Appeal No. EAT/1026/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MR P R A JACQUES CBE

MR M HIGGINS & OTHERS	APPELLANT

1) IPEL LIMITED 
2) EPSILON OPTI FILMS UK LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR 
REPRESENTATION BY 
OR ONBEHALF OF 
THE APPELLANT	
For the Respondents	NO APPEARANCE OR
REPRESENTATION BY 
OR ON BEHALF OF
THE RESPONDENT	

JUDGE PETER CLARK:
1.	This is an appeal by four Applicants before the Liverpool Employment Tribunal, Messrs Higgins, Brown, Leadbetter and Rawlinson, against that Tribunal’s finding contained in a decision with extended reasons promulgated on 26 June and corrected on 31 July 2000 that there was no transfer of their employment from the first Respondent, Ipel Limited (Ipel) to the second Respondent Epsilon Opti Films UK Ltd (Epsilon).  The appeals of 24 other Applicants before the Tribunal were dismissed on withdrawal by orders of the Registrar made in April and May 2001.  The remaining four Appellants have not appeared today; no explanation has been given; no skeleton argument has been submitted.  In these circumstances we shall proceed to deal with the outstanding appeals from the papers before us.  

2.	The principal facts found by the Tribunal were that the Appellants were employed by Ipel.  Ipel’s business was predominantly the manufacturer of lamination film.  They also produced shrink film in a small way.  In November 1997 Ipel and Epsilon US entered into a joint venture under which the American Company would form a new company, the second Respondent Epsilon UK.  Epsilon would produce shrink film on their own machinery installed at Ipel’s factory premises.  Ipel would cease manufacturing shrink film.

3.	Epsilon ran a separate operation, using Ipel’s workforce, although no individual’s were dedicated to particular work or a particular machine.

4.	In July 1999 Ipel went into administration.  On 8 July the employment of the workforce was terminated.  Each received a redundancy payment.  On 23 August 1999 Epsilon agreed with the administrators that they would resume production.  For that purpose they recruited 17 former Ipel employees (including 7 of the Applicants before the Tribunal).

5.	On the facts as found the Tribunal concluded that there was no transfer of an economic entity from Ipel to Epsilon at any stage.  Their reasons for so finding are set out at paragraph 5 of their extended reasons.

The Appeal
6.	We have considered the grounds of appeal settled by solicitors, Pattinson and Brewer, then acting for all 28 Appellants and dated 7 August 2000.  The first point taken is that the Tribunal recorded incorrectly, as it turned out, that a witness, Mr Steven Spelman Oliver, gave oral evidence in addition to his written statement.  The Chairman has subsequently corrected that detail but it does not seem to us to raise a material point of law.  

7.	The remainder of the grounds of appeal deal with minor factual errors, which in our view are of no consequence and finally raises a point about the evidence given by the Appellants, which apparently was not adopted by the Tribunal.  None of these grounds in our view disclose any error of law in the Tribunal’s approach.  On the contrary it seems to us that at paragraph 5 of their reasons the Tribunal have properly considered what may be called the Spijkers factors adopted by the European Court of Justice at paragraph 14 of the courts judgment in the case of Suzen (1997) IRLR 255 and the Tribunal has reached a conclusion on the basis of those findings which is unassailable at law.  

8.	In these circumstances we shall dismiss these remaining appeals.