MR D HOLOHAN v (1) T CARTLEDGE LIMITED (2) DAVID WEBSTER LIMITED [1999] UKEAT 916_99_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 916_99_1910Case No Appeal No. EAT/916/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D HOLOHANAPPELLANT(1) T CARTLEDGE LIMITED (2) DAVID WEBSTER LIMITEDRESPONDENT
Before
His Honour Judge J Altman Mrs M T Prosser Mr J A ScoullerDate 19 October 1999
[1]APPEARANCES For the Appellant MR R PULLEN (Representative) Brent Community Law Centre 389 High Road Wilsden London NW10 2JR JUDGE ALTMAN : This is an appeal from the decision of the Employment Tribunal sitting at London (North) on 20th May 1999. That hearing heard the applications of two applicants, Mr Taylor and Mr Holohan, but this is the appeal of Mr Holohan alone. It comes before us by way of preliminary hearing to determine if there is a matter of law that can properly be argued in full before the Employment Appeal Tribunal. The applications before the Employment Tribunal were claims for unfair dismissal consequent upon dismissal allegedly for redundancy. This arose in the context of the use by a Local Authority of the private finance initiative in relation to the maintenance of streetlighting. At one point the first respondents, employers of the appellant, undertook the contract for this work and in due course the second respondents succeeded them. It also appears that there was some overlap in the form of temporary contracts managed by one or both of those respondents.[2]The appeal concerns the effect of the Transfer of Undertakings (Protection of Employment) Regulations 1981 as amended.[3]The hearing before the Employment Tribunal was listed for six days in order to deal with the totality of the claim against both respondents. In the event, we understand, it was concluded in about two hours and dealt with the position of the second respondent to the exclusion of the first respondent at that stage and not, as we had at first thought, by way of some form of preliminary hearing.[4]The Employment Tribunal found that in anticipation of the first respondents losing their contract with the Local Authority, the appellant was dismissed on 31st October 1997. We have read the witness statement of Liam McKinley, dated 24th April 1999, from which we deduce that it may be that it is not clear whether the redundancy allegedly arose from the ending of the contract or from the reduction of the service provided by the first respondents in anticipation of or as part of the ending of their contract. There was a gap in time between the date of dismissal and what the Employment Tribunal termed "the transfer of the work".[5]The Employment Tribunal identified the issues. Firstly, they cited the decision of Litster and others v Forth Dry Dock (An Engineering Company) Limited [1989] ICR 341 . In referring to that case in their decision under the heading "The Law", it appears that there may be a typing error in the third line of that paragraph with the words "transfer of undertaking". In any event, this case provided that in effect Regulation 5(3) of the 1981 Regulations should have words implied so that it would read in effect "any reference in paragraph 1 … above to a person employed in an undertaking … is a reference to a person who was so employed immediately before the transfer, or who would have been so employed if he had not been unfairly dismissed in that the transfer of undertaking or a reason connected with it was the principal reason for dismissal. This includes, where a transfer is affected by a serious of two or more transactions, a person so employed immediately before any of those transactions".[6]The Employment Tribunal expressed its decision in the second paragraph on page 3 of their decision in the following terms:
"The fact that the Applicant was employed only to 31 October and the transfer did not take place at the earliest time until 1 January 1998, as was agreed by all the parties, means that the Applicant cannot be said to have been employed by the first Respondents immediately prior to the transfer and therefore he is not protected by the Transfer of Undertakings Regulations 1981. For those reasons therefore we dismiss the second Respondents from the proceedings."
[7]The sequence of events appears to have been set out by the Employment Tribunal in the third and fourth paragraphs of their decision. However, it seems to us arguable that the Employment Tribunal failed to consider two matters. The first is whether the reason or the principal reason for dismissal was a reason connected with the transfer so as effectively to bridge the passage of time between the two events in accordance with the Litster case. Secondly, it seems arguable, that the Employment Tribunal failed to consider whether the appellant was employed immediately before one of a series of transactions which effected the transfer of the undertaking. We bear in mind that in Longden v Ferrari Ltd [1994] ICR 443 , Mummery J, as he then was, said at page 449A, that in cases concerning the question "is employed in an undertaking immediately before " the transfer, "the tribunal must ask itself:(a) was the transfer effected by a series of two or more transactions, and, if so,(b) was the person employed in the undertaking immediately before any of those transactions?"[8]It seems to us that there is an arguable point of law that the Employment Tribunal did not determine on their findings of fact whether there had been a transfer of an undertaking in any event. Although for the purpose of their findings of fact for the tribunal's decision, it was not necessary, it may nonetheless still be an arguable matter.[9]We note also that the Notices of Appearance of both respondents challenged the issue as to whether there was in fact a transfer of an undertaking. In so doing, the second respondent referred to the decision of the European Court of Justice in Süzen v Zehnacker Gebäudereinigung GmbH Krackenhausenservice [1997] ICR 662 . Furthermore the first respondents have indicated their wish to cross-appeal.[10]We make, therefore, the following directions. This matter will be listed to be heard in full before the Employment Appeal Tribunal. It will be listed in Category C for one day. If either respondent wishes to cross-appeal, such cross-appeal must be served not less than 28 days following promulgation of this decision. We direct that full Notes of Evidence be provided. We direct that the parties must submit skeleton arguments not less than 14 days before the hearing.[11]This is an old case. It is in effect soon to be approaching the second anniversary of the dismissals. In order to try to make a contribution to the speeding up hereafter of the hearings and largely because there are other hearings and final decisions still awaiting this case, we direct that the matter be dealt with in the fast track to be listed as soon as possible.[12]We wish to mention two further matters. The issues of law that are identified appear to us to be fairly clear cut and probably capable of simple argument. Accordingly, in a way which is designed to save time and possibly unnecessary expense in the long run, we propose in this case to direct that within 28 days of the promulgation of this decision each respondent should file a statement of their case in answer to the Notice of Appeal so that such issues as are in reality outstanding between the parties on these issues of law can be identified at a very early stage. Secondly our attention has been drawn to the way in which the decision of the Employment Tribunal was expressed as follows:
"The unanimous decision of the Tribunal is that:- (1) All claims against David Webster Ltd are dismissed. (2) The Applicants claims of unfair dismissal for unfair selection for redundancy is adjourned to be listed for any Tribunal for one day."
The concern of Mr Pullen who has represented the appellant, is that on the face of that there is no reference to the claim of the appellant against the first respondent in relation to the 1981 Regulations dismissal, the implication being that it is no longer extant. We suspect, although we do not know, that that may simply be because of the form of words used in the decision and not a real reflection of the intention of the Employment Tribunal. We say that because in the body of their decision in the penultimate paragraph the tribunal records that the matter is going to be relisted "for a hearing on the Unfair Dismissal claims of the Applicants", which, on the face of it, leaves the matter at large. We note that when the matter came before a subsequent tribunal on 6th September 1999 the appellant's complaint of unfair dismissal was stayed and when one looks at what that complaint is in the Originating Application it does include the question of transfer of undertakings by implication.[13]We understand that Mr Pullen is going to contact, or someone of the appellant's behalf is going to contact, the Chairman of the Employment Tribunal in order to clarify whether the decision should be corrected as having contained a slip or whether it was the intention to deal finally on that occasion with the transfer of undertaking application against the first respondents. We are sure that it will be possible for that request to be dealt with expeditiously so that if it becomes necessary to appeal that as well it can be incorporated with the current appeal pending before the Employment Appeal Tribunal.