McCann v Vector Facilities Management Wallace Contracts (Northern Ir... Vector Facilities Management Wallace Contracts (Northern Ir... [2012] NIIT 01248

THE INDUSTRIAL TRIBUNALS

CASE REF: 1248/11

1249/11

CLAIMANTS: 1. John Gerard McCann

2. Jonathan McCann

RESPONDENTS: 1. Vector Facilities Management

2. Wallace Contracts (Northern Ireland) Limited

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr J Kinnear

Mr A Crawford

Appearances:

The claimants were represented by Mr Bob Copeland.

The first-named respondent was represented by Mr Tom Sheridan of Peninsula Business Services Limited.

The second-named respondent was represented by Mr Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

RULING OF THE TRIBUNAL

This is a record of the oral ruling of the tribunal on two applications made in the course of the hearing.

1. An application by the second named respondent’s representative, Mr Hamill to have the claim of unfair dismissal against the second respondent struck out on the basis that the claimants’ employment had not transferred to the second respondent at 1 April 2011.

2. An application by the claimants’ representative to amend the claimants’ claim against the second respondent to include a claim against the second respondent in respect of their alleged failure to comply with the information and consultation duties under Regulation 13 of the Transfer of Undertakings and Protection of Employment Regulations 2006 (“TUPER”) and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (“SPCR”).

3. We take these two applications in turn.

(1) The second named respondent’s application for the claim against the second respondent in respect of unfair dismissal under the Transfer of Undertaking and Protection of Employment Regulations 2006 to be dismissed on the basis that the claimants’ employment had not transferred to the second respondent.

The claimants had completed their evidence at the point when this application was made and the second named respondent’s representative submitted that at its height and on the basis of the claimants’ own evidence, they had refused to transfer to the second respondent on the proposed date of 1 April 2011. We decided to refuse the application.

We are of the view that there was a certain amount of confusion over the events which occurred in late February and March 2011 after the claimants were advised that their employment was to transfer to the second named respondent. There were at least two and possibly three meetings between the claimants and the first named respondent. There were at least two meetings between the claimants and the second named respondent at which the possibility of the claimants’ transferring to the second named respondent as self-employed contractors rather than as employees was raised. There was a conflict of evidence as to whether this was raised by the claimants or by the second named respondent. On the basis of the claimants’ evidence they did indicate to the first named respondent’s manager that they were unwilling to “transfer” as self-employed contractors but they appeared to be under the impression that this was the only offer on the table from the second respondents. There were various points put to the claimants in cross examination about other possible offers which were made but it appeared from the evidence given by the claimants that these were not explored in any detail with the claimants before 1 April 2011.

It is also clear that a meeting was held between the claimants and the first and second respondents on 8 April 2011 - after the proposed transfer date - at which the issue of the claimants starting work for the second respondent as employees was discussed. We emphasise that we have not made any decision in relation to the facts in this matter. It appears to us that we still need to hear evidence from the respondents on these issues in order to make a firm finding of facts as to what actually occurred and the precise legal position. For this reason we are not content to release the second respondent from these proceedings at this time.

Mr Hamill produced to us a decision of the Court of Appeal in England and Wales of the University of Oxford v Humphreys and Associated Examining Board [2000] IRLR 183. He quoted from the head note in that case where the Court of Appeal held that, where an employee decides not to continue a contract of employment with the transferee on the grounds that a transfer of undertaking will involve a substantial and detrimental change in his terms and conditions of employment within the meaning of Regulation 5 (v) of TUPER, the employee’s rights exist against the other party to the contract who must be the transferor, in the absence of any statutory novation. The Court of Appeal added that it would be inconsistent with the scheme of the Directive and the Regulations for the existing rights and liabilities to pass to the transferee when existing contracts of employment do not. However, in that case it was clear that the employment had not transferred. We have not yet made a finding in relation to that issue and it seems to us premature to dismiss the second respondent from the proceedings in that situation. We refer to Harvey volume 3 at paragraph 894.01 and in particular the comments of the Court of Appeal in England and Wales in Logan v Commissioners of Customs and Excise [2003] EWCA CIV1068. Lord Justice Ward stressed the exceptional nature of the power to dismiss a case after hearing only one side and stated that it would be rare for a submission of no case to be made in an employment tribunal and even rarer for it to succeed. The court stressed the danger of reaching a conclusion without hearing from both parties. Accordingly we decided to refuse the application to dismiss the unfair dismissal proceedings against the
second-named respondent.

(2) The application to amend the claimants’ claim to include a claim against the second respondent in respect of their alleged failure to comply with the information and consultation duties under Regulation 13 of the Transfer of Undertakings Protection of Employment Regulations 2006 and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006.

4. We gave an oral ruling that we would grant the application to amend due to the allegations made regarding failure to provide information and to consult made by the claimants.

5. Mr Hamill renewed his submission on behalf of the second respondents that the application should be disallowed on the basis:-

(1) That the previous ruling on this matter was recorded as a decision and so was res judicata. He argued that this was a “decision” and so falls to be reviewed or overturned only on appeal or review and can only be considered by the chairman who made the original order.

(2) That the decision was made several months ago and was not raised since. He said the reason for the delay should be considered by the tribunal.

(3) The second named respondent had not come prepared to face this claim and so had not so far run the case on that basis, and so may need to recall witnesses.

(4) To allow this new head of claim would unduly prolong the matter and was contrary to the overriding objective.

6. We have considered this matter carefully in the light of rules 10 and 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”) and in particular the provisions on review in the Rules in rules 34 and 35.

7. Rule 10 gives very wide powers to chairmen in conducting proceedings before Industrial Tribunals. There was previously an application to amend both claims to include a claim under Regulation 13 of TUPER and SPCR. Mr Buggy (the Chairman dealing with that matter) dealt with it in the context of a pre-hearing review. It was however an interim ruling in relation to the management of the proceedings. Rule 18 of the Rules of Procedure specifically points out that
pre-hearing reviews are interim hearings and are to be conducted by a Chairman unless it is appropriate for them to be dealt with by a full tribunal. Rule 18 (2) says:-

“At a pre-hearing review the Chairman may carry out a preliminary consideration of the proceedings and he may –

(a) determine any interim or preliminary matter relating to the proceedings;

(b) issue any order in accordance with rule 10 or do anything else which may be done at a Case Management Discussion;

(d) consider any oral or written representations or evidence.

8. At the pre-hearing reviews in question, Mr Buggy granted the application to amend the claimants’ claim as against the first respondent but not against the second respondent for the reasons that he gave in that decision. In so doing he was exercising his general power to manage proceedings under Rule 10(2)(q). Rule 10(2) sets out a variety of examples of order which can be made in the context of managing proceedings, including the power to vary or revoke other orders and giving leave to amend a claim or response.

9. We do not agree that this is a “decision” which determines the issues between the parties and so is subject to appeal or review. Indeed, if one considers the category of decisions which are subject to review under Rule 34 (1) it is clear that a decision made for the management of proceedings is not reviewable under Rule 34 (1).

10. We have also found it helpful to refer to Harvey volume 3 paragraph 381 and following which sets out the principles relating to powers to vary orders and their extent. In Hart v English Heritage [2006] IRLR 915 Mr Justice Elias (as he then was) said:-

“Notwithstanding the unsatisfactory language employed, I take the view that the term “order” in Rule 10 should be construed as to cover all decisions taken by a tribunal in the proper exercise of its case management powers, save where those decisions are subject to the review procedure in Rules 33 and 34. In principle tribunals ought to have the powers to reconsider all their decisions whether they would naturally be described as orders or not.”

11. This tribunal, charged with the hearing of this case, must make the directions we consider appropriate for its conduct and management. As set out above, we have power to vary or revoke the interim orders made by another Chairman in that context. We are conscious of the need to exercise the powers sparingly but we believe having heard evidence from the claimants in relation to this matter we believe that it is appropriate for this amendment to be made and for the respondents to have the opportunity to respond to these claims. We stress that we have not made any decision in relation to the determination of the issues at this time.

12. As far as the other points raised by Mr Hamill are concerned, he is aware that the tribunal raised the issue of amendment of the claim because it appeared to us that the issue of consultation had been raised by the claimants in the course of the hearing. We only became aware that the application to amend had been refused against the second respondent during the hearing. It seems surprising to us that the application was granted against the first respondent but not the second respondent. We note the reasons given by Mr Buggy but respectfully disagree with them. In the light of the case put forward by the claimant, we believe it is appropriate for the proper conduct and disposal of this case that the second respondent answers the allegations against it in relation to failure to provide information and to consult under Regulation 13 SPCR. The fact that the transferee and transferor would be jointly and severally liable in relation to any failure to consult, is, in our view, a reason to have both parties joined to the proceedings rather than not.

13. The second respondent can be granted leave if it wishes to recall witnesses and have time to prepare its case to take account of these matters. We do not believe that dealing with this claim will unduly prolong the matter or that there is any prejudice to the second-named respondent, as it was well aware of the claim of failure to consult, which arises out of the original claim.

14. We believe that in order to deal with this case fairly, we need to hear evidence from all parties in relation to the issue of what information was provided and what steps were taken to consult with the claimants which will impact on the decision we have to make on Regulations 4(8) and (9) SPCR as well as a decision under Regulation 13.

15. The overriding objective requires us to ensure that all parties are on an equal footing and to ensure that the case is dealt with expeditiously and fairly. We are particularly conscious that the claimants are not legally represented. In our view this means that the second respondents should answer the allegations of failure to consult and provide information and the claimants’ claim may be amended accordingly given that this claim is linked to or arises out of the original claim.

16. We repeat that neither of these rulings is determinative of the issues between the parties; both are interim rulings made for the management of proceedings. We were requested to provide written reasons for our views in relation to this matter and I direct that a copy of this ruling it be provided to the parties. Mr Hamill indicated that he wished to apply for adjournment as he required time for his clients to consider their position as regards a possible appeal. We have granted that adjournment, on the understanding that the second named respondent will keep the other parties and the tribunal apprised of any developments in this regard. I further direct that if no contact had been received from the parties within six weeks of the date of this decision, the case will be relisted at the earliest available date.

Chairman:

Date and place of hearing: 11-13 June 2012, Belfast.

Date issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
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Industrial Tribunals Northern Ireland Decisions