NATIONWIDE COMPUTER CARE LIMITED v MR S A HYNE MR A G CULL WESSEX TELECOMPUTERS LIMITED [2001] UKEAT 0283_01_1406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0283_01_1406Case No Appeal No. EAT/0283/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NATIONWIDE COMPUTER CARE LIMITEDAPPELLANTMR S A HYNE MR A G CULL WESSEX TELECOMPUTERS LIMITEDRESPONDENT
Before
Sir Christopher BellamyDate 14 June 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT SIR CHRISTOPHER BELLAMY QC Nationwide Computer Care Limited has appealed against a decision of the Employment Tribunal sitting at Southampton on 15 December 2000 which held that the Applicant in that case, Mr S A Hyne, had been unfairly dismissed by Nationwide Computer Care Limited who was the third Respondent. Nationwide Computer Care Limited was ordered to pay Mr Hyne the sum of £3,500 in compensation.[2]The matter comes before us today by way of an Ex Parte Preliminary Hearing to determine if there is an arguable point of law in this case. It is only if there is an arguable point of law that this Tribunal has any jurisdiction to entertain the appeal. The Appellant has not appeared before us today to prosecute its appeal but we have read the Notice of Appeal dated 5 February 2001 and also a letter from the company that is dated 6 June 2001. We have taken into account the points made in those letters.[3]The essential points that are made on the papers are that Nationwide Computer Care Limited could not be liable in this particular case because it was not in existence at the time of the dismissal of Mr Hyne and never employed him. It is said in addition that it is an entirely separate company from the original Respondents to the case who are Wessex Telecomputers Limited and that it never took over the business of Wessex Telecomputers Limited. It is also in effect said, at paragraph 2 of the Notice of Appeal, that the company was justified in dismissing Mr Hyne.[4]If we take, as we must, the decision of the Employment Tribunal it appears that that Tribunal decided in paragraph 2 of its decision that when Mr Hyne's employment was terminated on 6 March 2000 he was effectively employed by Wessex Telecomputers Limited who are the second Respondent. The Tribunal goes on to find as follows:
"Subsequently, there has been a relevant transfer within the meaning of the Transfer of Undertakings Regulations of the business of the Second Respondent to the Third Respondent. Under Regulation 5 the Second Respondent's liabilities have transferred to the Third Respondent. The claims against the First and Second Respondents are dismissed."
There is therefore a finding of fact by the Employment Tribunal that the Appellant in this case is responsible for the liabilities of Wessex Telecomputers Limited towards Mr Hyne. Under Regulation 5 of the Transfer of Undertaking Regulation the successors to particular businesses may be liable in the manner described by the Tribunal and it is essentially a question of fact for the Tribunal to decide whether the requirements of those regulations are satisfied or not.[5]We do not think we have any material before us sufficient to persuade us that there is an arguable case on this point that the Tribunal made an error of law since it is entirely a matter of fact. The principle point made by the Appellant, that there could not be a relevant transfer because the successor company, Nationwide Computer Care Limited, was not incorporated at the time of Mr Hyde's dismissal, is not in our view a relevant consideration in law. It is also apparent that at the hearing before the Tribunal both companies were represented by Mr Cull who was in fact the First Respondent and was originally managing director of Wessex Telecomputers Limited and subsequently held a position with Nationwide. It is accepted in the Notice of Appeal that Mr Cull is a:
"… common denominator between Nationwide Computer Care Limited and Wessex Telecomputers Limited."
It is also accepted in the letter of 6 June 2001 that at least some of the customers at Wessex Telecomputers Limited subsequently became customers of Nationwide Computer Care Limited.[6]It is for the Employment Tribunal to satisfy itself on the facts that the relevant business had in fact been transferred in accordance with the Regulations and it is not for us to interfere with their decision unless an error of law has been demonstrated. No such error of law having been demonstrated in this case to our satisfaction the consequence is that the appeal is dismissed.