EAT/1165/01 MR K MCINTOSH v (1) VICTORIA & ALBERT MUSEUM (2) GALAGO LTD [2002] UKEAT 1165_01_0312

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1165_01_0312

Case No Appeal No. EAT/1165/01 & EAT/1166/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAT/1165/01 MR K MCINTOSHAPPELLANT

(1) VICTORIA & ALBERT MUSEUM (2) GALAGO LTDRESPONDENT

EAT/1166/01 MS BARBOURAPPELLANT

(1) VICTORIA & ALBERT MUSEUM (2) GALAGO LTDRESPONDENT

Before

Mr Justice Elias Mr B Beynon Mr P Gammon

Date 3 December 2002

[1]APPEARANCES For the Appellant MR JAKE DAVIES (Of Counsel) Messrs Bray Walker Solicitors 36 Furnival Street London EC4A 1JQ For the Respondents MS KATHERINE NEWTON (Of Counsel) Messrs Farrer & Co Solicitors 66 Lincoln Inn Field London EC2A 3LH THE HONOURABLE MR JUSTICE ELIAS Both the Appellants in this case are employed as Warders at the Victoria & Albert Museum. Mr McIntosh commenced employment there in 1982 and Ms Barbour, the second Appellant, in 1986. Until 1984 the staff at the Victoria & Albert were civil servants. As from 1984 however, employment as a civil servant ended and the staff were employed by the Trustees of the Victoria & Albert but with their terms and conditions determined by analogy with main stream civil service terms and conditions.

[2]The Trustees were established under the National Heritage Act 1983 . It appears that since 1996 the Victoria & Albert has been given delegated powers to determine its own terms and conditions and it fixes terms by negotiations with recognised trade unions, although we note that there may be some dispute between the parties as to whether they are entitled to act in that way. The terms have apparently been incorporated into the individual contracts of employment of the workers concerned.

[3]On 1 September 2000 the security services at the Victoria & Albert ceased to be run by the Victoria & Albert itself and were thereafter provided by a contractor, Centuryan Personnel, which is a division of the Second Respondent in this appeal. Since that date, and at least up until they issued the Originating Applications in this matter, the Appellants continued in the employment of that new company. On 14 August 2000, that is, over two weeks before the transfer to which we have just referred, the two Appellants submitted claims in broadly identical terms to the Employment Tribunal for breach of contract and unfair constructive dismissal. It must be said that it was difficult to determine from the Originating Applications themselves, precisely which breaches of contract were alleged to have been committed by the first Respondents. In that initial Originating Application no claims were pursued against the second Respondent.

[4]Subsequently, on 25 October 2000, each Appellant put in a second claim, this time identifying as Respondents both the first and the second Respondent. They identified the nature of the complaint as being:

"Breach of Statutory Provision by going under TUPE regulation 1981."

In the details of the complaint they appear to suggest, but it has to be said the details are somewhat cryptic, that in some way there had been a failure by entering into this transfer under TUPE to honour the provisions in the National Heritage Act 1983 . Subsequently, clarification of the case against both Respondents was made by a document dated 17 January 2001. We confess that in various respects it still leaves the precise matters in issue lacking in clarity. Suffice it to say that there appeared to be five possible claims: firstly, against the first Respondent, for unfair constructive dismissal and breach of contract; and against the second Respondent for breach of contract, possibly constructive unfair dismissal and finally, as against both, a claim, to which we have already made some reference, that in some way the transfer could not be effected under the terms of the National Heritage Act , or involved an infringement of that Act. We can immediately ignore the last of these claims because Mr Davies, Counsel for the Appellants in this appeal, submits that he cannot properly seek to rely upon the nature of that particular claim in these proceedings.

[5]The Employment Tribunal considered these two complaints and in a decision on 5 June 2001 it held that it did not have jurisdiction to hear the claims in respect of either breach of contract or unfair dismissal, or, to the extent that such a claim was being made, variation of rights. The Tribunal concluded that it had no jurisdiction to hear the case of breach of contract or unfair dismissal against the first Respondent because the application was premature. As we have noted, it was before any transfer took effect. In any event, it held that there had been a transfer pursuant to the Transfer of Undertakings (Protection of Employment Regulations) 1981 (TUPE) and hence no dismissal of the Appellants. Without such a dismissal there could be no claim for unfair dismissal and no linked breach of contract claims.

[6]Their findings in relation to the question of jurisdiction were as follows:

"The Respondents argue that the Tribunal does not have jurisdiction to hear the claim for breach of contract or unfair dismissal, since the claim was not presented within three months of the effective date of termination. Our first problem is that there does not seem to be an effective date of termination, but in any event there is no doubt that the claims made for breach of contract and unfair dismissal were dated prior to any possible date of termination which has to be 1 September 2000, which is the date of the transfer from the first Respondent to the second Respondent. …. We find that in fact the claims for breach of contract and unfair dismissal were presented in advance of the possible effective date of termination, 1 September 2000, and we do not have before us any claim which has been brought within the period of three months under Section 111 of the Employment Rights Act 1996. Under Section 111 of the Employment Rights Act 1996, an employment tribunal shall not consider a complaint under the Section unless it is presented to the Tribunal before the end of the period of three months beginning with the effective date of termination. The Tribunal does not consider that it was not reasonably practicable for the complaint to be presented before the end of the period of three months, and therefore the Tribunal finds that there are no grounds for extension of that period of three months."

Then in relation to its conclusion that there was no transfer, the Tribunal dealt with this at two separate parts of its decision. First it held as follows:

"Ms Barbour specifically argues that there was not a "relevant transfer" under the Transfer of Undertakings (Protection of Employment Regulations) 1981, but we have seen page 400 which shows the reorganisation of the support services, and we accept Mr Booth, of counsel on behalf of the Victoria and Albert Museum, who says that the security services involving the night warders transferred to Centuryan, a division of Galago. We find that there was a relevant transfer within the meaning of the Transfer of Undertaking Regulations."

Later in the decision it said this:

"Before us today Ms Barbour argues that there was not a relevant transfer, that only part of a section was transferred, imposing a transfer on a minority of warders. Mr Booth has referred us, as already stated, to the terms of a transfer which shows that all the night guards were transferred and we are mindful that the Transfer of Undertakings (Protection of Employment) Regulations 1981, do not in fact allow for the part of an undertaking to be transferred. We find that a part was transferred, namely the night guarding provisions, and accordingly that there was a relevant transfer."

[7]In relation to the claim against the second Respondent, the Tribunal concluded that there could be no question of any constructive dismissal claim since they were still employed at the time of the lodging of their Originating Applications. As to the breach of contract claims, they concluded that the principal grievance appeared to be directed at the failure by the second Respondents to honour the pension terms that had been in force prior to the transfer. They pointed out that those pension rights did not in any event transfer across by virtue of Regulation 7 of the TUPE Regulations.

[8]Mr Davies, for the Appellants, says that in fact there were other breaches of contract that were being alleged by the two Appellants and that they were not only concerned with their pension rights. However, he has accepted that in any event the Tribunal does not have a jurisdiction to deal with straight breach of contract claims in circumstances where the employees remain employed by the employer concerned. Accordingly, he accepts that he cannot succeed in any appeal against the second Respondents in any event.

[9]Accordingly, we only need focus upon the appeal against the decision as it affects the first Respondents. Again, in relation to this part of the appeal, Mr Davies accepts that the Tribunal was right to find that any breach of contract claims were premature and that the Tribunal had no jurisdiction to hear them. That was precisely the problem that arose in Capek v Lincolnshire County Council

[2001] IRLR 590

. The Court of Appeal held in that case that where an Originating Application was made prior to the date of determination then the Tribunal did not have jurisdiction to hear the complaint. It is not necessary to refer to that decision in any detail since we have indicated that Mr Davies accepts that that is binding upon him in this case.

[10]However, he submits that the conclusion that they had no jurisdiction to hear the unfair dismissal claim was in error. There are three principal grounds on which he submits that they erred. Firstly, he says, the Tribunal ought to have exercised its jurisdiction pursuant to Section 111(3) of the Employment Rights Act 1996 . This provides as follows:

"Where a dismissal is with notice, an [employment tribunal] shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination."

Second, he submits that the Tribunal erred in finding that it was not reasonably practicable to put in a claim in time, they ought to have held that it was not reasonably practicable and exercise jurisdiction on that basis. Finally, he submitted that the second Originating Application in any event, arguably, constituted a claim for unfair dismissal. It is not disputed that that particular Originating Application was in time.

[11]We can deal briefly with the last two grounds. In our view neither is correct as a matter of law. It is plain, if one looks at the second Originating Application, that it did not involve a claim for unfair dismissal if read fairly. It is true that the Appellants did fill out a box which is only to be filled in when an unfair dismissal claim is being pursued, that is the box identifying remedies. In addition, however, they also filled in another box which is only to be filled in if your complaint is not about dismissal. Furthermore, the way in which the claim is described simply makes it impossible to suggest, in our view, that this was a claim of unfair dismissal against the first Respondents. Similarly, we consider that the Tribunal manifestly was entitled to reach the conclusion that it was reasonably practicable for the Appellants to put their claim in in time. He submitted that is was not reasonably practicable because having thought that they had put in a valid claim, they plainly would not consider it necessary to put in another one. In our view that does not go to the question of whether it was reasonably practicable and the Tribunal properly considered that matter.

[12]However, we think there is force in the first ground. The argument here is essentially as follows. The Appellant submits that there was transfer of an undertaking within the meaning of TUPE. Accordingly, they submit that as a matter of law when the employers gave notice of a transfer of employment that amounted to the termination of the contract of employment by the first Respondent and the entering into a fresh contract with the second Respondent. Accordingly, Mr Davies says, the notice of transfer is equivalent to a notice of termination of contract, that is, a notice of dismissal, if there is no TUPE transfer. Of course Regulation 5 of TUPE provides that the employment will transfer without there being any dismissal in the event that it is a TUPE transfer, but only in those circumstances.

[13]We accept that in principle this submission is sound. Indeed, it is right to say that Ms Newton, who argued the case succinctly and most ably for the Respondent, did not seek to persuade us otherwise. It seems to us that if an employer gives notice of an event whose affect will be to bring about the termination of the contract, that is a notice of dismissal, even if he genuinely believes that the notice does not have affect and does not intend the notice to have that affect. Whether or not a notice is to constitute a notice of dismissal is in our view something that has to be objectively determined. We also consider that this fits in with the policy of Section 111(3), which is to ensure that an employee should not lose his right to claim for unfair dismissal if he makes a claim at a time when the employer has made it plain that his contract will be terminated at a future specified time.

[14]However, it will be clear that all this is contingent upon there being no TUPE transfer. In this case the Tribunal found that there was such a transfer. It may indeed be for that reason that they did not consider it necessary to consider the potential applicability of Section 111(3). It is also right to say that the Section was not specifically relied upon by the Appellants below, as Ms Newton pointed out. She suggested that we should not allow the point to be taken now. We reject that submission however. We think this is an appropriate case in which to allow the matter to be raised before us, albeit that it was not raised below. The Appellants were unrepresented below. The issue is one which can be determined without any fresh findings of fact. It is also an issue to go to jurisdiction. We consider that it is in accordance with the decision of the Court of Appeal in Glennie v Independent Magazine (UK) Ltd

[1999] IRLR 719

that we should allow this point to be raised at this stage

[15]This still leaves the question however, can the Tribunal's findings, that there was a TUPE transfer, be challenged? Mr Davies submits that it reached the conclusion without any proper findings of fact. It simply looked, apparently, at one page in a document which showed a reorganisation of support services and it treated the observations of counsel as though they were evidence on which it could properly rely.

[16]Ms Newton submitted that there was a proper basis for the Tribunal's ruling. She referred to the later part of the decision, which we have set out above, in which the Tribunal recounts the fact that Ms Barbour was arguing that TUPE was not relevant and that only part of a section was transferred. She submitted that it appears that the only issue was whether there could be a TUPE transfer if only part of the business had been transferred. The Tribunal plainly was right to say that there could. More importantly, she put forward a very cogent case to say that the Appellants had not at any point been claiming, prior to the hearing before the Employment Tribunal, that there had been no transfer as a matter of fact. They may have been saying that there could be no valid or effective transfer because it in some way would infringe the National Heritage Act , but of course that is a different matter. She took us through various documents, including the Originating Applications and the further and better particulars, which indeed seemed to assume that there was a transfer. As she pointed out, the case below seems to have been prepared on the basis that the Appellants were alleging a constructive dismissal, resulting in some way from breaches of contract rather than any direct dismissal by the first Respondent.

[17]Mr Davies contended that there were some indications, in the further and better particulars in particular, which indicated that the question of whether or not there had been a transfer in fact, was an issue before the Tribunal. We have to say that we find the passages to which he drew our attention to be, at best, highly ambiguous.

[18]However, it is right to say that the issue was raised, at least by the second Respondent, at the hearing before the Employment Tribunal. The Tribunal, we think we should infer, thought that it ought to make a finding on that particular matter. In these circumstances, the question is whether it properly reached a conclusion. We are all satisfied that in this particular respect it did not. The Appellants could, it seems to us, feel some sense of injustice that if the issue was before the Tribunal, as it appears to have been, that the Tribunal did improperly reach a conclusion that there was a relevant transfer. We must say we have considerable sympathy for the Tribunal because we think the nature of the claim being put forward was never clear. No doubt, they were dealing with this matter in something of a 'belt and braces' nature in the sense that they had found in any event that there was no jurisdiction to hear the claims.

[19]In these circumstances it seemed to us, although not without some hesitation, that justice requires that on this single point, whether or not on the facts there was a relevant transfer, should be remitted to the same or a different Tribunal, it matters not. There was no evidence heard on the point and we are satisfied that weight was given improperly, albeit understandably, as we have indicated, to the observations of counsel.

[20]The question of whether or not there is a transfer, as we have indicated, is then relevant to two matters. First, if there is a transfer, as the Tribunal found, there would be no dismissal. Moreover, if there is no dismissal, there would have been no notice of dismissal and no jurisdiction in any event. The two issues are inextricably linked, as it seems to us. So whether Section 111(3) applies, depends upon whether or not there was indeed a transfer. That is a matter which we think now would have to be determined.

[21]We would however add this. We think it may well be the case that when those advising the Appellants look carefully at the question of whether there was in fact a transfer on the facts, they may, we know not, come to the conclusion that it is plain that there was a transfer. In those circumstances, it is of course the duty of their advisors so to advise their clients so that there is not a wasted journey back to the Tribunal with all the time and costs involved in such an action. We have found, for reasons we have given, as we said, not without some hesitation, that it would be wrong to prevent this matter being fully heard, if it is a matter of any real substance. If it is not, then we hope that the matter will simply stay where it is and the Appellants will accept that any claims they may have for breach of contract would have to be pursued in another form.