PATHWAY HOUSING ASSOCIATION v (1) ROSEMARY MCFEE (2) MS IVY BUTT (3) MIDWAY HOUSING LTD [2001] UKEAT 762_00_1710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 762_00_1710Case No Appeal No. EAT/762/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PATHWAY HOUSING ASSOCIATIONAPPELLANT(1) ROSEMARY MCFEE (2) MS IVY BUTT (3) MIDWAY HOUSING LTDRESPONDENT
Before
Her Honour Judge A Wakefield Mr J C Shrigley Mr P M SmithDate 17 October 2001
[1]APPEARANCES For the Appellants Mr Fenner Solicitor Ogun at Law 391 City Road London EC1V 1NE For the Respondents Mr D Ohlson Employment Worker Southwark Law Centre Hanover Park House 14-16 Hanover Park London SE15 5HG JUDGE A WAKEFIELD This is an appeal by Pathway Housing Association Ltd against a Decision of an Employment Tribunal sitting at London South by which it was held that:
"the employment of the Applicants transferred from Midway to Pathway under the terms of the Transfer of Undertakings (Protection of Employment) Regulations 1981 as amended and that therefore, when dismissed by Pathway, the Applicants enjoyed the right not to be unfairly dismissed under Part X of the Employment Rights Act 1996."
That Decision was promulgated on 16 May 2000 following a two day hearing in the previous month.[2]The Notice of Appeal sets out the grounds upon which that Decision is said to be wrong in the following terms:
"that the employment tribunal erred in law in that in determining whether the Respondents' employment was transferred to the Appellant under the terms of the Transfer of Undertakings (Protection of Employment) Regulations 1981….the tribunal misapplied or misconstrued the Regulations when it in error decided, contrary to the evidence, that the Respondents' employment was transferred to the Appellant notwithstanding: (1) the fact that the Respondents were fairly dismissed by Midway Housing Limited immediately before the transfer of the undertaking on 4 May 1999 to the Appellant; and (2) in any event, the Respondents' contracts of employment were summarily terminated before the transfer of the undertaking on 4 May 1999 when Midway ceased operation on 30 April 1999. Therefore, as the Respondents were not employed by Midway at the time of the transfer of the undertaking on 4 May 1999, the Regulations did not preserve the Respondents' employment on the facts of this case."
Those grounds are based on the assumption that firstly the Respondents had been dismissed by Midway Housing Limited (the transferor) on 30 April 1999 and secondly that the transfer of the undertaking to the Appellants took place on 4 May 1999.[3]In the course of argument before us today, we expressed some concern that the Decision of the Employment Tribunal might not, expressly or by implication, have included findings as to the dates of these two events.. Having, however, considered the way in which the Decision was expressed and its various paragraphs as to findings of fact and its final summary of the conclusions, we are satisfied that there are findings as to these two crucial dates.[4]Firstly, as to the date when the transferor, Midway Housing Limited purported to terminate the Respondents' contracts of employment, the Tribunal says on this matter, firstly in paragraph 3:
"3. ………our first task was to examine the circumstances of the Applicants ceasing to work for Midway on the 30 April and starting work for Pathway on the 4 May"
Then in paragraph 14, they say:
"By an undated letter to the Applicants received by them on the 30 April, Midway Housing stated:- "
Redundancy Notice On behalf of the Management Committee I hereby write to notify you that your contract of employment with Midway Housing Ltd terminates on the 1 May 1999. Your period of notice started on 1 April 1999. The company will endeavour to pay all monies due before the 1 May 1999." " The last working day of the Respondents was 30 April, which was also the day upon which the transferor ceased to trade. There then intervened a Bank Holiday weekend and on Tuesday 4 May, the next working day after 30 April, the Respondents started work for the Appellants.[5]We are satisfied in these circumstances that the Employment Tribunal found that the redundancy notices sent to the Respondents purported to terminate the contracts of employment of those Respondents with the transferor on 30 April, alternatively, 1 May. Which date, of those two, does not affect the outcome of this appeal.[6]Somewhat surprisingly, in view of the way in which the Notice of Appeal was framed, Mr Fenner, the solicitor acting for the Appellants today, resisted for some time before us accepting that the Employment Tribunal had properly found that there had been a transfer of an undertaking to the Appellants. However, this was finally accepted.[7]The question then arose as to what finding had been made by the Tribunal of the date of that transfer. The relevant parts of the Decision seem to us to be the following:
"13. On the 30 April, Threshold had a formal meeting with Pathway and agreed that Pathway would assume responsibility for the interim management of the properties with effect from 9 am on Tuesday 4 May (Monday 3 May was a Bank Holiday) and the Applicants did not work on Saturdays and Sundays or Bank Holidays. In a letter sent by fax the same day to Mr Bascom, Mr Wood wrote:- "
For the avoidance of doubt I confirm that Threshold hereby indemnifies Pathway against any costs, claims, demands or liabilities made or arising out of our management agreement with Midway Housing Ltd in respect of any breaches by Midway Ltd of that agreement. However, this indemnity does not extend to the two employees at Midway Housing, Ivy Butt and Rosemary McFee whose contracts were apparently terminated by Midway with effect from today. We will endeavour to advise you next week having taken legal opinion on the course Pathway might wish to follow with respect to contractual arrangements for these two individuals but Threshold is unable to assume any responsibility whatsoever for any liabilities or obligations relating to these two individuals whether under TUPE or any other statute or contract" "Threshold" there refers to Threshold Tennant Trust which was originally a party to the proceedings before the Employment Tribunal but was, with the consent of the Appellants and Midway, discharged. It was the owner of properties, the management of which was the undertaking being transferred. That letter of 30 April was signed on 4 May by Mr Bascom for the Appellants.[8]On 30 April, as the Employment Tribunal found, the Respondents were instructed by Threshold to report for work with the Appellants, which they did. At paragraph 22 of the Decision the Employment Tribunal said this:- "The break between the 30 April and the 4 May is in our view of no consequence for this was a weekend and a Bank Holiday. No work would have been done on those three days if there had been no change. The two Applicants were employed in that undertaking. " And finally, at paragraph 27 the Tribunal said:- "In summary we find that on the 30 April, Pathway had agreed with Threshold that they would assume responsibility for the interim management of properties. That meant taking on these two Applicants whose duties would start on Tuesday 4 May."[9]From these parts of the Decision, we are satisfied that the Employment Tribunal found that the transfer of the undertaking took place on 30 April, even though the work of managing did not actually begin until 4 May.[10]In those circumstances, we have no doubt that the Employment Tribunal were correct in finding that the Respondents were, within the meaning of Regulation 5 of the Transfer of Undertakings Regulations, persons employed by the transferor in the undertaking transferred at the time of the transfer and therefore that their contracts were transferred to the Appellants. The arguments addressed to us on Regulation 8 of those Regulations, and upon the various authorities to which we have been referred today, therefore do not fall to be determined in this case.[11]The conclusions of the Employment Tribunal were, in our view, entirely consistent with the evidence before them and their analysis of the law was correct. The appeal is dismissed.