Appeal No.	 EAT/496/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 1999

Before
HIS HONOUR JUDGE WILKIE QC
LORD DAVIES OF COITY CBE
MRS J M MATTHIAS

MR M AUSTIN & OTHERS 	APPELLANTS

LONDON REGIONAL TRANSPORT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR D IBEKWE
(Representative)	

	JUDGE WILKIE QC:	Mr Austin and 157 others appeal against the dismissal of his claim by the Employment Tribunal by its decision dated 26th March 1999. 

1.	The claim was an allegation that there was failure to consult by London Regional Transport upon a transfer of undertaking of bus services to South London Transport Ltd which took place on 3rd December 1993.

2.	The application in respect of that alleged failure to consult was dated 14th October 1998, that is some four years and ten months later.

3.	The provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981, Rule 11(8)(a) require the claim to be made within:

“ … the period of three months beginning with-
(a) 	the date on which the relevant transfer is completed, … 
or within such further period as the tribunal considers reasonable in the case where it is satisfied it was not reasonably practicable for the complaint to be presented before the end of the period of three months.”

	Thus, on its face, this application was very substantially out of time.

4.	The Employment Tribunal made a series of findings of fact and drew certain inferences from those findings of fact. In paragraph 5 and 6 of their decision they record the fact that London Regional Transport was a corporation set up by statute with two divisions within which the Transport and General Workers Union was recognised by the respondents in respect of all bus drivers and conductors. In paragraph 6 they record the fact that pursuant to a scheme of privatisation, the assets of London Buses were distributed amongst ten subsidiaries who employed the workers on exactly the same terms as London Regional Transport. One of the new companies was South London Transport Ltd which had control of garages, including that at which Mr Austin worked, namely Stockwell. It appears in paragraph 6 that the assets, employees’ contracts and liabilities of South London Transport Ltd  were transferred to Cowie Ltd by way of a Statutory Asset Transfer Scheme by London Regional Transport.

5.	Mr Ibekwe who has very ably conducted this appeal on behalf of Mr Austin, has said that in fact that this is an erroneous setting out of the chronology. That may or may not be the case. However, it is apparent from argument that even if Mr Ibekwe was saying that the 1993 transaction was a transfer from London General Transport Services to South London Transport Ltd and that in 1995 there was a transfer of shares of said London Transport Ltd to Cowie Ltd, in the circumstances which I turn to shortly, the difference between 1993 and 1995 makes little or no difference.

6.	In paragraph 7 the tribunal set out a series of findings of fact on the basis of which the Employment Tribunal expressed that it was difficult for them to accept that Mr Austin did not realise that he had not been consulted until sometime in October 1998. That series of findings of fact appear to have referred to the changeover to the Cowie Ltd livery and certain operating conditions. As I have said, there is some argument whether that was 1993 or 1995. However, which ever it was, the Employment Tribunal on the basis of the matters they set out in paragraph 7, concluded that by that date: 

“ … although he may not have known the precise mechanics of the transfer or of the duty to consult he knew that the transfer had happened. Most Certainly he was a the member of a union, which would be expected to know the mechanics. …”

7.	It is on the basis of that principal finding of fact that the Employment Tribunal conclude that Mr Austin could not say that he and his fellow applicants could not reasonably have brought a case earlier than they did, namely on 14th October 1998. They are therefore implicitly running together two findings, namely, either that it was reasonably practicable or, alternatively, and this appears more likely, that the extension of the period of the time, being what is reasonable, would not have extended to 14th October 1998, but would have been some time relatively shortly after he realised that there had been a transfer.

8.	In fact, and it appears that this is not in dispute, that what triggered the application to the tribunal on 14th October 1998, was the knowledge brought to Mr Austin in fact by Mr Ibekwe himself that somebody else had brought a case in respect of a parallel transfer. The Employment Tribunal referred at that point in paragraph 7 to the Court of Appeal decision in Biggs v Somerset County Council [1996] 302, in which it was said that the mere fact of somebody learning that there was a potential for bringing a claim where they had known of the circumstances which could have bounded bringing of a claim earlier but was unaware of a particular interpretation of the law, did not permit that event to be used as a triggering mechanism years after the incidents giving rise to the claim had occurred.

9.	What Mr Ibekwe says is that the Biggs case is not strictly applicable to this one because in the Biggs case the fact that the possibility of a claim was known throughout was simply the interpretation of the law which was revealed by a subsequent decision which made it a viable prospect.

10.	In the light of the findings of the Employment Tribunal, however, it is the case that by 1995 at the latest, Mr Austin and his colleagues knew of the transfer and were put on notice through their union of the prospect that there was a want of consultation. The mere fact that they were told some three years later that in another case, perhaps a different interpretation of the law had been put forward, though not necessarily accepted and that this might give rise to the possibility of a claim being brought, in our judgment does bring the case firmly within the ambit of Biggs and therefore we can find no error of law in the Employment Tribunal relying upon that decision as applying in this case. 

11.	Thus, at this stage, we conclude that the Employment Tribunal made no error of law in concluding that they should not extend the time to 14th October 1998 as a reasonable extension of time in order to enable this claim to be brought nearly five years after the cause of action had arisen. In particular, the case of Biggs v Somerset County Council closes off the mechanism by which knowledge about the potentiality came to Mr Austin. Therefore, on this limb of the argument, we conclude that there is no error of law and that the findings of fact were based upon evidence.

12.	Mr Ibekwe however ran before the Employment Tribunal and runs before us an alternative argument which is even more fundamental than the earlier one. That is that the time limitation provision of Regulation 11(8) runs counter to the obligations of the Treaty of Rome that there should be equivalence and effectiveness of recourse to the legal processes. What he says, in effect, is that the appropriate time limit should not be three months with the prospect of an extension in the circumstances provided for by 11(8), but more like six years, which is the common law or the Statute Limitation Act period for contractual claims. What he says is that the Transfer of Undertakings Regulations, purporting as they do to give effective domestic law to a direct Community obligation under the relevant Directive 77/187 and also 82/891, fails to comply with that requirement. 

13.	Mr Ibekwe refers us to two cases, one of which is referred to in the Employment Tribunal’s decision and that is the case of Levez v T H Jennings [1999] IRLR 36. In that case, however, as the Employment Tribunal noted, the European Court of Justice said that it is compatible with community law for national rules to prescribe in the interests of legal certainty reasonable limitation periods for bringing proceedings. It is right to say that in that decision the European Court of Justice also goes on to say that to allow an employer whose deceit caused the employee’s delay in bringing proceedings to rely on such a rule, would facilitate breach of community law and would be manifestly incompatible with the principle of effectiveness, in that it would make it virtually impossible or excessively difficult to obtain arrears of remuneration in respect of, in that case, sex discrimination. The Employment Tribunal points out that, as is the case, the three month time limit is not an absolute time limit but it does contain the allowance, to which I have referred to, namely that there is the prospect of extension on the grounds that it was not reasonably practicable for a reasonable period of extension. 

14.	It therefore follows, in our judgment, that the reference to the case of Levez is one which is apposite and the Employment Tribunal did not err in law in relying upon that. Furthermore, in the case of Emmot v Minister for Social Welfare & the Attorney General [1991] ECR 4269, to which reference is made, the European Court of Justice repeated what had been said in a number of cases, namely that in the absence of community rules, it is for the domestic legal system of each member state to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which individuals derive from the direct effect of community law, provided that such conditions are no less favourable than those relating to similar actions of a domestic nature or are framed so as to render virtually impossible the exercise of rights conferred by community law.

15.	Mr Ibekwe acknowledges that the particular formulation of the time limit in Regulation 11(8) is parallel to or virtually identical to many time limitation provisions in respect of rights to make claims in this area of employment law before the Employment Tribunal. He says that this particular right is different, in that it is only exclusively to be made to the Employment Tribunal and not to other Courts, for example, he says that unfair dismissal claims can also (on their facts) found contractual claims to be heard in the County Court or in the High Court. In our judgment, there is nothing in this point whatsoever. Each of the rights to bring a claim in the Employment Tribunal is to bring a claim on that subject matter in that tribunal. It by no means follows that all or indeed many of them would have parallel rights which could be brought elsewhere in the civil courts. In the particular instance relied on by Mr Ibekwe, one can imagine many circumstances in which a claim for an unfair dismissal would run but where there would be no breach of contract and vice versa. In our judgment, therefore, applying the dual test of Emmot, this particular provision is not less favourable than those relating to similar actions of a domestic nature, nor is it framed so as to render virtually impossible the exercise of rights conferred by community law. Indeed, the availability of the possibility of an extension rules that particular argument out of court.

16.	Mr Ibekwe also says that this particular Regulation brought into effect gave effect to the Directive 77/187 is not effective to give effect to Direction 82/891. However, he has, very helpfully, pointed out to us that Article 11 of Directive 82/891 specifically and explicitly provides that the protection of the rights of the employees of each the companies involved in a division under this Directive, shall be regulated in accordance with Directive 77/187.

17.	In our judgment, therefore, the provisions of the Regulations which do give effect to Directive 77/187 are effective to give effect to the protection of rights of the employees under Directive 82/891 and, therefore, in so far as we have concluded that the Employment Tribunal was right in saying that there was nothing in his time limit point as being breach of the Treaty of Rome, there is equally nothing in respect of that other Directive. Therefore, we conclude that the Employment Tribunal made no error of law in dealing with that issue. Furthermore, there is no reasonably arguable case that they got it wrong.

18.	It therefore follows that on neither of the limbs put forward by Mr Ibekwe as supporting this appeal, is there any error of law in the Employment Tribunal’s decision, nor are there any bases upon which perversity can be founded. It is our judgment that this is so strongly the case that there is no reasonably arguable case that this appeal may succeed and therefore we dismiss it as this stage of the procedure.