Anglo Beef Processors UK v Longland & Anor UKEATS/0025/15/JW

Appeal against a decision that the Claimant had transferred to the Second Respondent under TUPE. Appeal dismissed.

The claimant had been employed by the First Respondent, classifying carcases in an abattoir since 1997. The Claimant was then dismissed after his employment transferred to the Second Respondent, who had brought in electronic classification of carcases as opposed to manual classification. The issue before the ET was whether the activities carried out were "fundamentally the same" as before the transfer in terms of regulation 3 of the 2006 Regulations as amended. The tribunal concluded that the activities carried out by the Second Respondent were fundamentally the same as had been carried out previously. The activity was classifying carcases whether manually or electronically. The Second Respondent appealed.

The EAT dismissed the appeal. The notes of evidence did not support the contention that the Claimant had conceded that there would be a complete change in the level of activity under the new system. The Tribunal had reached a conclusion that was open to it on the evidence and there was no basis for interference on appeal.

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Appeal No. UKEATS/0025/15/JW

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 7 December 2016

Before

THE HONOURABLE LADY WISE

(SITTING ALONE)

ANGLO BEEF PROCESSORS UK (APPELLANT)

1. LONGLAND

2. MEAT & LIVESTOCK COMMERCIAL SERVICES LTD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant Mr B Harwood (Counsel) Instructed by: Moorepay Compliance Ltd Warwick House Hollins Brook Way Pilsworthy Bury BL9 8RR

For the First Respondent Miss G Wilson (Solicitor) Clyde & Co 144 West George Street Glasgow G2 2HG

For the Second Respondent Miss J Shepherd (Counsel) Instructed by: Bond Dickinson LLP Ballard House West Hoe Road Plymouth Devon PL1 3AE

**SUMMARY****TRANSFER OF UNDERTAKINGS**

The claimant had been employed by the first respondent for as a carcase service officer, classifying carcases in an abattoir since 1997. The Tribunal found that his employment had transferred by operation of TUPE to the second respondent on 15 August 2015. The issue was whether the activities carried out were "fundamentally the same" as before the transfer in terms of regulation 3 of the 2006 Regulations as amended and the Tribunal found that they were. The second respondent appealed, arguing that the main part of the claimant's job would be undertaken by electronic technology post transfer, that the claimant had conceded as much in evidence, and that the Tribunal had failed to list and compare the nature or mode of performance of the activities which would have shown a decrease in the quantity of work. A multi factorial approach would have been the correct one.

The notes of evidence did not support the contention that the claimant had conceded that there would be a complete change in the level of activity under the new system. The Tribunal had analysed the activities fully and properly and in a suitably pragmatic manner. It had distinguished the case of Department of Education v Huke and Anor UKEAT/0080/12 where there had been a significant reduction in activities prior to the relevant transfer and had been correct to do so. The Tribunal had reached a conclusion that was open to it on the evidence and there was no basis for interference on appeal. A cross appeal on whether regulation 3(1)(a) of the 2006 Regulations also applied was dismissed as unnecessary.

**THE HONOURABLE LADY WISE**
  1. In a judgement issued to parties on 5 August 2015 the Employment Tribunal at Dundee found that Mr Longland was unfairly dismissed by Anglo Beef Processors UK, his employment with Meat and Livestock Commercial Services Limited having transferred in terms of the TUPE Regulations on 15 August 2015. For convenience I will refer to the parties as claimant First Respondent (Meat and Livestock Commercial Services Limited) and Second Respondent (Anglo Beef Processors UK) as they were in the tribunal below. The claimant Mr Longland was represented both at the tribunal and before the Employment Appeal Tribunal by Miss G Wilson, Solicitor, the First Respondent was represented both at the tribunal and before the Employment Appeal Tribunal by Miss J Shepherd, Counsel and the Second Respondent was represented both at the tribunal and before the Employment Appeal Tribunal by Mr Harwood, Counsel.
  1. The background to the dispute is set out in detail by the tribunal in its findings in fact at paragraphs 2 – 42 of the judgement. Having recorded the claimant's role as a Carcase Service Officer since 1997 in the employment of the first respondent the Employment Judge made what are for the purposes of this appeal the following material findings:

"7. The Perth Abattoir was operated by the Second Respondents Anglo Beef Processors UK. The Claimant's services were provided by the First Respondents to the Second Respondents in terms of a Carcase Service Agreement. There were a number of such agreements over the years and the latest such document was lodged (pages 80-93). On page 82 it was stated that MLCSL should provide the services specified in the Technical Annex to the document. Page 83 set out the Beef Carcase Service which MLCSL would produce. It stated that they would:

(i) identify and weigh the carcases presented to it provided that they are identified and dressed in accordance with the specifications agreed by both parties from time to time;

(ii) identify any carcase not dressed in accordance with (i) above;

(iii) record all such information on carcase record documents; two copies of which they shall pass to the Participant;

(iv) mark such carcases in a manner to be agreed;

(v) use its best endeavours to ensure that carcase weights, assessments and carcase marks are as accurate as possible and where appropriate to use its best endeavours to ensure that classification for the purposes of the Beef Carcase (Classification) Regulations 1991 is as accurate as possible but neither the Commission nor any member of MLCSL staff shall be liable for any inaccuracy in weights or assessments, or the marking thereof on any carcase."

The document then goes on to state that at the request of the participant the First Respondents would

"(vi) classify designated carcases in accordance with the EC Beef Classification grid;

(vii) carry out ancillary duties as described in the Technical Annex (Beef)."

The document then goes on to state that in cases where the Beef Carcase (Classification) Regulations 1991 apply MLCSL shall

"(viii) subject to the conditions imposed on the Participant by the Regulations and this Agreement classify carcases as required by Regulation 10 of the Regulations;

(ix) ensure that such classification is carried out by a Licensed Classifier in accordance with Regulation 8;

(x) deal with the Agreement of fees, giving of notice and other formalities required by the Regulations in accordance with the Scheme laid down in the Regulations.

8. The agreement then sets out the various types of animal (Steers, Heifers, Cows, Young Bulls, Mature Bulls and Calves) and the services which would be provided. This included classifying and weighing Steers, Heifers, Cows, Young Bulls, and Mature Bulls. The Technical Annex also confirmed that the UK Dressing Specification was adopted and that ancillary duties would include application of carcase labels and manual carcase selection.

11. In around 2004 the Second Respondents installed a VIA machine at their Perth abattoir and thereafter the Claimant carried out his classification duties on this machine. VIA stands for Video Imaging Analysis. Such a machine has the capability of classifying carcases electronically by taking photographic images of the carcase and then analysing it using computer software. Although the machine had this feature, as will be highlighted below, this feature was not used at the Perth abattoir until August 2014.

13. The process from 2004 to around September 2013 was as follows: The VIA machine was situated on a spur from the main production line. Carcases would come on to this spur and then stop at a weigh station where the machine would arrange for them to be weighed. The Claimant would be standing at the VIA machine and when the carcase came to be weighed it was his job to press a button when the weighing machine stabilised (i.e. when the numbers stopped moving) this would automatically record the weight in the computer. On some occasions the carcase would overshoot the weighing machine and the Claimant would require to physically take hold of the carcase and pull it back slightly so that it sat square on the machine.

14. The Claimant would then manually classify the carcase. This involved him looking at the carcase and using his experience and training to decide on the classification score. He would sometimes have to turn the carcase round if it had not presented in the correct way. The Claimant would then arrive at a classification and insert this information into the computer. At the same time as he was classifying the carcase the Claimant would have before him on the computer screen information regarding what the computer understood to be the sex and category of the carcase (steer, heifer etc). The Claimant would visually make sure that the actual sex and category of the carcase coincided with the sex as shown on the computer. The Claimant would also check that the appropriate dressing specification had been applied to the carcase. This check would be done visually by him and the purpose was essentially to cross check that everything that should have been removed further down the line had in fact been removed. If the carcase had not been dressed in accordance with specification the Claimant would manually record this. He would also record if the sex or category of the carcase was not as it should be.

15. As well as entering the classification of the carcase into the computer the Claimant would also manually select which carcases were to be sent to specific customers. The Second Respondents supplied various large supermarket groups and other customers who had individual requirements which they made known to the Second Respondents regarding the category of cow they wanted and also the classification. Such customer requests were noted on a sheet kept at the classification section. The sheet might for example state that company X were looking for heifers of a certain classification and above. If such a carcase presented itself the Claimant would allocate it to company X by entering this information on the computer. This could also be done where for example a farmer requested that they have their own carcase back.

16. The computer would then print labels for the carcase. There were eight adhesive labels which had to be applied to the carcase. Up until September 2013 that task was also carried out by the Claimant in respect of each carcase. Once the labelling was complete the carcase would then go back up the shunt line to the main production line for further processing. The throughput of the abattoir was around 40-45 carcases per hour which meant that the facility processed around 300 or so carcases per day. It follows from the fact that the Claimant had to classify each carcase that the Claimant spent around one to two minutes per carcase carrying out all of the above tasks. After 2013 the Second Respondents introduced an additional requirement that each carcase be DNA tested. This work was also carried out by the Claimant at the classification station. This involved the Claimant taking a swab from the brisket and placing the swab in the appropriate bar-coded location. There were discussions between the First and Second Respondents regarding this change and it was felt that if the Claimant required to carry out the DNA test then he would not have sufficient time to also carry out the labelling. For this reason from September onwards an employee of the Second Respondents also stood at the classification station. Her role was limited to putting the labels on.

17. As well as carrying out these specific tasks for every carcase the Claimant required to carry out some setting up tests at the beginning of the day. This involved him preparing the weighing scales and carrying out a tare check three times a day. These checks required to be recorded by him on manual remittance forms. He also required to calibrate the VIA machine. This involved setting up two large boards which were then photographs by the VIA machine as a reference so as to ensure that it was working correctly.

19. At some point around the beginning of 2014 the Second Respondent's General Manager verbally informed Mr Allan of the First Respondents that the Second Respondents intended to move over to electronic classification of carcases and would be terminating their agreement with the respondents.

20. The agreement between the First Respondents and the Second Respondents provided for three months' notice of termination to be given and on 7 March 2014 the Second respondents wrote to the First Respondents confirming that the notice period would run for three months from that date. This letter was lodged (page 107).

21. The Claimant, in order to carry out his task of classifying beef, required to hold a BCC licence. Government regulation provides that where classification is carried out by a machine there is no specific requirement for the person manning or operating such a machine to hold a BCC licence but a BCC licence holder must be available within the abattoir at all times whilst the electronic classification machine is operating. As at 7 March no-one within the second Respondents' operation at Perth abattoir held a BCC licence.

34. Following 18 August the Respondents continued to carry out the assessment of carcases. This assessment was carried out using the computerised assessment produced by the VIA machine. The VIA machine still required to be calibrated every morning. The Second Respondents continued to carry out a tare check three times per day. The actual processing of carcases continued as before with the same through put rate of around 40-45 carcases per hour. Each carcase continued to go down a spur from the main line to the assessment area. The person operating the VIA machine continued to require to press a button on the machine to weigh the carcase when it reached the appropriate spot. On occasions when there was an overrun that person would have to put the carcase back so it was clearly on the machine. The difference was that on pressing the button to weigh the carcase the machine also automatically assessed the carcase and produced an assessment score which was then used to print the labels and to calculate the payment due to farmers/producers. The Respondents decided that it was no longer part of the operator's duty to check the sex/category of the carcase to ensure that it was correctly recorded in the system. With regard to allocation of the carcase it would be possible for the VIA machine to be set up in such a way that, as well as classifying the carcase, the machine would also allocate the carcase to customers depending on the specifications which the customer had previously advised the Respondents of. In order to carry out this task the VIA machine would require additional software. This software would require to be installed nationally within the Second Respondents' abattoirs. At present the Second Respondents have decided not to install this software and they have no plans to do so. As a result of this the operator still has to enter into the computer system the allocation of customer. As before this is based on the operator's understanding of which customers require which type of carcase. The operator continues to require to attach the labels and to take a DNA swab.

35. In order to comply with the terms of their Scottish Office licence the Respondents require to carry out 25 manual classifications every day. These are compared with the classifications produced by the machine as a cross check. These are generally carried out on the first 25 carcases processed each day.

36. Both before and after the termination of contract there would be occasions when the VIA machine would not classify a particular carcase. This might be because the carcase was not properly aligned or for some other reason. When the actual classification was being carried out manually such "misses" were unimportant since the machine assessment was being discarded in any event. At that time around 90% of carcases might be missed. This figure tended to vary considerably. Following the change to machine classification the Respondents made various tweaks so as to reduce the amount of misses which now currently amount to around 1-1½ % of all carcases. Where such a carcase is missed then the classification continues to require to be carried out manually.

37. The terms of the Scottish Office licence are such that although there requires to be a BPP licence holder on the premises at all times when the machine is running the BPP licence holder does not require to be standing next to the machine at all times. Initially the Respondents' position was that the machine operator was not a BPP licence holder. The first 25 classifications would be carried out first thing in the morning by Mr Gray or one of the other employees who were BPP licence holders. If the machine missed a carcase then one of the BPP licence holders would be called on to manually classify the carcase. Mr Gray's office was within a few feet of the machines. After a few months however the Respondents trained up the lady who had assisted the Claimant as labeller on the machine and she became BPP qualified as did another member of the Second Respondents' production staff. Following this, as a rule, the respondents have organised matters so that the person operating the VIA machine is in fact BPP qualified.

38. In operating the new machine classification system the Respondents still generally have two operatives on the machine unless they are extremely busy when they manage with one operative. When there are two operatives one does the labelling and the other carries out the other tasks just as happened previously.

  1. The sharp issue for the tribunal to determine was whether or not the claimant had transferred by operation of TUPE. In particular a decision was required on whether there had been a service provision change in terms of section 3(1)(b)(iii) of the regulations that required a determination about whether the activities being carried out by the Second Respondent from 15 August 2014 were fundamentally the same as the activities carried out until that time by the claimant in the course of his employment by the First Respondent.
  1. The tribunal concluded at paragraph 53 that the activities carried out by the Second Respondent were fundamentally the same as had been carried out previously. The activity was classifying carcases whether manually or electronically. The activity had been carried out by having two employees present at the processing line prior to the transfer and the Second Respondents continued that practice after 15 August 2014. Further the claimant had the necessary BCC licence required for manual classification and that was required by at least one employee on the premises where electronic classification was being carried out. After the transfer to the second respondents a BCC qualified grader continued to be present on the line.

Arguments on Appeal

  1. The Second Respondent's Counsel Mr Harwood advanced three submissions orally and in writing in support of his contention that the tribunal had erred in both procedure and law. First it was said that the tribunal failed to address a material issue in concluding that there was a relevant transfer. The tribunal had failed to consider the quantity of activities. In [Department for Education v (1) Huke and (2) Evolution Resource Limited (In Liquidation)]() UKEAT/0080/12 at paragraph 21 it was pointed out that the Employment Tribunal should not limit itself to the purpose and end result of activities. It was not "a matter of simply asking whether activities carrying the same label continue after the alleged transfer".
  1. In this case, before concluding that manual and electronic carcase classification were fundamentally the same the tribunal ought to have analysed not only the character and types of activities carried out but also the quantity. A substantial change in the amount of work would demonstrate that the post-transfer activity was not the same as it was pre-transfer. Such a decrease in quantity constituted a substantial change in activities.
  1. It was contended that the claimant himself accepted that the "main part" of his job would be undertaken by the VIA technology. Mr Harwood accepted that there was a dispute about whether and if so to what extent the claimant had made any concession about this in evidence. He referred me to the judges handwritten notes now recovered at pages 114, 116, 122 – 123, 129, 142 and 148 of the supplementary bundle. These passages included all of the references to 75% of the claimant's job having disappeared. Many of the entries referred to record the assertion made on behalf of the Second Respondent that the claimant's work was replaced by the VIA machine. It was said by Mr Harwood that these supported the argument that the vast majority of the claimant's work had been replaced.
  1. Secondly, in addition to ignoring the decrease in quantity of work the employment tribunal had failed to list and compare the nature or mode of performance of the activities. Reference was made to the four stage test set out in [Rynda (UK) Limited v Rhijnsburger ]()[2015] EWCA civ 75 by Lord Justice Jackson who identified the second step in the exercise of considering whether there had been a service provider change as being to " … list the activities which the staff of company be performed in order to provide that service" (paragraph 44). In this case the employment tribunal had stopped after the first stage of identifying the service being provided. It had not listed the activities performed manually and compared them with those performed electronically by the VIA system. This represented an error in approach. The employment judge had conflated the "service" carried out by the Second Respondent and the First Respondent with the "activities" carried pre- and post- the implementation of the VIA system. This was contrary to the approach commended by his Honour Judge Clark in [Enterprise Management Services Limited v Connect-Up Limited ]()[2012] IRLR 190 at paragraph 14.
  1. The third argument advanced was that the employment tribunal had failed to take the multi-factorial approach approved in [Alno UK Limited v Mrs C Turner SJM Kitchens and Bathrooms Limited ]()UKEAT 2016 2 September. In that case the factors in Cheeseman v R Brewer Contracts Limited [2001] IRLR 144 had again been approved. It was an error in this case for the Employment Judge to have considered singular and/or irrelevant factors in the way illustrated by paragraph 53 of the judgement. An example of an irrelevant factor relied on by the tribunal was the purchase of the VIA equipment ten years prior to the claimant's departure a focus on this irrelevant issue and an adverse decision on it so far as the Second Respondents were concerned distracted the Employment Tribunal and covered its perception of the Second Respondent.
  1. In failing to adopt the judicial guidance available to him the Employment Judge in this case had led himself to an adverse decision. The Second Respondent's position was that the judge hadn't had sufficient evidence before him to analyse what the claimant actually did before and after August 2014 and therefore he couldn't and didn't properly compare the post-August 2014 activities. In summary the judge had erred in approaching the issue as he did and the judgement should be substituted with a decision that there was no relevant transfer.
  1. For the claimant Miss Wilson submitted that the Employment Tribunal properly had regard to the way in which the activities were carried out pre- and post- transfer and also to the quantity of the activities. It had set out properly the reasons for the decision made. She pointed out that the "multi-factorial ground" had not been canvassed in the grounds of appeal and that in her view any such argument was relevant only to the cross appeal. On the Rynda case she understood the argument to be that stage 2 was not followed because the activities before and after the change had not been listed however the judgment does clearly list those activities in paragraphs 13 – 17 (pre-transfer and 34 – 38) post-transfer. Miss Wilson accepted that the Employment Judge had set out his conclusion in a summary fashion at paragraph 53 and that he had not referred back to the specific findings relevant to that conclusion. However if the question was posed such as to ask what activities did not continue after the transfer, the answer could be easily found in the findings in fact. The Employment Judge had clearly recorded that only a few matters had not continued for example an individual looking to check the classification and give it a score had not continued and in putting that to the machine either. Further an individual no longer had to check the sex and category of the carcase and to take note if it was incorrect. Those matters apart the activities before and after August 2014 were fundamentally the same. For example there were still manual classifications carried out (twenty five per day), there was the same throughput rate of forty to forty five carcases per hour, the weighing of the carcase still required a button to be pressed manually. The only real difference was that the assessment score was now electronic. A DNA swob was still taken and the allocation of the carcase to the particular customer had not been electronic either before or after the change. There were a small number of cases that required to be assessed manually where the machine had "missed". Further qualified staff continued to operate the VIA machine and two operatives still performed the process unless exceptionally the Second Respondents were too busy.
  1. Miss Wilson pointed to paragraph 7 and 8 of the judgement which set out in terms the relevant parts of the service agreement listing the activities that had been transferred in house to the Second Respondent. The employment tribunal had approached correctly the listing of these activities and dealt with them appropriately.
  1. So far as the quantification argument – the Huke case was concerned, there was some overlap in the relevant findings but in essence Miss Wilson argued that this had all been taken into account. In particular the judge had recorded that the same number of carcases per hour were put through both prior to and post the change. The same number employees was involved in the process and the BPP qualified staff continued to actually carry it out with some carcases always having to be processed manually.
  1. Miss Wilson's position was that there was no concession by the claimant in evidence that the VIA machine had taken up 75% of his role. Miss Wilson's own notes confirmed that he had not done so, the judge's notes did not support such a finding and she understood that Miss Shepherd's notes did not either. Mr Harwood had accepted that he has no notes of the hearing and the suggestion made by him in relation to this matter did not accord with all the notes taken at the time. In essence the Huke judgement was not relevant because it concerned a case where there had been a significant diminution of work prior to the transfer. It was not in point. There was no error on the part of the Employment Tribunal in relation to this matter.
  1. So far as ground 3 was concerned Miss Wilson had understood this to be a Meek compliance point about inadequate reasoning and also a complaint that the Employment Judge had taken irrelevant matters into account on the reasons challenge, as had already been submitted, Ms Wilson contended that the judgment must be read in its entirety all of the findings made against the Second Respondent were justified in any event the Alno case relied on in Mr Harwood's third submission post-dated the Employment Tribunal's decision in this case.
  1. On behalf of the First Respondent, Miss Shepherd first addressed the last points made for the Second Respondent namely the "multifactorial" issue. She pointed out that the Cheeseman case relied on pre-dated the 2006 regulations, it had been followed in Alno but both of those cases were regulation 3(1)(a) cases. She queried why Mr Harwood would argue that the judge would have to follow a multifactorial approach when the Second Respondent had taken the position he had on the cross appeal. The case before the Employment Judge was a service provision case the only battle ground was the activities carried out prior to and after the change in the context of such a regulation 3(1)(b)(iii) case. Accordingly the question of a multifactorial approach simply didn't arise for discussion.
  1. In addressing the first substantive submission relating to the issue of considering not only the character and types of activity but also the quantity Miss Shepherd pointed out that the Second Respondent's argument ignored completely the finding at paragraph 34 of the judgement which states "the actual processing of carcases continued as before with the same throughput rate of around 40 – 45 carcases per hour". She referred in passing to the consultation process for the new regulations which had specifically considered the situation where an incoming contractor tended to use a computerised process in place of a manual one and had favoured an outcome that saw the relevant employees being transferred before any decision was taken about whether they could be accommodated if they could not a redundancy situation might occur. So far as Huke was concerned that case had turned on very different facts. There had been a significant downturn in the amount of work been done by the employee in question unlike the present case where there was no evidence of any downturn at all. The evidence simply did not support any argument that the VIA equipment would reduce the amount of work required. The procedure remained the same the two operatives worked on the machine as before one doing the labelling the other performing all other tasks.
  1. The issue of how much of the claimant's time had been taken up in manual classification was very much in dispute. Miss Shepherd noted that a fundamental part of the appeal as originally framed was that it was not in dispute that 75% of the claimant's work was replaced by the VIA machine. However the evidence showed this to be inaccurate. The argument that 75% of the claimant's work was replaced was the case that the Second Respondent had advanced and failed in. Miss Shepherd also referred to certain passages of the judge's handwritten notes . In particular there was a passage (page 108 of the supplementary bundle) where she had put to the claimant that it was hard to break down the amount of time spent in each activity with which the claimant had agreed and said that he did most things simultaneously. She pointed to passages where Mr Harwood had specifically put on more than one occasion that 75% of the claimant's work had disappeared but the claimant had responded either that he was not sure or on another occasion that he would only put a certain percentage on it on the hypothesis that the 75% reduction asserted by Mr Harwood was correct. Miss Shepherd pointed out also that the Second Respondent's pleaded case had been that no human intervention was effectively required post the change but they had always agreed that the same number of carcases could be processed. During the course of the hearing it became apparent not only that the same number of carcases could be processed but that the same number of employees were engaged in the activities in question.
  1. In relation to the third submission in addition to the points made in relation to the different approach in a regulation 3(1)(a) case Miss Shepherd contended on reasoning generally that it was important to read paragraph 53 in light of the findings made earlier by the judge particularly at paragraphs 34, 37 and 38. The evidence illustrated that contrary to the position as pled by the Second Respondents the process continued much as before.
  1. On the alleged irrelevant findings Miss Shepherd submitted that it was unsurprising that the Employment Judge had seen fit to comment on certain matters arising from the evidence where inaccuracies such as when the VIA equipment was purchased were highlighted by the Second Respondent who had invited a finding that the equipment had been purchased in 2014. The Employment Judge accordingly required to explain why the evidence was to the contrary. There was a dispute on this that had to be resolved. The assertion that the VIA had been purchased in 2014 had to be dealt with because of the Second Respondents urging that the Employment Judge should make findings about it. Mr Harwood in his submissions repeated the assertion about that. It was not that the Employment Judge thought that this was a central issue but he had to deal with it given the whole history of the machine having been present in the Second Respondent's premises for some years.
  1. Miss Shepherd pointed out that the question of what constitutes activities and whether they are fundamentally the same are questions of fact and degree for the fact finding tribunal under reference to the recent case of [Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and Others]() UKEAT/0267/15. She contended also that the word "activities" in regulation 3 must be given its ordinary every day meaning and that the activities must be defined in a common sense and pragmatic way as they were in Metropolitan Resources Limited v Churchill Dulwich Limited 2009 IRLR 700. She argued that the appellant could not say that the Employment Judge had missed out anything enlisting the activities that he had. The manual classification was only one part of a detailed exercise explained in the evidence. At paragraph 34 of the judgment the judge has listed in detail all the activities that continued as before there could be no error of law where the activities were found to be fundamentally the same something that was a question of fact and degree for the tribunal.

Discussion

  1. Regulation 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") provides that the protection afforded by the regulations applies amongst other situations to:

"A service provision change, that is a situation in which –

(i) Activities cease to be carried out by a person ("a client") on his own behalf and are carried out instead by another person on the client's behalf ("a contractor")

(ii) Activities cease to be carried out by a contractor on the client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person ("a subsequent contractor") on the client's behalf; or

(iii) Activities cease to be carried out by a contractor or a subsequent contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf".

  1. The conditions for the application of regulation 3(1)(b) are set out in regulation 3(3). Regulation 3(2A) states "references in paragraph (1)(b) to activities being carried out instead by another person (including the client) are to activities which are fundamentally the same as the activities carried out by the person who ceased to carry them out."
  1. It can be seen from these provisions that all three situations described in regulation 3(1)(b) relate to "activities" and the question of whether the activities to be carried out by the new service provider is fundamentally the same as it was prior to transfer arises in all three situations. The particular situation that was in issue in this case is regulation 3(1)(b)(3). The employment tribunal heard evidence and submissions over two days in relation to the particular activities carried out by the claimant during his employment by the First Respondent and the activities subsequently carried out by the Second Respondent from mid-August 2014. Having made the detailed findings in fact set out earlier the Employment Judge then concluded as follows:

"53. In this case I considered that there was really very little room for doubt that the activities carried out by the Second Respondents after the alleged transfer was fundamentally the same as that carried out by the First Respondents prior to the alleged transfer. The activity was that of classifying carcases so as to calculate the amount that farmers could be paid. In my view it was completely irrelevant whether that classification was done manually or electronically. The activity was being carried out prior to the transfer by the First Respondents and after 15 August 2014 it was being carried out by the Second Respondents. With regard to the Second Respondents' point regarding the case of Huke it was my view that the Second Respondents' representative had entirely missed the point. The issue in Huke was that the Claimant in that case was only carrying out the activities which transferred to the Second Respondents for around 45% of his time prior to the transfer. The situation in that case was that it therefore could not be said that the activity carried on prior to the transfer was fundamentally the same as that carried out after the transfer. The position in Huke was that there was really no activity to get transferred since there had been a considerable downturn in work and, long prior to the in-sourcing there had been little or no work on the activities in-sourced for the Claimant in that case to do. The situation here is entirely different.

54. Whilst I found the First Respondents' reference to the consultation document on the TUPE Regulations to be helpful I did not find that this document was at all necessary in order to understand the clear terms of the Regulations as expanded upon in the case of Metropolitan Resources Ltd v Churchill Dulwich Ltd. The Regulations refer to activities being carried out. They do not refer to the way that these activities are carried out. It is therefore my clear view that there was a TUPE transfer in this case and that the Claimant's employment transferred to the Second Respondents on 15 August."

The critical issue in this appeal is whether the Employment Judge erred in his approach and/or whether his reasoning was inadequate.

  1. I will deal first with the question of whether there was a failure to consider the quantity of activities. Support for this submission was said to be found in the decision of the Employment Appeal Tribunal (chaired by Lady Smith) in Department for Education v (1) Huke and (2) Evolution Resource Limited (Liquidation) UKEAT/0080/12. It was contended also that the claimant had conceded in evidence that 75% of the work he had carried out had been replaced by the VIA machine which undertook classification of carcases after his departure. I must address first the dispute about whether any such concession was made. Regardless of whether the Huke case is in point I can readily see that it could be important if there was evidence of a complete change in the level of activity carried out prior to the alleged transfer once the new system was in place. For that reason I acceded at an earlier stage to the Second Respondent's request for recovery of the Employment Judge's notebook in this case. However having considered these notes carefully I have reached the view that the judge's notes do not support at all the contention that the claimant made such a concession. What they appear to record is that the 75% reduction point was put to the claimant repeatedly who either did not agree with the assertion made or, at best for the Second Respondent, was not sure of the position. There was accordingly no evidence led to support such a contention. There was evidence about an exercise carried out by the Second Respondent about the breakdown of work involved in this process some months after the change and that is the subject of an appropriate finding in fact at paragraph 39 of the judgment. Accordingly I have proceeded on the basis that the Employment Judge's findings in fact reflect accurately the evidence led and that no concession was made by the claimant about any specific percentage reduction in his work as a result of electronic classification.
  1. Turning now to the Huke case it involved a worker who had provided the Department for Education with Technical Support for Telecommunications but the work diminished when a new telecommunication system was introduced. Prior to the alleged transfer Mr Huke's work had reduced so much that two full time employees undertaking the role had been reduced to 25% of one full time employee's time. That was the context in which the EAT decided that the tribunal ought to have considered not only the character and type of activities carried out but also the quantity where the contract post transfer was first substantially reduced service in a situation like that TUPE may well not apply.
  1. In contrast in this case there are significant findings made by the tribunal supporting a conclusion that there was no reduction in quantity so far as the activities previously carried out by the claimant were concerned. In particular the specific finding at paragraph 34 that the processing of carcases continued as before with the same throughput rate of around 40 – 45 carcases per hour is on one view sufficient to answer completely the quantity point raised by the Second Respondent. The findings in relation to the number of employees engaged and the task being the same before and after 15 August 2014 also negates any suggestion of a reduction in the level of activity.
  1. The Employment Judge in this case expressly distinguished Huke on the basis that it involved a significant reduction in activities prior to the transfer. He concluded that "the situation here is entirely different". I do not consider that there is any substance in the argument that the Employment Judge failed to consider the quantity or level of the activities carried out before and after the transfer. His findings in fact read with his conclusion illustrate only that he did.
  1. Turning to the argument that the Employment Judge had failed to list and compare the nature or mode of performance of the activities following the change in service provision I consider that there is no need to read the case of Rynda UK Limited against Rhijnsburger as requiring a bullet pointed list within the conclusion section in a judgement of this type. When Employment Judge McFatridge's judgement is read as a whole it is clear that he has made sufficiently detailed findings on the pre-transfer activities (paragraphs 13 – 17 inclusive and on the post-transfer activities (paragraphs 34 – 38 inclusive) such as to comply with the approach commended in Rynda. It does not matter where in the judgement the analysis appears. It requires to be made and it was so made in this case. The repeated references by the Employment Judge to activities that "continued" after 18 August 2014 and the distinction drawn by him where there were aspects that were not quite the same (especially at paragraph 34) illustrate in my opinion that the tribunal understood perfectly well the task before it and embarked upon it in a clear and comprehensive manner.
  1. It is settled beyond doubt that absent perversity a tribunal's findings on what constitutes "activities in this context and whether they are fundamentally the same before and after a change cannot be disturbed. The questions are a fact and degree to be answered by the fact finding tribunal. This has been emphasised in a number of cases involving the 2006 regulations including most recently by Mrs Justice Simler (President) in Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and Others UKEAT/0267/15/RN.
  1. The Employment Judge in this case approached the issue of what activities were carried out before and after the material date in the common sense and pragmatic manner demanded of him by the authorities such as Metropolitan Resources Limited v Churchill Dulwich Limited 2009 IRLR 700 at paragraph 36.
  1. Where there were differences in the way in which the activity of classifying and labelling carcases was carried out before and after the transfer the Employment Judge highlighted them appropriately. It cannot be said that he failed to record the relevant activities having done so he reached a conclusion that he was entitled to reach on the evidence before him.
  1. The third argument was essentially originally characterised as a reasons challenge and also the taking into account of irrelevant considerations. I consider that the points made by Miss Shepherd in relation to the cases of Cheeseman and Alno were well made. Decisions on the multifactorial approach set out in Cheeseman are not readily applicable to a case under the now amended 2006 Regulation provisions on the service provision change. That was the view taken by His Honour Judge Birk QC in Metropolitan Resources Limited v Churchill Dulwich Limited and it is a view I share. However it seems to me that the real argument under this ground is whether the Employment Judge singled out a single factor and ignored other equally material factors and related to that whether he took irrelevant factors into account.
  1. There is an overlap between this ground and the listing of activities point but it is essentially an attack on the reasons given by the employment judge. The paragraphs I have cited – paragraphs 53 and 54 of the judgment – are undoubtedly and fairly in summary form. There is no cross referencing back to the list of factors within the findings of fact which most influenced the decision maker. However in summarising the salient points made by each party to the case the Employment Judge highlights the central issues of contention, paragraphs 48 and 50
  1. In particular it is clear that Counsel for the Second Respondent periled his case to a large extent on the case of Huke and the argument about the breakdown of time spent in percentage terms on manual classification as opposed to other activities. This central dispute is dealt with adequately in the judge's conclusion if it is read in conjunction with the detailed findings in fact. As a Specialist Tribunal the Employment Tribunal in this case was entitled to express matters in a relative summary manner where the issues had been so clearly identified both in the evidence and in the submissions made.
  1. In relation to whether irrelevant factors were taken into account I do not consider that the Employment Judge can be criticised for making reference to the erroneous position of the Second Respondent that the VIA machine had been installed in early 2014. The evidence of this matter required to be dealt with. There is no suggestion that the judge placed too much emphasis on it as it was part of the factual background relevant to the activities carried out before and after the change it was dealt with appropriately.
  1. In conclusion I have reached the view that while the Employment Judge's reasons were not given in the fullest possible terms these reasons are clear and easily understood when read with the findings in fact amply justified by those findings.
  1. I consider that the Employment Judge did not misdirect himself in law or err in the application of the relevant legal provision. He reached a conclusion that was open to him on the facts found and there is no basis for interfering with his decision.

The Cross Appeal

  1. There is a cross appeal in this case by the claimant on which I heard some argument. It concerns the possible application of regulation 3(1)(a) of TUPE to this case. This had been highlighted as a potential issue for the tribunal at the claimant's insistence. However as matters evolved the hearing was purely a contest between the two respondents on whether the activities post the change in provider were fundamentally the same as before or not. It was on the facts plainly an "insourcing case" and neither respondents sought to argue at the hearing that regulation 3(1)(a) was applicable.
  1. While it may have been better if the Employment Judge had specifically recorded that position more clearly I do not consider that he erred in any material sense in failing to do so. Parties were agreed that the cross appeal had significance only in the event that the substantive appeal was allowed as it is not being allowed I do not consider it necessary to reiterate the arguments made to me by the claimant in support of a contention that regulation 3(1)(a) was applicable in this case. It is sufficient to record that had I reached the view that the Employment Judge had erred in this matter I would have remitted the issue back to the tribunal for a further hearing.
  1. For all of the reasons I have given I dismiss the Second Respondent's appeal and it falls from that that I should also formally dismiss the cross appeal as unnecessary.

Published: 19/07/2017 10:23

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