Seawell Ltd v CEVA Freight (Uk) Ltd & Anor (Transfer of Undertakings : Transfer) [2012] UKEAT 0034_11_1904

EAT
Seawell Ltd v CEVA Freight (Uk) Ltd & Anor (Transfer of Undertakings : Transfer)
[2012] UKEAT 0034_11_1904 · 2012-04-19
[1]This is an appeal at the instance of a company (Seawell Ltd) which used to be a client of the Claimant’s former employer (Ceva Freight (UK) Ltd). By judgment registered on 17 May 2011, the Employment Tribunal sitting at Aberdeen (Employment Judge Mr J D Young, with members) held that the contract of employment of the Claimant, Mr Moffat, had transferred from Ceva to Seawell by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) as at 31 December 2009.[2]Seawell were found to have unfairly dismissed Mr Moffat and found liable to pay compensation to him in the sum of £24,652.72. Seawell and Ceva were found jointly and severally liable to pay compensation of £3,800 for Ceva having failed to inform and consult him in terms of regulation 13(2) of TUPE.[3]Seawell were represented by Ms Turner, solicitor, before the Tribunal and by Mr P Sharp, solicitor, before me. Ceva were represented by Ms S Newmark, solicitor, before the Tribunal and by Mr J Wynne of counsel, before me. Mr Moffat was represented by Mr F Lefevre before the Tribunal and by Mr D Cameron advocate, before me. Background[4]Ceva are in the business of freight forwarding and management logistics. They have a place of business at Dyce, where they have a warehouse. Mr Moffat used to be employed by them there, as a logistics co-ordinator. Seawell became a client of theirs in or about April 2008. Seawell had acquired the platform drilling business being formerly carried on by Noble Drilling UK Ltd on a number of oil platforms. That business involved the supply of personnel and various goods and materials to those platforms. The service provided by Ceva was that when supplies were required for a platform, Seawell arranged for the purchase of them, specifying that delivery was to be made to Ceva’s warehouse at Dyce. Ceva would then receive the goods there, store them in different bays within the warehouse and ship the goods offshore to the relevant platforms when required, together with the appropriate paperwork. The latter could involve the provision of safety certificates in respect of particular items of drilling/oil well equipment. That is, there was a paperwork/organisational aspect to carrying out the services for Seawell and there were also physical receipt, storage and delivery aspects.[5]Seawell were not Ceva’s only client.[6]The workforce at Dyce was organised into two separate parts, one for “inbound” goods and one for “outbound” goods. Mr Moffat was included in the outbound group which comprised eight people. Two of his colleagues in that section dealt with an account for another client, Diamond Offshore. Mr Moffat, on the other hand, spent 100% of his time on the Seawell account. He was not, however, the only person who worked on the provision of services by Ceva to Seawell. His line manager, Brian Rough, spent about 20% of his time on the Seawell account, the Ceva General Manager spent about 10% of his time on it and two of the warehousemen working for Ceva at Dyce spent about 20-30% of their time on the Seawell account.[7]From the outset of Seawell’s contractual relationship with Ceva, Seawell made it clear that it would not be a long term arrangement. The storage and supply of materials to the various oil platforms was a job that Seawell would be able and intended to take “in house”. Thus, from 1 September 2009, Seawell took over storage and supply of goods and materials in relation to the BP Clair platform, on 1 December 2009 they took over that work in relation to the Alba North and Captain platforms and on 1 January 2010 they took over the remainder of the work, that being for the Apache Forties platforms. That is, as at 1 January 2010, Seawell ceased being a client of Ceva, the activities formerly carried out for them by Ceva thereafter being carried out by Seawell on its own behalf.[8]In correspondence passing between Ceva and Seawell/Seawell’s solicitors, between 4 and 22 December 2009, Ceva asserted and Seawell refuted that TUPE applied so as to transfer the Claimant’s employment to Seawell. Ceva nonetheless wrote to the Claimant on 24 December 2009 advising him that their position was that there was a TUPE transfer and that he would require to report to Seawell for work on 5 January 2010; they did so knowing that Seawell’s position was that the Claimant’s employment would not transfer to them. The Tribunal’s Reasons[9]The Employment Judge considered that the service provided for Seawell by Ceva was the logistics co-ordination and freight forwarding arrangements necessary to effect the supply of goods and materials to the various platforms as ordered by Seawell and delivered to Ceva’s warehouse at Dyce (para 103). The same activities as had been carried out by Ceva were carried out by Seawell themselves from 1 January 2010 (para 104).[10]Turning to the question of whether or not there was an “organised grouping of employees….which has as its principal purpose the carrying out of the activity concerned on behalf of the client” (see reg 3(1)(b) and 3 (3)(a)), the Tribunal’s reasoning is as follows: · The Claimant was in charge of the activity and made it happen. · Whilst the warehousemen were involved, it was not necessary to include in the organised grouping of employees everyone who had anything to do with the activities. · Given that the definition of an “organised grouping of employees” included a single employee, “it was only necessary to identify whether there was such an “organised grouping of employees” i.e. a single employee whose principal purpose it was to carry out the activities” (para 113). · The Claimant as the “organised grouping” had as “its principal purpose” the carrying out of the activity.[11]The Employment Judge then considered what would be the position if that analysis was wrong and he still concluded in favour of the Claimant’s employment having transferred to Seawell. That was because: · If the Claimant was not the organised grouping then it was the General Manager, the Manager, the two warehousemen and the Claimant. Their principal purpose was the carrying out of the activities because together they ensured that the service for Seawell was “effective” (para 115). · It was then “necessary” in terms of Regulation 4 to consider who was “assigned” to that group (para 115). · The Claimant was the only employee assigned to the group because he spent 100% of his time on the activities whereas the others spent less than 50% of their time (para 115).[12]Separately, the Employment Judge found that since Ceva had given no information to Mr Moffat about measures likely to be taken by Seawell, they were therefore in breach of reg 13(2)(d) of TUPE and he was entitled to be paid compensation. He rejected an argument that it had not been reasonably practicable for Ceva to comply – Seawell not having provided them with any information about the measures they proposed – because notice of their intention to show that fact had not been given to Seawell (see: reg 15(5) of TUPE). Relevant Law TUPE – Transfer of Employment[13]In so far as material, these regulations provide: “2. INTERPRETATION (1) In these regulations – … references to “organised grouping of employees” shall include a single employee; … “relevant transfer” means a transfer or a service provision change to which these Regulations apply in accordance with regulation 3 and “transferor” and “transferee” shall be construed accordingly and in the case of a service provision change falling within regulation 3(1)(b), “the transferor” means the person who carried out the activities prior to the service provision change and “the transferee” means the person who carries out the activities as a result of the service provision change; … 3. A relevant transfer (1) These Regulations apply to – (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; (b) a service provision change, that is a situation in which – (i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”); (ii) activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client’s behalf; or (iii) activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf, and in which the conditions set out in paragraph (3) are satisfied. … (3) The conditions referred to in paragraph (1)(b) are that (a) immediately before the service provision change – (i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; (ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use. (4) Subject to paragraph (1), these Regulations apply to - … … (c) a transfer of an undertaking, business or part of an undertaking or business (which may also be a service provision change) where persons employed in the undertaking, business or part transferred ordinarily work outside the United Kingdom. … 4. Effect of relevant transfer on contracts of employment (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee”.[14]This was a “service provision change” claim and Mr Moffat, accordingly, required to bring himself within regulation 3(1)(b) if he was to show that there had been a relevant transfer. Prior to the 2006 Regulations, it had not been determined that the EC Acquired Rights Directive applied to service provision changes. The UK Government decided to legislate so as to expressly apply the regulations to service provision change circumstances such as had come to be encountered when outsourcing occurred. Authorities regarding the scope of the Acquired Rights Directive – such as Albron Catering BV vFN V Bondgenoten Case C-242/07 [2011] IRLR 76, ECJ – are not, accordingly, in point for the purposes of the present case.[15]Mr Moffat required to establish both that there had been a relevant transfer and that that transfer had had the effect of preventing termination of his contract of employment. To that end, he required, first, to show that there had been a service provision change. That is, he had to show that immediately before the contract change there had been: · “an organised grouping of employees situated in Great Britain, · Which had “as its principal purpose”, · The carrying out of “the activities concerned”- that is, the activities required under the contract between the transferor and the client -“on behalf of the client”.”[16]I would refer to my discussion in Argyll Coastal Services v Stirling and others UKEATS/0012/11/BI, at paragraph 18:
“It seems to me that the phrase “organised grouping of employees” connotes a number of employees which is less than the whole of the transferor’s entire workforce, deliberately organised for the purpose of carrying out the activities required by the particular client contract and who work together as a team. The reference to “situated in Great Britain” clearly requires that group to be based in Great Britain. Whilst regulation 3(4)(c) makes it clear that, of itself, the fact that a person or persons who are part of that organised grouping of employees work outside the United Kingdom does not prevent the provisions of regulation 3(3)(a)(i) being satisfied, it does not, to my mind, in any way detract from it being a fundamental pre-requisite of a “service provision change” transfer that there be an organised grouping of employees situated in Great Britain. Turning to “principal purpose” there seems to be no reason why the words should not bear their ordinary meaning. Thus, the organised grouping of employees need not have as its sole purpose the carrying out of the relevant client activities, that must be its principal purpose. Regarding “activities” it seems plain from the terms of both regulation 3(1)(b) and 3(3)(a)(i) that Parliament, by using the word “activities” had in mind considering what it was that the client required of the transferor or employer. What exactly was the service that was contracted for?”
[17]It remains my view that the description “organised grouping of employees” connotes a deliberate putting together of a group of employees for the purpose of the relevant client work – it is not a matter of happenstance. I draw support from the opinion of the President, Underhill J, in the case of Eddie Stobart Ltd v Moreman and others UKEAT/0223/11/ZT, in which judgment was handed down two days after the hearing in Argyll , where, at paragraph 18, under reference to the phrase “organised grouping”, he said:
“In my view that necessarily connotes that the employees be organised in some sense by reference to the requirements of the client in question.” and held that the statutory language did not naturally apply to the circumstances of that case where: “ ….a combination of circumstances – essentially shift patterns and working practices on the ground – mean that a group (which, NB, is not synonymous with a “grouping” let alone an organised grouping) of employees may in practice, but without any deliberate planning or intent, be found to be working mostly on tasks which benefit a particular client.”
[18]Turning to the relevance of reg 4, the issues of (a) whether or not there existed an organised grouping of employees which satisfied the requirements of reg 3(3)(a)(i) and (b) whether or not a particular claimant or claimants were assigned to that grouping are, as was observed by the President in the Eddie Stobart case at para 16, analytically distinct. It is not difficult to envisage circumstances involving, for instance, a clear organised grouping of employees whose principal activity was work for client X where an individual employee working with them at the date of transfer could not be said to have been assigned to the grouping since he normally did other work and was only helping out, on a temporary basis e.g. to cover another employee’s annual leave. Identification of the existence of an organised grouping of employees logically comes first though. TUPE – Duty to Inform and Consult[19]Reg 13(2) of TUPE requires the employers of “affected employees” to inform the “appropriate representatives” of those employees of certain matters. Reg 13(3) provides that “appropriate representatives” are relevant trade union representatives which failing, those persons previously appointed or elected by the affected employees who have authority to receive information and be consulted on behalf of the affected employees in relation to the transfer or employee representatives specifically elected for that purpose.[20]In the latter case, the employer is to invite the affected employees to elect representatives within a reasonable time and if they fail to do so, then the employer is to provide the information directly to the employees. It is only in those circumstances that, under reg 13, the employer has a duty to consult directly with the affected employees and provide information directly to them.[21]Reg 14 makes provision for the election of employee representatives; broadly put, the employer has a duty to facilitate the necessary elections.[22]Under reg 15(1), if an employer fails to comply with a requirement of reg 13 or 14, a complaint can be presented to an employment tribunal. The only circumstances in which it will be open to an individual employee to present such a complaint (under reg 15(1)(d)) will be if there has been a failure in relation to facilitating the election of employee representatives.[23]Under reg 15(2), an employer against whom a complaint has been made under reg 15(1) may seek to show that it was not reasonably practicable for him to comply with the relevant duty. He may seek to rely, for that purpose, on the transferee having failed to give him the requisite information, but it is not open to him to do so: “…..unless he gives the transferee notice of his intention to show that fact; and the giving of notice shall make the transferee a party to the proceedings.” (reg 15(5)).[24]If a complaint under reg 15(1) is well founded, compensation may be awarded and under reg 15(9), transferor and transferee are to be found jointly and severally liable. The Appeal Submissions for Seawell[25]Mr Sharp submitted that the Tribunal had erred in two respects.[26]First, when considering whether or not there was an organised grouping of employees, the Tribunal had been wrong to suggest that it was only necessary to identify whether there was a single employee whose principal purpose was to carry out the activities in question. The Tribunal had become confused. The fact that an organised grouping of employees could, within the terms of the regulation, be a single employee did not mean that if a single employee spent all their time on the work of a particular client, he constituted an organised grouping. Mr Moffat did not carry out “the activities concerned”. They were carried out by a combination of him and other employees, on the Tribunal’s own findings. The “activities concerned” were not, as a matter of fact, carried out by one individual employee. It did not follow from the fact that Mr Moffat spent 100% of his time on the Seawell contract that 100% of the activities concerned were carried out by him yet that appeared to be the Tribunal’s approach. That was illogical.[27]What the Tribunal required to do but had not done was begin by asking if, on their findings in fact, they could identify an organised grouping of employees and then, if so, identify the activities carried out by that grouping. Instead, they had looked only at what one employee did. This was not a matter of attacking their findings in fact. The problem arose when they applied the law, as stated in the regulations, to the facts found.[28]Secondly, the Tribunal had failed to apply that part of the regulations that required that the activities concerned were the principal purpose of the identified organised grouping of employees. All that the Tribunal did was to find that the group of Ceva employees comprising the General Manager, the Manager, the warehousemen and Mr Moffat, together ensured that the service for Seawell was effective but that was no justification for a finding that the activities required for the Seawell contract were the principal purpose of that grouping. Indeed, that grouping of employees could, on the Tribunal’s findings, have been providing the same or similar service for a range of clients. The fact that an effective service is provided to one client could not be enough to show that that activity was the grouping’s principal purpose. The test was not that of “effective service”.[29]Mr Sharp made reference, in support of his submissions, to the Argyll Coastal Services and Eddie Stobart cases, to the discussion of the nature of “service provision change” under TUPE by HHJ Burke QC in Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] IRLR 700 and also to HHJ Peter Clark’s review of TUPE authorities in the case of Enterprise Management Services Ltd v Connect-Up Ltd UKEAT/0462/10/CEA.[30]Mr Sharp submitted that the appeal should be upheld and there be substituted for the judgment of the Tribunal a judgment that the Claimant was unfairly dismissed by Ceva; the case should, thereafter, be remitted to the Employment Tribunal to determine the compensation payable by them. Submissions for Ceva[31]Mr Wynne submitted that the appeal should be refused. The Tribunal had made broad findings in fact, considered the relevant statutory provisions and applied them sensibly.[32]He began by submitting that Mr Sharp’s submissions went further than had been notified in the Notice of Appeal but it was difficult to ascertain exactly how they were said by him to be different and Mr Wynne was not, he explained, saying that he could not deal with them. Regarding para 113 of the Tribunal’s judgment, Mr Wynne submitted that it must be right that not everyone who played a part in rendering the client service needed to be part of the group. There were liable to be employees who played only a small part. The Tribunal had, correctly, considered the question of who was essential to the activity. The Tribunal had found that the organised group was Mr Moffat, assisted by the warehousemen and a couple of others, but he was the person who provided the Seawell services. He referred to the Eddie Stobart case where the employees were spending 100% of their time on the work of the client in question; here, the warehousemen were spending much less time on the client work therefore it was even less likely that they were part of an organised grouping of employees.[33]Here, he submitted, the Tribunal had found that the Seawell contract was Mr Moffat’s job. That was the essence of the service provided. The Tribunal knew he did not perform all the activities; they had not erred.[34]Regarding the second ground of appeal, Mr Wynne submitted that Seawell’s approach was too narrow. The Tribunal had addressed the argument regarding its work not being the principal purpose of that group of employees and provided an answer at para 110. It was correct.[35]As for the matter of assignation, he referred to the case of Kimberley Group Housing Ltd v Hambley [2008] ICR 1030 for the reference by Langstaff J, at para 46, to Morison J having said, in another case ( Duncan Web Offset (Maidstone) Ltd v Cooper [1995] IRLR 633) that ascertainment of who was and who was not assigned (under the 1981 regulations) was often a difficult question of fact for the Tribunal. It was, he submitted, appropriate to base the ascertainment of “principal purpose” on what the team did, not what was the purpose of the individual employees. The Tribunal had not erred in their assessment of “principal purpose”.[36]Mr Wynne did not demur from Mr Sharp’s proposed disposal, in the event that the appeal was upheld. Submissions for the Claimant[37]Mr Cameron made no separate submissions regarding the appeal. He added only an observation that if the words “single employee” were substituted in reg 3(3)(a) for the words “organised grouping of employees” then the question would become whether or not there was a single employee who had as his principal purpose the carrying out of the activities concerned on behalf of the client. He accepted, however, that that approach would only lead to the conclusion that there had been a TUPE transfer if that single employee had, himself, carried out “the activities concerned”, namely those activities taken “in house” by the client. Mr Cameron was content that disposal be as Mr Sharp suggested in the event that the appeal was upheld. The Cross-Appeal[38]Mr Wynne submitted that the purpose of reg 15(5) was to make the transferee a party to proceedings. Seawell were in fact already party to the proceedings. It was not, accordingly, necessary for Ceva to have given notice. Seawell could be taken to have been properly alerted to the issue.[39]Mr Sharp refuted those submissions. The obligations under reg 13 were owed not to Mr Moffat as an individual but to the appropriate representatives of all affected employees (which could include those whose employment would not transfer). Before the Tribunal, Ceva had submitted that Mr Moffat was his own representative but that involved a strained interpretation. Reg 15(5) made it plain that notice had to be given before the hearing. No such notice had been given. Discussion and Decision[40]We are satisfied that the Tribunal fell into error in finding that Mr Moffat’s employment transferred to Seawell and in awarding compensation under reg 15.[41]Dealing first with the issue of whether or not Mr Moffat’s employment transferred to Seawell, we refer to our discussion of the relevant law above and observe that, on the Tribunal’s findings, the only deliberately organised grouping of employees was that which was identified at para 27, namely an “outbound” operation and an “inbound” operation. Mr Moffat was part of the “outbound” operation. On the Tribunal’s findings, that grouping comprised eight employees, one of whom (Mr Moffat) spent all his time on Seawell work and two of whom spent all their time on work for another client, Diamond Offshore. There are no findings as to what work was done by the other five employees in that grouping. Moreover, on no view could the findings about the “outbound” grouping amount to it having had the carrying out of activities on behalf of Seawell as its principal purpose. The “outbound” grouping could not, accordingly, have satisfied the requirements of reg 3(3)(i); whilst it does appear to have been a deliberately organised grouping of employees, there are no findings to indicate that it was organised for the purposes of the Seawell contract or that Seawell work was its principal purpose.[42]Was it sufficient, for the purposes of reg 3(3)(i) that Mr Moffat spent all his time on Seawell work? We conclude that it was not.[43]First, that a particular employee happens to spend all his time on one client’s contract does not, we consider, show that he was an “organised grouping of employees”, for the reasons we explain above; there is no indication in any of the findings in fact that Ceva specifically formed a grouping consisting of Mr Moffat to carry out the Seawell work.[44]Secondly, the Tribunal’s approach to this issue focussed on the fact that he did nothing other than Seawell work and found that the requirements of the regulation were satisfied on the basis that, put shortly, that work was his principal purpose and under the interpretation provisions of TUPE (reg 2) an “organised grouping of employees” could comprise a single employee. However, reg 3(3)(i) requires that the organised grouping of employees carried out “the activities concerned” which, in the circumstances of this case, is a reference back to reg 3(1)(iii); the “activities concerned” are whatever activities are, after the change, carried out by the client on his own behalf instead of by the contractor. Here, Seawell took “in-house” the whole of the receipt, storage and supply to the oil platforms of goods and materials. That is, they took over all aspects of the work that they had formerly had carried out for them by Ceva, not just those aspects of it which were carried out by Mr Moffat. Accordingly, the “activities concerned” in this case comprised the entirety of the work carried out by Mr Moffat, the General Manager, the Manager and the two warehousemen. Mr Moffat was not carrying out “the activities concerned” albeit that he was carrying out part of them. Rather, the activities concerned were carried out by several people, one of whom did only Seawell work. We observe that those people would appear, between them, to have contributed significantly to the work required by the Seawell contract (the Tribunal’s findings as to the amount of their time spent on it demonstrate that together, they applied something in the region of 90% of the working time of a single employee).[45]We agree with Mr Sharp that the Tribunal in effect concluded that because Mr Moffat spent 100% of his time on Seawell work, he carried out 100% of that work and that that is illogical.[46]Separately, we agree that insofar as the Tribunal applied a test of “effectively ensuring that the service was provided” (para 115), they erred. The task for the Tribunal was to apply the terms of TUPE and nowhere do the regulations provide for such a test.[47]Turning to the remainder of the Tribunal’s reasoning at para 115, they had no basis for finding that Mr Moffat, the General Manager, the Manager and the two warehousemen were an “organised grouping of employees” within the meaning of reg 3(3)(a)(i), for the reasons to which we have already referred. Further, their conclusion that Mr Moffat was assigned to it because he spent 100% of his time on Seawell work does not follow. Whether or not an employee was “assigned” in terms of reg 4 (1) is a question of fact. There require to be specific findings in fact about that matter. That an employee happens to have been doing particular work does not, of itself, show that the employer assigned him to a grouping which was organised for the purpose of carrying it out. The Tribunal’s application of reg 4 is, we consider, misconceived.[48]In short, we cannot see that there was any basis in the findings in fact made by the Tribunal for them to conclude that Mr Moffat’s employment had transferred to Seawell when they took “in house” the work formerly carried out by Ceva.[49]Turning to the cross appeal, we can deal with it briefly. It was not open to the Tribunal to find that Ceva were in breach of any duty imposed by reg 13(2). The complaint was that no information had been provided to Mr Moffat nor had there been consultation with him. But Ceva owed no duty to Mr Moffat under those provisions; the duties in question are owed to employee representatives, of which, in this case, there were none. It was not suggested that Ceva had failed in their obligations so far as election of such representatives was concerned (in which case an individual affected employee is entitled to make a claim). The reg 15(5) issue does not, accordingly, arise. However, had we had to determine it we would have found Mr Wynne’s argument to be without merit. It is plain from the wording of the sub-paragraph that a transferor employer cannot rely on the “not reasonably practicable” defence unless he has given prior notice to the transferee of his intention to do so irrespective of whether or not the transferee has already been made a party to the proceedings. We do not accept that the purpose of reg 15(5) is limited in the manner he suggested. Disposal[50]In these circumstances, we will pronounce an order upholding the appeal, finding that the Claimant’s employment did not transfer to the Appellants, finding that the Claimant was unfairly dismissed by the First Respondents and remitting the case to the same Employment Tribunal to consider and determine what monetary award is to be made against them.