Mills & Allen Ltd v. Bulwich [1999] UKEAT 154_99_2704

EAT
Mills & Allen Ltd v. Bulwich
[1999] UKEAT 154_99_2704 · 1999-04-27
MR JUSTICE LINDSAY : We have before us as a preliminary hearing an appeal in the matter Mills & Allen Ltd against Mrs J Bulwich. There was a hearing before the Employment Tribunal which led to a unanimous decision promulgated on 9th December 1998. It was a reserved decision. It said that:
"1. the applicant was unfairly dismissed;
2. the respondents failed to consult employee representatives in accordance with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992;3. there shall be a protective award in respect of all direct sales managers and executives made redundant on 31 July 1998;4. the protected period shall be 15 days starting on 31 July 1998;5. the recoupment provisions set out in the annex of this decision shall apply;6. all issues of remedy for the unfair dismissal are adjourned to 6 January 1999 at 9.45 am for 10.00 am."It would seem that there is no appeal as to the unfair dismissal aspect of the case, but the Notice of Appeal, which is admirably concise, puts in issue those holdings 2 to 5 inclusive.If it is the case, as on authority it would seem to be well arguable, that the concept of an 'establishment' in section 188 requires one to ask(i) what was the unit;(ii) which the workers made redundant;(iii) are assigned;(iv) to carry out their duties; and, moreover, then to consider whether such unit(v) needs to be endowed with a management that was independently effective in relation to redundancies, then if that is arguable then it is at least arguable, here, that the Employment Tribunal went wrong.Firstly, it seems to have concentrated on the applicant's position, asking what was her unit, rather than first looking to see if there was any unit or establishment in respect of which it was proposed to dismiss 20 or more and of which she was an assigned member.Secondly, the proposed dismissals, in order to attract the protection of the Act, have to be "within the period of 90 days or less". There is finding at paragraph 11 of the decision that says:
"We accept Mr Glendinning's evidence that the respondents, in due course, proposed to dismiss all the direct sales team staff. ..."
What is meant there by "in due course"? It may be that there is point there as to whether the Act is satisfied as to the provisions as to 90 days or less, unless, of course, it was quite clear that "in due course" was manifestly understood to refer to a period less than 90 days.Those are two minor points. Perhaps more importantly the appellants concentrate on a passage in paragraph 36 of the decision which says:
"We have decided that it is difficult in this case to see the Manchester office as a unit to which the applicant was assigned because of the lack of unity in the various activities of the respondents carried on there. ..."
The point which the appellants wish to raise on that is described in their skeleton argument is:
"... that the tribunal has erred in law in this respect in that it has, by its reasoning, created a requirement for a location, in order to be an establishment or unit, to possess an independent management contrary to Rockfon."
That seems to us to be an arguable point.What is an 'establishment' for the purposes of section 188, given the guidance that has already been received from European decisions, is very much a matter which would benefit by having light thrown upon it. We see this, therefore, as being appropriate to go to a full hearing. It is not an easy question. We think it should be a Category B case. [I will ask Mr Hendry who has appeared for the appellants as to the time estimate.] Subject to that, there should be supplied to the Employment Appeal Tribunal the skeleton arguments, not less than 10 days before the hearing. The parties also should exchange between themselves their respective skeleton arguments not less than 10 days before the hearing. [I will ask Mr Hendry whether the Chairman's Notes are thought to be necessary.] So far as concerns authorities which are going to be cited by either side at the full hearing, they, too, should supplied to the Employment Appeal Tribunal by way of photocopies, not less than 10 days before the proposed hearing. It is very difficult, especially for the members other than the judge, to take a view on authorities when they have no photocopies to work from and no ready access to a library. Accordingly, it is right that photocopies of authorities also should be supplied, as we have indicated, not less than 10 days before hearing.No need for Chairman's Notes.