CAPITA HEALTH SOLUTIONS v (1) BRITISH BROADCASTING CORPORATION (2) MRS A McLEAN [2008] UKEAT 0034_07_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0034_07_0105Case No Appeal No. UKEATS/0034/07Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
CAPITA HEALTH SOLUTIONSAPPELLANT(1) BRITISH BROADCASTING CORPORATION (2) MRS A McLEANRESPONDENTS
Before
Lady SmithDate 1 May 2008
[2]APPEARANCES For the Appellants MS S COWEN (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 7 Park Square East Leeds LS1 2LW For the First Respondent MR J LADDIE (of Counsel) Instructed by: BBC Legal Division Room 2251 White City 201 Wood Lane London W12 7TS For the Second Respondent MR C MCDOWALL (Solicitor) Messrs Anderson Strathern Solicitors 24 Blythswood Square Glasgow G2 4BG SUMMARY TRANSFER OF UNDERTAKINGS: Transfer Whether or not contract of employment transferred in circumstances where the employee objected but worked for the transferee on "secondment" for six weeks post transfer. On a proper consideration of the whole facts and circumstances, the employee's objection was not such as to prevent transfer; it was, in reality, an agreement to working for the transferee for a short period. THE HONOURABLE LADY SMITH INTRODUCTION 1. This case arises out of a "TUPE" transfer which took place on 1 April 2006 (i.e. one to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 applied). The first respondent, who is the claimant, asserts that she objected to her employment being transferred from the second respondent to the appellants. The Tribunal should not, she says, have found that her employment had transferred, in circumstances where she had tendered her resignation on 30 March 2006 for her employment to terminate on 12 May 2006. I propose, for the sake of clarity to continue to refer to parties as claimant, first respondents (BBC) and second respondents (Capita Health Solutions Ltd). The Tribunal's judgment was registered on 16 April 2007 following a hearing at Glasgow, Chairman Ms F J Garvie (sitting alone). Background[3]The claimant is an occupational health nurse and was employed by the first respondents in that role from 3 May 1988. On 16 February 2006, the first respondents announced that elements of their Human Resources department including their Occupational Health service would be transferred to the second respondents on 1 April 2006.[4]The claimant intimated that she objected to being transferred to the employment of the second respondents. On 1 March 2006, the claimant raised a grievance in which she set out her concerns in relation to the proposed transfer. Those concerns were, shortly put, that she considered there would be a significant change in her role and that should she decide to take early retirement, the pension conditions available to her would not be as favourable. On 22 March, a grievance hearing took place. The notes of that hearing record:
" Angela McLean stated that she was due to leave on the 31 st March and that she had no intention of transferring to Capita ."
[5]Her grievance was rejected. The first respondents' Head of Occupational Risk, Jim Brown, wrote to the claimant by letter dated 27 March 2006 in terms which included:
"…..I am writing to confirm the arrangements I have proposed to you should you decide to resign before 31 March 2006. I understand your position regarding your TUPE transfer to Capita and the fact that you have stated that you do not wish to transfer. I personally do not wish you to resign and would hope that you could continue to provide the service back to the BBC as a Capita employee. However, if you still feel that this ( sic) not an option for you personally, then on the basis that you agree to working 6 weeks of your notice rather than three months as per your BBC contract of employment, I am proposing that the BBC "seconds" you to Capita. This means that you would continue to work for the BBC during the 6 weeks, on the same terms and conditions and your continuity of service would be maintained. In return you would proactively work with Capita to assist in the transition of the service to their Occupational Health team in order for them to provide the service going forward. I have discussed with Capita at length and whilst they would also prefer very much for you to stay and work for them, they have agreed to this arrangement as being a sensible compromise should you decide to leave………."
[6]On 30 March 2006, the claimant tendered her resignation by letter which included the following terms:
"Dear Jim You require that I resign from BBC or else under TUPE I will be transferred to Capita as of April 1 st 2006. I have decided that I am unable to transfer to Capita for the various reasons as detailed in my grievance and I am disappointed that I am being forced to resign. I will, because of my professional obligations to BBC Scotland, carry out a 6 week handover, "secondment" to Capita, therebye ( sic ) terminating my BBC employment on the 12 th May 2006. I, herebye ( sic ), formally tender my resignation with the BBC, my employment terminating on 12 th May ,2006….."
[7]Jim Brown replied by letter dated 30 March 2006 indicating that the BBC did not require the claimant to resign but that her resignation was accepted. That letter included the following:
" …as previously agreed, you will remain a BBC employee until 12 May, being seconded to Capita from 1 April to 12 May, …."
[8]The claimant carried on working after 1 April, carrying out her role in the usual way in the Occupational Health unit which transferred to the second respondents on that date. None of the work of that unit was retained by the first respondents; there were no duties forming part of their business that she could have returned to at the end of the period that was described as "secondment". Her employment ended on 12 May 2006. During that six week period, her salary was paid to her by the first respondents, they paid her pension contributions, they paid accrued holiday pay and also paid a long service payment at the termination of her employment.[9]In summary therefore, prior to 1 April the claimant was in the employment of the first respondents. When she learnt that the part of their undertaking in which she worked was to be taken over by the second respondents (who were the preferred bidders), she made it clear that she objected to being transferred into their employment. However, she agreed to work in the unit past the transfer date for a period of 6 weeks. That was an arrangement agreed to by the second respondents. The first respondents regarded it as a matter of the claimant working for part of her contractual notice period and the claimant regarded herself at the time as doing so, on the basis that she remained in the employment of the first respondents. RELEVANT LAW[10]Regulations 5(1), (2), (4A) and (4B) of TUPE (1981) are relevant. The Tribunal also referred to and was influenced in its decision by regulation 5(5). Those regulations provide:
"(1) [Except where objection is made under paragraph (4A) below] a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (10 above, [but subject to paragraph 4A below] on the completion of a relevant transfer – (a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this Regulation to the transferee; and (b) anything done before the transfer is completed by or in relation to the transferor in respect of that contract or a person employed in that undertaking or part shall be deemed to have been done by or in relation the transferee. ……………… [(4A) Paragraphs (1) and (2) above shall not operate to transfer his contract of employment and the rights, powers, duties and liabilities under or in connection with it if the employee informs the transferor or the transferee that he objects to becoming employed by the transferee. (4B) Where an employee so objects the transfer of the undertaking or part in which he is employed shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor. (5) [Paragraphs (1) and (4A) above are] without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice if a substantial change is made in his working conditions to his detriment; but no such right shall arise by reason only that, under that paragraph, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment."
[11]For the purposes of the present case, it is important to note that whilst these regulations ousted the common law rule that an employer cannot transfer an employee's contract of employment to a third party without his consent, they expressly confirmed that the employee nonetheless retained the right to object to his contract being transferred. It had previously been thought that the principle that a relevant transfer of a relevant undertaking brought about the automatic transfer of the contracts of employment of those employed by the transferor meant that an employee's objection to being transferred was irrelevant: Berg v Besselsen Buschers [1990] ICR 396 ECJ. However, the European Court of Justice examined the issue in Katsikas v Konstantinidis [1993] IRLR 179 and held that Article 3.1 of the Acquired Rights Directive (Council Directive No. 77/187, followed by EC Council Directive No.2001/23) did not prevent employees from opposing the automatic transfer of their contract of employment. Berg had looked at the relevance of an employee's objection to the transfer of employers' obligations, not at the relevance of objection to the transfer of the employee's contract of employment.[12]In the United Kingdom what followed were regulations 5(4A) and (4B), the terms of which make it plain that if an employee intimates to either the transferor or the transferee that he objects to his contract being transferred, the regulations will(a) not have the effect of transferring his contract and(b) have the effect of terminating his pre- existing contract of employment on the date that the undertaking transfers. The objection can be communicated in any manner; the regulations do not call for formality in that regard ( Hay v George Hanson (Building Contractors) Ltd [1996] IRLR 427). Further, the use of wording such as "…where he objects to becoming employed by the transferee…" (my emphasis) which appears in reg. 5(4A) seems indicative of a requirement that the objection be communicated prior to the date of transfer. I can see, however, that there could be circumstances where their overall protective intent will not be capable of achievement if prior objection is insisted upon, such as where employees are kept in the dark about the transfer prior to the date of its occurrence, as happened in the case of New ISG Ltd v Vernon and others [2008] ICR 319 .[13]The point of regulation 5(5) was to preserve the objecting employee's right to claim constructive dismissal in any case in which he anticipated that the transfer would be a significant change and would be to his detriment so far as his working conditions were concerned. In such a case, whilst the employee's objection to the transfer (on grounds that it would lead to a significant and detrimental change) caused the termination of his contract of employment (regulation 5(4B)), and barred him from claiming that the transferor had dismissed him, it did not bar him from claiming that he had been constructively dismissed provided his complaint was that if he had transferred the change in his working conditions would have been significant and to his detriment.[14]I turn to the matter of secondment. Working on secondment for the transferee post transfer seems likely to produce the result that the employee's contract of employment is transferred, even if there has been an agreement between transferor and transferee to the contrary. That was the situation that arose in Celtec Ltd v Astley and Others [2005] ICR 1409 . There, civil servants had been seconded to certain training and enterprise councils which became privatised. Subsequently, a number of the civil servants chose to resign from the civil service and take up employment with the privatised body. Questions arose in the redundancy context as to whether there was continuity of employment between their period as civil servants and their employment with the new body, the latter contending that there was not.[15]The European Court of Justice ruled that the date of transfer of the business of a unit was the date on which responsibility as employer for carrying on the business of the unit moved from transferor to transferee and that the workers in the transferred undertaking are deemed to be handed over on that date regardless of anything agreed between parties.[16]The civil servants in Celtec had not expressly objected to their contracts of employment being transferred. An argument that the civil servants ought to be regarded as having implicitly refused to be transferred because they had agreed to be seconded, did not find favour with the European Court of Justice, to whom the case was referred. The European Court of Justice made a statement of general principle which was also referred to by their Lordships when the case returned to the House of Lords to the effect that whilst the rule is that contracts of employment are automatically transferred from transferor to transferee on the date when responsibility as employer for carrying on the business of the undertaking transfers, it is subject to the sole exception that it is nonetheless open to an employee whose contract of employment would otherwise be transferred automatically to opt "not to continue the employment relationship with the transferee" (ECJ at paragraph 37, Lord Hope of Craighead at paragraph 45). The employee required, however, to opt.[17]So, it was a problem for the transferee's argument that the civil servants had not objected to being transferred. But a further difficulty for the argument was identified by Lord Hope at paragraph 55:
"On the other hand it is a fundamental right of the employee to be free to choose his employer. So he cannot be obliged to work for an employer whom he has not freely chosen: Katsikas , paragraph 32. From this it follows that it is open to an employee whose contract of employment would otherwise be transferred automatically from the transferor to the transferee on the date of the transfer of his own free will to withdraw from this arrangement by declining to enter the employment of the transferee: Mikkelson, paragraph 16; Berg , paragraph 37. That, then, is the sole reservation referred to in paragraph 37. It does not, as my noble and learned friend Lord Mance suggests, work the other way round. It does not enable effect to be given to an employee's wish to continue to be employed by the transferor while continuing to be employed in the unit to which he has been assigned after its transfer to the transferee. But the application of the rule that he can withdraw from the arrangement depends on two things; first that the employee is in a position to choose whether or not to enter the employment of the transferee after the date of the transfer; and second, that he in fact exercises that choice by deciding of his own free will not to do so."
[18]Lord Hope summarised the way in which, as a matter of law, the civil servants' employment position required to be viewed, at paragraph 61:
"It seems to me plain in these circumstances that the sole reservation to the general rule to which the ECJ referred in paragraph 37 of its judgment does not apply in this case. The respondents were in a position on or after the date of the transfer to choose of their own free will not to work for Newtec. But they did not make that choice. The fact is that they continued to do the same work in the area offices after the transfer of the undertaking to Newtec, albeit in the belief that they remained in the employment of the DoE. This leads inevitably to the conclusion that their contracts of employment were transferred automatically to Newtec with continuity of employment at the date of transfer."
[19]The majority of their Lordships agreed. Accordingly, although the civil servants in Celtec had not expressed any objection to the transfer, it seems that even if they had done so, it would have been disregarded on the basis that actually going to work for the transferee is incompatible with the notion that the employee is objecting to the transfer and calling it "secondment" made no difference.[20]Reliance was placed by the second respondents on the case of Hope v PGS Engineering Ltd (in administration) UKEAT/0267/04/TM , a judgment of Judge Reid QC and members, reached without the benefit of any oral argument. In that case, the employee wrote to transferor and transferee intimating his objection to being transferred. The transferor put him on "garden leave" until 11 July 2003. The date that the undertaking transferred had been found by the Tribunal to be at an undetermined point around the end of June and the beginning of July 2003. The Tribunal had also found that the employee was still an employee of the transferor at the time of transfer. The Employment Appeal Tribunal held that regulation 5(4A) applied; the employee had clearly objected to the transfer. As to the effect of his having done so, at paragraph 21 of its judgment, the Employment Appeal Tribunal held:
"In our judgment the proper analysis is that Mr Hope was given notice because of his objection to the proposed transfer of his employment and his refusal to sign a new contract with the proposed transferee. His employment continued (as was accepted by both Mr Hope and PGS) with PGS after the transfer date until 11 July when his notice expired. His dismissal took effect when his notice expired and, as the Tribunal rightly held, was a dismissal which was automatically unfair under reg 8(1)……"
[21]At paragraph 22, the Employment Appeal Tribunal commented further: "…..But PGS did not purport to transfer Mr Hope's employment. It retained him in its employ though the undertaking in which he was engaged was transferred, and his employment with PGS came to an end at the expiration of his notice." and, at paragraph 24, concluded "(a) that Mr Hope did object to the proposed transfer of his contract of employment to GMS; …………… (c) he remained employed by PGS until the expiry of his notice……………".[22]Judge Reid QC does not explain how they reached the view that Mr Hope's employment with the transferor employer continued after the date that the undertaking transferred notwithstanding the provisions of reg 5(4B) the effect of which was that Mr Hope's employment with the transferor terminated on the date of transfer. However, more to the point perhaps, there appears to have been no suggestion that Mr Hope acted in a manner which was inconsistent with his objecting to being transferred. He did not, for instance, go to work for the transferee in the eleven days or so between the date of transfer of the undertaking and the date his employment with the transferor finally terminated. It is understandable, accordingly, that there was no finding that Mr Hope's employment had transferred.[23]Since an argument was presented on behalf of the second respondents to the effect that reg 5(4B) did not apply so as to terminate the contract of employment on the same date as the date of transfer of the undertaking, I should record that I was not referred to any authority directly in point on that issue. I would, however, refer to comments made in two of the cases in the bundle of authorities which appear to be of relevance. Firstly, in the opinion of the Advocate General, in Katsikas , at paragraph 22:
"…..after the date of the transfer and by virtue of the transfer alone, the transferor is discharged from all obligations arising under the contract of employment or the employment relationship, even if the workers employed in the undertaking do not consent or if they object, subject however to the power of the Member States to provide for the joint liability of the transferor and the transferee after the date of transfer." and secondly, in the judgment of Moore-Bick J, sitting in the Court of Appeal in the case of Humphreys v Chancellor, Masters and Scholars of the University of Oxford and another [2000] ICR 405 , at page 429: "
It is clear from the decision in Katsikas and Merckx that member states are entitled to provide, as regulation 5(4A) does, that where an employee objects to the transfer of his contract of employment the transfer of the undertaking automatically terminates his contract."[24]The reference by Moore-Bick J to regulation 5(4A) would appear to be intended to cover regulation 5(4B) as well, it being 5(4B) that deals with termination of the objecting employee's contract with the transferor. The comments in both cases would seem to be made on the basis of the clear import of the regulations being that termination of the contract occurs on the same date that the undertaking is transferred. The Tribunal's Judgment[25]The Tribunal's judgment is lengthy but the section containing its reasoning is short. Whilst the arguments advanced on behalf of each party are set out at length, the Tribunal's response to them is not altogether clear. For instance, it is not clear what the Tribunal made of the first respondents' important argument that any statutory objection communicated by the claimant was null and void because she remained in the same job post transfer; the circumstances showed, it was said, that her objection was not to becoming employed by the second respondents but to becoming employed for longer than six weeks. The Tribunal does not appear to have resolved that argument one way or the other.[26]The Tribunal found that the claimant's employment had transferred to the second respondents. They also, however, accepted that the claimant had clearly raised an objection to being transferred. How then did they find that there had been a transfer? Firstly, it found that it was a difficulty for the claimant that she resigned giving 6 weeks notice. That was because regulation 5(5) states that an employee may terminate his contract "without notice if a substantial change is made in his working conditions to his detriment."[27]Secondly, it said that regulation 5(4) had to be read in conjunction with regulation 5(5) and that meant that the claimant faced an insuperable obstacle. That was that she could not demonstrate that there was a significant change in her employment to her detriment.[28]The Tribunal rejected a submission that Hope was authority for the proposition that the claimant's employment had remained with the first respondent since it involved the employee being placed on garden leave, unlike the present case. The Appeal[29]Parties were in agreement that the Tribunal had fallen into error insofar as it had determined the case on the basis that regulation 5(4A) required to be read in conjunction with regulation 5(5) and the claimant had failed to satisfy the requirements of regulation 5(5). That, however, was the extent of their consensus .[30]For the second respondents, Ms Cowen submitted that the Tribunal had failed to set out adequate reasoning for its conclusion. The "how" and the "why" were missing. The decision reached was contrary to natural justice and to the fundamental rule that an employee cannot be forced to work for someone against their will. Whilst the circumstances of the present case were not on all fours with those of any prior authority, the nearest was the case of Hope . The Tribunal had, in effect, overlooked it. It was wrong to distinguish it on the basis that the employee in Hope was on garden leave since, in both that case and circumstances where an employee is seconded, the relationship of employer and employee subsisted.[31]Further, the Tribunal had, she said, given no consideration to the salient facts. These were that the first respondents had continued to pay the claimant's salary etc., that it was they who advised the claimant that she required to resign, that they had failed to warn her that if she were to work her notice period she would be undermining her position and that they did not think that she had transferred out of their employment. The effect of regulation 5(4B) was that the date of termination of the contract of employment did not require to be the same date as the date of transfer of the undertaking. It would, she submitted, depend on the manner of the objection. As the argument developed, it became apparent that Mr Cowen's submission went as far as to say that an objecting employee still required to work out his notice period even if it extended beyond the date of transfer. If the claimant had not done so, she would, it was submitted, have been in breach of contract. She and any employee in her position, accordingly, remained contracted to the transferor beyond the date of transfer of the undertaking for the whole of his contractual notice, in the absence of agreement to the contrary. It became apparent that Ms Cowen was submitting that that would be the case whatever the length of the notice period. Thus, if a contract of employment provided for six months notice, the employee could object to the transfer on, say, the day before the transfer of the undertaking, and remain entitled to all the benefits of his contract for six months less one day beyond the transfer date even if the transferor employer was not able to utilise his services because he no longer carried out the business of the unit in which the employee had worked.[32]Finally, Ms Cowen made a submission under reference to what she referred to as the practicalities of the case. If the second respondents became responsible for defending the claimant's claim of unfair dismissal, that would be in circumstances where, inevitably, the witnesses would be from the first respondents, the relevant documents would be the first respondents', that it was the first respondents who had determined her grievance and that consultation had been very difficult for the second respondents because they did not regard the claimant as a priority given that they knew she had no intention of transferring to them .[33]Overall, the outcome of the case served the opposite of the intention behind TUPE, according to Ms Cowen. It cannot have been what the regulations or directive intended.[34]For the first respondents, Mr Laddie submitted that the Tribunal's conclusion that the claimant's employment had transferred from the first to the second respondents was correct. It accorded with paragraph 3 of the preamble to the 2001 Directive which demonstrated that the intention of its provisions was the protection of employees and the claimant, by opposing the appeal, showed that she viewed her interests as being protected by the Tribunal's conclusion. There had, he submitted, been no objection that fell within reg 5(4A). The claimant had only objected to being a long term employee of the second respondents. Whilst it was accepted that an employee cannot be forced into a contract of employment, one who in fact goes into the employment of the transferee cannot complain. Lord Hope's analysis in Celtec supported the first respondents' argument.[35]Mr Laddie referred to the history of the recognition of the employee's right to object as could be traced through the cases of Mikkelsen v Danmols Inventar a/s (in Liquidation) [1985] ECR 2639 , Berg , and Katsikas .[36]As to when and how the employee requires to object to prevent an automatic transfer of employment, Mr Laddie accepted that, as a generality, it would be necessary to look at what the employee did or said prior to the date of transfer; he referred to the discussion in paragraph 970 of Hay . However, the claimant here had, when "seconded" to the second respondents, carried out exactly the same work as she had done before. In fact she worked for them; it did not matter what she thought she was doing. By working for them for six weeks, she showed her objection was not to working for them but to working for them for more than six weeks. He contrasted her actions with those of the employees in the case of New ISG Ltd who, although not objecting to the transfer prior to its occurrence, did so as soon as they reasonably could once they knew about it.[37]Regarding the case of Hope , Mr Laddie accepted that it arguably provided support for the second respondents' argument but submitted that the Tribunal were right to have distinguished it. It was a judgment reached without the benefit of oral argument, the claimant had not worked after the date of transfer and he certainly had not worked for the transferee. Further, the decision predated the House of Lords' judgment in Celtec .[38]Finally, he submitted that the second respondents' reliance on matters of practicality was irrelevant. Whilst there would be difficulties, that was just the nature of things so far as claims arising in TUPE cases were concerned.[39]For the claimant, Mr McDowall adopted Mr Laddie's submissions and opposed the appeal. Discussion and Conclusions[40]Employees are plainly entitled to object to being transferred to the employment of another employer. Their right to do so accords with common law, with the underlying intentions of the relevant Directives and with the TUPE. The regulations are not prescriptive as to the form that the objection requires to take if it is to be effective, as was discussed in the case of Hay (see: paragraphs 9 – 11). Whether or not an employee has in fact objected will depend on the facts and circumstances of each case. Further, the test is plainly an objective one. Parties' stated intentions, whilst relevant considerations, will not be determinative of the issue. To regard them as such would conflict with Lord Hope's analysis at paragraph 55 of Celtec .[41]I turn firstly to the second respondents' submission which was, in essence, that the claimant continued to work for the first respondents under her original contract of employment until 12 May 2006, the date that her notice expired. Even if it is accepted that she objected to being transferred, that cannot be right. Regulation 5(4B) provides that the effect of such an objection is that the employee's contract of employment terminates and I am not persuaded that it can be interpreted so as to allow for such termination to postdate the date that the undertaking transfers. To do so would not accord either with its wording or with the underlying principle. Further, if, as was suggested, it had been intended that objecting employees be required or able to work out notice periods that ran on after the date of transfer, it is more than reasonable to have expected that to be provided for in the regulations. If that were their effect, that would have the obvious potential of burdening transferor employees with contractual obligations towards such employees beyond the date that they had any work for them to do, a surprising outcome to say the least. That is not to say that an objecting employee cannot be employed by the transferor employer after the transfer date but the transferor is not obliged to retain such an employee in his employment. Any such employment would be under a new contract.[42]Can the employee's contract of employment with the transferor be continued beyond the date of transfer without interruption if all parties concerned agree that that is what should happen? I do not see that it can. The import and effect of regulation 5(4B) is clear and cannot be avoided by agreement, just as an agreement that employees' contractual terms will be subject to an unfavourable variation on transfer is ineffective ( Foreningen Af Arbejdsldere i Danmark v Daddy's Dance Hall A/S 1988 IRLR 315 ). Thus, at best for the second respondents, if they are right in their contention that the claimant objected to the transfer, the claimant worked under a new contract of employment that ran from the date of transfer for a period of six weeks and the issue would then be: who was her employer under that contract?[43]Having given careful consideration to the whole circumstances, I am, however, satisfied that that issue does not arise. That is because it seems to me clear that the claimant's employment did transfer to the second respondents on 1 April 2006, the date that the undertaking transferred. That is because when what was said and done is looked at as a whole, the only proper interpretation that can be put on it is that the claimant did not object to being employed by the second respondents. She was, clearly, only prepared to work for them for a limited period of six weeks but that being so, she cannot, at the same time, insist that she objected. What her approach shows is that she was in fact agreeable to working for the second respondents albeit only for a short period. That her preparedness was time limited does not mean that she objected to a transfer. Regulation 5(4A) does not allow for post transfer objection except perhaps in exceptional circumstances such as where employees are not made aware of the transfer in advance of it occurring, as happened in the New ISG Ltd case. There are no exceptional circumstances here and, in any event, the second respondents founded on pre not post transfer objection.[44]The claimant does not, of course, insist that she effectively objected. She accepts that her employment transferred. Further, not only did she set out in writing that she was prepared to accede to the first respondents' proposal that she "proactively work with Capita" but she did so. The use of the word "secondment" does not, in my view, change matters. What happened was not secondment in its proper sense, which connotes a temporary assignation regarded, at least at its outset, as being on the basis that the employee will return to work directly for the seconding employer. It was never intended that that would happen. The first respondents had, post transfer, no requirement for the claimant to carry out work of the type she had carried out for them prior to the transfer. Their whole requirements for occupational health services were, post transfer, to be carried out by the second respondents for a period of ten years. They no longer maintained any such unit within their organisation. There was no work for her to do within the first respondents' organisation after 1 April 2006.[45]That leaves three matters. The first is the case of Hope , relied on by the second respondents. I would respectfully differ from its conclusion that Mr Hope's contract of employment with the transferor continued past the date of transfer until the end of his notice period. No consideration appears to have been given to the effect of regulation 5(4B) and I do wonder whether the result might have been different had the Tribunal been referred to it or if the House of Lords decision in Celtec had predated it. However, even if the Tribunal in Hope was correct to refrain from finding that there had been a transfer of the contract of employment, once the factual background against which it did so is taken into account, that does not help the second respondents in this case. Mr Hope plainly and clearly objected to the transfer of his employment and there was no question of him having worked for the transferee in any capacity or for any period. It is having worked for the second respondents that is the key factor here; Hope can readily be distinguished.[46]The second is the fact that the first respondents paid the claimant's salary, pension contributions, holiday pay and a long service payment. The second respondents placed heavy reliance on these matters. However, the conclusion has to be, in my view, that they were not bound to make any payments based on the claimant being in their employment between 1 April and 12 May 2006. The fact that they did does not mean that they were contractually bound to do so and is not such as to overcome the formidable hurdle for the second respondents' case of the claimant not actually having objected to her employment being transferred. It does not turn a failure to demonstrate a relevant objection into success in that regard.[47]The third is the "practicalities" argument advanced by Ms Cowan. I do not see that the practical difficulties referred to can affect the legal analysis which plainly leads to the conclusion that the claimant's employment transferred. Mr Laddie's response to the argument was appropriate, in my view.[48]The claimant not having objected to the transfer, regulations 5(4A) and (4B) do not apply. That means that under regulation 5(1), the claimant's contract of employment transferred from the first respondents to the second respondents on 1 April 2006. Thus, whilst I agree that the Tribunal's reasoning was ill- founded insofar as it involved reading regulation 5(4A) in conjunction with regulation 5(5), I also agree that it reached the right result, namely that the claimant's employment had transferred and the claim against the first respondents fell, accordingly, to be dismissed. Disposal[49]In these circumstances, I will pronounce an order dismissing the appeal.

Cited in 1 later judgment