Appeal No.	EAT/482/01 
		EAT/1157/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 February 2002

Before
THE HONOURABLE MR JUSTICE BURTON
MR P R A JACQUES CBE
MRS R A VICKERS

MR S A MOSELEY	APPELLANT

SERVICE DIRECT (UK) PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR SIMON ROBINSON
(of Counsel)
Instructed by:
Messrs Birchall Blackburn 
Solicitors
Waldorf House
5 Copper Street
Manchester M2 2FW	
For the Respondent	MR NIGEL RUSSELL
Representative
Service Direct PLC
Cellphone House
North Circular Road
London NW10 7SH	

MR JUSTICE BURTON

1	There are before us, two appeals, which survived a preliminary hearing on 12 March 2001 without the course which we are proposing to take being considered, which, perhaps, is unfortunate in the circumstances; both appeals have now come before us many months after the preliminary hearing and of course even longer since the initial Employment Tribunal Decision of 13 July 2000.  

2	The appeals are in this form: in respect of the Decision there was a majority conclusion by the Tribunal that the Appellant did not have continuity of employment by Service Direct PLC.  This was because he had only been employed by Service Direct PLC, as they found, contrary to his assertion in his Notice of Application that he had been employed by Service Direct PLC since June 1998, since 1 October 1999; and thus, when made redundant by Service Direct PLC on 24 November 1999, he had not had more than six weeks or so continuous employment, and therefore did not qualify for protection under the employment legislation.  That, on the face of it, was a straightforward decision by the majority of the Tribunal, contrary to the assertion by the Appellant that he had been employed by Service Direct PLC for eighteen months or so, that he had only been employed for six weeks.  

3	The minority of the Tribunal, according to paragraph 5 of the Decision:
“ considered that the Applicant’s commencement of employment with the respondent on 1 October 1999 was as a consequence of a transfer of undertaking from Samsung Telecom(UK) Ltd to the respondent, and that the applicant’s contract of employment had transferred to the respondent as a result”
 and that in consequence, he did have continuous employment.  

4	It is unclear to us how the point upon which the minority member attached, namely, that the real issue was TUPE, had arisen.  It may be that it did not arise until the hearing itself because we have been told by Mr Russell, who has appeared before us today, the Managing Director, as he then was, of Service Direct PLC, who appeared at the Tribunal (although he is no longer in such a capacity and has today appeared with the benefit of the present Board giving him instructions) that there was no actual witness evidence given at the hearing, but that he simply addressed the Tribunal, as did the Appellant in person, with the benefit of a relatively small bundle of documents; and so it may be that the Tribunal was not given advance notice that the real issue before it was whether or not there was a TUPE transfer.  It is certainly right that there are documents in the bundle which we have seen, which was before the Tribunal, which would support a case for a TUPE transfer, although Mr Russell indicates to us that there are also documents the other way. 

5	The appeal has arisen in this way:  there was an application by the Appellant to the Tribunal for Extended Reasons because, as appears from the very short passage that I have read recording the minority Decision that there was a TUPE, no reasons are given to the contrary by the majority as to why they disagree with that view.  But the majority’s decision was simply, on the face of it, recorded in paragraph 4 of the Decision as a question of fact, such as I have previously set out, namely that in fact he had only been employed by Service Direct PLC for a short time, and had previously been employed by Samsung Telecom (UK) Ltd.  It would be necessary, therefore, to have reasons as to why the majority rejected the view of the minority that this was a TUPE transfer.

6	The application for Reasons was refused by the Employment Tribunal because it was said to be out of time.  The reason for the delay in making the application for Reasons has been explained as a delay resulting from Legal Aid.  There is an appeal against that refusal to give reasons and there is an alternative appeal seeking to ask this Tribunal that we decide the case on the basis of the Summary Reasons that exist, notwithstanding the absence of the Extended Reasons.  

7	It is entirely clear to us that neither of those courses are sensible in the least.  First of all, we would not be able to decide this ourselves without the further consideration which would be necessary, and secondly, if, as would be in our judgment inevitable, we sent this back for further Reasons because we are satisfied both that there was a good reason for delay and, in any event, that justice demands that this Decision be explained, then the best that could then happen would be that Reasons would then be given, which would inevitably, in our judgment, lead to a further appeal against the substance of the judgment, once so explained.  

8	In those circumstances, we have formed the firm view, which Counsel, Mr Robinson, appearing for the Appellant, has agreed, that the right course here is to take the bull by the horns, anticipate the receipt of Reasons and/or of yet a further appeal, and simply quash the Decision below and send it back for proper hearing.  That is a course which Mr Russell, instructed by the Respondent, has concurred with, and we are grateful for his appreciating the good sense of this course, which will inevitably save costs in the long run.  

9	We direct that the fresh application be heard by a differently constituted Tribunal.  The issue is bound now to be, not least because the facts are clear that in fact, as a matter of history, the Appellant was employed first by Samsung Telecom (UK) Ltd, and then by Service Direct PLC, so that, subject to TUPE, he only did have a period of employment from 1 October 1999 to 24 November 1999 with the Respondent, whether there was a TUPE transfer.  

10	There must inevitably be a disclosure of documents and witness statements to enable that issue to be decided.  If it is resolved in favour of the Respondent, the Appellant’s claim will fail because there will be no jurisdiction in the Tribunal.  The onus will obviously rest on the Appellant to show that there was a TUPE transfer; but that is the issue which must now be properly resolved below, and a fresh Tribunal will therefore see whether the minority’s view, as expressed in paragraph 5 of the Tribunal, and not explained as being wrong by the majority, was right.