Edinburgh Home-Link Partnership & Ors v The City Of Edinburgh Council & Ors (Transfer of Undertakings : Transfer) [2012] UKEAT 0061_11_1007

EAT
Edinburgh Home-Link Partnership & Ors v The City Of Edinburgh Council & Ors (Transfer of Undertakings : Transfer)
[2012] UKEAT 0061_11_1007 · 2012-07-10
[1]This appeal arises from a judgment of the Employment Tribunal sitting at Edinburgh, Employment Judge Mr K McGowan, registered on 15 June 2011, finding that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) did not apply so as to transfer the Claimants’ contracts of employment to the City of Edinburgh Council. The appeal is at the instance of the Claimants and their employer, who was the transferor under TUPE.[2]Ms Morrison and Mr McAleavy were represented by Mr Kennedy, solicitor, before the Tribunal and by Ms Stobart, advocate, before me, as was the Edinburgh Home-Link Partnership. The Respondents, the Council, were represented by Mr Hay, advocate, before the Tribunal and before me. Background[3]Evidence was given before the Tribunal over six days and the Employment Judge made detailed findings in fact over some 132 paragraphs. For present purposes, the relevant facts can be summarised as follows.[4]The case concerned the provision of services to homeless persons in the Edinburgh area by two organisations. The first was an unincorporated voluntary association known as the Homeless Outreach Project (“HOP”) which focussed its work on assisting rough sleepers, those with complex needs, hostel dwellers and those in need of detoxification. It is a registered charity. The second was a separate organisation (the First Appellant) known as “Home-Link” (“HL”) which had incorporated in May 2003 and focussed its work on helping persons who, though not homeless, were vulnerable and required support in relation to housing matters. Prior to May 2003, it too had been a voluntary organisation known as “Link-In” and had run a homeless persons pilot “as a kind of joint venture” with HOP.[5]From 2005 to 27 April 2009, HL provided services to persons in Edinburgh in furtherance of a series of annual service level agreements with the Council. It had no other clients during that period.[6]By April 2009, the Council had decided that, regarding their responsibilities for homeless persons or those at risk of homelessness, they would take “in house” the following activities, namely(i) the provision of visiting support for early intervention purposes,(ii) the provision of visiting support for people in crisis and(iii) the provision of visiting support for those with multiple needs who experience recurrent housing crises (paragraph 85 of the Tribunal’s judgment). Those activities had previously been carried out for the Council by HL under their annual service level agreements. The transfer – which was one to which TUPE applied - took place on 27 April 2009.[7]During the period 2005 to 27 April 2009, both HOP and HL continued to work to support vulnerable persons with housing needs. They “had financial and operational links and were not run as two completely separate projects.” (Tribunal paragraph 21). Funding for HL was provided by the Council in terms of the service level agreements. HOP funding also came from the Council but, in addition, from other sources such as central government and Lothian Health Board. Both HL and HOP reported regularly to the Council.[8]Mr McAleavy had a contract of employment with HL, of which he was a director (along with Ms Morrison), and also had a contract of employment with HOP of which he was the sole director. The job descriptions for both roles were almost identical; his role was “strategic in terms of delivering the contract”. His working days were not divided up as between the two jobs. The Employment

Judge found:

“381. Mr McAleavy’s position was that he was in effect carrying out the Homelink and HOP posts contemporaneously. For example, he said that he “ mixed and matched” his time. …. 383. …my impression is that Mr McAleavy did not distinguish between his activities for Homelink and his activities for HOP in any meaningful sense. He certainly was not able to give any detailed evidence as to how he divided his time or activities in that respect.”
[9]Whilst there was an element of direct service provision in Mr McAleavy’s role as a director of HL, the Employment Judge could not, on the evidence, reach any conclusion as to its extent. His reasons for that included that Mr McAleavy and Ms Morrison both sought to exaggerate the direct service provision element, they having perceived it as being in their interests to do so (paragraph 376), and also because Mr McAleavy’s evidence lacked the requisite credibility and candour (paragraph 389).[10]It was, however, clear that, at the relevant time, Mr McAleavy’s role with HL involved significant strategic matters – in accordance with his job description in which strategic planning “featured strongly” (paragraph 29) - including a need to focus on a time consuming and arduous re-tendering process which was expected to be much more radical than previously (paragraphs 79–82, 386- 387). He also required to work closely with HL’s board of trustees and its chair. The Employment

Judge summarised matters as being that the directors were, at the relevant time, involved in:

“364. …elements of activity which were concerned with maintaining the institution and were separable from service delivery, e.g. training requirements for staff which were scrutinised by the Care Commission. … 386. As well as the frontline delivery service there were other activities which had to be dealt with at this time. There was the training in connection with the Care Commission of which Ms Morrison spoke. The tender itself had to be dealt with and there was evidence that this was a time consuming and arduous process. Ms Morrison has personal issues which meant that she had to spend a significant time away from the workplace. …… In addition, Mr McAleavy was based at Head Office where the contracts were administered and it is quite clear that at least part of his role was there. Accordingly, I do not exclude the possibility that Mr McAleavy was involved in some frontline service delivery work – although, on the evidence, I am not able to say how much. In any event, I am satisfied that the reality was that in the period leading up to the transfer date, Mr McAleavy had significant strategic matters to deal with within Homelink and was committing an unspecified amount of (sic) to HOP.”
[11]Mr McAleavy’s position changed in the period between 2005 and April 2009. Having been a director of HL since its incorporation, at some point prior to April 2008, that contract came to an end, a compromise agreement having been reached. He returned as a director, on a temporary basis, some time after April 2008 and:
“82……stepped back into his previous role, but the focus was on tendering.”
[12]For reasons which are clearly explained by the Employment Judge at paragraphs 356– 59 (and relate to conflicts in the evidence) he was not satisfied that Mr McAleavy returned to a permanent post; thus:
“359. …..quite apart from any other issues being one of Mr McAleavy’s role in the period leading up to and at the date of transfer, and (sic) satisfied that he was ‘temporarily assigned’ as defined in Regulation 2; and as such was not ‘assigned’.”
[13]Mr McAleavy and Ms Morrison were the nominated officers for Care Commission purposes.[14]Ms Morrison’s role was very similar to Mr McAleavy’s although she did not have the complication of having left and returned or of also working for HOP and after 2005, she took on some of the line manager responsibilities such as supervision of Team Leaders, team meetings and contract oversight. As with the position of Mr McAleavy, the Employment Judge could not reach any conclusion as to what was her level of involvement in frontline service delivery. At paragraph 391, he states:
“The organisational factors which I discussed in relation to Mr McAleavy applied with equal force here. When Mr Hart was there, Ms Morrison would have been competing with him for a share of the frontline service delivery component of the single Director post within Homelink and she had to supervise Mr Hart who was not performing. After he went off and Mr McAleavy was restored to the role of Director, she would be competing with him; there were Care Commission Issues to be dealt with; the tender had to be prepared; there was no detailed evidence to the level of activity directly related to frontline services; she was based at Head Office; her part in the hierarchy was similar to that of Mr McAleavy (and by the time of transfer she was taking a more senior role than Mr McAleavy if his evidence that the true nature of that (sic) his role by then was effectively that of a Senior Practitioner is to be accepted); according to Mr Hart, she took a dominant role at Board Meetings.”
[15]HL had between 35 and 40 employees and other agency workers, it operated out of different geographical locations and it had a head office where the directors were based, activities were co-ordinated and finance and administration was dealt with. At paragraphs 22 to 29, the Employment Judge made a series of findings demonstrative of what he summarised as being a “clear hierarchy” amongst staff (paragraph 363). The roles summarised in those paragraphs involve not only direct service provision to users but some, such as Project Workers, Team Leaders and Team Managers which involved an element of supervision of others. Reference is also made to an “Operations Manager” who had “a relatively low level of involvement with the nuts and bolts of the service” (paragraph 28). Whilst there was some direct service delivery involved in the two director posts, by the time of transfer HL only needed one director and the demands of that post were heavily strategic which, as the Employment Judge explains at paragraphs 367–370, pointed to whatever the direct service delivery being carried out by Mr McAleavy and Ms Morrison was, being small.[16]Accordingly, on the facts found, in HL the role of director was largely strategic, involved the maintenance of the organisation itself and was not concerned with direct involvement with service delivery. Although the only contract that required to be performed was the service level agreement with the Council, HL was also subject to inspection by the Care Commission, a statutory body which was quite separate from the Council and had the power to impose requirements on HL independently of their contractual obligations to the Council. It also, as a corporate entity, required work to be carried out for the purposes of its own maintenance and survival. As for the extent to which Mr McAleavy and Ms Morrison were in fact involved in direct service delivery, the Employment Judge was unable to reach any conclusion about that. Relevant Law TUPE[17]In so far as material, TUPE provides: “2. INTERPRETATION (1) In these regulations – “assigned” means assigned other than on a temporary basis; …… “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”.[18]This case involved a “service provision change” claim and Mr McAleavy and Ms Morrison accordingly, required to bring themselves within both regulation 3(1)(b) and 4(1). It was not disputed that regulation 3(1)(b) applied and that prior to 27 April 2009, there had been an organised grouping of employees which had as its purpose the carrying out of the activities concerned for the Council. Where parties were at issue was on the question of whether or not they had been assigned to that organised grouping. The relevant activities were those which the Council decided to take “in–house” and which were in fact transferred to them on 27 April 2009, as referred to in paragraph 6 above.[19]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 case of Eddie Stobart Ltd v Moreman & Ors UKEAT/0223/11/ZT at para 16, analytically distinct and require to separately examined. Regarding the reg 4 issue of assignment, the question has to be asked in respect of each individual employee. It is not to be assumed that every employee carrying out work for the relevant client is assigned to the organised grouping. It is not difficult to envisage circumstances involving an organised grouping of employees whose principal activity is the provision of the service for which a particular client has contracted 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. Likewise, whilst at first blush it might be thought that all employees of the transferor in a “single client” case would be assigned to the carrying out of the activities the client requires, it may, on closer examination, be found that that is not the case. If, for instance, an employee’s role is strategic and is principally directed to the survival and maintenance of the transferor as an entity, it may then not be established that that employee was so assigned. It will all be a matter of the facts and circumstances of the individual case, as has been stressed in the authorities: Buchanan–Smith v Schleicher & Company International Limited UKEAT/1105/94 where, relying on Morison J in Duncan Web Offset (Maidstone) Limited v Cooper & Others [1995] IRLR 633 Mummery J said:
“There will often be difficult questions of fact for industrial tribunals to consider when deciding who was ‘assigned’ and who was not. We were invited to give guidance to industrial tribunals about such a decision, but declined to do so because the facts will vary so markedly from case to case. In the course of argument a number were suggested, such as the amount of time spent on one part of the business or the other; the amount of value given to each part by the employee; the terms of the contract of employment showing what the employee could be required to do; how the cost to the employer of the employee’s services had been allocated between different parts of the business. This is, plainly, not an exhaustive list….”
Perversity[20]This being an appeal which was advanced solely on perversity grounds, it could not succeed unless the high hurdle of making out an “overwhelming case” that no employment tribunal on a proper appreciation of the evidence and the law would have reached ( Yeboah v Crofton [2002] IRLR 634 paragraph 92). The Appeal Submissions for Mr McAleavy and Ms Morrison[21]Ms Stobart presented the appeal under reference to, essentially, five grounds.[22]First, the Tribunal’s finding at paragraph 21 (referred to above) was inconsistent with other findings in fact to the effect that HL and HOP were separate organisations and that error had tainted the remainder of the Employment Judge’s reasoning.[23]Secondly, he had erred in focussing primarily on the issue of whether or not Mr McAleavy and Ms Morrison were involved in direct service provision or not. They were, she submitted, shown to be within the relevant organised grouping of employees given that they were managerially responsible, in a highly regulated area of activity, for the individual employees who went into the homes of service users. They met, she submitted, what she referred to as the Botzen test [1] . Her approach was, ultimately, that everyone employed by HL had to be regarded, in the single client circumstances, as being assigned to the organised grouping and the evidence did not suggest that they were assigned to another part of the organisation. When asked whether her submission went as far as to say that in a “single client” case it always followed that all employees were assigned to the activities required by the client, she stated that her submission did not go that far. It was, she said, all a matter of identifying the organised grouping. A strong theme in this ground of appeal and others was that Mr McAleavy and Ms Morrison were the responsible officers for Care Commission purposes and that there was a need for regulation of HL’s work. It was not, however, at all clear how or why that demonstrated that either Mr McAleavy of Ms Morrison had been assigned to the relevant grouping of employees. When asked to explain, Ms Stobart said that the importance of both the Care Commission and reporting to the Board requirements was that they were “integral” to the provision of the service required by the Council. She did, however, accept that work on tendering could not be regarded as part of that service.[24]Thirdly, she submitted that the Tribunal’s conclusion that if he was assigned to the relevant organised grouping, Mr McAleavy was only temporarily so assigned, was flawed. She pointed to the Tribunal not having in fact found that he was so assigned [2] and submitted that there were no findings in fact to support the conclusion that he was on a temporary appointment at the time of transfer. Her submission appeared, however, to depend at least in part on evidence which the Employment Judge had not accepted (see paragraphs 356/7) and/or in offering a different means of resolving the conflicts in evidence that were identified at paragraph 356.[25]Fourthly, she questioned the logic of the Employment Judge’s reasoning at paragraph 388 where he said:
“Thus, to summarise thus far, while at first blush the focus on delivery of a single service and the funding of that might suggest that all employees and officeholders right up to the most senior level might be said to be involved in service delivery and hence assigned to the organised grouping of resources, a closer analysis of the organisational structure and Mr McAleavy’s role within it suggest the opposite. So, in my opinion, the position so far is that the evidence creates a rebuttable presumption that he was not assigned. So the question becomes: has he managed to rebut that presumption?”
[26]She suggested that the Employment Judge had not referred to any findings in fact which created the rebuttable presumption to which he referred; whilst acknowledging that the paragraph was prefaced by reference to a number of findings in fact regarding Mr McAleavy’s activities, she took issue with the proposition that these pointed away from his being relevantly assigned. She submitted that, there being no evidence that he could not distinguish between his HL and HOP activities, that did not need to be a matter of concern, that the strategic activities referred to were not detailed, and that Mr McAleavy had had involvement with direct service provision, all of which showed that he had satisfied the requirements of reg 4. Further, there had been evidence to the effect that some of the employees transferred to the Council had taken on supervision and management roles post transfer; the Employment Judge did not refer to it and he should have done as it showed that management and supervision was transferred.[27]Finally, Ms Stobart submitted that the Employment Judge had misdirected himself in relation to Ms Morrison. She did not carry out any duties for another contract or another project. At most she did not do enough front line duties, was involved in tendering work and in Care Commission requirements. There could be no presumption that she was assigned to a different part of the business. Her position was more straightforward as there was no HOP element. Submissions for the Council[28]Mr Hay submitted that no error of law had been demonstrated and the high test for perversity had not been met.[29]He referred to the specific activities that had been transferred. Those were the activities carried out by the organised grouping, whose roles were expressly referred to by the Employment Judge at paragraphs 22- 27 and which did not include Mr McAleavy or Ms Morrison. He had found that as a matter of fact, neither Mr McAleavy nor Ms Morrison were assigned to that grouping. The matter was, essentially, one of fact: Duncan Webb .[30]Mr Hay also made submissions on the matter of onus in relation to the Employment Judge having concluded that he could not determine what element of the Claimants’ work involved front line service delivery. The Employment Judge had been entitled to use it to decide whether or not the Claimants’ claims succeeded: Morrison v London Iron & Steel Company [1987] ICR 855 [3] . Here, there were two possible outcomes namely that the Claimants were assigned or that they were not assigned. It was not just a matter of what was sometimes referred to as an evidential burden of proof. It was a persuasive burden. The evidence adduced had not only to be accepted but to be of such weight that it showed that there had been assignation. The Claimants were in difficulty from the start as there were elements of their evidence which were not accepted at all.[31]Mr Hay submitted that the Employment Judge had correctly identified the issue, as demonstrated by paragraphs 5-6 and 330-332. He had taken into account all reasonable and appropriate factors (para 332 -333). It was plain that he had taken from the evidence that there was a clear emphasis on strategic matters in the Claimants’ job content. Those strategic duties were the maintenance of the corporate entity as distinct from delivery of the service. There was nothing in either Claimant’s job description about providing a direct service to users.[32]Whilst it was accepted by the Employment Judge that there were some instances of direct service provision by the Claimants, the onus was on them to provide details and specifics and they had not done so. It was a key problem for them that their evidence lacked detail and that they had been found not to be credible on significant issues (paragraph 389).[33]Mr Hay took issue with the contention that the Employment Judge had not set out what led him to conclude, at para 388, that there was a rebuttable presumption of no assignation. It was plain from a reading of that whole chapter of his judgment that he had done so. He made particular reference to paragraphs 363–388. He had then clearly explained why he was not satisfied that Mr McAleavy or Ms Morrison had persuaded him that, notwithstanding the factors pointing away from assignation, they had in fact been assigned. He had looked at the objective facts – which did not support assignation – and had then turned, correctly, to ask whether any subjective matters relied on by the Claimants, showed that there had in fact been assignation. The problem was that he had been faced with only vague and unconvincing evidence on the matter.[34]Turning to the specific grounds of appeal, Mr Hay submitted that there was no basis for the proposition that the finding in para 21 was not supported by evidence. Paragraphs 87-91, 40 and 43 of the judgment demonstrated that it was. In any event, there was, contrary to what was suggested, no inkling of the Employment Judge’s thinking on that matter having tainted his reasoning. On the contrary, he had been careful to deal with HL and HOP separately as demonstrated by paragraphs 100–134, 381–390 and 399.[35]There was, further, a problem for Mr McAleavy; if he was right that he should transfer from HL to the Council, who would he then report to? What was to happen to his HOP job which, on the findings, he had been carrying out contemporaneously with his HL job? It could not simply be said, as seemed to be the Claimants’ case, that in a single service organisation, all employees transferred if TUPE applied. It had to be recognised that, in the present case, a distinction was to be drawn between the provision of the service and the maintenance of the corporate entity. The latter involved the important matter of strategic planning so that appropriate presentations could be made to the Board.[36]Regarding the submission that the Tribunal had failed to take account of the fact that some of the employees who did transfer to the Council were allocated supervisory duties, Mr Hay submitted that the Tribunal did not omit reference to the matter. The Employment Judge had recorded it being referred to in argument at paragraph 183. Further, there was no evidence about the proportion of time being spent by those employees on supervisory duties as opposed to providing the frontline service. There had been some supervision carried out by transferred employees whilst working for HL. The fact did not show that they had taken on anything of the roles performed by Mr McAleavy and Ms Morrison. Even if the Employment Judge had failed to consider it, it was not of such weight as to undermine his overall conclusions.[37]As for the Care Commission matter, there was no indication, on the facts found, that it assisted the Claimants. The appeal should, he submitted, be dismissed. Discussion and Decision[38]Having given careful consideration to all the points made by Ms Stobart, I am left with the clear impression that this appeal was, in fact, an attempt to re-run arguments made to the Employment Judge in an attempt to achieve something of a re-hearing of the case. The overwhelming problem though is that this was a perversity appeal and nothing advanced begins to show that the Employment Judge was not entitled, on the evidence led and facts found, to decide that he could not conclude that reg 4 assignation had taken place.[39]Underlying the Claimants’ approach seemed to be the proposition that in a case where a single client has taken regulated welfare activities “in house” all employees must transfer across. That is reflected in the articulation in the Notice of Appeal of what is referred to as being the “correct question”, namely:
“in the case of a ‘single–purpose agency …… dedicated to the delivery of a single programme of welfare activity under contract with a local authority…where, by definition, all governance, administrative and operational activities are …directed towards delivery of the programme, are those engaged in necessary and integral administrative (including so- called ‘strategic’) activities thereby (and necessarily) excluded from being deemed to having been assigned to the organised grouping …?”
Elsewhere in the Notice of Appeal, references are made to “indirect client-linked administrative duties” as being demonstrative of the requisite assignation.[40]However, it was not established that all the work carried out by Mr McAleavy and Ms Morrison was, on the findings in fact, directed towards delivery of what is there referred to as “the programme” but is, I take it, meant to refer to the activities for which the Council contracted. There was no indication that all strategic work related to the Council contract and, importantly, it was conceded that the work on tendering, which was a pressing need at the relevant time, could not be said to fall into that category. Further, as the Tribunal Judge explains, there were other aspects of their work, whether in relation to the Care Commission or training, which were found to be separate from it as well.[41]Then, it is clear that TUPE makes no special provision for different types of activity. The fact that the activities for which the client contracted were regulated welfare activities does not make it any more likely that all employees were assigned to the relevant organised grouping. As regards the need for regulation, I fail to see how the fact that Mr McAleavy and Ms Morrison were the nominated officers for Care Commission purposes pointed to assignation. Care Commission compliance was a matter of statutory regulation separate and distinct from the carrying out of the activities required by the client contract. More significantly, however, the fundamental flaw in the approach on appeal was, I consider, that it sought to establish that the Claimants had been assigned to the relevant grouping not by reference to the activities which it carried out on behalf of the client (see TUPE reg 3(3)(a)(i)) and which were the subject of transfer – Ms Stobart made no reference to them at all - but by reference to activities which, on one view, could only be said, putting matters at their highest, to have enabled those activities to be carried out in that they “kept the show on the road” by attending to the maintenance and subsistence of the HL entity. That, however, was not, on the findings an activity for which the client contracted.[42]The appeal also proceeded on the basis that if a link can be shown between the claimant employee and the client work, then TUPE must apply. It is not, however, the law that every employee who can be linked in some way to the relevant client activity is to be regarded as assigned under reg 4. If that were so then a person employed, for example, as a handyman at the transferor’s Head Office keeping the building in a suitable condition for client work to be administered from it or as a cook there to maintain the nutritional status of the directors thereby enabling them to work efficiently, would fall to be regarded as assigned even although he/she may be wholly unaware of the identity of the client or the activities for which the client has contracted and it could not be said that they would have been “organised” into the group providing the client service. Put shortly, the fact that a causal chain can be shown does not determine the issue. Rather, the question is: was the particular employee, prior to the transfer, assigned to the organised grouping of employees which was organised to have as its principal purpose the carrying out of the activities for which the client contracted, on the client’s behalf? That is a question which, on the evidence and facts found, the Tribunal Judge was unable to answer in favour of the Claimants’ case and he explains, intelligibly, why that is so. In particular, he was not able to conclude that the relevant client activities – those set out in paragraph 6 above – were ones to which, as a matter of fact, Mr McAleavy and Ms Morrison had been assigned. That was partly because he could not reach any conclusion as to how much of those activities they had been carrying out but principally because the substance of their jobs required them to carry out other activities, ones which were not those for which the client had contracted to have carried out on its behalf.[43]Turning to the matter of the direct provision of the client service, whilst there was reference to Mr McAleavy and Ms Morrison having carried out some front line work, Ms Stobart seemed to recognise that that fact really did not help given that, on the evidence, the Tribunal Judge could reach no conclusion as to the nature and extent of that work and that it was plain that, on his findings, he had the clear impression that the mainstay of the jobs for which they were employed was not front line work at all. As Mr Hay rightly observed, the onus lay on the Claimants to satisfy the Tribunal Judge that they were assigned and if it was their case that that was because of the extent to which they were involved in front line delivery of services (as seemed to become their position as the case progressed before the Employment Judge) it was for them to place before him sufficient and satisfactory evidence in support of that contention. They did not, however, do so.[44]In Mr McAleavy’s case there were two further problems which Ms Stobart’s submissions could not overcome. One was the HOP difficulty. This was not a case where an employee had, say, a job from 9am – 5pm and another job from 7pm to 10pm. Mr McAleavy’s own evidence was to the effect that both jobs were carried out contemporaneously. The Employment Judge could not, on the evidence, disentangle them and that was a view which he was plainly entitled to reach on the evidence. That being so, it was always going to be well nigh impossible for Mr McAleavy to demonstrate reg 4 assignment to the HL/Council contract. Secondly, and more importantly, even if he was assigned to it, the Employment Judge, for reasons which he clearly explains, concluded that at the time of transfer, his position was but a temporary one. Any reg 4 assignment was, accordingly, at best, temporary and thus excluded from the ambit of TUPE by reg 2.[45]Regarding the fact that some of the transferred employees had supervisory duties in their roles with the Council, I agree with Mr Hay that that did not advance matters. It certainly did not show as I think was the thrust of the submission, that those employees were, in reality, carrying out work which had previously been carried out by Mr McAleavy and Ms Morrison.[46]Overall, there is nothing about the Employment Judge’s conclusions or ultimate judgment which provokes surprise nor has it been demonstrated that he proceeded by failing to take account of relevant evidence, that he misunderstood the evidence or that he took account of some irrelevant factor. On the contrary, in all the circumstances, his conclusions are not at all surprising. Disposal[47]I will, in these circumstances, pronounce an order dismissing the appeal. [1] That was a reference to Botzen and ors v Rottersamsche Droogdok Maatsschippij BV [1985] EUECJ R-186/83 . It is difficult to see that what was determined in that case can properly be described as a “test”. The court ruled:
“An employment relationship is essentially characterised by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties. In order to decide whether the rights and obligations under an employment relationship are transferred under Directive 77/187 by reason of a transfer within the meaning of Article 1.1 thereof, it is therefore sufficient to establish to which part of the undertaking or business the employee was assigned” all of which sounds rather as though the ECJ were content to leave domestic courts to decide whether, as a matter of fact, there had been assignation. What, perhaps, is of particular significance for the present case is that, in Botzen, the question of whether employees employed in an administrative part of a business which carried out duties for a part of the business which, it was accepted, had transferred, were covered by the Directive was not answered in the affirmative. It was, it seemed, all to be left to an assessment of the particular facts and circumstances. [2] This submission failed to take account of the fact that the Tribunal Judge expressly stated at para 354 that his conclusions on the issue of temporary assignment were expressed on a hypothetical basis, namely on the hypothesis that Mr McAleavy was assigned (not that he accepted that that was in fact the case). [3] See p.864 per May LJ: “Judges and tribunals of fact should make findings in fact in relation to matters before them if they can. In most cases, although in some cases it may be difficult, they can do just that. Having made them, the tribunal is entitled to draw inferences from the findings of primary fact where appropriate. In the exceptional case, however, a judge conscientiously seeking to decide the matter before him may be forced to say “I just do not know” indeed to say anything else might be a breach of his judicial duty……..[the tribunal] was entitled, if it found itself unable to decide which party’s evidence it preferred on the balance of probabilities, ultimately to fall back on the onus of proof which lay upon the employee to prove that he had in fact been dismissed.”