Appeal No.	 EAT/72/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 July 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS R A VICKERS
MS B SWITZER

MILTON KEYNES GROUP SECURITY	APPELLANTS

MRS S ROBERTS & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY 
OR ON BEHALF OF 
THE APPELLANT	

	MR JUSTICE MORISON:	The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Milton Keynes Group Security wish to make against the decision of an Employment Tribunal promulgated on 18 November 1998.  

1	By their decision, the Tribunal upheld Mrs Roberts’ complaint of unfair dismissal against the Appellants.  They dismissed her complaint which had been brought against Rentokil Initial Security Services Ltd, who were her former employers, and dismissed the Second Respondents application for costs.  They dismissed also the redundancy application which Mrs Roberts had brought against both Respondents.  She has not appealed any part of the decision.  The appeal is solely concerned with the finding of unfair dismissal made against the First Respondent.

2	The facts giving rise to this complaint can be shortly stated.  Mrs Roberts had worked for some four years for Rentokil.  Rentokil were providing security services to the Meat and Livestock Commission.  There were two people concerned with providing that service at the Meat and Livestock Commission premises - Mrs Roberts was one of them.  The Meat and Livestock Commission then reviewed their security arrangements and put out to tender, as we understand it, the security aspects and Rentokil ceased to be the provider of those services.  Milton Keynes Group Security took them over.  

3	Mrs Roberts was invited to apply for employment with Milton Keynes Group Security who, as we understand it, required her first to resign her employment from Rentokil.  She was taken on on a probationary period by Milton Keynes Group Security and after working for them for a period of three weeks, or thereabouts, her contract came to an end with the Appellants.  

4	The hearing took a somewhat unusual form.  The Applicant was not present or represented.  The Applicant had asked the Tribunal to postpone the hearing because she had found employment and would not be able to get time off work.  The Tribunal’s decision simply records that this request was refused.  The First Respondents did not make any appearance (that is the Appellants) at the Employment Tribunal although quite rightly, the Employment Tribunal then considered the documents which had been submitted including the Originating Application and Notice of Appearance and further documents put in by Rentokil in coming to their conclusion.  

5	As they rightly identified, the real question at issue was whether by reason of the contracting out which had taken place in 1998, the employment of Mrs Roberts was transferred from Rentokil to Milton Keynes Group Security.  It was the Appellant’s contention that this was a circumstance in which the second generation contracting out, as it is called, is not covered by the directive 77/187/EEC, that is the acquired rights directive, having regard to the European Court’s decision in Suzen.  The Tribunal dealt with that submission in their reasons and came to the conclusion that there had been a transfer of an undertaking which had retained its identity.  

6	They quite rightly detected that this was a people business, rather than an assets based business, and therefore one of the issues, perhaps an important issue for the Employment Tribunal, was whether any of the employees engaged in the business allegedly transferred were offered employment, or transferred across to the transferee.  In this case, the new securities service provider did offer employment to Mrs Roberts, which is an indication that they regarded her services to this set of premises as being of particular value.  She was therefore an asset of the business and it was open to the Tribunal to conclude in the circumstances that in accordance with the Suzen case, a transfer could be held to have occurred.  

7	Accordingly, they said that although she had only been employed for a very short time by the First Respondents, there was continuity of service with Rentokil and her complaint of unfair dismissal was within the Tribunal’s jurisdiction and should be upheld as there was no good reason for her to have been dismissed.

8	In those circumstances we are not satisfied that there is an arguable point of law.  The question as to whether there has been a transfer of an undertaking within the meaning of the 1981 Regulations as interpreted in the light of the European Courts decisions is always a difficult one for the fact finding Tribunal.  It seems to us that what is required by the Suzen decision is a sensible approach by Employment Tribunals to difficult issues, identifying what has been transferred and identifying whether the economic entity has retained its identity.  

9	We are satisfied that the Tribunal in this case has done enough to justify the conclusion which they have arrived at and we do not consider that there is an arguable point of law to be raised by Milton Keynes Group Security.  We should add that, as with the Employment Tribunal, they did not appear before us, but I want to make it perfectly clear that we have taken into account the arguments advanced in their Notice of Appeal and all the circumstances of the case.  The appeal will be dismissed.