EAT Transfer of Undertakings : Transfer – PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Costs
Transfer of Undertakings (Protection of Employment) Regulations 2006 – interplay between reg 3(3)(a)(i) ‘organised grouping of employees’ and question of assignment for purposes reg 4 TUPE
Service provision change of purpose of reg 3(1)(b) having been conceded, the Employment Judge was required to define the ‘organised grouping of employees’ for reg 3(3)(a)(i) purposes and, in the light of that finding, to determine whether the Claimant had been assigned to that grouping for the purposes of reg 4. The two issues were analytically distinct, albeit that there was an overlap in that, for the purposes of considering assignment to a putative ‘organised grouping’, it was first necessary to identify what that grouping consisted of, Eddie Stobart Ltd v Moreman [2012] IRLR 356, EAT, at paragraph 16.
On the first issue, the concept of an organised grouping implies an element of conscious organisation by the employer of its employees, in the nature of a team, which has, as its principal purpose, the carrying out of the activities in question; there must be ‘deliberate putting together of a group of employees for the purpose of the relevant client work – it is not a matter of happenstance (Seawell Ltd v Ceva Freight (UK) Ltd [2013] IRLR 726, Ct Sess, approving the Judgment of Lady Smith in the EAT in that case [2012] IRLR 802, and Eddie Stobart supra).
On the second question, that of a particular employee’s assignment, the starting point was the ECJ’s Judgment in Botzen and Ors v Rotterdamsche Droogdok Mattschappij BV [1985] ECR 519. The question of assignment was one of fact for the Employment Tribunal, Duncan Webb Offset (Maidstone) Ltd v Cooper and Anr [1995] IRLR 633 EAT, but it was not to be assumed that every employee carrying out work for the relevant client is assigned to the organised grouping, Edinburgh Home-Link Partnership v The City of Edinburgh Council UKEATS/0061/11 (10 July 2012, unreported). Whether or not a particular employee was assigned to the ‘organised grouping of employees’ affected by the transfer – and thus entitled to the protection of TUPE – was no mere formality and could only be resolved after a proper examination of the whole facts and circumstances. Being involved in the carrying out of the relevant activities immediately prior to the transfer will not necessarily mean that the employee was assigned to the organised group, Argyll Coastal Services Ltd v Stirling and Ors UKEATS/0012/11 (15 February 2012, unreported).
Adequacy of reasons
When assessing the reasons given by an Employment Judge, it was not for the EAT to read the reasons as if with a fine-tooth comb searching for errors. An Employment Judge was entitled to expect that her Judgment would be read as a whole and with some allowance for the fact that the parties will have been aware of what was in issue and what the evidence was at the hearing. On the other hand, the Judgment would still need to be Meek-compliant and meet the requirements of the ET Rules. Parties were entitled to understand why they won or lost and anyone reading the Judgment should be able to understand how the relevant findings of fact and legal principles had been applied in order to determine the issues. In carrying out that exercise, it was not acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons: appellate courts should not uphold a decision which has failed in this basic task, whatever its other virtues, Anya v University of Oxford and Anr [2001] ICR 847 CA, per Sedley J at paragraph 26.
In the present case the reasons did not disclose that the Employment Judge had engaged with Costain’s case and, if so, what conclusions were reached in that respect. It was, further, unclear whether the Employment Judge had applied the correct test; the reasons given were inadequate to enable the parties to know this for certain and to properly understand what conclusions were reached on central issues (and for what reasons) and, thus, to know when they won or lost.
Appeal allowed and case remitted to differently constituted Employment Tribunal for fresh consideration.
Costs
Upon Costain’s application for costs in the Appeal in the sum of the fees paid, pursuant to rule 34A(2) EAT Rules 1993, as amended. Adopting the same approach as in Horizon Security Services Ltd v Ndeze and Anor UKEAT/0071/14/JOJ, that application was granted in respect of the Second Respondent, ERH, which was thus ordered to pay the Appellant’s andpound;1,600 costs in the Appeal.
Eady QC HHJ
[2014] UKEAT 0048 – 14 – 0207
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006 3(3)(a)
England and Wales
Employment
Updated: 20 December 2021; Ref: scu.536437
