Appeal No.	 EAT/258/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 March 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR E HAMMOND OBE
MR T C THOMAS CBE

NORTH WEST LONDON MENTAL HEALTH NHS TRUST	APPELLANT

DR R A WILKINS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR N CHRONIAS
(Employed Barrister)
Messrs Beachcroft Stanlesy
Solicitors
20 Furnival Street
London EC4A 1BN	

	JUDGE PETER CLARK:  The sole question before the London (North) Industrial Tribunal at the hearing of this preliminary issue held on 21 October 1997 was whether the Applicant, Dr Wilkins, was employed by the Respondent, North West London Mental Health NHS Trust, for the purposes of claiming a redundancy payment.

	The background, set out in extenso in the Tribunal’s extended reasons dated 19 December 1997, came down to this.

	The Applicant, a Consultant Radiologist, had, since 1973 worked 8 half-day sessions each week at Northwick Park and Harrow Hospitals, and one half-day session at Shenley Hospital.

	His first letter of appointment, dated 13 February 1974 and signed by him on 26 February, was issued by the North West Metropolitan Regional Hospital Board (NWMRHB).  At that time Shenley Hospital fell within the Parkside Health Authority (Parkside).  Parkside was within NWMRHB’s region.

	North West Thames Regional Health Authority (NWTRHA) took over the functions of NWMRHB.

	On 22 June 1987 NWTRHA wrote to the Applicant informing him that his salary and expenses would be paid through his principal District Health Authority acting as agents on behalf of the Regional Health Authority.  The Tribunal found that thereafter NWTRHA remained as the Applicant’s employer and that Harrow, as the principal or lead Authority, responsible for the bulk of his work at Northwick Park & Harrow Hospitals would act as NWTRHA’s agent for the purpose of paying his salary and expenses in respect of that work and his work at Shenley Hospital, which came under the aegis of Parkside.

	In November 1988 NWTRHA wrote to the Applicant referring to his appointment as a Consultant in Radiology for Harrow and Northwick Park Hospitals (part of a joint part-time appointment with Parkside Health Authority).

	From 1 April 1993, so the Tribunal found, NWTRHA ceased to be the Applicant’s employer as a result of the creation of NHS Trusts.

	On 22 February 1993 NWTRHA wrote to the Applicant and the Tribunal found that by that letter NWTRHA informed the Applicant that his appointment would be transferred to two new NHS Trusts, Northwick Park and the Respondent, and that he would be employed by those Trusts under a joint contract of employment;  his salary would be dealt with by Northwick Park, as the lead authority.

	In 1996 the Respondent decided to close down Shenley Hospital.  After 30 September 1996 the services of the Applicant and a radiographer were no longer required.

	The Respondent contended that the Applicant was employed by Northwick Park.  Both he and Northwick Park believed that he was employed by the Respondent in respect of his weekly session at Shenley Hospital.  The dispute could not be resolved through correspondence, hence the Applicant’s application to the Tribunal for a redundancy payment against the Respondent.

	Having set out the submissions of the parties, the Tribunal concluded that on 1 April 1993 the Applicant’s employment with NWTRHA was transferred, as to the part of the undertaking in which he was employed at Northwick Park to the Northwick Park Trust, and as to the part of the undertaking in which he was employed at Shenley to the Respondent.  Accordingly, the Respondent employed the Applicant at the time of his dismissal by reason of redundancy when his services were no longer required at Shenley Hospital on 30 September 1996.

	In this appeal Mr Chronias has convinced a sceptical audience that there is here an arguable point of law to go to a full hearing.  It is based on the proposition that the Industrial Tribunal were wrong in law to find that there was a relevant transfer between NWTRHA and the Respondent of the Applicant’s employment at Shenley Park Hospital because the employer, NWTRHA and the transferor, Parkside, were not one and the same for the purposes of regulation 5(1) of the TUPE regulations.  He submits that the position is regulated by the special provisions of ss.6 and 7 of the National Health Service and Community Care Act 1990.  

	In these circumstances we shall allow the appeal as it stands to go forward to a full hearing.

	We have been asked by Mr Chronias to direct that Chairman’s notes of evidence be called for.  We do not consider it necessary in this case.  

	We shall list the case for one day, category B, and direct that skeleton arguments be exchanged not less than 14 days before the date fixed for the full hearing.  Copies of those skeleton arguments to be lodged at the same time with this Tribunal.