. A Mr Illsey took over as a temporary supervisor, according to the findings of the Industrial Tribunal, for three months, while Mr Englefield was away having a hip replacement. The Industrial Tribunal found that on 4 October 1995 Morangate Limited wrote to both employees, both Mr Englefield and Mr Illsey, telling them both that their contracts were being transferred to the Appellant. The Industrial Tribunal went on to find that the cleaning team remained exactly the same after the transfer as it had been before. It found that the cleaning contract between the Centre and Morangate Limited was terminated on 7 October 1994. A new contract began with the Appellants on 9 October 1994. Crucially, at paragraph 10 of its extended reasons, the Tribunal put the matter in this way:
"The Tribunal find that the applicant, Mr Englefield was employed in that undertaking immediately before the transfer. He was an employee of the transferor up to the date of transfer and was paid by the transferor up to that date. His replacement, Mr Illsey was recruited on a temporary basis but once the applicant was in hospital, and without the applicant's knowledge, Mr Illsey was made permanent supervisory. If Morangate Ltd had wanted to dismiss the applicant, or move him to other employment on the appointment of Mr Illsey as permanent cleaning supervisor, they had taken no steps to do so prior to the transfer."
That was a finding of fact made by the Industrial Tribunal.The Industrial Tribunal had plainly taken into account submissions that were made on behalf of the Respondents, as they then were - the Appellants before us today. They considered, in particular, the submissions that were made to them at paragraph 8 of their extended reasons, that:
"the respondent were not aware of the existence of the applicant until 9 October. It was said on behalf of the respondent company that they asked for TUPE information from Morangate Ltd but none had been supplied. It was further submitted on behalf of the respondent that to their knowledge Mr Illsey was the permanent supervisor at the time of the transfer."
So it is quite plain, in our judgment, that the Industrial Tribunal took into account the arguments that were addressed to them by the Respondents during the hearing.The assertion is made before us today by way of submission that this matter should be allowed to proceed to a full hearing on the grounds set out in the notice of appeal and as argued by Mr Smith, the financial administrator, who has addressed us today on behalf of the Appellants, that Mr Englefield was not employed at the Wolsey shopping centre before the transfer and, therefore, the Tribunal should have held that his contract was not transferred to the Appellants. In support of that submission, reliance is placed on a clause in the contract between Wolsey Place management and Morangate Limited, namely, clause 9, which between those parties gave a right of removal to the Wolsey Place management of any of any of the cleaning staff if the Wolsey Place management took the view that the performance of that particular member of the cleaning staff was not good enough and by the terms of that contract placed a contractual duty upon Morangate to implement such a removal and to provide a suitable replacement. The Appellants then seek to rely on two letters dated 8 December 1995 and 27 March 1996 from Celia Franklin of the Wolsey Place management to the Appellants confirming that instructions had been given to Morangate to remove Mr Englefield from the site with effect from 9 August 1995, that date being substituted for 24 July 1995, as set out in the second letter.In our judgment there is nothing to indicate that the Industrial Tribunal did not pay any or sufficient regard to the evidence contained in those letters. Even assuming that those letters did correctly set out the position between Morangate and Wolsey Place management, they are completely inconsistent, in our judgment, with the letter at page 24 of the bundle which was before the Industrial Tribunal, of course, and to which they refer, from the Director of Morangate to Mr Englefield, which puts it in our judgment beyond doubt that as far as Morangate were concerned, Mr Englefield remained in Morangate's employ right up to the date of the transfer. In our judgment, there was ample evidence before the Industrial Tribunal to allow them to reach the conclusions of fact which they did, particularly in paragraph 10 of the reasons, to which we have already referred, and the resultant conclusions of law, which they went on to reach, relating to the transfer regulations.We are unanimously of the opinion, accordingly, that no arguable point of law is shown by this application. The Industrial Tribunal had had the clearest evidence upon which they were entitled to find the facts that they did. It could not possibly be argued, in our submission, that they erred in any way in law in the approach that they took and nor could it be argued that their findings of fact were in any way perverse and, accordingly, this application is dismissed.