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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rickards v Shipperley [1994] UKEAT 19_93_0209 (2 September 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/19_93_0209.html Cite as: [1994] UKEAT 19_93_209, [1994] UKEAT 19_93_0209

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BAILII case number: [1994] UKEAT 19_93_0209

Appeal No. EAT/19/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 September 1994

Before

THE HONOURABLE MR JUSTICE TUCKER

MR D J JENKINS MBE

MR A D SCOTT

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MR D P RICKARDS          APPELLANT

MR C SHIPPERLEY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R DIXON

(OF COUNSEL)

Messrs Coodes

Solicitors

10 Windsor Place

Liskeard

CORNWALL PL14 4BH

For the Respondent MR J IRONSIDE

(OF COUNSEL)

Messrs Midwinters

Solicitors

Crescent Place

CHELTENHAM GL50 3PJ


 


MR JUSTICE TUCKER: This is an Appeal by an employer against the decision of the Industrial Tribunal sitting at Bristol on 11th November 1992 that the Respondent was unfairly dismissed contrary to Regulation 8 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and ordering the Appellant to pay him £12,872 as compensation.

The original grounds of appeal were that the Industrial Tribunal erred in law in three respects. The first two grounds related to the question whether there was any transfer of an undertaking - that point is now conceded, and those grounds have not been pursued. The third ground relates to the question whether the Industrial Tribunal were correct in concluding that the reason for the dismissal was a reason connected with the transfer - that is a live issue before us. The fourth ground was added later - it is contended that the Industrial Tribunal should on the evidence before it have found the reason for dismissal fell within Regulation 8(2) as being an economic, technical or organisational reason entailing changes in the workforce of the transferee after the transfer and that therefore the presumption contained in Regulation 8(1) should be disapplied and in the circumstances the dismissal be held to be fair. It is submitted that the Industrial Tribunal erred in law in failing to consider the full terms of Regulation 8 and in failing to apply them to the facts as found by it.

The fourth ground had not been argued before the Industrial Tribunal nor considered by them. The Appellant should not be criticized for that, since he appeared in person before the Industrial Tribunal. There has been no objection to the ground being argued before us, and we have considered it.

In 1981 Mr Shipperley (the Respondent) set up YL Yardleys Limited, motor factors, together with his wife as joint-shareholders. He was managing director and she was company secretary. He was remunerated by way of salary. The Industrial Tribunal were satisfied that the Respondent was an employee of the company.

Subsequently the business ran into financial difficulties. In June 1992 the Respondent was introduced to the Appellant, Mr Rickards. An agreement was finally reached at the offices of Messrs Cork Gully on 30 June when the Appellant agreed to purchase the stock and assets for £6,000 and on the following day the company YL Yardleys Limited was put into receivership. It was the intention of the Appellant to continue the business if at all possible, and an understanding that the Appellant would retain the existing employees at least for the time being, that he would retain the same premises, and that he would continue to deal with the same suppliers and the same customers.

Over the course of the next two days it became very clear that the suppliers were not prepared to continue making supplies for so long as the Respondent remained in the business. Accordingly, on the afternoon of 2 July the Appellant advised the Respondent that he would not be needed any longer and at a meeting on the following day, the Appellant gave the following note to the Respondent:

"Following my takeover of YL Yardleys Limited business your services are no longer required. Your employment is terminated forthwith."

The Appeal has been very well argued before us by Counsel on both sides. Mr Dixon for the Appellant submits that the question of whether the reason found by the Industrial Tribunal for the dismissal was a reason connected with the transfer is a question of law for us to determine. Mr Ironside for the Respondent disagrees - he submits it is a question of fact, and that we should therefore only disturb the finding if we found it to be perverse. In our view this is a question of law, or at least a question of mixed law and fact, and it is a matter which it is open to us to review and express our opinion.

In our opinion the transfer did not cause or contribute to the dismissal - what caused the dismissal was the attitude shown by the suppliers. The dismissal was due to specific and important conditions independent of and unconnected with the transfer. The transfer may have resulted in the dismissal, in the sense that it highlighted and brought into focus one of the trading problems which faced this company, but it was not the reason for the dismissal. The transfer or a reason connected with it were not the reason or a principal reason for the dismissal. The reason for the dismissal was the continued participation in the business of a man with whom the suppliers of the business felt unable to deal.

Mr Ironside has argued with great ability that we should take account of the short period of time, between the transfer and the dismissal and of the terms of dismissal contained in the letter, which has already been referred to. It is not clear whether the Industrial Tribunal relied on these factors in reaching their decision - they do not specifically say so. We do bear these matters in mind, but they are not sufficient to cause us to doubt what the true reasons were. In these circumstances it is unnecessary for us to consider the fourth ground of appeal.

For these reasons we allow this appeal, and set aside the decision reached by the Industrial Tribunal.