As feared, UK courts have seized on the European Court's decision in Suzen (see Issue 10 of LELR: Losin' Suzen gives TUPE a bruisin') with an unjustified fervour. The Court of Appeal in Betts (LELR 10) used the decision as a basis for overturning the finding that there had been a transfer of an undertaking and, in doing so, adopted an interpretation which was unduly harsh on employees. Now the EAT appears to take as read that there is no transfer where neither physical assets nor employees transfer.

Mr Lansana was employed as one of 14 cleaners on a contract operated by Wetton at a university hall of residence. The contract was put out to tender and Superclean was successful. Wetton said that because of the "uncertainties in the law relating to transfers of undertakings" it would not make redundancy payments to the 14 staff who were not offered jobs by Superclean.

The Industrial Tribunal decided this was a TUPE transfer. Such was the state of the law at that time (March 1996) that Superclean did not initially appeal against that part of the decision. The Suzen decision intervened and, surprisingly, the representative of Mr Lansana asked permission to challenge the decision that there was a transfer, and was supported (less surprisingly) by Superclean.

The Employment Appeal Tribunal concluded that TUPE did not apply because there was no transfer of "significant tangible or intangible assets or taking over by Superclean of any, let alone a major part, of Wetton's workforce".

The EAT felt that Suzen had a "dramatic impact" on the previous UK decisions. There can be no doubt that Suzen does affect the previous line of authority, but this does not remove the need for a careful analysis of the nature of the contract and what precisely has transferred. The EAT decision contains no analysis of the rights which would normally transfer with any cleaning contract - the monopoly right to provide cleaning services under the contract in return for payment, the use of premises and services, the organisation of the work.

The judgment must be treated with considerable caution. It is not based on a thorough application of the factors listed in Spijkers [1986] CMLR 1119 [ELJ] to the facts of this case and, significantly, both the successful contractor and the dismissed employee were arguing that TUPE did not apply. Tribunals should not lose sight of the arguments which formed the logical basis of Dines [1995 ICR 11] and subsequent decisions. Post-Suzen, TUPE cases require close analysis and there should not be a general presumption against TUPE applying whenever employees are not taken on by the new employer.

Where do I work?

High Table Ltd v Horst & Others [1997] IRLR 513

A simple question, but one which has absorbed much legal attention over the years as far as the entitlement to claim redundancy payments is concerned. In Bass Leisure Ltd v Thomas [1994] IRLR 104 the EAT adopted a factual approach to the question about the place where the employee was employed (see Issue 2 of LELR: Redundancy: testing times).

The Court of Appeal has now approved the factual test. The Court of Appeal said that for the purposes of Section 81(2) Employment Protection Consolidation Act 1978 (now Section 139(1) Employment Rights Act 1996) the question of where the employee was employed for the purposes of the business is one to be answered primarily by a consideration of the factual circumstances prior to the dismissal.

In High Table Ltd v Horst the three Applicants were employed as silver service waitresses by the company who provided catering services for various companies in the City of London and elsewhere. All the Applicants worked for one client, Hill Samuel.

Included in the employees terms of employment was a mobility clause. In 1993 there were cuts in Hill Samuel's catering budget and a reorganisation of the services provided by High Table Ltd which meant they needed fewer waitresses. The three women were dismissed as redundant. The employees complained of unfair dismissal and the Industrial Tribunal rejected the claims. Before the EAT it was argued that because the employees' contracts of employment included a mobility clause it was not sufficient that there was a redundancy situation at the place where the employees were actually working.

The EAT allowed the appeal and remitted their case for rehearing.

The Court of Appeal considered all the previous case law on the issue including Bass Leisure Ltd v Thomas. Lord Justice Peter Gibson said "if an employee has worked in only one location under his contract of employment for the purposes of the employer's business, it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of a mobility clause". As the employees had only worked in one location they were redundant as the employer needed fewer employees to carry out the work in that location.

The Court of Appeal also said it would be unfortunate if the law was to encourage inclusion of mobility clauses and contracts of employment to defeat genuine redundancy claims.

Given the existence of mobility clauses in many contracts of employment today what is important when considering whether an employer has made out a genuine redundancy situation, is where the employees actually worked, not where they could be required to work.

Discipline and crime proceedings

R v Jacqueline White, Manchester Crown Court 28 April 1997 [1997] IRLR 462

In this case the defendant, a Care Assistant employed by Trafford Council was charged on three counts of assault occasioning actual bodily harm. The charges arose following an incident at work involving one of the residents at the home where the Defendant was employed.

At the trial on 28 April 1997 at Manchester Crown Court Defence Counsel made an application to the Trial Judge that the prosecution should be stayed because of an abuse of process. The grounds for the application were that the defendant's employers had gone ahead with its own internal disciplinary hearing prior to the determination of the trial. This was despite a request by the defendant's unions and solicitors that the hearing be postponed until after the Crown Court hearing.

Documents relating to the hearing were obtained by the defendant's solicitors following an application to the Crown Court. It was clear to the trial judge from these documents that no accurate contemporaneous note of the evidence had been taken during the internal disciplinary hearing. The trial judge therefore accepted Defence Counsel's argument that the defendant would therefore be unable to test the consistency of the evidence of the prosecution witnesses who gave evidence at the internal disciplinary tribunal. The trial judge was also unable to determine upon what basis the evidence had been given to the tribunal. Although the defendant was exonerated at the disciplinary hearing the findings of the tribunal were unclear and ambiguous in its terms.

The trial judge was of the clear opinion that the employers ought to have postponed the internal disciplinary hearing until after the determination of the criminal proceedings, only because it is in the Crown Court that the defendant's liberty is dealt with and therefore it is there that the primary decision of facts should be made. The trial judge went on to say that the employer's action may well be regarded as contempt of court.

The trial judge concluded that the defendant could not have a fair trial and ordered a stay in the proceedings and that a not guilty verdict be entered on all three counts.