Appeal No. EAT/0668/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 November 2001

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MACKIE OBE
MR S M SPRINGER MBE

COMPLETE CLEAN LTD	APPELLANT

(1) MS K SAVAGE (2) DESIGN & CARE CLEANING SERVICES LTD 
(3) BUFFER BEAR LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR CRAIG BENNISON
Barrister at Law
(employed)
Instructed by:
First Business Support
12 Westminster Court
Hipley Street
Old Woking
Surrey
GU22 4AB	

JUDGE PETER CLARK

1.	This is yet another labour-intensive TUPE transfer case.  The facts are that the Applicant, Ms Savage was employed by Complete Clean Ltd as a part-time cleaner.  She, and she alone of Complete Clean’s staff, performed cleaning work at a nursery run by Buffer Bear Ltd in Acton (Buffer Bear) pursuant to a cleaning contract entered into between Complete Clean and Buffer Bear.  Buffer Bear, it would seem, were dissatisfied with her work; she contended that she was being asked to do work not covered by the cleaning contract.

2.	At all events Buffer Bear tendered for new cleaning contractors.  Complete Clean were not invited to tender.  Design and Care Cleaning Services Ltd (Design) won the new contract effective on 1 November 2000.

3.	What was to happen to Ms Savage?  Design contended that no relevant transfer had taken place.  They declined to take her on.  Complete Clean had no other work for her.  The upshot was that she lost her job.

4.	In these circumstances a preliminary issue came on for hearing before the London (Central) Employment Tribunal on 21 March 2001.  The question was whether there had been a relevant transfer from Complete Clean to Design.  By a decision with Extended Reasons dated 5 April 2001 the Employment Tribunal found no transfer.  They found that the work carried on by the Applicant at Buffer Bear’s nursery did not constitute an economic entity.  See Spijkers [1986] ER 1119 (ECJ).  So there could be no transfer.

5.	There is a powerful voice which favours that approach.  See the judgment of Simon Brown LJ in ADI (UK) Ltd v Willer [2000] IRLR 542.  Unfortunately his was a lone voice in the wilderness that is the judicial learning on TUPE.  The majority of the Court of Appeal, May and Dyson LJJ took a different view, one which, if correct, arguably renders this Employment Tribunal’s decision that there was no economic entity to be transferred wrong in law, or at any rate subject to the need to determine as a fact why the new contractor did not take on the Applicant.  See ECM v Cox [1999] IRLR 559.

6.	ADI was decided after the present case.  It will therefore have to be reviewed at a full hearing in the light of the ADI decision and any other, perhaps different view taken by the Court of Appeal subsequently, or better still the House of Lords.

7.	For the purpose of the full hearing the case will be listed after 1 Ex Parte Preliminary Hearing, for the remainder of the day.  Category B.  There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time.  There are no further directions, in particular Chairman’s notes of evidence are not required in this case.