Appeal No. EAT/259/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19th November 1993

	Before

	THE HONOURABLE MR JUSTICE MUMMERY

	MRS M L BOYLE

	MR J R CROSBY

MRS E FERNANDO	APPELLANT

ALBATROSS CLEANING SERVICES LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS A WEERERATNE
(Of Counsel)
Gay Moon
Solicitor
Camden Community Law Centre
2 Prince of Wales Road
LONDON
NW5 3LG

For the Respondents	MR K KNIGHT
(Of Counsel)
Messrs Ponsford & Devenish
Tivendale & Munday
Solicitors
58 High Street
Wimbledon Village
LONDON
SW19 5EE

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal by Mrs Fernando against a decision of the Industrial Tribunal sitting at London (North) on the 27th November 1992 and the 19th January 1993.  Mrs Fernando brought a claim for unfair dismissal and sex discrimination against Albatross Cleaning Services Limited in relation to her dismissal on the 7th April 1992 from her position as a cleaner.  The unanimous decision of the Tribunal, on a preliminary issue, was that Mrs Fernando was disqualified from the right not to be unfairly dismissed by the provisions of Section 64(1)(a) of the Employment Protection (Consolidation) Act 1978, as amended, regarding the minimum period of continuous employment, namely two years.  She was dissatisfied with that decision and, in her Notice of Appeal, appealed against that decision on the grounds that on the facts found by the Industrial Tribunal, she had in fact continuous employment which fulfilled the qualifications required by the legislation from the 28th February 1989.  The Notice raised a further question as to whether, on the proper construction of EEC Directive 77/187 and/or the Transfer of Undertakings (Protection of Employment) Regulations and/or the Schedule 13 of the 1978 Act, her rights acquired as an employee of a previous employer, Kristal Klear Limited and/or Abbey Cheshunt Cleaning Services Limited were maintained or lost when she became an employee of the Respondents, Albatross Cleaning Services Limited.

	Since that Notice of Appeal was issued on the 19th March an important decision has been made by this Tribunal on the interpretation and application of the Directive, the Transfer of Undertakings Regulations and on the 1978 Act.  The decision is Dines v. (1) Initial Health Care Services & (2) Pall Mall Services Group Limited [1993] IRLR 521.  That decision is so close to the facts of this case that, in our view, it is inevitable that this appeal will fail.

	That is not the end of the story, however.  Leave was given by the Employment Appeal Tribunal when the "Reserved Decision" was given at the end of August for leave to appeal to the Court of Appeal.  In those circumstances Counsel for Mrs Fernando applies for this appeal to be adjourned generally to await the decision of the Court of Appeal in the Dines case.  If the Court of Appeal reverses the decision in Dines it will be open for Mrs Fernando to pursue her appeal.  Even if the Court of Appeal does not reverse the decision in Dines but upholds it on different reasoning, Mrs Fernando may still pursue her appeal here at a later date with better prospects of success than she has at present.

	We see the force of the submissions on the application.  We are particularly concerned that Mrs Fernando should not be put to unnecessary cost or inconvenience by any course of action that we take.

	The application for the adjournment is opposed by Counsel for the Respondents, who objects to the uncertainty that there might be in the situation, from all points of view, if we did not make a decision one way or the other today.  He submits what ought to be done today is to apply the law as laid down in Dines, dismiss the appeal and leave Mrs Fernando to protect her position by taking out a Notice of Appeal in the Court of Appeal.  It is then for her and her advisers to decide what steps they take, e.g. to seek from the Court of Appeal, a stay of the appeal pending the outcome in Dines, or to attempt in some way to link up her case with the appeal in Dines, so that they are heard at the same time.

	It is accepted on both sides that, whichever course is adopted, there will be delay in the final resolution of Mrs Fernando's position.  We agree that that is unfortunately the case.  We have to decide which is the best course to take, having regard to the interests of all concerned.  Our conclusion is that the better course to adopt here is that proposed by the Respondents.  The law as it stands at present has been laid down by this Tribunal in a full judgment, after exhaustive argument.  Our view is that, on that decision, this appeal will fail and should therefore be dismissed.  No substantial further costs would be incurred by Mrs Fernando in issuing a short Notice of Appeal in order to protect her right to appeal in the event that there is a more favourable outcome in Dines in the Court of Appeal.  We have suggested that it may even be possible for her to save substantial further costs by seeking to link up her case with Dines through common legal representation.  That is a matter that has not yet been explored.  We suggest that it should be explored.  It may be helpful both to her and the advisers and even to the Court of Appeal to have an arrangement under which she had the same representation as the Appellants in the Dines case.

	Therefore, we dismiss the appeal and urge that Mrs Fernando's position be protected by the immediate issue of a Notice of Appeal.  It is then for her and her advisers to decide whether they wish to apply for a stay or to make the link with the Dines case that we have mentioned.  We regard that as a preferable course to leaving the whole matter in limbo here.  
Leave to appeal granted.