ADULT LEARNING INSPECTORATE AND OTHERS v MR N A BELOFF [2008] UKEAT 0238_07_3001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0238_07_3001Case No Appeal No. UKEAT/0238/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ADULT LEARNING INSPECTORATE AND OTHERSAPPELLANTMR N A BELOFFRESPONDENT
Before
His Honour Judge McMullenDate 30 January 2008
[1]APPEARANCES For the Appellant MR SELWYN BLOCH (One of Her Majesty's Counsel) Instructed by: Messrs Archon Solicitors Martin House 5 Martin Lane London EC4R 0DP For the Respondent MR M WESTGATE (of Counsel) Instructed by: Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH SUMMARY Redundancy – Collective consultation and information Transfer of undertakings – Consultation and other information An Employment Tribunal correctly found that the transfer of functions from the Adult Learning Inspectorate to New Ofsted was a transfer of administrative functions between public administrative authorities and so was not a relevant transfer under TUPE 2006 and there was no obligation to consult the Claimant as an employee representative. There was no appeal. The Tribunal erred in holding that the Claimant did have consultation rights under section 188 of TULRCA. On the correct construction of Employment Rights Act 1996 section 273(3) the Claimant was excluded as he was in Crown employment. It was for the purposes of a government department and was under and for a body, ALI, exercising functions on behalf of the Crown under an enactment, LSA 2000. HIS HONOUR JUDGE McMULLEN QC This case is about the application of employment law to certain public servants. It raises a single issue of construction in the context of consultation with employee representatives in advance of redundancies. Was the Claimant in Crown employment? If he was, the Employment Tribunal had no jurisdiction to hear his case.[2]The judgment represents the views of all three members, delayed as was explained to the parties, and to accommodate further written submissions exchanged with 27 new authorities after the oral hearing.[3]We will refer to the parties as at the Employment Tribunal so the Claimant is Mr Beloff and the Respondent is ALI although the other two Respondents are parties, sharing the same representation. Introduction[4]It is an appeal by the Respondents in those proceedings against a reserved judgment of an Employment Tribunal, sitting over two days and a day in Chambers at Birmingham, chaired by Employment Judge Ms P M Hughes, registered with Reasons on 6 March 2007. The Claimant was represented by an elected staff representative and today by Mr Martin Westgate of Counsel. The Respondent was represented by Mr Selwyn Bloch QC.[5]The Claimant claimed that the Respondent had failed to consult him as an elected representative in respect of a proposal to make redundancies. The Respondent contended the legislation did not apply to its employees by reason of their position under the Crown. The Employment Tribunal decided in favour of the Claimant and against him on one matter which is not pursued. It listed the case to be heard.[6]The Respondent appeals. Directions sending this appeal to a full hearing were given in Chambers by Elias J (President). An overview of the case[7]At the start of its 26 page reasons, the Employment Tribunal gave a brief overview of the background to the case at the time of the hearing. The Claimant was an employee representative. He made complaints on behalf of the workforce he represents for a protective award for failure to consult in respect of impending redundancies as required by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA"), and for compensation in respect of failure to consult under the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE 1981") and/or the Regulations which replaced those regulations in 2006 ("TUPE 2006").[8]The claim was against three respondents. The first respondent, the Adult Learning Inspectorate ("ALI") was the employer of the persons on whose behalf this claim is brought, and the Claimant was an elected employee representative in respect of negotiations with that employer. It was common ground that he had legal standing to bring these claims. The second respondent is the Office for Standards in Education ("Ofsted") and the third respondent is the Office for Standards in Education, Children's Services and Skills ("New Ofsted"). ALI was a body funded largely by the Government to carry out inspection work nationally in respect of further education and vocational and work-based training. A decision was taken by the Government to merge Ofsted, ALI and a number of other bodies to form New Ofsted as from 1 April 2007.[9]The Claim was presented on 11 September 2006. The claim concerns a decision that was allegedly taken on 21 March 2006 to close ALI's office, which is based in Coventry. The closure was due to take place on 31 March 2007, and it did. The claimant contends that ALI failed to consult with employee representatives about the possibility of impending redundancies as is required by section 188 of TULRCA, and failed to consult about a possible transfer as required by TUPE. The respondents all deny that there has been any failure to consult.[10]Following case management discussion it was agreed to try as preliminary issues the question of the jurisdiction of the Employment Tribunal under both TUPE and TULRCA. It decided it had jurisdiction under the latter but not the former. But the constitution of the proceedings is unusual. The substantive issue to be tried is whether there was failure to consult and inform the Claimant as an elected employee representative on ALI's joint consultative committee prior to a decision made on 26 March 2006 to close its administrative base at Spring Place, Coventry. Notice of redundancies was given pursuant to TULRCA in form HR1 on 20 April 2006. The Respondents contend that the decision to close Spring Place was not made until 6 September 2006 and was not made by ALI but was made by Her Majesty's Chief Inspector of Schools ("HMCI") following advice given on 6 September 2006 and communicated to the elected representatives on 7 September 2006. The Respondents contend that between March and September 2006 there was a substantial number of meetings when information was given to, and consultation was conducted with, the Claimant. The claim originally was made against ALI but, by a response and amended response, Ofsted and New Ofsted joined the proceedings as Respondents. Ofsted never was the employer of the Claimant and it is not clear to us why Ofsted is a party to proceedings under TULRCA. New Ofsted did not exist and came into existence only on 1 April 2007 after the relevant events, the closure of Spring Place, the hearing of the Employment Tribunal and its judgment. It never was the Claimant's employer and he does not represent employees of New Ofsted. When TUPE applies; liabilities potentially arise against a transferee (New Ofsted) and, in very limited circumstances, against a transferor (ALI).[11]No step was taken to exclude New Ofsted from the proceedings: indeed it appears to have entered into them as a volunteer. The same is true of Ofsted and we have not been told how as neither an employer-transferor nor transferee it has standing in the two sets of proceedings. Nevertheless, the practical consequence is that very careful examination was given to the evidence which Ofsted led and submissions which were made on its behalf, in order to determine whether the Tribunal had jurisdiction under TUPE in a claim brought against ALI. Extensive findings were made of the status and powers of Ofsted. The parties and the Tribunal appear to have operated on the assumption that it was necessary to analyse what Ofsted's functions were, because that would assist in a conclusion as to ALI's functions. As it turned out, the Tribunal found that it did not have jurisdiction in respect of a claim against ALI under TUPE following reasoning principally based upon this proposition: TUPE does not apply to Ofsted, so if ALI is the same as Ofsted, TUPE will not apply to it either. There is no appeal against that finding. The appeal against the finding that the Tribunal has jurisdiction in respect of TULRCA claims cannot of course challenge the findings made in ALI's favour on the TUPE point. These are essentially findings of fact as to the nature and functions of ALI which are exigible in the legal assessment of jurisdiction wherever it arises – here in respect of TUPE and also of TULRCA. The legal assessment differs according to which statute is in focus, but the factual findings do not and they remain unchallenged.[12]Still to be tested in relation to the redundancy point therefore were: whether there was a failure to inform and consult the Claimant by ALI, whether any liability rests with Ofsted or New Ofsted, the relevance if any of a decision taken on behalf of Ofsted by HMCI in respect of the liability of ALI, and whether it is appropriate to consider events occurring after the date of the claim i.e. 11 September 2006. The legislation[13]The legislation relevant to this appeal falls into three categories.(1) European and domestic legislation relating to redundancies(2) European and domestic legislation relating to transfers(3) Domestic legislation relating to inspection of education providers (1) Redundancies[14]The context in which the redundancy obligation arises was set out in Hutchins v Permacell Finesse Ltd (in Administration) (UKEAT/0350/07) in which we said this: 1. Long before the United Kingdom acceded to the European Union, trade unions were being consulted and engaged in negotiations about redundancies of their members in workplaces. This was done by collective agreement. 2. Since the passing of the Employment Protection Act 1975, transposing into UK law obligations imposed by the Collective Redundancies Directive 1975, there has been an obligation to consult with representatives ahead of decisions to make employees redundant. The particular form of the obligation has changed following infraction proceedings brought against the United Kingdom and subsequent amendments to the UK legislation and to the directive. 3. The framework remains constant. An employer proposing to make redundancies must provide information in advance and consult appropriate representatives. If it fails to do so, relevant employees can be awarded a protective award following applications made either by their representatives or, in certain circumstances, by themselves to an Employment Tribunal. 8. As originally enacted to comply with the directive, section 99 of the Employment Protection Act 1975 imposed obligations on an employer proposing to dismiss as redundant either 100 or more employees within 90 days; or between 10 and 100 within 30 days. The obligation is to consult. The consultation period matched the period during which dismissals would take place, that is, 90 and 30 days, and failures to comply with such orders would lead to a declaration which would be either 90 days or 30 days or, in any other case, 28 days. 9. Thus, there was a linkage between the consultation period and the protected period. The Trade Union and Labour Relations (Consolidation) Act 1992 section 188, as amended from 1 November 1999 by the Collective Redundancies and Transfer of Undertakings Protection of Employment (Amendment Regulations) 1995 and 1999, provides as follows:
"(1) Where an employer proposing to dismiss as redundant 20 or more employees at an establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or who may be affected by measures taken in connection with those dismissals. (1A) The consultation period shall begin in good time and in any event — (a) where the employer is proposing to dismiss 100 or more employees ... at least 90 days, and (b) otherwise at least 30 days before the first dismissal takes effect" 10. The obligation is to consult appropriate representatives who, on a descending scale, are representatives of independent trade unions, representatives elected amongst affected employees for the purposes of the regulations, or for other purposes. Where there is none, an obligation is imposed upon an employer to conduct elections so that there can be such representatives to be the conduit for the provision of information and the consultation, see section 188(a). 11. The obligation remains to consult where there is a proposal to dismiss 100 or more employees for which the consultation period is 90 days and otherwise it is 30 days before the dismissal takes effect."
Council Directive 98/59/EC on collective redundancies ("the CRD") consolidated an earlier measure made in 1975. That measure was transposed into domestic law by the Employment Protection Act 1975 which was consolidated into TULRCA 1992 Part IV Chapter II. In short, the European obligation found in the 1998 CRD is transposed by TULRCA 1992. Article 2 of the CRD provides as follows:
"2 This directive shall not apply to:…(b) workers employed by public administrative bodies or by establishments governed by public law (or, in Member States where this concept is unknown, by equivalent bodies)"
[15]In domestic law a limitation is imposed by TULRCA section 273 as follows:
"273 Crown employment (1) The provision of this Act have effect (except as mentioned below) in relation to Crown employment and persons in Crown employment as in relation to other employment and other workers or employees. (2) The following provisions are excepted from subsection (1) — …. Chapter II of Part IV (procedure for handling redundancies) (3) In this section "
Crown employment" means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by an enactment."[16]Section 273(3) has been approached analytically by the Tribunal and the parties in this case so that limb A is employment "under or for the purposes of a government department"; and limb B is employment "under or for the purposes of any officer or body exercising on behalf of the Crown functions conferred by an enactment". On further analysis it can be seen that section 273(3) provides barriers to jurisdiction under the redundancy provisions in four circumstances. The Respondents do not say that he was employed "under…a government department" which means employment by a government department; but that he was employed for the purposes of a government department and thus limb A applies. Alternatively, he was employed either under, or for the purposes of, ALI, which exercised functions on behalf of the Crown. It is not in dispute that those functions were "conferred by an enactment". It is the Learning and Skills Act 2000 and the government department in limb A is the Department for Education and Skills ("DfES"). (2) Transfers[17]Employers are required to consult representatives in advance of a transfer of an undertaking or part of an undertaking. This comes from a European obligation imposed by directive 77/187/EEC, now consolidated in directive 2001/23/EC, known as the Acquired Rights Directive ("the ARD").

(c) creates an exclusion to its scope:

"This directive shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. An administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, is not a transfer within the meaning of this directive."
[18]Transposition of the obligation was initially made imperfectly by TUPE 1981. Subsequent amendments were made and it was in force until replaced by TUPE 2006 on 6 April 2006. An exclusion to its scope appears in TUPE 2006 by regulation 3(5):
"(5) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a relevant transfer."
TUPE 1981 did not contain such an exclusion, but it is common ground that the jurisprudence of the European Court of Justice provided for such an exclusion: Henke v Gemeinde Schierke and Verwal Tungsgemeinschaft "Brocken" [1996] IRLR 701 ECJ, the Henke case. It is common ground in this appeal that a relevant transfer occurred on 31 March 2007. The claim form presented on 11 September 2006 complained of a breach of TUPE occurring on 27 March 2006 so the claim is directed at TUPE 1981 but it relates to a transfer to which TUPE 2006 applies. There are transitional provisions relating to complaints of breach of the consultation regime (TUPE 2006 Reg 21). The effect is that any steps taken by an employer to comply with TUPE 1981 discharged its duties arising under TUPE 2006. For the avoidance of doubt, the proper finding in this case is that there was a relevant transfer regulated by TUPE 2006 which took place on 31 March 2007 of ALI's undertaking to New Ofsted. (3) Inspection of education providers[19]The minister with responsibility for education has always been concerned about the quality of education provided by schools and the educational standards achieved in them. The Education (Schools) Act 1992 places the duty of informing the Secretary of State about these matters on HMCI. The Tribunal found that Ofsted was set up under the 1992 Act and was regarded as "an inspectorate" and "the staff of Ofsted are civil servants and consequently would not be regarded as employees for the purposes of employment law". Its staff and functions were transferred by order on 31 March 2007 to New Ofsted by reason of the Education and Inspections Act 2006 .[20]A similar concern about standards and quality by providers of other forms of education and vocational training was reflected in the Learning and Skills Act 2000 ("LSA"). The functions previously discharged by other bodies were now to be discharged by ALI. It was classified as an "executive non-departmental public body" ("NDPB") [Management Statement April 2004]. Accordingly, although not a department of the government, it was a body which had been created by Ministers "to carry out administrative, commercial, executive or regulatory functions on behalf of the Government" [Public Bodies: A Guide for Departments]. The functions of ALI were explained, without dispute, by Mr Bloch QC. ALI was established as a body corporate by s.52 of the LSA. The Secretary of State for the Department of Education and Skills defined the overall mission of ALI in the following terms: "The ALI will provide an independent evaluation of adult learning and work-based learning for young people, with the level of benefit to the individual learner as its primary consideration".[21]More specifically, the Act set out ALI's main functions, which included (among other matters) the responsibility for the inspection of:a. further education for people aged 19 or over, which was funded by the Learning and Skills Council or a local education authority, including adult and community learning; andb. training provided wholly or partly on employers' premises for people aged over 16 which was wholly or partly funded by the Learning and Skills Council.[22]Pursuant to s.54 of the LSA, ALI was under a positive obligation to keep the Secretary of State informed about:a. the quality of the education and training within its remit;b. the standards achieved by those receiving that education and training; andc. whether the financial resources made available to those providing that education and training were managed efficiently and used in a way which provides value for money.[23]Pursuant to s.56 of the LSA, ALI could provide advice to the Secretary of State on any matter relating to education or training within its remit. Further, s.57 of the LSA made various provisions fundamental to ALI's ability to carry out its work on behalf of the Government. In particular:a. ALI had a right of entry to premises on which the education or training being inspected was provided;b. ALI had a right of entry to premises of the person providing that education or training used in connection with that provision;c. ALI had a right to inspect and take copies of any records kept by that person, and any other documents containing information relating to the education or training, which the inspector required for the purposes of the inspection; andd. pursuant to s.57(6), it was an offence wilfully to obstruct any person exercising functions in relation to an inspection.[24]In addition to the above, the Secretary of State was accountable to Parliament for the activities and performance of ALI, with responsibilities including:a. approving ALI's strategic objectives and the policy and performance framework within which it operated;b. keeping Parliament informed about ALI's performance;c. approving the amount of grant-in-aid to be paid to ALI, and securing Parliamentary approval; andd. carrying out responsibilities specified in the founding legislation including appointments to the Board, approving the terms and conditions of Board members, appointment of the Chief Inspector of Adult Learning (who was also Chief Executive), approval of terms and conditions of staff and the laying of the annual report and accounts before Parliament.[25]ALI played a role in the ability of the DfES to fulfil the objectives contained in its Public Service Agreement. Pursuant to objective V, the DfES was under an obligation to "improve the skills of young people and adults and raise participation and quality in post 16 learning provision". A part of this obligation was stated to be that:
"Challenging targets will be set for minimum performance and value for money in FE colleges and other providers by the government and the Learning and Skills Council"
[26]ALI contributed to the process of setting such minimum standards, through its role in assessing the performance of the institutions, both in relation to the standard of education/training provided and for value for money.[27]Schedule 6 to the 2000 Act deals with certain powers and duties of ALI and contains this:
"Inspectorate's status 16(1) The inspectorate is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown. (2) the inspectorate's property is not to be regarded as property of the Crown or as property held by or on its behalf."
[28]By the Education and Inspections Act 2006 , the functions of ALI were transferred to New Ofsted. Section 112(3) provides that "the office is to perform its functions on behalf of the Crown." The Tribunal did not make an express finding as to the status of employment by New Ofsted but it is likely that its unchallenged finding as to the civil service status of Ofsted would read across to employment by New Ofsted and that is implicit in its holding that it did not have jurisdiction to entertain a claim against New Ofsted under TULRCA. The facts[29]The Tribunal heard evidence over two days from Mr Sherlock the Chief Inspector of ALI on behalf of the Claimant and Mr Green for the Respondents, the leading light in Ofsted and responsible for transitions to New Ofsted. Having started from common ground that Ofsted is a public administrative authority which carries out administrative functions, it compared the functions of ALI to it. In particular it considered areas where the Claimant contended there were such differences between Ofsted and ALI as to give the Tribunal jurisdiction over ALI whereas it had none over Ofsted. It resolved almost all of these differences in favour of the Respondents' submission, holding that any such differences as it found were insignificant and did not destroy the essential public nature of the functions discharged by ALI. It did this having examined, in turn, the contentions advanced by the Claimant in respect of: ALI and Ofsted's joint inspection functions, the constitution of ALI, the appointment of the Chief Inspector of Adult Learning within ALI, the powers and in particular the limitation on certain powers of ALI given that it was tasked with inspecting work-based training on employer's premises and not on the premises of schools provided by the state, the powers of entry and inspection, the requirement to provide information to the Secretary of State on the quality of education, the absence of a power in ALI to place an education provider in "special measures", the powers jointly exercised by ALI and Ofsted in respect of the further education sector, the funding of ALI, commissioning of work by certain bodies so as to improve their education and training and the consequent accretion of funds to ALI by reference to those commissions, the suggestion, never implemented, to move ALI on to a more commercial footing, the use of contractors and the preparation of reports. The only possible conclusion from paragraphs 14(6) to 14(20) of the Tribunal's reasons is the one it gave. There is no essential difference between the functions, powers and duties of Ofsted and ALI.[30]The Tribunal then went on to consider New Ofsted and found this:
"It was quite clear from comparing the various provisions that the powers and functions of the ALI have been transferred to the New Ofsted and are couched in virtually the same terms…We are also informed that in addition to a statutory functions and powers, which we were satisfied had been transferred in virtually identical terms, New Ofsted will also have the ability to carry out commission work."
The Tribunal's conclusions are these:
"20 There is no statutory definition of what constitutes a public administrative authority. The claimant's representative accepted, rightly in our view, that Ofsted is a public administrative authority. 21 In our judgment, a public body whose functions involve the exercise of public authority would be a public administrative authority for the purposes of TUPE. We have, in our findings of fact, compared the powers and functions of Ofsted and ALI. Both bodies are created by statute and have a statutory remit, statutory functions and statutory powers. We accepted that the ALI carries out activities that could be described as commercial in nature however it was clear to us that those were ancillary to its core business which was that of inspection. It was set up by the Government as an inspectorate and it the majority of its funding was provided by the Government for the purpose of carrying out those functions. We accepted the respondents' proposition that the ECJ cases in which it was held that the Henke exception did not apply, draw a distinction, perhaps most clearly set out in the Sanchez Hidalgo case at paragraph 24, between whether the service being provided involves the exercise of public authority or not. In that case, and the joined case of Zeimann , there was contracting out of home help and surveillance services respectively, neither of which involved the exercise of public authority, and it was held that TUPE applied. The Cabinet Office statement of practice relating to staff transfers in the public sector, states that TUPE transfers can apply in the public sector. This is not (as was suggested by the claimant's representative) inconsistent with the ECJ case law. It reflects that case law. The key question was whether the ALI's functions involved the exercise of public authority. We were satisfied that the statutory powers and functions of the ALI concern the exercise of public authority. We were also satisfied that they are similar in nature to those of Ofsted and that those core functions and powers are being transferred in their entirety to New Ofsted. Consequently, it appeared to us that the transfer of functions from ALI to New Ofsted is a statutory transfer of administrative functions between public administrative authorities. It follows from the Henke case and from the exception contained in Regulation 3(5) of TUPE 2006, that this is not a transfer to which TUPE 1981 or TUPE 2006 apply. Consequently, our unanimous judgment is that the tribunal has no jurisdiction to hear the claimant's complaint in respect of failure to consult as required by TUPE."
[31]It must be taken that that finding is conclusive as against all three Respondents on the TUPE point.[32]The Tribunal then considered TULRCA and held that it had jurisdiction to hear the claim in respect of a failure to comply with the redundancy consultation obligations. It held this:
"We concluded that section 273 only applies to persons whose employers enjoy the benefit of the common law doctrine of Crown immunity. It therefore does not apply to employees of the ALI because paragraph 16 of Schedule 6 of the LSA 2000 makes it clear that the ALI does not enjoy Crown immunity. In our judgment, section 273 does not, and was not intended to apply to the employees of bodies such as the ALI."
[33]In coming to that conclusion as a matter of construction and by particular reference to the context of the section, it also considered application of the CRD. It noted this:
"After some discussion, the Chairman and the respondents' representative broadly agreed that the consequence of that must be that TULR(C)A cannot provide individuals with fewer rights than under the Directive. It is permissible for the domestic implementation of the Directive to provide for a more favourable national position, such that more people would enjoy consultation rights under TULR(C)A than would be protected by the Directive. Consequently, the exclusion in section 273(3) could not be wider than the exclusion in the Directive. When the tribunal considered our judgment in this case, we thought the exclusion in the Directive, which is in respect of workers employed by public administrative bodies, appeared to be wider than the definition in section 273(3) of TULR(C)A and consequently did not assist us with the construction of section 273(3)."
When analysing section 273(3) the Tribunal concluded that ALI did not fall within limb A and said this:
"In this regard, we note that the ALI is an independent body and set up at arms length from the Government. We consider that to be of significance to limb A, because it is inconsistent with the proposition that such employment is employment for the purposes of a Government department."
[34]When considering limb B, it is plain that the Respondents' submission made some headway and yet the Employment Tribunal found against the construction advanced by the Respondents by reference to its approach to what it apprehended to be the purpose of the subsection, and to its equiparation of Crown employment with Crown immunity, for it said this:
" 45 As regards limb B, there were two elements to this. The first element, which was clearly satisfied, was that the employment concerned was for a body exercising functions conferred by an enactment. Clearly the ALI is such a body and the claimant was right to concede that point. The second element was the question of whether the ALI was the body exercising functions on behalf of the Crown. The parties disagreed about this. Having considered the case law produced by the respondents, the tribunal accepted that the term "on behalf of the Crown" is wider than that of "servant or agent of the Crown."
The planning case law makes it clear that if there is a public/private initiative to complete a development, and the development is on behalf on the Crown, then those engaged in the development activity will be protected from enforcement in respect of the development. Of course, that does not mean that a private developer enjoys Crown immunity for any other purposes. It appeared to us that, by analogy to those cases, the ALI is a body which may be said to exercise functions on behalf of the Crown. That means that although the statute setting up the ALI specifically states that the ALI does not enjoy Crown immunity, something which is a product of the ALI's activity may do so, in the same way that the construction of the incinerator did in the Hillingdon case. The question for us was whether that assisted us with the interpretation of section 273(3). We concluded that absent any consideration of the purpose of section 273, and absent the context in which we decided section 273(3) applied, the words:
"Crown employment means employment under or for the purposes of a Government department or any officer or body exercising on behalf the Crown functions conferred by an enactment" would encompass the ALI, insofar as the ALI is a body exercising functions conferred by an enactment and does so, by analogy to the planning case law, on behalf of the Crown. We accepted the interpretation placed on the phrase "on behalf of the Crown" by the respondents, and that therefore the definition of "
Crown employees" would cover the employees of the ALI, if the respondents were correct to assert that section 273 applied to the ALI. However, that would be to ignore the words "In this section", which implicitly direct the reader to consider the purpose of the section itself. Consequently, whilst accepting the respondents' submissions on the definition contained in section 273(3) we remained of the view that section 273(3) did not apply to the ALI, and that the respondents could not rely on it to argue that the exceptions contained in section 273(2) applied to employment with the ALI." Discussions and conclusions[35]Notwithstanding the comparative exercise with which the Tribunal began its reasons, that of comparing ALI to Ofsted, the Tribunal did finally focus upon the nature of ALI to determine whether the Claimant was in Crown employment. As we have noted above, the findings in relation to ALI, which are placed in the Tribunal's reasons in its consideration of the TUPE point, have to be read into the conclusions it made in relation to the TULRCA point. When a transfer of employment contracts occurs, whether by operation of TUPE or by a novation by statutory order as in this case, there may at the same time be a proposal to make redundancies. The obligation to consult with employee representatives ahead of a transfer also is capable of invoking the obligation to consult over redundancies. However, the statutory purposes are different. Consultation ahead of redundancies is designed to allow for an agreement to be reached about avoiding the need for dismissals or mitigating their effect. On the other hand, it is generally public policy to promote transfers of undertakings so that manufacture of a product, or provision of a service, can be done more effectively or more cheaply in the hands of a transferee. Although there is that difference in substance, the common purpose is to ensure that employee representatives are given information and can undertake meaningful consultation about the effect of the relevant change on those they represent.[36]We have seen that, both in EU and in domestic law, there are certain limitations on this right. Why should an employee representative be entitled to complain about a consultation lapse in respect of plans which involve redundancies when he cannot complain about such a lapse in respect of the same plans which also involve a relevant transfer? Put more tightly by reference to the forensic situation in our own case, why should the Claimant, who accepts he has no right under TUPE, have rights under TULRCA against the same employer and arising out of the same facts? This is not a teasing point of advocacy advanced on behalf of the Respondents but a substantive point deeply rooted in the findings of fact by the Employment Tribunal and their acceptance by the Claimant on appeal.[37]Starting with the EU obligations, Mr Westgate in his third written submission accepts that "public administrative bodies" in article 1.2(b) of the CRD is a "similar term" to "public administrative authorities" in article 1.1(c) of the ARD. That latter phrase is precisely replicated in the language of TUPE 2006 Reg 3(5). So there is no danger that workers in the UK are given lesser protection by TUPE 2006 than is vouchsafed to them by the ARD. The Tribunal found that what occurred in this case was "the transfer of administrative functions between public administrative authorities". We agree with the Claimant that the terms are similar. In this three word phrase, the two adjectives are the same, and we have been shown no material from which it is possible for us to distinguish "bodies" from "authorities". We see no reason to treat the different nouns in these two European measures, frequently consolidated or amended over the last 30 years, sharing the common purpose of consultation, as having different meanings. We hold that the Claimant was employed by what EU law regards as a public administrative authority, or body, they being the same thing.[38]As to redundancies, the match between the EU obligation and the domestic obligation is not exact. We are asked by the Claimant to consider whether section 273 of TULRCA excludes more workers than is permitted by the CRD. It is not necessary for us to decide that issue. Workers employed by public administrative bodies, or authorities, are not entitled under either directive to the rights contained in it. For the purposes of EU law, the finding that he is employed by a public administrative authority or body means that EU law is no longer of any assistance to him. His employment is excluded by the directives. To benefit from EU law, he has to show that domestic law excludes more workers than is permitted by EU law and that he is excluded in the UK but not by the EU. It follows that it is unnecessary to consider whether the Claimant was employed by an "establishment governed by public law" under CRD article 1.2(b).[39]Nor is it necessary to consider whether the CRD is directly effective against ALI. It was held not to be capable of direct enforcement in Griffin v South West Water Services Ltd [1995] IRLR 15. Blackburne J. said this:
"121 Direct enforcement: disapplication by Article 1(2)(b) Mr McMullen submits that if, contrary to his submissions, SWW fulfils the three conditions laid down in Foster, the Directive is disapplied by Article 1(2)(b), in that the Directive is expressed not to apply to 'workers employed by public administrative bodies'. The contention is that, if the three conditions are satisfied, SWW is 'public' in the sense required by the application of the Foster test and is 'administrative' in the sense that it administers the supply of water to the public and the provision to the public of sewerage services. Mr McMullen did not shrink from the conclusion, which must inevitably flow from this approach to the meaning of Article 1(2)(b), that any body which meets the Foster test is ipso facto within Article 1(2)(b), with the result that the Directive can never be directly enforceable. 122 I am told that there is no authority on the meaning of Article 1(2)(b). Nevertheless I have no hesitation in rejecting the submission. There seems to me to be a clear difference between the kind of bodies or establishments referred to in that Article and bodies which provide public services under the control of the State. To my mind the two are not necessarily the same. 123 SWW is no more an 'administrative body' because it 'administers' a service (the supply of water and sewerage services) than is a company carrying on business manufacturing and distributing sweets because such a company 'administers' that enterprise or is a firm of solicitors because it administers a service of supplying legal advice. I agree with Mr Hendy that SWW's primary function, as a supplier of water and provider of a sewerage service, is to be contrasted with administrative functions such as town planning, court administration, and any of the myriad administrative functions of the civil service. I further agree that the true distinction in the context in which SWW operates is illustrated by the difference between OFWAT which, in my view, is a public administrative body, and SWW which is not. 124 In my view, therefore, Article 1(2)(b) has no application."
[40]If it were necessary to apply that succinct distinction in para 123 above to the present case it could be said that Ofsted and ALI are OFWAT-like regulators and are public administrative bodies but that the public and private sector education providers they inspect are not. We do not need to deal with the submissions that TULRCA "goldplates" the CRD by applying consultation rights to more employments than the CRD, or that it "overshoots" or "undershoots" it. Since ALI is a public administrative body in accordance with EU law, it does not matter whether workers in other bodies are either excluded from consultation, or entitled to it, under domestic law. It is not necessary or appropriate for us to use the standard tools of purposive interpretation, direct effectiveness and disapplication in determining the meaning of section 273.[41]The Tribunal's finding that the Claimant was excluded from TUPE assists in our analysis of the application of limb B of section 273(3). ALI discharges administrative functions conferred by the LSA 2000. The Tribunal found that they were discharged "by analogy to the planning case law, on behalf of the Crown". Thus far, the Respondents succeeded in their submission. The analogy with planning law was correct: London Borough of Hillingdon v Secretary of State for the Environment and others CO/1604/98 CO/1745/98. But the Tribunal disapplied those findings, which would lead to acceptance of the Respondent's submission, in view of what it took to be the purpose of the section. In our judgment this was incorrect.[42]It is common ground that a statute does not apply to the Crown unless there is a contrary indication in the statute: Halsbury Laws Vol 44(1) para 1421.[43]Section 273 of TULRCA is such an example. The purpose of section 273 is to make it clear that the rights contained in the statute apply to those in Crown employment with limited exceptions, three in section 188, including redundancy consultation. With respect to the Tribunal, if the words "in this section" do direct the reader to consider the purpose of the section, then all they do is to ensure that the focus here is upon clarifying which parts of the statute do not apply to those in Crown employment. The focus is not upon the issue of Crown immunity, which is different from the concept of Crown employment for the purposes of this particular section only. Crown immunity is not mentioned in section 273. Those engaged in areas of endeavour where Crown immunity applies are not necessarily those engaged in employment to which section 273(3) applies. The Tribunal was right in its primary conclusion to hold that ALI exercises functions on behalf of the Crown. Those were plainly set out in its earlier findings and are borne out by the straight comparison with Ofsted. Having gone most of the way with the Respondents' submission, the Tribunal erred in failing to carry it to its conclusion. The Claimant's employment was under and for the purposes of ALI which exercised functions on behalf of the DfES within section 273(3), limb B, both parts.[44]The same findings point to a conclusion under the second part of limb A. The Respondents never argued that the Claimant was employed by or under a government department. But the findings show that this employment was for the purposes of the DfES. This is clear from the appointment by the Secretary of State of the nine members of ALI, its obligations to inform and advise the Secretary of State, the Secretary of State's accountability for the performance of ALI, the Secretary of State's grant of aid to ALI and the vision of ALI set out by the Secretary of State which included the Secretary of State's budget and priorities. Mr Bloch is right when he says the inspections carried out by ALI were central to the DfES objectives in improving the standard and quality of education and training. This is the core mission of any department of state engaged in education and we would hold that the Claimant's employment was for the purposes of the DfES within section 273(3), limb A, second part.[45]One apt example given by Mr Bloch QC of a clear statutory formulation is the Employment Rights Act 1996 section 159. A redundancy payment cannot be claimed by a person who holds a public office or is in "the civil service of the State". This, he says, indicates a narrower and more precise grouping of public servants than is defined as those in Crown employment in section 273 TULRCA or in the identical wording of section 191 Employment Rights Act 1996 .[46]With those clear conclusions on construction of section 273 in mind, it is necessary to turn to the language of the LSA 2000 schedule 6 paragraph 16 which says that "ALI is not to be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown." On this we accept Mr Bloch's argument. Since we have decided that limb A applies to the Claimant, and he was in employment for the purposes of a government department, it cannot matter that his employer was "not to be regarded" as having any special status. So paragraph 16 is relevant, if at all, to limb B. We accept the submission that a body can carry out functions on behalf of the Crown and yet not enjoy Crown immunity or be regarded as the Crown's servant. To carry out functions on behalf of someone is not the same as being that person's servant or agent. Clearly ALI was not the servant or agent of the Secretary of State for it was an executive NDPB with a separate identity and at arm's length. Nor is the ownership of property relevant to determining whether or not functions occurred on behalf of the Crown Result[47]It follows that we agree with the view of Elias J (President) that the case be fully argued. We are grateful to counsel for their careful oral and later written submissions. The appeal is allowed and the Employment Tribunal's Judgment on TULRCA is set aside. Its Judgment on TUPE 2006 stands. The Employment Tribunal has no jurisdiction to hear the claims, which are dismissed.

Cited in 1 later judgment