ECM (Vehicle Delivery Service) Ltd v Cox, EAT15 May 1998

The EAT has had previous opportunities to consider the implications of the Suzen decision, but this is the first time that the President, Mr Justice Morison, has got his hands on the issue. He deals with it head-on in a welcome decision where a vehicle delivery contract had been transferred.

The drivers were "dedicated" to the contract concerned, although 50% of their time was spent on other work. No assets were transferred, the work was carried out differently, but was essentially the same and the customers were essentially the same.

No staff were transferred. This was the critical issue. The EAT said that if the drivers and yardmen had been taken on their could have been "no room for argument but that there had been a transfer of a discrete economic entity which retained its identity after the transfer".

The Industrial Tribunal had decided that the reason staff were not taken on was that they had asserted that TUPE applied. The EAT observes that Suzen does not deal with the situation where an employer decides not to take on staff in an attempt to avoid TUPE.

The EAT observed that "the issue as to whether employees should be taken on cannot be determined by the question of whether they were taken on": this would be circular.
The EAT refused to accept that "it would be proper for a transferee to be able to control the extent of his obligations by refusing to comply with them in the first place. There is nothing in Suzen which requires us to adopt that course."

Employers who try to avoid TUPE by rejecting transferred staff face a nasty shock.

Members in conflict: who to support?

FBU v Fraser (Scottish Court of Session) (unreported)

Most Unions have had to grapple with the problem of member v member allegations. It is most difficult where one member accuses another of either racial or sexual discrimination.

The union is faced with the decision of either supporting one member against the other, or supporting both. Levels of representation need to be decided upon and if the decision is to support one member only - which side should the union take?

The Fire Brigades Union was faced with these dilemmas and in 1994 supported a female member who had made allegations of sex harassment against a male Fire Fighter who was also a member of the FBU. He went to Industrial Tribunal arguing direct sex discrimination by the FBU against him in refusing him assistance in the investigatory and disciplinary hearing conducted by management as a result of the complaints made against him.

There was no direct evidence of discrimination at the IT, but the tribunal found against the FBU. The Court of Session has now overturned the IT's inference that the FBU had discriminated against Mr. Fraser.

The Court of Session found no evidence to justify the conclusion that he had been treated any differently by the FBU, to a female member in the same position. The FBU were perfectly entitled to protect alleged victims and view alleged perpetrators with disfavour - but that can apply whatever the gender of the perpetrator in a claim of direct discrimination.

There was nothing wrong with the General Secretary wishing to send the right signal to improve the climate of equal opportunities within the Fire Brigades and the fact that representation was rarely, if ever refused, was neither here nor there.
The Court of Session saw no need to remit the case to a new IT - they were in just as good a position to evaluate the evidence and see that there were no facts in the case on which an inference of sex discrimination by the FBU could be based.