EAT Transfer of Undertakings – Economic technical or organizational reason
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Barnet outsourced many of its services to Capita so as to achieve economies. This was a service provision change, to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (before the introduction of Regulation 7(3A)) applied. In the case of nine lead Claimants, representing 30 others, the Employment Tribunal found that the functions they had fulfilled whilst in the service of Barnet prior to the transfer were (save in two cases) split between different locations or people. In each case there had been a dismissal by Capita. The Employment Tribunal decided that the reasons for the dismissals were the splitting of the job functions and the relocation of the place of performance of those functions to various towns and cities. These were ‘economic technical or organisational reasons’ which entailed ‘changes in the workforce’.
The Claimants appealed on the basis that they had been assured that they could relocate to one of the other places of work if they wished, and would not be put out of a job with Capita if they did so, but that the Judge had not made any significant reference to this although it was a primary submission of theirs; and that the Employment Tribunal had ignored the evidence of one of Capita’s witnesses who had said that the reason for the dismissals was ‘relocation’, which they argued did not (on authority) amount to an economic, technical or organisational (‘ETO’) reason.
It was held that the reason for dismissal was sufficiently clear. It was a finding of fact, and was not perverse: the Employment Tribunal did not have to deal specifically with the submission since it dealt clearly with the facts. The witness had apparently not said clearly that relocation of the existing job was all that had occurred, and in any event the Employment Tribunal found that the job functions had been split. This was therefore capable of being an ETO reason which entailed changes in the workforce since it entailed changes in the job functions of the workforce.
As a third ground, a Claimant complained that the Employment Tribunal had clearly found that she had not had a material change of function, but had been dismissed primarily because the location of the work had changed and she would not accept it. The logic by which the Employment Tribunal concluded that nonetheless she was dismissed for an ETO reason entailing changes in the workforce could not be supported, and in the light of the Judge’s clear finding that she was dismissed because of the new location of her work the Appeal Tribunal substituted a finding that she had been automatically unfairly dismissed.
Langstaff J
[2016] UKEAT 0048 – 16 – 1706
Bailii
England and Wales
Employment
Updated: 25 January 2022; Ref: scu.570975
