MITIE GROUP v MRS S C MULLINEAUX [2005] UKEAT 0708_04_2402

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0708_04_2402

Case No Appeal No. UKEAT/0708/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MITIE GROUPAPPELLANT

MRS S C MULLINEAUXRESPONDENT

Before

His Honour Judge McMullen

Date 24 February 2005

[1]APPEARANCES For the Appellant MR D MEREDITH (Representative) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB For the Respondent No Appearance; Written Representations by the Appellant SUMMARY Transfer of Undertakings An affected employee of a transferor may not complain under TUPE Regulation 10 or 11 of failure by a transferee to give information to the transferor. Employment Tribunal failed to give a judgment in this primary point in transferee's case but it would not be remitted as the outcome is clear, based on construction of the Regulations. HIS HONOUR JUDGE McMULLEN QC 1. This case concerns a complaint by an employee that she was not informed by a Transferee following a relevant TUPE transfer of certain material and involves a determination of whether or not she may correctly sue the Transferee. Our conclusion that she may not. The judgment represents the views of all three members. We refer to the parties as the Claimant and the Respondent MITIE.

[2]It is an Appeal by the Claimant in those proceedings against a decision of an Employment Tribunal sitting at Exeter registered with Extended Reasons on 17 June 2004, Chairman Mr P S L Housego. The Claimant represented herself and the Respondent was represented by Mr D Meredith of Peninsula Business Services Ltd who appears today.

[3]The Claimant claimed a failure to consult and inform contrary to Transfer of Undertakings Regulations 1981 (TUPE) Regulation 10. The response of MITIE was that it was the wrong Respondent and it was not open to the Claimant to make this claim against it. That ought to have been the essential issue for at a case management conference conducted on the telephone the following was noted:

" (a) It be recorded that the Applicant's claim is that the Respondent failed to consult with her contrary to Regulation 10 of the Transfer of Undertakings Protection of Employment Regulations 1981. She brings no other claim. The Respondents concede that there was a relevant transfer from Rentokil Initial Management Services to the Respondent but the Applicant brings no claim against Rentokil."

[4]The Tribunal at its hearing found in favour of the Claimant and ordered MITIE to pay £6,900 which was the maximum order of 30 weeks pay under Regulation 11(11). Against that decision the Respondent MITIE appeals. Directions in sending this to a full hearing were given by His Honour Judge Serota QC and members at a preliminary hearing where other grounds were dismissed and the issue was refined. The legislation

[5]The other provisions of the legislation are the TUPE Regulations which provide for a duty to inform and consult representatives. The relevant Regulations define for our purposes who is an affected employer in Regulation 10(1): 10 "Duty to inform and consult… representatives (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"

[6]The duty to consult and the separate duty to inform are laid out in Regulation 10(2): (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 transferee 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.

[7]

(d) above"

[8]The failure by an employer in respect of affected employees can create a right to complain. This is provided so far as is relevant to our case by Regulation 11(1)(d). The regulations also provide for a declaration to be made on a successful complaint and for appropriate compensation of up to 13 weeks' pay. See Regulation 11(11). The facts

[9]The Claimant was paid £27,000 a year as the manager of the cleaning contract run by Rentokil at Paignton, Devon. The contract was the subject of some changes. There was consultation with the relevant workforce and the Claimant decided that she would not transfer when is accepted to be a relevant transfer for the purposes of TUPE occurred on 31 October 2003 from Rentokil to MITIE. The Tribunal made a number of findings about the Claimant's reasons for not transferring. Importantly, she makes no complaint about the way in which Rentokil responded for she notes that it did what it could to assist. The Claimant submitted that she was entitled to bring a claim against MITIE. 9.

[7]

10. The argument presented by MITIE was that it had done all it had to do to honour the requirements of the Regulations and the Tribunal accepted that as a powerful argument. However it made very strong findings against MITIE on the merits of its approach to the handling of employees of Rentokil such as the Claimant. The Claimant's original complaint was formulated on the basis that there had been no consultation with her, but the Tribunal noted that it was accepted by the Claimant that there is no right to complain by an individual of a failure to consult an individual. The sole basis of her complaint was that MITIE did not consult Rentokil or more realistically did not provide the information which Regulation 10(3) requires it to present, so that Rentokil could carry out its obligations to affected workers. Amongst the findings which the Tribunal make are criticisms on the merits which are not is issue in this Appeal.

11. The Tribunal then went on to award the maximum award because it regarded the failure as serious. The submissions

[12]MITIE contends that the central issue in the case was not addressed. It appeared from the claim presented by the Claimant that it was weighing against MITIE to which the response was that it was not liable as it was not the Claimant's employer. The Tribunal found for the Claimant and then went on to award the maximum award because it regarded the failure as serious. The complaint which Mr Meredith makes today is that that straightforward defence based on a jurisdiction issue was never dealt with by the Tribunal. If it had been, it would have been bound to find in MITIE's favour, since there is no right to complain against a transferee under the regulations.

[13]Having heard Mr Meredith's case and having read his Skelton Argument, we considered the Claimant's case. She has not appeared and has submitted a Skelton Argument in which she contends that the Tribunal decision was right and that MITIE was under a duty to provide information to Rentokil and she does have a right of complaint. She draws attention to Employment Tribunal proceedings conducted against Rentokil by GMB in Carlisle, see GMB v Rentokil Initial Management Services and Executive Group which were ultimately withdrawn before the Employment Appeal Tribunal. Our conclusions on the issues

[14]In our judgment, Mr Meredith is correct. There is no individual right to omplain by an affected employee which the Claimant was, when a transferee failures to provide the information to a transferor which is envisaged by the combination of Regulation 10 (2)(d) and Regulation 10 (3). We derive no assistance from GMB v Rentokil Initial Management Services and Executive Group except we note that the claim was brought by a trade union which is of course an appropriate person to bring proceedings and was constituted against what appear to be the transferor and the transferee. In those circumstances the proper mechanism for bringing a transferee into the proceedings where the defence is that the transferee failed to provide information pursuant to Regulation 10(3 is by joinder. That is why it is often necessary to constitute the proceedings against transferor and transferee and if not to rely on the transferor to bring it in as a Second Respondent. But it does depend upon the Claimant issuing proceedings against the Transferor at the outset.

[15]The Claimant represented herself and claimed she did not have the experience which MITIE did, calling upon the services of Mr Meredith. The case conference which was conducted by a different Chairman plainly identified the Claimant's claim. The Claimant did not appeal that depiction of her claim. It would be difficult to do so because she had constituted the proceedings solely against MITIE. Thus the central issue for the Tribunal when it met on 14 June ought to have been to resolve the dispute between the parties set up by the Notice of Appearance indicating that MITIE's position was that it was not a proper Respondent.

[16]The Tribunal failed to resolve a central issue and an issue which goes to jurisdiction. The appropriate remedy for that would be to send it back to an Employment Tribunal but the complaint in this case is that the Tribunal wrongly construed the Regulations. We accept that submission and therefore there is nothing more for us to do. It may well be that the Claimant would have had a strong case had she brought proceedings also against Rentokil, for that would be the gateway to making her complaints against MITIE. We say that she might have had a strong case because the firm findings made against MITIE's handling of this matter remain unchallenged at the EAT. That may be some small consolation to the Claimant. It has not been necessary for us therefore to deal with the award in her favour of a maximum of 13 weeks since we have decided the issue is one of jurisdiction. We would like to Mr Meredith for his very succinct submissions to us today. The Appeal is allowed.