EAT TRANSFER OF UNDERTAKINGS – Continuity of employment
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Transfer of undertaking – TUPE 2006 – continuity of employment / correct identity of Respondent – variation of agreement -adequacy of the Employment Tribunal’s reasons
There had been a relevant transfer for the purposes of TUPE 2006 on 1 July 2015, by which employees of Excel transferred to the Respondent, although at the time neither party appreciated that this applied to the Claimant’s employment. There were separate discussions between the Claimant and the Respondent’s Managing Director as to the terms that would apply to the Claimant’s employment by the Respondent but those broke down and the Respondent contended it was then agreed that the Claimant would revert to employment by Excel. After the Claimant subsequently sought to pursue claims against the Respondent, a Preliminary Hearing took place to determine the identity of his employer. The ET found that, although (contrary to the parties’ understanding at the time) the Claimant’s employment had transferred to the Respondent on 1 July 2015, there had subsequently been an agreement, reached between the Claimant and the Managing Director of the Respondent on 31 July 2015, by which his contract of employment with the Respondent terminated and he returned to Excel’s employment. The Claimant appealed against this finding on two bases: (1) his evidence as to the meeting of 31 July 2015 had not been challenged and there was no proper evidential basis for the ET to find an agreement had been reached that day; (2) the ET had also failed to address the Claimant’s argument under the non-oral variation clause of his service agreement. Although accepting that the ET had erred in both these respects, the Respondent contended this made no material difference to its conclusion.
Held: allowing the appeal.
The ET’s finding as to the events of 31 July 2015 was not supported by the evidence and was apparently based on a misunderstanding of the Respondent’s case below. Although that did not mean that there had not been an agreement between the parties in the terms found by the ET, the erroneous finding that it had been entered into at a specific meeting meant that the ET’s finding in this regard was open to question. In addition, while the non-oral variation clause of the Claimant’s service agreement did not mean that the parties could not have orally agreed to vary or terminate the contract (Globe Motors Inc v TRW Lucas Varity Electric Steering Ltd [2016] EWCA Civ 396 (20 April 2016, unreported) and MWB Business Exchange Ltd v Rock Advertising Ltd [2016] 3 WLR 1519 CA applied), it was a relevant evidential consideration and the ET’s failure to engage with this issue, taken together with its misunderstanding as to the events of 31 July 2015, rendered the conclusion reached unsafe.
Citations:
[2017] UKEAT 0347 – 16 – 0611
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601915