Appeal No. EAT/0285/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 June 2001

Before
MR COMMISSIONER HOWELL QC
MR B GIBBS
MR J C SHRIGLEY

MR N WINN	APPELLANT

BCT BUSINESS SYSTEMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J MORRIS
Representative	

MR COMMISSIONER HOWELL QC

1.	In this appeal which is before us today for Preliminary Hearing Mr Neil Winn seeks to have set aside as erroneous in law the decision of the Liverpool Employment Tribunal set out in extended reasons sent to the parties on 15 February 2001 at pages 2-3 of the file before us.  The proceedings before the Tribunal had been brought by Mr Winn against his former employers, a company called BCT Business Systems Ltd which is now in receivership and liquidation.  As set out in his originating application dated 24 May 2000 these alleged that he had been constructively dismissed by that firm when he resigned from its employment on 8 May 2000, by reason of what he found unacceptable conduct by the employer in particular in having disciplined him or threatened to discipline him because a lap top had been stolen from his car and because he had been met by abuse and threats after he had been away from work unwell.

2.	Those complaints were found to be justified by the Tribunal which held that in consequence Mr Winn had been unfairly dismissed by reason of the employers’ fundamental breach of contract which he had accepted by resigning as he did by letter on or about 8 May 2000.  

3.	The Tribunal’s reasons and findings on which that conclusion was based appear from paragraphs 5-8 of their extended reasons and can be conveniently quoted from there as follows:

“5.	On or about 21st February 2000 he had been informed by his line manager that he should resign.  Shortly afterwards he was told by his line manager that he (the line manager) would make the applicant’s life very difficult and he was given tasks outside his job description.

6.	The applicant was absent from work due to sickness for several weeks thereafter and lodged grievances with the respondents.

7.	At a meeting on 2nd May 2000 the respondents responded to those grievances but not in a way that was satisfactory to the applicant and he therefore tendered his resignation.

8.	We were satisfied that there had been a fundamental breach of contract by the respondents both in the way in which he had been treated by his line manager and in the failure of the respondent’s properly to deal with his resulting complaints.  It followed that that resignation could be construed as a dismissal which, in the circumstances of this case, we considered was unfair.”

On that basis, the Tribunal held that the Applicant had been unfairly dismissed and since as they recorded in paragraph 9 of their extended reasons he confirmed that he did not wish to seek an Order for reinstatement or re-engagement with his then employers, they made a basic award of one week’s pay at the statutory maximum figure of £220 per week, based on his entitlement and the period of time for which he had worked for the Respondents.  The final paragraph of the Tribunal’s extended reasons was as follows and again we will quote it as it is the subject matter of the appeal before us:

“11.	  Since the respondents appear not to have the means to meet any compensatory award, it was agreed that the determination of any such sum due to the applicant would be adjourned.”

5.	We were told by Mr Morris who appeared before us for Mr Winn, acting for him as a friend, and made most helpful submissions on his behalf, that in fact by the time of the Tribunal proceedings in January 2001 it had become apparent that BCT Business Systems Ltd was without resources and that accordingly the question of calculating any compensatory award to be paid by BCT itself had not been pursued, since there would have been no practical point in it.

6.	Mr Morris however, also told us and we accept, that by that time as he informed the Tribunal the business and assets of BCT Business Systems Ltd had been taken over by its principal competitor, another firm called EDP, and that he had made an application to the Chairman on Mr Winn’s behalf for some form of order enabling the claim for compensation to be pursued against EDP as the inheritor of the business, and therefore as Mr Morris contended on behalf of Mr Winn the rightful inheritor of the liabilities of BCT including of course Mr Winn’s claim for his unfair dismissal on 8 May 2000.

7.	We understand that the Chairman did not feel able to make any Order on the basis of what he was told by Mr Morris but indicated that if it could be proved that EDP had in fact assured responsibility for the previous liabilities of BCT including any amounts due to Mr Morris for compensation for his unfair dismissal then a further application could be made to the Tribunal for the actual amount of the compensation due to be quantified because then there would be some point in pursuing that.

8.	Again Mr Winn has not made any further application to the Tribunal, but does now seek to appeal against the Tribunal’s decision on the ground stated in his Notice of Appeal dated 20 February 2001, that the Tribunal was in error in law in having adjourned the determination of the compensatory award.  The reasons for that are stated in the following terms:

“As BCT was no longer an entity in its own right and the Applicant was not in its employ immediately prior to the sale of the company it is our contention that as claim was lodged there is a transfer of undertakings and a liability on the part of the new owners.”

9.	That contention has been developed in argument before us by Mr Morris on behalf of Mr Winn by saying that although it must be accepted that Mr Winn’s employment with BCT came to an end when he resigned on 8 May 2000, and the earliest date at which any transfer of business or assets can be identified is stated in his skeleton argument to be September 2000, nevertheless it is unfair for a former employee who has been dismissed in such circumstances to be treated as having terminated his employment for all purposes when this causes a substantial detriment to him in relation to the subsequent transfer.  If for example he had merely been suspended from employment by BCT, he would or might have been able to pursue claims against EDP by virtue of being one of the persons in employment at the date when the transfer took effect; and therefore be able to claim continuity of employment rights and pursue claims against EDP by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 1981 SI No 1794.

10.	Despite all the arguments that Mr Morris attractively put forward for the general proposition that it was an unfair result if Mr Winn was unable to pursue his claim against EDP which was the only potential entity who would be able to pay him any compensation, we have been unable to see that there is any arguable ground here for saying that as a matter of law the Tribunal erred in any way in the approach they took or in the findings that they recorded.

11.	Since it cannot be disputed that Mr Winn’s employment actually ceased in May 2000, and there is no indication of any actual transfer of assets (even if that amounted to a transfer of undertakings within the meaning of the regulations) happened before September 2000, it appears to us not possible to argue that his contract of employment ever became a contract of employment which was entitled to the protection of the transfer of undertakings regulations.  By Regulation 5 of those regulations the contracts protected are contracts which would otherwise have been terminated by the operation of the transfer itself; and Mr Winn’s contract, it cannot be disputed, actually came to an end for entirely different reasons some four months before.

12.	In the light of what Mr Morris told us about the way the matter was put to the Chairman it is easy for us now to see the reasons why the Tribunal recorded that they were adjourning the issue of the quantification of compensation.  That was obviously because they wished to preserve for Mr Winn the possibility that if he was able to establish as a matter of law that there had been some assumption by EDP of BCT’s past liabilities, including liabilities to himself, that would then provide a practical means of getting the actual amount of compensation due to him quantified.  But despite everything that has been said to us today by Mr Morris we have been unable to see that on the basis of the material before us or the material before the Tribunal the beginnings of a claim in law against EDP can be or have been established.  Accordingly we have been unable to see that there is any arguable ground in law for saying that what the Chairman did or the decision the Tribunal reached were erroneous and for those reasons we must dismiss this Appeal.