THE INDUSTRIAL TRIBUNALS 

CASE REF:	1120/05

CLAIMANT:	Joseph Mahoney

RESPONDENTS:	S&M Meats Limited
	Malcolm Johnston (trading as S&M Meats Limited)	

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that there was no transfer of the claimant’s contract of employment, from the first named respondent to the second named respondent, under The Transfer of Undertakings (Protection of Employment) Regulations 2006 and that the second named respondent should be dismissed from this case.

Constitution of Tribunal:

Chairman:		Mr Cross (sitting alone)

Appearances:

The claimant was represented by Mr C P Steele, Solicitor.

The first named respondent was not represented and did not appear at the hearing.  The second named respondent was represented by Mr A Brownlee, Barrister-at-Law instructed by Donard King, Solicitors.

Issues

1.	The tribunal had to decide the identity of the employer of the claimant in circumstances where he had been dismissed by the first named respondent which subsequently sold its business to the second named respondent.

Findings of Fact

2.	The first named respondent (herein referred to as ”S&M”) dismissed the claimant on 13 May 2005.

3.	The claimant commenced proceedings for unfair dismissal on 29 June 2005 against S&M.

4.	S&M entered into a contract to sell the business of wholesale meat dealers to the second named respondent (herein referred to as ”Mr Johnston”) on 2 June 2006.  The contract specified that the vendor, S&M, would make all employees redundant before completion.  However the purchaser did take over the goodwill fixtures and fittings and stock and most of the employees remained to work for Mr Johnston.  The premises, previously used by the vendor, were made available to Mr Johnston for a period after the transfer of the business.  The contract also allowed Mr Johnston to continue to use the name S&M and to permit him to register a new company under that name.  Furthermore the vendor company would change its name to allow Mr Johnston to register the new company under the S&M name.

5.	S&M, the vendors, in answer to an enquiry from Mr Johnston, stated in writing on 1 June 2006 that they were not aware of any outstanding tribunal proceedings involving S&M.  This was untrue as S&M had filed a response to this claim on 6 September 2005.

6.	Mr Johnston continued to use the premises of S&M after completion of the purchase of the business.  He received a letter from the Office of the Industrial Tribunals and the Fair Employment Tribunal addressed to S&M regarding this case.  He telephoned to the tribunal and explained the contractual situation to the office and as a result Mr Johnston was joined as a party to this claim, by Order of Mrs Davey, dated 27 November 2006.  He filed a response on 18 December 2006. 

The Law

7.	The claimant was employed by S&M until he was dismissed and his application to the tribunal, claiming that he was unfairly dismissed by S&M, can proceed before a tribunal, unless this tribunal holds that his contract of employment should have been transferred to Mr Johnston under the provisions of Regulation 4 of The Transfer of Undertakings (Protection of Employment) Regulations 2006 (herein referred to as “the TUPE Regulations”).  Regulation 4 states, that in circumstances such as those in this case, the transfer of a business will not have the effect of terminating the contract of employment of any person employed by the transferor of the business. The question in this case is; was the claimant still an employee of S&M when it transferred the business to Mr Johnston?  The definition in Regulation 7(1) of the TUPE Regulations is:-

7.1	Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part XI of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is –

(a)	the transfer itself; or 

(b)	a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.

Decision

8.	The tribunal holds that the claimant was not an employee of Mr Johnston.  His dismissal occurred a year before the transfer of the business to Mr Johnston and was for a reason that was an issue between S&M and the claimant, involving an alleged  breach of discipline, that occurred well before the contract for the sale of the business.  This dismissal could not, in the view of the tribunal, be a dismissal for “a reason connected with the transfer”, under Regulation 7(1) of the TUPE Regulations.  The tribunal holds that the employer of the claimant is S&M the first named respondent.  There was no transfer of the claimant’s contract under the TUPE Regulations to the second named respondent and the Order of the tribunal dated 27 November 2006 is hereby set aside and Mr Johnston is dismissed from this case.

Chairman:

Date and place of hearing:	7 February 2007, Belfast

Date decision recorded in register and issued to parties: