Appeal No.	EAT/0669/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 November 2001

Before
HIS HONOUR JUDGE D M LEVY QC
MR T C THOMAS CBE
MR G H WRIGHT MBE

CPL DISTRIBUTION LTD	APPELLANT

MRS C A EVANS AND OTHERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PHILIP NORMAN
(Of Counsel)
Messrs Dibb Lupton Alsop Solicitors
Fountain Precinct
Balm Green
Sheffield
S1 1RZ	
For the Respondent	MR DECLAN O'DEMPSEY
(Of Counsel)
Messrs Browell Smith Solicitors
Pearl Assurance House
7 New Bridge Street
Newcastle upon Tyne
NE1 8AQ
(for the 7th -  10th Respondents)

Respondents 1-6 and 11-15 neither present nor represented	

JUDGE D M LEVY QC
1.	This is an appeal by CPL Distribution Ltd (“the Appellant”), against a decision of an Employment Tribunal sitting at Sheffield, when on a preliminary point they determined several matters. The matter which is appealed against is the finding that one former employee of the Appellant, Mrs Todd, was not assigned to a contract which went to a different Respondent, namely Gateway Fuels, the first Respondent to the application of Mrs Todd and others, in her application to an Employment Tribunal dated 28th June 2000. Page 27 of our bundle contains a certification dated 1st May 2001 stating that the Tribunal was substituting for a decision sent out on 10th April 2001, with the extended reasons and corrections as typed. We have assumed, because we have not been told otherwise by Counsel, that the decision which we have, which is dated 10th April, was the corrected decision. 

2.	The essence of the appeal is for a decision as to whether or not the Appellant was assigned to the contract. We have the benefit of hearing from Counsel who acted below on the part of both this Respondent and this Appellant. The Extended Reasons is, if we may say so, a model judgment from an Employment Tribunal. Paragraph 1 sets out the appearances, paragraph 2, the names of witnesses. Paragraph 3 referred to a Directions Order of the Tribunal made on 26th October 2000 which referred to the point for decision in the preliminary hearing, not then set, but which was

(a) 	Whether the Transfer of Undertakings (Protection Of Employment) Regulations 1981 apply to the transactions between the Appellant and the other Respondents, namely the transfer of a concessionary coal business; and
(b) 	In any event whether all or any of the applicants were properly to be regarded as assigned to such part of the Business as may have been transferred

The Tribunal then dealt with findings of fact and submissions. Paragraphs 7-12 set out the facts as found. Paragraph 13 sets out the submissions from the different parties. Paragraph 14 sets out the law as found by the Tribunal.

3.	At this stage, we refer to paragraph (b) on page 21 of our bundle which deals with Regulation 5 of the Transfer of Undertakings (Protection Of Employment) Regulations 1981 which is at the centre of this case. In addition to Regulation 5, we were also referred to a decision extracted from McMullen on Business Transfers and Employee Rights at 6(49), and we are also referred to three other decisions. We take the starting point as the test set out in Botzen which in Professor McMullen’s work is set out in this way:-

“In order to determine to which part of the employer’s business the employee was assigned, the Tribunal may consider matters such as the amount of time spent on one part of the business or the other, the amount of value given to each part by the employee, the terms of the contract of employment showing what the employee could be required to do, how the costs of the employer of the employee’s services costs were allocated between different parts of the business”

We form the view from the cases that although the percentage of time spent by the employee on particular work is a relevant factor, it is not the only one. We also direct ourselves to the question of assignment and that it is one to be considered as a question of fact by the Tribunal without necessarily accepting the basis on which an assessment was made at the material time by the parties. We think that this is a proper approach to be taken. 

4.	Paragraph 15 of the Extended Reasons sets out the usual two part test to discover whether there was a relevant transfer. It points out that the first part (was there a discreet entity) was conceded, which left the second test to be answered; had the entity identified been transferred to the transferee. Paragraph 16-20 sets out the pros and cons for such a finding. Paragraph 21 reads:-

“Taking all these matters into account we conclude that there is in this case a relevant transfer from CPL to Gateway of the undertaking comprised by the concessionary coal contract”

(b) The Tribunal’s conclusions in relation to assignment 
Taking into account the test as we have set it out, given by the Botzen case and the other authorities to which we have referred, we now consider the cases of the individual applicants whose assignment is disputed.” 

5.	In paragraph 22, findings are made on the different Applicant’s cases individually. Mr O’Dempsey represented 4 Applicants. Towards the end of their findings on Mr Smith, the first of Mr O’Dempsey’s clients whose case they considered, the Tribunal concluded:-

“Taking all these factors into account we find that Mr Smith was not assigned to the concessionary coal contract part of CPL’s operation. We should add that none of the applicants (with the exception of Mrs Todd) had any provision in a written contract of employment which assists with regard to assignment. Moreover we have not received any evidence as to how the costs to the employer of the employee’s services were allocated between the different parts of the business.” 

It is clear from that that they had to make up their minds without some information which they might have had. 

6.	As to Mrs Todd they said this:-

“Mrs Todd was employed specifically to be the personal assistant of Mr Brennan and they were both based at the Edwinstowe Depot of CPL. Mrs Todd had been Mr Brennan’s PA since January 1993 when Mr Brennan was the Regional Manager for a predecessor of CPL, namely BFL. It was not until 1997 that Mr Brennan became the manager of the concessionary coal side of the business. Subsequently Mr Brennan was given additional duties as a Business Acquisitions Manager. Mrs Todd continued to Mr Brennan’s PA whatever particular activity he was carrying out. The Respondents [that is the Appellants] have placed considerable weight on a log of correspondence which Mrs Todd maintained. Mr Brennan, for the purposes of these proceedings, carried out an analysis of that log showing at the material time that the majority of typing work was related to the concessionary coal contract. Mr Brennan continues to be employed by CPL as a Business Acquisitions Manager but it appears that he was told that his role did not justify the employment of a PA. In these circumstances we find that Mrs Todd was effectively assigned (emphasis added) to Mr Brennan (whatever role he happened to be doing) rather than to the concessionary coal contract itself. The correct analysis would appear to be that assuming the role of Business Acquisitions Manager alone did not justify a PA then Mrs Todd was potentially redundant, which is a matter which should have been dealt with by the Appellant according to an appropriate industrial relations practice rather than by her being regarded as assigned to the concessionary coal contract (our emphasis). Accordingly we find that she was not assigned to that contract.”

7.	It is from that paragraph of the judgment that this appeal is made. Mr Norman has drawn our attention to particularly the words “was effectively assigned”, and has submitted to us that, in the Notice of Appeal and in his skeleton arguments, the judgment of the Tribunal is perverse. He has submitted that the finding of the Tribunal required it to consider the question of Mr Brennan’s assignment activity within the Appellant’s activities. He submitted it had never been suggested that Mr Brennan is an “activity” within the Appellant’s business, he was merely a “functionary”. He pointed to passages in the Originating Application which purport to show that. He pointed out that the Tribunal were being expressly asked by the Respondent to consider Mr Brennan’s assignment and in so finding, then to conclude the Respondent was assigned to the same function. He complains that the Tribunal failed to make such a finding. Under the heading which we have read out, the Tribunal does not go as far as to conclude that Mr Brennan’s function was principally as Business Acquisitions Manager. Mr Norman submitted that what the Tribunal had done was simply to state that if Mr Brennan’s principal function was that of Business Acquisition Manager, then the Respondent should have been made redundant rather then transferred. He submitted that finding was not logical, given the issue which the Tribunal had been asked to consider. He submitted that the Tribunal was required to expressly make a finding as to what Mr Brennan’s function was and it simply found that Mrs Todd continued to be Mr Brennan’s PA whatever particular activity he was carrying out. 

8.	In answer to that Mr O’Dempsey has submitted that the Tribunal noted that Mrs Todd had followed Mr Brennan through whatever role he happened to be doing. It was open to the Tribunal to find that she was effectively assigned to Mr Brennan whatever was his role. In making that finding, the Tribunal was noting that she was assigned to that part of the business to which Mr Brennan was, for the time being, assigned. He submitted that that was the significance of the reference to “whatever role he happened to be doing”. He submitted that the conclusion reached by the Employment Tribunal was permissible in the light of the correct test of which it had reminded itself. The fact that it had accepted that a majority of Mrs Todd’s time was spent typing on the coal concessions was not determinative as was suggested by the Appellant. Moreover it was a factor which was evaluated by the Tribunal. He submitted that the passage which was central to Mr Norman’s argument, that Mr Brennan was not part of the Appellant’s business but was simply a functionary attached to a certain aspect of the Appellant’s business, represented a misunderstanding of the Employment Tribunal’s findings about Mrs Todd. The Tribunal identified “whatever role [Mr Brennan] happened to be doing” as part of the business to which Mrs Todd was assigned. This was a reasonable conclusion given the nature of the work being done by Mrs Todd which was correctly identified on the evidence by the Tribunal. He submitted that the Tribunal did not need to make findings as to which part of the business Mr Brennan was assigned, in order to find Mrs Todd was not assigned to the part which transferred her role as his PA. Whether or not the diminution of the Appellant meant that Mrs Todd was redundant, the nature and value of the work she did and had done during the course of employment showed that she was assigned to that part of the management of the Appellant and predecessor business in which Mr Brennan was working. Mr O’Dempsey submitted that the Tribunal was correct in law. In support of his submissions he referred us to a decision of this Tribunal in Duncan Web Offset (Maidstone) Ltd v Cooper and others [1995] IRLR 633 and particularly to paragraph 15 of that decision. 

9.	We quite understand the linguistic inelegancy which Mr Norman noted and criticised in the Tribunal’s findings. However, we are quite satisfied that the decision was not perverse and for the reasons which Mr O’Dempsey submitted to us, we find that it was a perfectly permissible conclusion of the Tribunal, given the background which it had carefully set out in a well-reasoned judgment. In the circumstances, we thank both Counsel for their full and helpful submissions. We dismiss this appeal.