Appeal No.	 EAT/909/98 	                  & EAT/952/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D J HODGKINS CB
MS D WARWICK

EAT/909/98 - PRELIMINARY HEARING - EX PARTE

MR CHEESEMAN & OTHERS	APPELLANTS

(1) R BREWER CONTRACTS LTD	RESPONDENTS
(2) ONYX (UK) LTD

EAT/952/98 - PRELIMINARY HEARING - EX PARTE

ONYX (UK) LTD	APPELLANTS

(1) MR CHEESEMAN & OTHERS	RESPONDENTS
(2) R BREWER CONTRACTS LTD

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For Mr Cheeseman & others	MS J EADY
(of Counsel)
Instructed by:
Mr J Clinch
Legal Officer
UNISON Legal Department
1 Mabledon Place
London
WC1H 9AJ	
For Onyx (UK) Ltd	MS H WENLOCK
(of Counsel)
Messrs Biddle & Co
Solicitors
1 Gresham Street
London
EC2V 7BU	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to identify whether there are arguable points of law in two appeals. The first is an appeal by an entity called Onyx (UK) Ltd [‘Onyx’] against various applicants, Mr Cheeseman and others, and an entity called R Brewer Construction Ltd [‘Brewer’]. There was another respondent to the applications brought by the individuals, namely the Teignbridge District Council [‘Teignbridge’], they are not a party named to this appeal, I think rightly so, but I think it would be courteous to notify them of these proceedings in case they wish to make any application to be joined, in which case, such an application would have to be considered judicially.

	What happened was that in 1995 Teignbridge contracted out, as a result of compulsory competitive tendering requirements, part of their direct services organisation to Onyx. Onyx accepted that that event was a transfer within the meaning of the Regulations and they took on the relevant Council workforce of about 22 people, of whom by the end of their contract in 1998, 14 were regarded as allocated to the particular maintenance contract. Those 14 included the present applicants. The contract was for a specific period of time and on its expiry there was a further competitive tendering process which Brewer succeeded in.

	Brewer contended that following the Süzen decision, there was no relevant transfer occurring at this time. As I understand it, the employees of Onyx who were regarded as allocated to the relevant contract were not transferred.

	The question before the Industrial Tribunal therefore was whether the ending of Onyx’s contract and the granting of a new contract to Brewer constituted a transaction to which the Transfer of Undertaking Regulations applied. The conclusion of the Industrial Tribunal was that the Regulations did not apply, therefore the employees had no right to transfer, therefore Onyx were left with those employees.

	Both Onyx and the employees contend that the Industrial Tribunal’s conclusion, a Chairman sitting alone, was wrong in law for the reasons advanced in their Notice of Appeal. Whilst there are two separate appeals it is obvious that they should be consolidated for the purposes of the full hearing and the two Notice of Appeal should stand together. There is no need, therefore, for either appellant to amend formally the Notice of Appeal to raise a point which is contained in the other Notice of Appeal.

	It seems to us that the issues raised in this appeal are important. They are arguable and they relate to the very difficult question as to the relationship in law between the decision in Süzen and the previous decision of the European Court of Justice in Schmidt.

	Of the parties only Onyx have asked that we should order the provision of Notes of Evidence. We are persuaded that Notes of Evidence might well be of assistance in this case, bearing in mind, as we understand the position, there were only two witnesses who gave evidence, Mr David Petty on behalf of Onyx, and Mr Brewer on behalf of Brewer. Those Notes of Evidence are relevant to the way which Onyx puts their appeal in this case.  In accordance with my preferred practice, I am not prepared at this time to order the provision of Notes of Evidence but will simply invite the learned Chairman to provide those notes. I am sure that he will readily comply with that request without the need for a formal order.

	In order to assist the learned Chairman in his task, I direct but will not make formally an order that the parties used their best endeavours to provide an agreed note of the evidence of those individuals or notes of the evidence indicating, if this be the case, where the difference lie in the notes, and that those notes are provided to the Industrial Tribunal Chairman, which he can then use as a guide to enable him better to understand his own notes. I am not going to give a time limit for that, but I should indicate that I would expect that step to happen within the next 21 days. Thereafter, this document should be supplied not just to the EAT but also to the Industrial Tribunal.  This judgment will be transcribed and a copy will be sent to the Industrial Tribunal for their consideration.

	The case should be listed as Category A, for one day. The appeals should be consolidated as I have indicated. It should be emphasised to those in charge of the listing that this should be regarded as a case of some considerable importance.