LANSING LINDE SEVERNSIDE LTD v MR R J SPIERS [2002] UKEAT 1490_01_2405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1490_01_2405Case No Appeal No. EAT/1490/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LANSING LINDE SEVERNSIDE LTDAPPELLANTMR R J SPIERSRESPONDENT
Before
MISS RECORDER E SLADE QCMR K EDMONDSON JPMRS D M PALMERDate 24 May 2002
[1]APPEARANCES For the Appellant MR R A MEAD (Consultant) Robert and Susan Mead Personnel Consultancy Partnership 186 Redlands Road Penarth Vale of Glamorgan CF64 2QS MISS RECORDER E SLADE QC This is the Preliminary Hearing of an appeal from a decision of an Employment Tribunal which decided that Mr Spiers was entitled to damages for breach of contract for a contractual redundancy enhancement to his redundancy pay.[2]The issue before the Tribunal was whether a contractual variation in Mr Spiers' terms of employment had validly been made. That variation had come about on the transfer of an undertaking to the employers. There had been a consensual variation of terms. Employees had been offered the possibility of retaining their existing terms or moving on to new terms. As the Tribunal record, a large number of employees had retained their existing terms. It appears that a reason was advanced before the Tribunal as for the change in terms, namely administrative convenience. The Tribunal found that the original terms were retained in that there was a causal link between the variation and the transfer. In paragraph 8 of its decision it held:
"If there is the causal link, then the applicant is employed on the old terms and conditions."
[4]Mr Mead, on behalf of Lansing Linde, contends that the Employment Tribunal erred in a number of respects. First, that it misdirected itself in law by finding that the change in the terms and conditions of the Applicant was as a result of the transfer; second, that it misdirected itself in that it took insufficient account of the fact that the Applicant was never under threat of dismissal and that he voluntarily accepted the change in the terms and conditions of employment and could have retained his pre-transfer terms; and that it erred in reaching a perverse conclusion in finding that the directive and TUPE rights of the employee had been breached. Complaint is also made by Mr Mead that he was not permitted by the Employment Tribunal Chairman to refer to the House of Lords judgment in Wilson v St Helens or to advance a number of the arguments that he has advanced before us.[5]We have considered the self direction of the Tribunal in paragraph 9 of the decision in which the Tribunal said Mr Mead had suggested the harmonisation of pay scales as being a reason for the change in terms and conditions. The Tribunal observed:
"That in itself would not permit a change at the time of the transfer without going down a wholly different route, because that is an economic, technical and organisational reason for the change in terms, and irrelevant for the purposes of this case. The causal link between the change and the transfer is inescapable."
[6]In Wilson v St Helens Borough Council [1998] ICR 1141 at page 1166, Lord Slynn held that in circumstances where variations were made for economic or organisational reasons the Industrial Tribunal and the Court of Appeal in that case were entitled to find that the transfer of the undertaking did not constitute the reason for the variation.[7]In our judgment it is arguable that this Employment Tribunal erred in law in reasoning that an economic, technical and organisational reason could not be a reason for the variation in this case which permitted a contractual variation. In our judgment this is an arguable point of law. Further, the Employment Tribunal Chairman observed in paragraph 9 that:
"No evidence for a reason for the change in terms and conditions has been put forward."
Yet in the decision there is more than one reference to the argument being advanced by Mr Mead that the reason for the change was harmonisation of pay scales. In our judgment an argument that the Tribunal erred in law in making its observation about lack of evidence on reason may also be advanced.[8]Mr Mead also suggests that the refusal of the Chairman to allow him to refer to Wilson v St Helens in the House of Lords, when the Chairman referred to Wilson v St Helens in the Employment Appeal Tribunal, is somewhat curious. Whether that of itself amounts to a denial of natural justice or a fair hearing is a questionable matter. If Mr Mead wishes to pursue that as a separate ground of appeal, plainly, notice of that ground would have to be served on the Tribunal Chairman for his comment.[9]We have considered Mr Mead's arguments very carefully. We are going to permit this matter to proceed to a Full Hearing but would urge him to consider very carefully the best way to present this appeal at a Full Hearing so that the appeal focused on the arguable grounds. We give permission for the appeal to proceed on the basis of the grounds outlined in this judgment.`