PITNEY BOWES MANAGEMENT SERVICES LTD v MRS H M FRENCH & OTHERS [2000] UKEAT 408_00_2107
[1]APPEARANCES For the Appellant MS N ELLENBOGEN (of Counsel) Instructed by: Messrs Allen & Overy Solicitors One New Change London EC4M 9QP RECORDER BURKE QC: In this appeal, of which this is the preliminary hearing, the Employment Tribunal at London South, chaired by Mrs Gleeson, reached a decision, promulgated on 15 February 2000 and supported by extended reasons, that the contracts of employment of the Applicants contain a profit sharing clause in the terms set out by the transferor employer, Sainsbury's Supermarkets Ltd entitled "1998 Profit Sharing Scheme, Guide and Choice Form". The employers of the employees are Pitney Bowes Management Services Ltd who were the transferees of that part of Sainsbury's business for whom the employees worked; they now seek to argue that the Tribunal reached the wrong conclusion.[2]The issue thrown up in front of the Tribunal and thrown up in this appeal is one which has been well recognised to employment lawyers as a serious and difficult issue, namely whether profit related pay schemes transfer as part of the contracts of employees, when those employees are transferred from a transferor to a transferee employer under the provisions of what I shall call for short the TUPE Regulations.[3]There has been one decision of this Appeal Tribunal, that is to say the decision in Unicorn Consultancy Services v Westbrook & Others [2000) IRLR 80, which in so far as that decision contains ratio decidendi, is said to be restricted to the particular facts of that particular case. There are obiter dicta towards the end of that decision, which indicate a general approach to this very difficult problem; but they are only obiter dicta and an authoritative decision as to how the courts should resolve this very difficult problem, while it may ultimately depend upon the terms of each particular scheme, remains at the moment to be found.[4]For those reasons it seems to us that this appeal is one which should go to a full hearing, so that at least the opportunity to provide guidance in other cases can be considered, and so that the specific points which are taken in the Notice of Appeal, as elaborated in the skeleton argument can be the subject of scrutiny by this Tribunal, all of the grounds being at least prima facie arguable grounds as we see them.[5]Therefore this case will go to a full hearing. We believe that the importance of the issue is such that this should be a category B case, 1 day.