Adult Learning Inspectorate & Ors v Beloff, Court of Appeal - United Kingdom Employment Appeal Tribunal, January 30, 2008, [2008] UKEAT 0238_07_3001

Resolution Date:January 30, 2008
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Adult Learning Inspectorate & Ors v Beloff
 
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Copyright 2007

Appeal No. UKEAT/0238/07/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 September 2007

Judgment handed down on 30 January 2008

Before

HIS HONOUR JUDGE McMULLEN QC

DR B V FITZGERALD MBE LLD FRSA

MR P R A JACQUES CBE

ADULT LEARNING INSPECTORATE AND OTHERS APPELLANTS

MR N A BELOFF RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0238/07/RN

APPEARANCES

UKEAT/0238/07/RN

SUMMARY

Redundancy - Collective consultation and information

Transfer of undertakings - Consultation and other information

An Employment Tribunal correctly found that the transfer of functions from the Adult Learning Inspectorate to New Ofsted was a transfer of administrative functions between public administrative authorities and so was not a relevant transfer under TUPE 2006 and there was no obligation to consult the Claimant as an employee representative. There was no appeal. The Tribunal erred in holding that the Claimant did have consultation rights under section 188 of TULRCA. On the correct construction of Employment Rights Act 1996 section 273(3) the Claimant was excluded as he was in Crown employment. It was for the purposes of a government department and was under and for a body, ALI, exercising functions on behalf of the Crown under an enactment, LSA 2000.

UKEAT/0238/07/RN

- 20 -

HIS HONOUR JUDGE McMULLEN QC

  1. This case is about the application of employment law to certain public servants. It raises a single issue of construction in the context of consultation with employee representatives in advance of redundancies. Was the Claimant in Crown employment? If he was, the Employment Tribunal had no jurisdiction to hear his case.

  2. The judgment represents the views of all three members, delayed as was explained to the parties, and to accommodate further written submissions exchanged with 27 new authorities after the oral hearing.

  3. We will refer to the parties as at the Employment Tribunal so the Claimant is Mr Beloff and the Respondent is ALI although the other two Respondents are parties, sharing the same representation.

    Introduction

  4. It is an appeal by the Respondents in those proceedings against a reserved judgment of an Employment Tribunal, sitting over two days and a day in Chambers at Birmingham, chaired by Employment Judge Ms P M Hughes, registered with Reasons on 6 March 2007. The Claimant was represented by an elected staff representative and today by Mr Martin Westgate of Counsel. The Respondent was represented by Mr Selwyn Bloch QC.

  5. The Claimant claimed that the Respondent had failed to consult him as an elected representative in respect of a proposal to make redundancies. The Respondent contended the legislation did not apply to its employees by reason of their position under the Crown. The Employment Tribunal decided in favour of the Claimant and against him on one matter which is not pursued. It listed the case to be heard.

  6. The Respondent appeals. Directions sending this appeal to a full hearing were given in Chambers by Elias J (President).

    An overview of the case

  7. At the start of its 26 page reasons, the Employment Tribunal gave a brief overview of the background to the case at the time of the hearing. The Claimant was an employee representative. He made complaints on behalf of the workforce he represents for a protective award for failure to consult in respect of impending redundancies as required by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (``TULRCA''), and for compensation in respect of failure to consult under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (``TUPE 1981'') and/or the Regulations which replaced those regulations in 2006 (``TUPE 2006'').

  8. The claim was against three respondents. The first respondent, the Adult Learning Inspectorate (``ALI'') was the employer of the persons on whose behalf this claim is brought, and the Claimant was an elected employee representative in respect of negotiations with that employer. It was common ground that he had legal standing to bring these claims. The second respondent is the Office for Standards in Education (``Ofsted'') and the third respondent is the Office for Standards in Education, Children's Services and Skills (``New Ofsted''). ALI was a body funded largely by the Government to carry out inspection work nationally in respect of further education and vocational and work-based training. A decision was taken by the Government to merge Ofsted, ALI and a number of other bodies to form New Ofsted as from 1 April 2007.

  9. The Claim was presented on 11 September 2006. The claim concerns a decision that was allegedly taken on 21 March 2006 to close ALI's office, which is based in Coventry. The closure was due to take place on 31 March 2007, and it did. The claimant contends that ALI failed to consult with employee representatives about the possibility of impending redundancies as is required by section 188 of TULRCA, and failed to consult about a possible transfer as required by TUPE. The respondents all deny that there has been any failure to consult.

  10. Following case management discussion it was agreed to try as preliminary issues the question of the jurisdiction of the Employment Tribunal under both TUPE and TULRCA. It decided it had jurisdiction under the latter but not the former. But the constitution of the proceedings is unusual. The substantive issue to be tried is whether there was failure to consult and inform the Claimant as an elected employee representative on ALI's joint consultative committee prior to a decision made on 26 March 2006 to close its administrative base at Spring Place, Coventry. Notice of redundancies was given pursuant to TULRCA in form HR1 on 20 April 2006. The Respondents contend that the decision to close Spring Place was not made until 6 September 2006 and was not made by ALI but was made by Her Majesty's Chief Inspector of Schools (``HMCI'') following advice given on 6 September 2006 and communicated to the elected representatives on 7 September 2006. The Respondents contend that between March and September 2006 there was a substantial number of meetings when information was given to, and consultation was conducted with, the Claimant. The claim originally was made against ALI but, by a response and amended response, Ofsted and New Ofsted joined the proceedings as Respondents. Ofsted never was the employer of the Claimant and it is not clear to us why Ofsted is a party to proceedings under TULRCA. New Ofsted did not exist and came into existence only on 1 April 2007 after the relevant events, the closure of Spring Place, the hearing of the Employment Tribunal and its judgment. It never was the Claimant's employer and he does not represent employees of New Ofsted. When TUPE applies; liabilities potentially arise against a transferee (New Ofsted) and, in very limited circumstances, against a transferor (ALI).

  11. No step was taken to exclude New Ofsted from the proceedings: indeed it appears to have entered into them as a volunteer. The same is true of Ofsted and we have not been told how as neither an employer-transferor nor transferee it has standing in the two sets of proceedings. Nevertheless, the practical consequence is that very careful examination was given to the evidence which Ofsted led and submissions which were made on its behalf, in order to determine whether the Tribunal had jurisdiction under TUPE in a claim brought against ALI. Extensive findings were made of the status and powers of Ofsted. The parties and the Tribunal appear to have operated on the assumption that it was necessary to analyse what Ofsted's functions were, because that would assist in a conclusion as to ALI's functions. As it turned out, the Tribunal found that it did not have jurisdiction in respect of a claim against ALI under TUPE following reasoning principally based upon this proposition: TUPE does not apply to Ofsted, so if ALI is the same as Ofsted, TUPE will not apply to it either. There is no appeal against that finding. The appeal against the finding that the Tribunal has jurisdiction in respect of TULRCA claims cannot of course challenge the findings made in ALI's favour on the TUPE point. These are essentially findings of fact as to the nature and functions of ALI which are exigible in the legal assessment of jurisdiction wherever it arises - here in respect of TUPE and also of TULRCA. The legal assessment differs according to which statute is in focus, but the factual findings do not and they remain unchallenged.

  12. Still to be tested in relation to the redundancy point therefore were: whether there was a failure to inform and consult the Claimant by ALI, whether any liability rests with Ofsted or New Ofsted, the relevance if any of a decision taken on behalf of Ofsted by HMCI in respect of the liability of ALI, and whether it is appropriate to consider events occurring after the date of the claim i.e. 11 September 2006.

    The legislation

  13. The legislation relevant to this appeal falls into three categories.

    (1) European and domestic legislation relating to redundancies

    (2) European and domestic legislation relating to transfers

    (3) Domestic legislation relating to inspection of education providers

    (1) Redundancies

  14. The context in which the redundancy obligation arises was set out in Hutchins v Permacell Finesse Ltd (in Administration) (UKEAT/0350/07) in which we said this:

  15. Long before the United Kingdom acceded to the European Union, trade unions were being consulted and engaged in negotiations about redundancies of their members in workplaces. This was done by collective agreement.

  16. Since the passing of the Employment Protection Act 1975, transposing into UK law obligations imposed by the Collective Redundancies Directive 1975, there has been an obligation to consult with representatives ahead of decisions to make employees redundant. The particular form of the...

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