Appeals on the ground of perversity will only succeed where it is shown that no reasonable Tribunal, properly directed in law, could have reached the decision made. The court set out the duties and powers of appellate courts in employment law: ‘It is common ground that the appeal from the industrial tribunal to the Employment Appeal Tribunal and thence to the courts is open only on a question of law. The appellate tribunals are therefore only entitled to interfere with the decision of the industrial tribunal if the appellants can succeed in showing, as they seek to do, that it has either misdirected itself in law or reached a decision which no reasonable tribunal, directing itself properly on the law, could have reached (or that it has gone fundamentally wrong in certain other respects none of which is here alleged). The fact that the appellate tribunal would have reached a different conclusion on the facts is not a sufficient ground for allowing an appeal.’
Lord Fraser of Tullybelton said: ‘My Lords, it is clear from the findings of the industrial tribunal that there were some factors pointing towards this transaction being a change of ownership of part of the appellants’ business, and other factors pointing towards it being a mere change of ownership of particular assets. The decision between those two views was one of fact and degree for the industrial tribunal, as it must be in all, or almost all, such cases.’ and ‘It seems to me that the essential distinction between the transfer of a business, or part of a business, and a transfer of physical assets, is that in the former case the business is transferred as a going concern ‘so that the business remains the same business but in different hands’ – if I may quote from Lord Denning MR in Lloyd v Brassey 2 QB 98, 107 in a passage quoted by the industrial tribunal – whereas in the latter case the assets are transferred to the new owner to be used in whatever business he chooses. Individual employees may continue to do the same work in the same environment and they may not appreciate that they are working in a different business, but that may be the true position on consideration of the whole circumstances.’
Judges:
Lord Fraser of Tullybelton
Citations:
[1981] ICR 43
Jurisdiction:
Scotland
Citing:
Appeal from – Melon v Hector Powe Ltd SCS 1980
. .
Cited – Lloyd v Brassey CA 1969
A farm was sold as a going concern with land and all stock-in-trade.
Held: This was a ‘transfer of a trade, business, or undertaking.’ It was the same business being carried on both before and after the transfer. The same staff were employed. . .
Cited by:
Cited – Duffy v Yeoman and Partners Ltd CA 15-Jul-1994
Redundancy decision without consultation where ‘no difference’ was found, and there was no alternative, was not unfair. . .
Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 06 May 2022; Ref: scu.214602
