Humphreys v Oxford University
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Mr Justice Moore-Bick,Lord Justice Roch,LORD JUSTICE POTTER,MR JUSTICE MOORE-BICK,LORD JUSTICE ROCH |
| Judgment Date | 20 December 1999 |
| Neutral Citation | [1999] EWCA Civ J1220-34 |
| Judgment citation (vLex) | [1999] EWCA Civ J1220-57 |
| Date | 20 December 1999 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: QBENF 99/0165/1 |
[1999] EWCA Civ J1220-34
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(HIS HONOUR JUDGE HARRIS QC)
ON APPEAL FROM THE QUEENS BENCH DIVISION
Lord Justice Roch
Lord Justice Potter and
Mr Justice Moore-Bick
Case No: QBENF 99/0165/1
James Goudie QC and Sean Jones Esq (instructed by Manches &Co, Oxford, for the appellant)
Brian Langstaff QC and Ms Helen Mountfield (instructed by Messrs Marshall & Galpin, Oxford for the first respondent)
Mark Humphries Esq (instructed by Linklaters, London, for the second respondent)
Monday, 20 December 1999
INTRODUCTION
This appeal by the Chancellor, Masters and Scholars of the University of Oxford ("the University") raises an interesting issue upon the construction of Regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("the l981 Regulations"). The appeal is from a determination of His Honour Judge Charles Harris QC pursuant to RSC Order 14A when dismissing an application by the University for an order that the statement of claim of the claimant (a former employee of the University) be struck out pursuant to Order 18 rule 19, alternatively the inherent jurisdiction of the court, on the grounds that it disclosed no reasonable cause of action against the University in respect of the claimant's constructive dismissal by the University. The University contended, but the judge did not accept, that by reason of the operation of Regulation 5(1) and Regulation 5(2) of the Regulations, all liability for any alleged breach of the claimant's contract of employment, or otherwise for termination thereof, had been transferred to the Associated Examining Board ("AEB"). However, by his order dated 2 nd December 1998, the judge gave leave to the claimant to join AEB as a party to the proceedings. AEB appear as a second respondent to the appeal.
FACTS
The facts which are not in dispute for the purposes of this appeal can be shortly stated. For ten years prior to 31st March 1995 the claimant was employed by the University to work for the University of Oxford Delegacy of Local Examinations ("the Delegacy") as a Deputy Administration Officer. It was a term of his employment that his employment would continue until retiring age subject to termination by himself on not less than three months' written notice, and by the University in accordance with provisions of Title VIII Section 1 of the University Statutes and Decrees, which provided only for his removal from post if the Visitorial Board found that he had been guilty of misconduct or wilful disobedience to the Statutes or other enactments of the University relating to his office. It was the claimant's principal task to set, mark and moderate GCSE and A Level examinations for the Delegacy. By various letters and written announcements in the six months prior to 1 st April 1995 the University indicated its fixed intention to transfer the claimant's contract of employment upon a transfer of the business of the Delegacy to the AEB. During that period, by various communications and finally by letter from his solicitors to the University, the claimant notified the University that he objected to becoming an employee of the AEB. His reasons for such objection are set out at length in a section of his amended Statement of Claim headed "Particulars of Change of Working Conditions & Detriment" and "Particulars of Significant Change of Identity of Employer & Detriment". Without making any admissions in respect of the matters individually pleaded, the University and AEB concede for the purposes of this appeal (as was conceded below) that the transfer of the claimant's employment to AEB would have involved a substantial change in his working conditions to his detriment as an employee of the University.
Because of its relevance to part of the detailed argument addressed to us I now set out in a little more detail some extracts from the inter partes correspondence prior to transfer. After prolonged exchanges the University's solicitors wrote on 9 th March 1995:
"Although our clients have already explained Mr Humphreys' legal position both in person and to yourselves, and although you have undoubtedly informed Mr Humphreys as to his rights in respect of the proposed transfer, we consider that it is worth restating the position.
Your client's contract of employment will transfer to AEB on 31 March unless he exercises his right to object to the transfer under Regulation 5 (4A) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE"). As no doubt you have already advised Mr Humphreys, the exercise of this right will mean that Mr Humphreys' employment terminates upon transfer without compensation …
We stress, as has been said before to your client, that our client has made no commitment express or implied, that on the transfer on 31 March your client will be re-deployed elsewhere within the University. We wish to reiterate that such re-deployment is completely out of the question and it follows that, unless your client objects or has objected to the transfer under Regulation 5 (4A) of TUPE, his contract of employment will be transferred to AEB in the normal way under TUPE"
By letter dated 27 th March 1995, the claimant's solicitors replied:
"Our client maintains his objection, and refuses to transfer to the Associated Examining Board. In these circumstances our client's employment will terminate on 31st March 1995 when the transfer takes place.
We have already made it very clear to your client why our client does not wish to transfer to the Associated Examining Board …
We note that you claim that our client will not be entitled to compensation. We should refer you in particular to the Transfer of Undertakings Regulations, Regulation 5(5). Our client will rely on this Regulation, the effect of which is that he will be treated as dismissed and will be able to bring a claim for wrongful dismissal based on the unexpired period of his tenure. Regulation 5(5) provides for two circumstances:
Where there is a substantial change in the employee's conditions to the employee's detriment
Where there is a significant change in the identity of the employer to his detriment.
… . If it was not for the proposed transfer our client would remain employed by the University until the age of sixty-seven. Our client has received a letter from the Associated Examining Board dated 23 rd March 1995 .. which confirms that our client can only be guaranteed 3 years employment at Oxford … . On any construction of the Regulations this must surely be seen as a detriment to our client.
… we put you on notice that when our client's employment terminates on 31 st March 1995 we will bring an Action for wrongful dismissal."
5.Finally, on 30 th March 1995, the University's solicitors wrote:
"… . We note that your client has now formally objected to the transfer of his contract of employment to the AEB, and as a consequence his employment will terminate when the transfer to the AEB take place under Regulation 5(4A) .."
THE RELEVANT LAW
6.The position at common law is well established. Upon transfer of a business, an employee cannot, against his will, be obliged to work for a new employer who equally cannot be obliged to take him. It is therefore a repudiatory breach of contract to purport to change the identity of an employer without the consent of an employee. It is
"a fundamental principle of our common law … that a free citizen, in the exercise of his freedom, is entitled to choose the employer he promises to serve, so that the right to his services cannot be transferred from one employer to another without his assent"
see Nokes –v—Doncaster Amalgamated Quarries Limited [1940] AC 1014 per Viscount Simon L.C. at p.1020, re-iterated by Balcombe LJ in Secretary of State for Employment –v—Spence [1986] ICR 651 at 660G-661D when considering the effect of the "statutory novation" provided for in Regulation 5(1) of the 1981 Regulations. Thus, as a matter of the application of general principles of contract law, in the absence of a consensual or statutory novation between employee and new employer following the transfer of a business undertaking in which that employee was employed, the employee is entitled to treat such transfer as a repudiation of his contract of employment by the transferring employer and to sue him for damages for wrongful dismissal. Equally, prior to transfer, the threatened breach by the employer of his continuing obligation to employ the employee for the period of his contract, if persisted in despite the objection of the employee, is an anticipatory repudiatory breach of an executory contract, open to acceptance by the employee at any time prior to its withdrawal; see Norwest Holst Group Administration Limited –v—Harrison [1985] ICR 668 at 676–678. Finally, as is not in issue, while legislation may alter the common law position, it should not be construed to do so save to the extent that there is some "clear, definite, or positive enactment overturning it": per Lord Atkin in Nokes at p.1033.
7.The 1981 Regulations were made under the European Communities Act 1972 in order to implement the Council Directive of 14 th February 1977 (77/187/EEC) on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (generally known as the Acquired Rights Directive, but which I shall for...
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