London Borough Of Haringey v GMB & Office Cleaning Services Ltd [1998] UKEAT 627_97_2701

EAT

London Borough Of Haringey v GMB & Office Cleaning Services Ltd

[1998] UKEAT 627_97_2701 · 1998-01-27

JUDGE PETER CLARK :

On 24 March 1995 the GMB Trade Union presented an Originating Application to the Industrial Tribunal complaining that the Appellant before us, the London Borough of Haringey (Haringey), had failed to consult it, as a recognised union, in breach of Regulations 10 and 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 .

Regulation 10 provides, inter alia :

"(2) Long enough before a relevant transfer to enable the employer of any affected employees to consult all the persons who are appropriate representatives of any of those affected employees, the employer shall inform those representatives of - (a) the fact that the relevant transfer is to take place, when, approximately, it is to take place and the reasons for it; and (b) the legal economic and social implications of the transfer for the affected employees; and (c) the measures which he envisages he will, in connection with the transfer, take in relation to those employees or, if he envisages that no measures will be so take, that fact; and (d) if the employer is the transferor, the measures which the transferee envisages he will, in connection with the transfer, take in relation to such of those employees as, by virtue of Regulation 5 above, become employees of the transferee after the transfer or, if he envisages that no measures will be so taken, that fact."

(5) Where an employer of any affected employees envisages that he will, in connection with the transfer, be taking measures in relation to any such employees he shall consult all the persons who are appropriate representatives of any of the affected employees in relation to whom he envisages taking measures with a view to seeking their agreement to measures to be taken."

Regulation 11 provides that where an employer has failed to comply with any requirement of Regulation 10, a complaint may be presented to an Industrial Tribunal on that ground by, inter alia , the Trade Union representing the affected employees. Where the Industrial Tribunal finds a complaint well-founded it may make a declaration to that effect and may make an award of compensation.

Following a hearing before the London (North) Industrial Tribunal (Chairman: Mr G.Flint) sitting on 10 and 13 January 1997 the Tribunal made a declaration that the complaint against Haringey was well-founded and adjourned the question of compensation. Extended Reasons for that decision are dated 4 April 1997.

Against that decision Haringey appealed to the Employment Appeal Tribunal by a Notice dated 9 May 1997. The basis of the appeal was that the Tribunal had failed to identify any measure which Haringey envisaged taking in connection with the transfer about which there had been no consultation.

The appeal was listed for a Preliminary Hearing before an Appeal Tribunal presided over by Judge Byrt QC on 16 October 1997. In a short judgment given on that occasion the Appeal Tribunal allowed the matter to proceed to a full hearing.

On 28 October 1997 the Union served an Answer giving notice of its intention to resist the appeal.

However, the parties have now signed a Consent Order allowing the appeal and setting aside the Industrial Tribunal's order, dismissing the Originating Application and making no order as to costs.

In accordance with our usual practice we will not simply allow an appeal by consent. We have considered whether this reasoned decision of the Industrial Tribunal should be set aside and have had the advantage of argument today from Mr Nicholls, Counsel on behalf of Haringey and Mr O'Hara, the Legal Officer of the Union.

Plainly in our judgment the order sought by consent ought to be made. There is no finding by the Tribunal as to any measures which the transferor intended to take in relation to the affected employees. The only alteration that appears from the Tribunal's reasons was a change in the cleaning hours at the college in question in this case. As Mr Nicholls submits first of all that was not a measure which Haringey envisaged. Secondly, it was imposed by the college and was not a measure in connection with the transfer and thirdly and in any event, even if Mr Nicholls was wrong on the first two points, we see from paragraph 5 of the Tribunal's reasons that Haringey's DSO Manager, Ms Waterhouse, gave the Union as much information as possible as to the possible future changes in cleaning hours at the college.

In the absence of any finding to support the declaration made by the Industrial Tribunal that order must necessarily be set aside and the Originating Application dismissed.

The appeal is accordingly allowed in terms of the consent order signed by or on behalf of the parties and lodged with this Tribunal. There will be no order as to costs.