Appeal No.	 EAT/892/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 December 1999

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MRS R A VICKERS

EAST RIDING OF YORKSHIRE COUNCIL	APPELLANTS

(1) MRS E A WALKER (2) MR L SMITH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR J BOWERS QC
Litigation & Community Services Manager
County Hall
Beverley
East Yorkshire
HU17 7BA	

	JUDGE PETER CLARK:	

1.	These complaints of unauthorised deductions from wages, brought by the applicants, Mrs Walker and Mr Smith before the Hull Employment Tribunal, involve a local government reorganisation whereby their former employer Beverley Borough Council ceased to exist on 31st March 1996 and a relevant transfer of that part of the undertaking of Beverley in which they were employed to the respondent, East Riding of Yorkshire Council, a new authority, took place on 1st April 1996.

2.	Following the transfer their terms and conditions of employment with Beverley were altered without the consent of the applicants, so the tribunal found. That finding is not challenged in this appeal. The applicants claim that such alterations resulted in unlawful deductions from their wages.

3.	The points which Mr Bowers QC seeks to take in this appeal are first, that the applicants were dismissed and secondly that such dismissals were for an economic, technical or organisational [ETO] reason and therefore not for a reason connected with the transfer under Regulation 8 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 [TUPE].

4.	As to the dismissal point, the tribunal observed, at paragraph 7(x) of their reasons, that at no time was there any letter of termination of employment issued to either applicant by either Beverley or the respondent. They found that there was no dismissal of the applicants by either employer within s.95 of the Employment Rights Act 1996. If that is correct, it seems to us, the ETO point does not arise since Regulation 8 of TUPE posits a dismissal.

5.	Mr Bowers did not appear below. As we understand the argument of Counsel who then appeared (set out at paragraph 4(4) of the tribunal’s reasons) it was submitted that Beverley had dismissed the applicants. It was not, Mr Bowers has confirmed to us, suggested that there had been a post-transfer dismissal by the respondent. Indeed, such a submission would have been wholly inconsistent with the respondent’s primary case, rejected by the tribunal, that there has been a consensual variation post transfer.

6.	Mr Bowers submits that, by reference to Hogg v Dover College [1990] ICR 39, the old contracts of the applicants with Beverley came to an end by dismissal on the local government reorganisation and thereafter the applicants were engaged on new contracts with the respondent. In our view Hogg, not being a transfer case, is not of direct assistance in this case.

7.	We venture to say that this is a straightforward transfer case. A transfer of the part of the undertaking in which the applicants were employed took place between Beverley and the respondent by operation of law under Regulation 3 of TUPE. The effect of that transfer under Regulation 5 was to transfer all Beverley’s rights and obligations under the contracts of employment with the applicants to the respondent, overriding the former English Common Law concept of automatic termination of the contracts by Beverley, cf. Noakes v Doncaster Collieries Ltd [1940] AC 1014, subject to there having been no actual or constructive dismissal by Beverley within the meaning of s.95 (1) of the 1996 Act. On the tribunal’s findings of fact, which in our judgment they were entitled to make, no such dismissal took place. Accordingly, no question arises under Regulation 8, which, as we have indicated, posits a dismissal.

8.	This is not a case, like those of Wilson and Meade & Baxendale [1998] ICR 1141, where the employees were dismissed by the transferor and then agreed to take fresh employment with the transferee on terms different from those enjoyed with the transferor. Further there was, on the tribunal’s unchallenged findings, no consensual variation of the applicants’ terms and conditions of employment following the transfer.

9.	Mr Bowers now seeks to raise an alternative argument, namely that the applicants were dismissed by the respondent when they were offered employment on different terms and conditions from those enjoyed with Beverley. We shall not permit this new point to be taken for the first time on appeal.

10.	Consequently, where the respondent sought unilaterally to impose new and less favourable terms on the applicants they were entitled to affirm the contract and either sue for damages (see Rigby v Ferodo Ltd [1988] ICR 29) or bring a claim for unauthorised deductions from wages before the Employment Tribunal. These applicants chose the latter course. The claim is made out. The Employment Tribunal was correct on their findings of fact. The appeal is dismissed.