Appeal No.	 EAT/542/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 October 1999

Before
HIS HONOUR JUDGE J ALTMAN
MRS R CHAPMAN
MR G H WRIGHT MBE

SERVICEGAIN LTD	APPELLANTS

MR R D ROBERTSON & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR M LYMER
(Representative)	

	JUDGE ALTMAN:		This is the preliminary hearing of an appeal from the decision of the Employment Tribunal sitting in Carlisle on 4th March 1999. The finding was that the respondents’ employment was transferred to the appellants under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981. The consequential order was that the claim against the Secretary of State for Trade & Industry was dismissed.

1.	This is a case in which the assets of one company were transferred to another. The three respondents were employed by Lymer Industrial Services Ltd. 

2.	In February 1998 Mr Lymer, who was the director and as we understand it owner of all the shares in that company, agreed ahead of the liquidation of that company to purchase, on the finding of the Employment Tribunal, the plant, machinery, good will, customer list, current contracts and intellectual list of that company for £7,500.

3.	On 23rd May 1998 the current appellant company, Servicegain Limited, was formed by Mr Lymer for the purpose of providing the vehicle for that transaction. On a later date, 17th June 1998, Lymer Industrial Services Ltd was put into liquidation and the Employment Tribunal in paragraph 4 of their decision made the finding that the transaction that I have described constituted “a transfer under the Regulations and the contracts of employment of all three applicants were transferred to the second respondent and, under Regulation 5, that company takes responsibility for that contract in all its aspects as if it had made the contract itself.”

4.	We have considered the findings of fact and they include the following, set out at paragraph 2 of the decision:

“Mr Lymer negotiated with the customers of Lymer Industrial Services Ltd and was able to retain most, if not all, of those customers. He kept the same employees, keeping them on the same terms and conditions as previously. There was in fact a seamless transition from the old company to the new company so far as the customers and employees were concerned. The only change that occurred was that there was a change in the name of the company employing the applicants.”

	There is no dispute about those findings of fact. Indeed they are taken almost word for word from the evidence of Mr Lymer himself.

5.	A number of grounds of appeal are raised. First of all it is suggested that one of the respondents admitted to Mr Lymer, verbally, that he knew that the appellants could not afford the effect of the Regulations and that that conversation took place on 29th March 1999, some considerable time after all these events in any event. What an employer can or cannot afford is “by the bye”. The courts must look at what he did. People sometimes do things they cannot afford. It is what they do that is subject to the provisions of the law.

6.	Secondly, it is said, that the Employment Tribunal failed to understand that this was a commercial decision and that Servicegain Ltd would never have acquired the other company or its assets if the Regulations applied. That may be so. What is commercial desirability cannot supplant the law. After all, it may well be that one of the reasons why this transaction was successful in the first place, was that the appellants were able to offer to their customers an experienced workforce who had given a number of years of their working life to the company that had been put into liquidation with the result that Servicegain were able to preserve their contracts. It was the wish of Mr Lymer that those employees should forfeit their lawful entitlements that they had built up over those years and effectively start again without redundancy payments. We cannot see any error in law in the Employment Tribunal’s failing to adopt that argument.

7.	Thirdly, Mr Lymer says he fails to see why using the same assets and premises had any bearing upon the application of the Regulations. The Regulations are concerned with the transfer of what is called “an undertaking”. An undertaking involves looking at all the different facets of a business or of an undertaking to see what has been transferred. Part of the “seamless transition” that Mr Lymer himself referred to involved the use of assets and premises which facilitated the continuation, effectively, of the old business under a new name. The alternative that the law provided was for these employees to have been made redundant. They would then have been compensated at that stage for their years of service, but effectively Mr Lymer, as it seems to us, wanted to “have his cake and eat it.” He wanted to retain employees of some experience who had given years of service without having to credit them with that which they had earned in law as a result of those years. There is no legal formula that we know of which would have permitted him to do so and it seems to us that this appeal cannot succeed on that ground either.

8.	Finally, Mr Lymer makes the complaint that the Chairman was not interested in what Mr Lymer had to say at all. He said he felt that the Chairman kept “moving him on.” He has filed an affidavit in support of this contention, saying he was constantly cut short by the Chairman, who urged him to move on and who said that they did not want to hear parts of Mr Lymer’s evidence. As a result, not all his evidence was given. He said that the first interruption was after two minutes and interruptions were constant thereafter. He believed that as a result his statements did not appear of interest to the Chairman. Mr Lymer says that therefore his case was not properly heard.

9.	The Chairman has provided his own account of what took place. The Chairman says that he first intervened to get more information about the liquidation of the old company, the formation of the new company and any transfer from the old company to the new company. He said:

“As Chairman it was my duty to ensure that relevant information was given to the Tribunal so that the Tribunal could determine the question which was before them. My interventions were to inform Mr Lymer that his evidence of financial difficulties were irrelevant [and that that intervention] was necessary [because] those difficulties did not relate to the issue before the Tribunal.”

10.	Parties who appear for themselves before Employment Tribunals are doing what Employment Tribunals were set up to do, which was to hear, in an informal atmosphere, cases presented by inexperienced people doing the best they can; people who are not used to sitting down and using words, whose work involves more active processes. That being so, of course, it is incumbent upon any Chairman to seek to assist a party by directing their attention to matters upon which they should concentrate. It may be that such interruptions may from time to time cause a feeling of discomfiture or a feeling of being challenged in the parties who are presenting their cases, However, having considered the way in which Mr Lymer has put his case, and the response of the Chairman, we are satisfied that however Mr Lymer may have felt about that at the time, these questions were directed to assist Mr Lymer in eliciting from him those points which were relevant and leaving to one side those matters which were wholly irrelevant. We can see no impropriety or error of law in the way in which the learned Chairman conducted the matter. Indeed, nothing has been presented to us by way of evidence or comment which gives a hint of matters which Mr Lymer would have put before the Chairman and which he was prevented from putting and which may conceivably have affected his case. 

11.	Accordingly, we can find no error of law which would entitle this matter to be argued before a full hearing of the Employment Appeal Tribunal and this appeal is therefore dismissed at this preliminary staged which was convened to determine if there was any point of law worthy of argument.