Appeal No.	EAT/1102/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2001

Before
THE HONOURABLE MR JUSTICE CHARLES
MISS C HOLROYD
MR R SANDERSON OBE

MR ANDREW LOCKE	APPELLANT

(1)	AMEC PROCESS & ENERGY
(2)	METCO SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS EMMA SMITH
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

MR JUSTICE CHARLES:

1	This appeal comes before us today by way of preliminary hearing.  The appeal is against the decision of an Employment Tribunal sitting at Norwich, the Extended Reasons for which were sent to the parties on 18 July 2000.  The parties are a Mr Andrew Locke and two Respondents, the first Respondent being AMEC Process & Energy Ltd, the second Respondent being METCO Services Ltd.

2	The Appellant claimed unfair dismissal, money in lieu of notice and holiday pay.  The decision of the Employment Tribunal was that his claims all failed and they were accordingly dismissed.  

3	The reason for the decision of the Employment Tribunal is that they concluded that paragraphs 5(4A) and (4B) of TUPE applied.  The Employment Tribunal held that an objection under those paragraphs could be made after the relevant transfer and that the Applicant did so object for the purposes of 5(5) of TUPE.  The Employment Tribunal held that the Applicant did not resign.

4	Briefly the background is as follows:

(a)	The Applicant worked from 27 January 1992 for a company called Wolviston Management Services.

(b)	In January 1997 the Applicant along with all other workers placed on the relevant site at Bacton by Wolviston were taken on by the first Respondent AMEC.

(c)	The Applicant’s terms and conditions which he signed in January 1997 state expressly that no service with a previous employer was to be regarded as continuous service.

(d)	The Applicant nonetheless maintains and maintained that the 1997 transfer was a TUPE transfer and that he had continued in employment from 1992.

(e)	In June 1999 the Applicant was told that both on and off shore metering was going to be sub-contracted to the second Respondent, METCO.

(f)	At this stage AMEC and METCO were of the view and stance that TUPE would not apply to that exercise and on 29 June AMEC told the Applicant what is set out in paragraph 9 of the Extended Reasons which is in the following terms:

“9.  On 29 June the first respondent maintained that there were three possibilities for the applicant which were being explored, namely, transfer to the second respondent, transfer to other employment elsewhere with the first respondent or redundancy.  The applicant was invited to put forward his view as to his preferences.”

The attitude of the Applicant is in paragraph 10 of the Extended Reasons which state as follows:

“10.  We consider that the applicant had two major worries.  Firstly, he did not relish the prospect of working off shore and secondly, he wanted to ensure that he had continuity of employment.  He was unable to get any definitive answers about the preservation of his continuous employment.  It was clear that there was a dispute between the first and second respondent as to whether TUPE applied.”

(g)	The Applicant attended an interview with METCO in respect of a new job with different terms and conditions.

(h)	On 27 August 1999 AMEC and METCO agreed that the exercise they had agreed would be a TUPE transfer and wrote to the Applicant in terms set out in paragraph 13 of the Extended Reasons which is in the following terms:

“13  Notwithstanding this, the first and second respondents agreed on 27 August that TUPE applied to the transfer and a letter was sent to the applicant by the second respondent in these terms – “please accept this as confirmation that as of 1 September your employment will transfer from AMEC Process and Energy Limited to Metco Services Limited.  All of your attached terms and conditions of employment with AMEC remain unchanged.”

(i)	The events which the Employment Tribunal find included an objection by the Applicant under paragraph 5(4A) of TUPE occurred on 2 September and are set out in paragraph 15 of the Extended Reasons which is in the following terms:

“15.  On 2 September Messrs Newman and Beecroft of the second respondent and Mr Savory of the first respondent attended the site and met with the applicant.  They confirmed the transfer in its entirety.  The applicant questioned Mr Savory of the first respondent as to the years of service.  The first respondent said that this was from January 1997.  The applicant said that there were an additional five years which should be added to this.  A heated discussion ensued on this point.  This was the first time in relation to this transfer when the applicant had spelt out his expectations relating to continuity of service.  In any previous discussions on this topic it had been assumed that the applicant was referring solely to his period of service with the first respondent.  Mr Savory therefore took some advice.  The representatives of the second respondent explained that they would honour the correct continuity of service.  The applicant said he was not going to transfer until this matter was sorted out.  The applicant went back to his work.  After about 45 minutes Mr Beecroft came to ask if he would like to come back to resume the discussions.  The applicant said that he had nothing to say to the second respondent and that his dispute was with the first respondent.  Mr Savory then had to come to ask the applicant back to the meeting.  Further discussion took place between Mr Savory and the applicant about the arrangements with Wolviston and Mr Savory that AMEC were unable to certify the extended period of service.  Mr Savory then returned to the meeting without the applicant, and stated that the applicant did not want to transfer until his disputed service period had been resolved.  Mr Savory reasserted that the applicant was not prepared to talk to Metco.”

(j)	The Applicant attended at work on the next day and what then happened is set out in paragraphs 17 to 20 of the Extended Reasons which are in the following terms:

“17.  The letter was sent on 3 September signed by David Savory.  The material parts for our purposes are as follows:
‘Following discussions at the Shell Bacton terminal on Thursday 2 September 1999, with myself and two representatives of Metco Services Limited, whereby you declined their offer of employment.  The Metco Services Limited contract of employment would have had entirely the same terms and conditions of employment which you currently have with AMEC Process and Energy Limited, including continuity of service.  We have attempted to find work elsewhere within the AMEC organisation but unfortunately no alternative positions are currently available to use your skills and expertise, therefore we have no other option at present but to terminate your employment with this Company through redundancy … should you have any queries relating to this correspondence, please do not hesitate to contact myself directly’.
18.  The applicant did not make any contact with Mr Savory to join issue with him as to the contents of this letter.  On 7 September Mr Savory wrote again suggesting that there might be some work available off shore in the foreseeable future and inviting the applicant to come for training.  The applicant made no response to that letter.
19.  The applicant sought legal advice, and upon receiving this he wrote on 17 September to Mr Newman of the second respondent.  It was a letter of two sentences only.  The first sentence referred to the second respondent’s letter of 27 August and the second sentence ran ‘I have received no further communication to date from your Company and I await your instructions’.
20	The second respondent replied, pointing out that there had been further communication, namely that there had been a meeting on 2 September which was designed to make arrangements for the applicant to attend an induction course in Aberdeen, and going on to say ‘at the start of the meeting you stated categorically that you did not wish to join Metco Services Limited and you refused to discuss the transfer at all.  We held the position open for a reasonable period of time for you, but as we received no further communication from you regarding the transfer, operationally we were left with no option but to make alternative arrangements to fill the position of Metering Technician based at Bacton.”

5	It is in those circumstances that the Employment Tribunal decided that it was unnecessary for it to determine whether the Applicant had continuity of employment from 1992 as he alleged and was alleging before the Employment Tribunal.

6	We see no error of law in this approach.  

7	Much of the Notice of Appeal that was put in on behalf of the Applicant focuses upon this part of the decision of the Employment Tribunal.  Before the Employment Tribunal the Applicant was represented by a friend and, as we understand it, the Notice of Appeal was also prepared with that help.  Today the Applicant has had the benefit of advice and assistance under the ELAAS Scheme for which he should be grateful and I am sure that he is.  Counsel appearing under that scheme has, in our judgment very properly, effectively abandoned the original Notice of Appeal or taken points out of it which it can be argued are contained within it when it is read with the eye of a lawyer.  

8	The points that Counsel raises on behalf of the Appellant and submits are reasonably arguable are as follows:

(1)	There is a point of law that the objection under paragraphs 5(4A) and (B) of TUPE cannot take place after the transfer, in other words whether or not the Employment Tribunal were correct to hold that it did.

(2)	Second, that the Employment Tribunal erred in law in concluding that the events they describe and thus the primary facts that they found amount to an objection within those paragraphs.

(3)	If there was an objection to the change of employer was there a change of terms enabling the Applicant to claim unfair dismissal, and 

(4)	A further, and more generally stated, point, whether or not the Tribunal erred in concluding that the Applicant was not dismissed.  Rightly in my judgment, Counsel indicated that if that point arose at the hearing of the appeal it would be very unlikely that this Tribunal would decide it and would have to remit to an Employment Tribunal to reconsider the matter.

9	As I have said, it seems to me that it is arguable that some, or all of those points, can be discerned from the existing Notice of Appeal.  However, the Respondents may wish to argue that that is not the case, and that the Appellant should not be given leave to amend the Notice of Appeal to include those grounds, either on the basis that they are not in the existing Notice of Appeal or, for example, on the basis that they do not reflect points argued before the Employment Tribunal.  

10	Counsel appearing through the ELAAS scheme has helpfully indicated that she will draft an amended Notice of Appeal to include the four points I have identified, abandoning the remainder of the Notice of Appeal.

11	What we propose to do is to give the Appellant permission to file an amended Notice of Appeal, substituting the existing Notice of Appeal with one raising the four points I have identified: that is on the basis that the existing Notice of Appeal is being abandoned.

12	For avoidance of doubt insofar as the existing Notice of Appeal contains grounds in addition to the four we have identified, in our judgment it raises no reasonably arguable point of law and we dismiss those grounds.

13	Thus this appeal will proceed only on the four grounds we have identified.  

14	Further, we will give liberty to the Respondent to apply to vary or discharge the order giving leave to amend.  They can do so by way of a further preliminary hearing but in our judgment, on the information that we have, if they wish to so apply it would probably be more appropriate for them to do so on notice at the full hearing of the appeal.

15	We give this appeal Category B and a time estimate of one day, skeletons in accordance with the Practice Direction.