ASHFORD SCHOOL (2) THE CHURCH SCHOOLS COMPANY v MRS S C NIXON (2) MS T JONES (3) MR E SAMSON [2002] UKEAT 666_00_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 666_00_1601Case No Appeal No. EAT/666/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ASHFORD SCHOOL (2) THE CHURCH SCHOOLS COMPANYAPPELLANTMRS S C NIXON (2) MS T JONES (3) MR E SAMSONRESPONDENT
Before
Mr Justice Wall Mr B V FitzgeraldDate 16 January 2002
[1]APPEARANCES For the Appellants MR JOHN BOWERS QC Instructed By: Messrs Veale Wasbrough Solicitors Orchard Court Orchard Lane Bristol BS1 5DS For the Respondents MRS SARA NIXON (FIRST RESPONDENT) MR JUSTICE WALL: In this appeal(1) Ashford School and(2) The Church Schools Company (the Appellants) appeal against the decision of the Employment Tribunal held at London (South) on 28 and 29 March 2000, and promulgated on 11 April 200. The Respondents to the appeal (the Applicants before the Tribunal) are (1) Mrs S.C. Nixon; (2) Ms Toni Jones and(3) Mr Eric Samson (the Respondents).[2]The Tribunal came unanimously to four conclusions, namely:(1) it made a declaration that the Appellants were in breach of Regulation 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981;(2) it ordered the Respondents to pay compensation of two weeks' wages to the affected employees, namely the non-teaching staff at the time of transfer;(3) it dismissed a claim by Mrs Nixon for detriment short of dismissal and(4) it dismissed a claim by Mr Sampson for unfair dismissal.[3]It is highly significant in this case that the Tribunal was dealing with the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) by reference to events which took place in June and July 1999, and most importantly prior to 28 July 1999 when the Collective Redundancies and Transfer of Undertakings (Protection of Employment) Amendment Regulations 1999 came into force. The significance of the amendments which these regulations made to TUPE will, we think, become clear as this judgment progresses. We will, however, for ease of reference set out at this point the relevant parts of Regulations 10 and 11 of TUPE as they were in force in June and up to 28 July 1999.[4]We start with Regulation 10, which is headed "Duty to inform and consult … representatives" : and reads as follows: "(1) In this Regulation and Regulation 11 below references to affected employees, in relation to a relevant transfer, are to any employees of the transferor or the transferee (whether or not employed in the undertaking or the part of the undertaking to be transferred) who may be affected by the transfer or may be affected by measures taken in connection with it; and references to the employer shall be construed accordingly. (2) Long enough before a relevant transfer to enable the employer of any affected employees to consult all the persons who are appropriate representatives of any of those affected employees, the employer shall inform those representatives of -(a) the fact that the relevant transfer is to take place, when, approximately, it is to take place and the reasons for it; and(b) the legal, economic and social implications of the transfer for the affected employees; and(c) the measures which he envisages he will, in connection with the transfer, take in relation to those employees or, if he envisages that no measures will be so taken, that fact; and(d) if the employer is the transferor, the measures which the transferor envisages he will, in connection with the transfer, take in relation to such of those employees as, by virtue of Regulation 5 above, become employees of the transferee after the transfer or, if he envisages that no measures will be so taken, that fact. (2A) For the purposes of this Regulation the appropriate representatives of any employees are - (a) employee representatives elected by them; or (b) if the employees are of a description in respect of which an independent trade union is recognised by the employer, representatives of the trade union, or (in the case of employees who both elect employee representatives and are of such a description) either employee representatives elected by them or representatives of the trade union, as the employer chooses. (3) The transferee shall give the transferor such information at such a time as will enable the transferor to perform the duty imposed on him by virtue of paragraph (2)(d) above. (4) The information which is to be given to the appropriate representatives shall be given to each of them by being delivered to them, or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the union at the address of its head or main office. (5) Where an employer of any affected employees envisages that he will, in connection with the transfer, be taking measures in relation to any such employees he shall consult all the persons who are appropriate representatives of any of the affected employees in relation to whom he envisages taking measures with a view to seeking their agreement to measures to be taken. … (8) Where – (a) the employer has invited any of the affected employees to elect employee representatives, and (b) the invitation was issued long enough before the time when the employer is required to give information under paragraph (2) above to allow them to elect representatives by that time, the employer shall be treated as complying with the requirement of this Regulation in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.[5]Regulation 11 of the Regulations (as at June/July 1999) is headed "Failure to inform or consult" and the relevant parts read as follows:
"(1) Where an employer has failed to comply with any requirement of Regulation 10 above, a complaint may be presented to an industrial tribunal on that ground – (a) in the case of a failure relating to employee representatives, by way of the employee representatives to whom the failure related; (b) in the case of a failure relating to representatives of a trade union, by the trade union; or (c) in any other case by any of his employees who are affected employees … (4) Where the tribunal finds a complaint under paragraph (1) above well-founded it shall make a declaration to that effect and may - (a) order the employer to pay appropriate compensation to such descriptions of affected employees as may be specified in the award; (b) … (5) An employee may present a complaint to an industrial tribunal on the ground that he is an employee of a description to which an order under paragraph (4) above relates and that the transferor or the transferee has failed, wholly or in part, to pay him compensation in pursuance of the order. (6) Where the tribunal finds a complaint under paragraph (5) well-founded it shall order the employer to pay the complainant the amount of compensation which it finds due to him."
The Facts[6]At the material time, the Respondents were all ancillary non-teaching staff employed by the First Appellant. In May 1999 the First Appellant entered into negotiations with the Second Appellant with a view to the latter taking over the former. A merger of what were two charitable institutions was approved by the Charity Commissioners in June 1999 and on 22 June 1999 the Appellants "went public" with the news of the merger at a general meeting of staff members.[7]On 23 June 1999 all the staff received an identical letter from the Headteacher, formally announcing the proposed amalgamation. The letter stated that the Governors were taking the step in order to ensure the future of the school and continued:
"The terms and conditions of your employment will remain as stated in your contract of employment and of course, the continuity of your employment is unaffected. There is a requirement to consult with employee representatives to inform them of the details of the amalgamation. Mr Limmer is currently the elected representative of the teaching staff. Could the non-teaching staff please elect a representative by Friday, 25 th June, so that consultation can take place. This consultation will be the mechanism of keeping everyone up-to-date."
[8]On 23 June 1999, the same day as the letter, the school's Bursar arranged a meeting of the relevant staff – that is to say the "non-teaching" staff. At that meeting, there was an agreement that the election of the staff representative would be by secret ballot, and the staff were told that the ballot would take place on the next two successive days, that is to say 24 and 25 June 1999. The school management made clear there was only to be one non-teaching staff representative, and the Tribunal found that this requirement was not unreasonable.[9]Mrs Nixon was the school's assistant bursar. She was on holiday on 23 June, and there was some doubt about whether she was entitled to stand as a candidate in the election. The Bursar's initial view that she was "management" rather than "staff", but in the event she was allowed to stand even though she was not physically present at the time, nor did she have the opportunity to vote.[10]The Tribunal was critical of the election. In paragraph 12 of its Reasons it said:
"12 We find that the distribution of ballot papers and the whole proceedings were carried out in a very hasty and rushed fashion. The consequence was that some twenty non-teaching staff did not get ballot papers at all or alternatively not in time to enable them to vote in the ballot. Candidates for election did not have anything like enough time to promote themselves as candidates to take advice about their position and their rights. We were not concerned particularly by the allegation that the ballot papers were placed in a cardboard box. We do not accept that there was any real risk of interference but the cardboard box was perhaps yet another symptom of this very rushed election exercise."
The outcome of the vote was that the Bursar's secretary, Mrs Pickering, received 27 votes. Mrs Nixon received 14 votes, and two other candidates Miss Thorley and Mrs Hardy received 17 votes between them. A total of 62 voting papers were issued, and 58 were returned. Mrs Nixon says, and the Tribunal found, that there were more than 80 non-teaching staff (the precise figure was 81) so that 19 people were, effectively, disenfranchised.[11]Thereafter, what the Tribunal describes as the Appellants' "purported compliance with their obligations under Regulation 10" continued with a meeting between the Headteacher and the two "representatives", namely Mr Limmer, on behalf of the teachers, and Mrs Pickering, on behalf of the ancillary staff. That meeting took place on 28 June 1999. Mrs Pickering's summary of it was that "nothing will be decided about staffing levels until after the end of this term … . The head will let Paul and me know as soon as any decision has been made about a representative of Church Schools Company visiting Ashford School to discuss staffing levels"[12]It was, however, envisaged that there would be staff changes as a result of the merger. The Appellants' case before the Tribunal was that as at 28 June 1999 the Appellants had complied with their duty under Regulations 10 and 11 by stating the approximate date of the transfer as 1 September 1999; that the implications of the transfer for the effected employees were, in effect continuity of employment and no change in terms and conditions, and that so far as the transferee (that is the Second Appellant) was concerned there were "no measures" to be taken. The Tribunal did not accept that argument.[13]Without any warning or consultation or provision of information to anybody the legal, and thus the actual date of the transfer of the undertaking was advanced from 1 September 1999 to 9 July 1999. It was conceded by the Appellants below that nobody on the staff side was informed of this change, nor Mrs Pickering, the "non-teaching staff representative".

(a) The Tribunal continued:

"19 Legally therefore and financially, the [Second Appellant] became the employer of the three [Respondents] and indeed all staff with effect from 9 July 1999. We find that that position was by no means made clear to staff concerned and it gradually emerged over the course of the successive weeks. We had a quantity of evidence about the extensive discussions which Mrs Rendel-Short had as a result of her review of the whole staffing situation which took place over the summer period, with a view to having a completely new staffing arrangement ready for the autumn term in September 1999."
[14]In her form IT1, received on 6 September 1999, Mrs Nixon makes a number of complaints. She complains about the procedure for the election. She says that the ancillary staff should have been allowed more than one representative. She says that they were not allowed sufficient time to nominate and consider candidates; she complains that not all non-teaching staff were offered a vote and if they had, a different representative might have been elected. She complains that not everybody had the chance to stand for election who may have wanted to do so, either because they were absent on 23 June or did not attend the meeting which had been called at very short notice. Given the lack of information, and the fact that nobody was aware at the time that job losses would result because of the transfer, those seeking election did not understand the responsibility of the role they were either standing for or indeed voting for. Finally, on this aspect of the case, she says that the ancillary staff did not have time to seek advice before the transfer because of its change of date.[15]In the second limb of her complaint in her Form IT1, Mrs. Nixon argued that she herself was prejudiced because it was said she was both "management" and on holiday, and that this constituted detriment short of dismissal. She concluded by pointing out that the Second Appellant had started to issue redundancy notices to staff. She said she had invited the school and the Chief and Deputy Chief Executive of the Second Appellant to allow the election to take place under proper conditions. They had declined to do so, and ignored her point that it should be done according to law. She says the Appellants' whole design was that the procedure should be completed before the start of the autumn term, and during the period leading up to the beginning of term the Second Appellant had manipulated the situation and made full use of the fact that a lot of people were on holiday so that they met with a fragmented workforce.[16]We do not propose to set out the complaints made by Ms Jones and Mr. Samson, which arise from the same factual sub-stratum, and to which the same Regulations apply as they do to the case of Mrs. Nixon. We summarise the manner in which the Tribunal deal with Mr. Samson's case at paragraph 19 below. The Tribunal's Findings[17]The Tribunal found that there had been breaches of Regulation 10(8) of the Regulations. They approached the matter in this way:
"24 We recognise and accept that it is not the employer's obligation in a general way to act as nanny for the staff and to arrange for staff elections. The obligation is limited to that at Regulation 10(8). On the other hand we read Regulation 10(8) as clearly importing an obligation upon the employer to issue the invitation for an election process 'long enough' before the time when information is going to be passed. We go on to construe that obligation as being an obligation to allow a typical work place balloting exercise to take place. In this particular case, bearing in mind the size of the organisation and numbers of staff involved we came to the conclusion that the invitation should have been issued within sufficient time to enable all staff to be notified of the selection procedure and to receive ballot papers within time to enable the voting to take place in full. That in turn we decided meant that the invitation should have been issued within time for post to go out to staff who were away from work within sufficient time to allow them in turn either to telephone or post back their views and sufficient time for candidates also to issue a postal presentation of their candidature. 25 On the facts of this particular case it seemed to us that the process should have taken at least a week and that the process which was actually adopted was far too hasty. …"
[18]The Tribunal went on to find the election a nullity, although they acknowledge that this was a conclusion they reached only after final submissions had been concluded. Their reasons for reaching this were:
"26 … A measurable proportion of staff did not receive ballot papers and did not vote. A measurable proportion of staff had insufficient time to consider whether on the one hand they wished to stand as candidates or on the other they wished to withdraw their candidatures. Mrs Nixon who was specifically spoken to about the voting procedure did not have an opportunity to vote herself. We came to the conclusion that in the result the election process was a nullity since, on the facts before us we came to the conclusion that because there were so many failures and irregularities in the election process, it was ineffective and lacked validity. This nullity we find was a direct consequence of the [Appellants'] failure to issue the invitation in time. 27 This in turn led us to the consequence that the submission of [Counsel for the Appellants] that the only person who could complain of the failures to inform which we have already found the [Appellants] guilty of was the elected representative was not a valid argument, since we found that although Mrs Pickering was the purported 'elected representative' the staff had been deprived of a properly elected representative. It follows in our judgment therefore, that the [Appellants] were guilty of failures under Regulations 10(2)(a); 10(2)(b); 10(2)(d) and 10(8). 28 If we are wrong in the foregoing conclusion in any event we find that the [Appellants] were guilty of a very late invitation before the election of staff representative and the [Respondents] as being members of the class of 'affected employees' are entitled to complain of that breach in any event."
[19]In the context of compensation, the Tribunal said this:
"33 We came to the conclusion that this was a poorly managed and unnecessarily hasty transfer consultation exercise. It was, we find a failure by those concerned which was more than a mere formality but on the other hand we do not accept that it was a completely cavalier disregard of the employer's obligations in relation to the election of representatives and consultation thereafter. In our judgment the 'appropriate compensation' which is just and equitable having regard to the seriousness of the failure is an award of two weeks pay."
[20]The Tribunal then went on to deal with the case of Mr Samson (the Third Respondent) and came to the conclusion that as he was 60, he was not entitled to complain of unfair dismissal. Both under statute and contractually he was entitled to be dismissed in the sense of being asked to retire. They accordingly dismissed his claim. The appeal[21]The primary submission made by the Appellants in this case is very simple. It is that the Tribunal had no jurisdiction to entertain Mrs Nixon's application. This was because pursuant to Regulation 11(1)(a) she was not an "employee representative". The employee representative was Mrs Pickering, and Mrs Pickering did not bring a claim. Equally, Mrs Nixon did not come within Regulation 11(1)(c) because the duties owed under Regulation 10(2) only require the employer to consult with "all the persons who are appropriate representatives of any of those affected employees". Once again, Mrs Nixon was not an "employee representative". Furthermore, Regulation 10(8) was simply an enabling provision. It enabled the employer to invite the affected employees to elect an employee representative and enabled the employer to be deemed to have complied with the requirements of the Regulation in a case where the invitation to conduct the election allowed sufficient time to enable the affected employees to elect representatives before the time when the employer was required to give the information under Regulation 10(2).[22]We have come to the conclusion, with some regret, that the Appellants' submissions in this respect are well founded. We agree with the Tribunal's strictures on the election process. We have considerable sympathy for the Respondents to this appeal, and all the more so as changes in the Regulations which, as originally drafted, contained inadequate protection for employees, came into effect almost immediately after the events in this case.[23]Mr John Bowers QC, who appeared for the Appellants, helpfully annexed the amendments to his skeleton argument. It is, we think, for the purposes of this judgment unnecessary for us to set them out in detail. However, the 1999 amendments, make provision amongst other things, for the employer to "make such arrangements as are reasonably practicable to ensure that the election is fair" – now Regulation 10(A)(1)(a), which is a new provision. There are also detailed provisions relating to the arrangements for the election of employee representatives . The anomaly whereby Regulation 11(1)(c) appeared to give Mrs. Nixon a right to apply to a Tribunal as an "affected employee", only for that right to have no meaning because the employer's obligation under Regulation 10(2) was limited to consultation with "appropriate representatives of any of those affected employees" has been removed. The new Regulation 11(2) allows a complaint to be presented - "(a) in the case of a failure relating to the election of employee representatives, by any of his employees who are affected employees; (b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure relates … (d) in any other case by any of his employees who are affected employees." The Regulations also provide for a substantial increase in the level of compensation which the Tribunal can award.[24]It is, accordingly, immediately apparent that had the relevant events in this case occurred after 28 July 1999, not only would the Tribunal have had jurisdiction to entertain Mrs Nixon's claim but, on the facts, the conclusions it reached on the events as they found them to be prior to 28 July 1999 would have been, in all probability unassailable. We did not understand Mr Bowers to disagree with this proposition: indeed,, in his skeleton he submitted that the Tribunal had undertaken an impermissible form of judicial legislation in order "to fashion a remedy which might have been available under the Amendment Regulations" but which was not available at the time of the relevant transfer.[25]Mrs Nixon appeared in person as the spokesperson for the Respondents. She produced a skeleton argument. In this, she sought to uphold the Tribunal's conclusions on the basis that they largely consisted of findings of fact which the Tribunal was entitled to make on the basis of the available evidence. Unfortunately, in our view, there is nothing in her skeleton which is able to overcome the fundamental difficulty that as the Regulations were then drafted, Mrs Nixon did not have the necessary status to apply to the Tribunal, irrespective of the outcome of any election, because she was not an employee's representative. As we have already made clear, both the provisions relating to the election and the status of the individual employee's representative have now been rectified by the amendment to the Regulation. Unfortunately, in our judgment, this does not help Mrs Nixon.[26]The EAT is a Tribunal of law. Its powers are limited. There are, unfortunately, times when the proper application of the law means that justice cannot be done. This, we think, is one of them. We have in this case to apply the law as it stood in June 1999. Doing so, we are driven to conclude that the Tribunal did not have jurisdiction to entertain the claims of Mrs. Nixon and Ms Jones, and that accordingly neither the Declaration made under Regulation 11 of the 1981 Regulations nor the Order for compensation can stand. Mrs Nixon does not appeal against the Tribunal's decision that her claim of detriment short of dismissal should itself be dismissed, nor does Mr Samson pursue his appeal against the claim that he was unfairly dismissed. In these circumstances, the appeal must be allowed and the first two orders made by the Tribunal set aside.