Mannin Management Services Ltd (Appellant (Petitioner) v Charles Derek Ward (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE NEILL,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 07 February 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0207-3 |
| Docket Number | 89/0116 |
| Date | 07 February 1989 |
| Court | Court of Appeal (Civil Division) |
[1989] EWCA Civ J0207-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Mr. Justice Popplewell
Royal Courts of Justice
Lord Justice May
Lord Justice Neill
and
Lord Justice Ralph Gibson
89/0116
MR. ELDRED TABACHNIK, Q.C. and MRS. DAVID GEEY (instructed by Messrs Jacobsens, London Agents for Messrs Davies Wallis Dodds Ashcroft, Liverpool) appeared on behalf of the Appellant/Petitioner.
MR. JOHN HAND, Q.C. and MR. DAVID KENNY (instructed by Messrs Cooper Law and Lester, Blackpool) appeared on behalf of the Respondent/Respondent.
This is an employer's appeal from a decision of the Employment Appeal Tribunal of the 19th October 1987. On that occasion the Appeal Tribunal dismissed an appeal by the employers from a decision of an Industrial Tribunal sitting in Liverpool of the 27th February 1987. The Industrial Tribunal had had before it a preliminary issue in a claim by the employee, the respondent before us, in respect of his alleged unfair dismissal. In brief, the question was whether he had had a sufficient length of continuous employment prior to its determination to entitle him to pursue such a claim, having regard to the provisions of sections 64 and 64A of the Employment Protection (Consolidation) Act 1978. The Industrial Tribunal held that he had had a sufficient continuity of employment prior to its determination and that he was therefore entitled to pursue a claim of unfair dismissal. The Employment Appeal Tribunal upheld this decision and the employers now appeal to this court submitting that the decision of the Industrial Tribunal was wrong and that accordingly the employee's claim in respect of his alleged unfair dismissal should be dismissed: in the alternative, they ask that the case should be sent back to an Industrial Tribunal for further hearing.
By virtue of sections 64 and 64A of the Act, at the material time an employee could not pursue a claim in respect of alleged unfair dismissal unless he had been continuously employed for a period of not less than one year ending with the effective date of termination, or alternatively a period of two years if at no time during that period did the number of employees employed by the employer and any associated employer exceed 20. In the instant case it does not matter whether the relevant period was one or two years, because on the facts, if the employee had been continuously employed for one year prior to the date of his dismissal then he must have been so continuously employed for two years.
The particular statutory provision which has to be considered in this appeal is paragraph 17(2) of Schedule 13 to the 1978 Act. That provides:
"(2) If a trade or business or an undertaking (whether or not it be an undertaking established by or under an Act of Parliament) is transferred from one person to another, the period of employment of an employee in the trade or business or undertaking at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of employment."
It is accepted on both sides that these provisions must be read in the same sense as those in section 94(1) of the Act which speak of a change occurring in the ownership of a business "whether by virtue of a sale or other disposition or by operation of law".
At all material times there was, and indeed still is at Foulton-le-Fylde in Lancashire a substantial shopping precinct known as the Teanlowe Centre. This comprised a substantial number of commercial units together with a Community Hall. All the rents were paid to managing agents who in turn paid out of that income all the outgoings of the Centre including the wages of the resident caretaker/manager and other employees and thereafter paid the net amount to the owner less a commission by way of remuneration for managing the Centre.
The Centre was originally owned by Telegraph Holdings Ltd., with whom the employee commenced employment as their resident caretaker/manager on 1st October 1974. At that time the managing agents of the Centre were a firm known as Mason Owen and Partners. Telegraph Holdings Ltd. got into difficulties and early in 1976 the Centre was sold to Montrose Properties Ltd. Mason Owen and Partners wrote to the employee on 24th March 1976 telling him of the change and that his new employers would be Mannin Management Services Ltd. In fact at that time this company had not been incorporated. The managing agents actually appointed by Montrose Properties Ltd. to manage the Centre was a partnership of a Mr.—and Mrs. Scowcroft who traded as "Mannin Management Services". Mr. Scowcroft was an English solicitor practising in the isle of Man and at that time a friend of the beneficial owner of the Montrose Group, which included Montrose Properties Ltd. Early in 1984 differences arose between the Scowcrofts and the owner of the Montrose Group with the result that the services of the partnership as managing agents for the Centre were dispensed with. The most likely date of the change was the 21st May 1984. When the Scowcrofts ceased to manage the Centre the Montrose Group put in train the formation of a subsidiary limited company to do their work. The formation of the company took a little time but it was ultimately incorporated on 30th July 1984 with the name Mannin Management Services Ltd.—that is to say the appellant/employer in these proceedings. In the interim between the Scowcrofts and the employer taking over the management of the Centre, that was carried on by a Mr. Danielson and a Mr. Thomas who were two trusted employees of the Montrose Group and both directors of some of the Montrose companies. The bank account for the Centre which had been entitled "Mannin Management Services" was taken over by them and they continued the management of the Centre on an interim basis until the company was formed. From the beginning of August 1984 the employer, the present appellant, took over the management of the Centre and continued to carry on that operation, employing the employee in it, until his dismissal on 22nd March 1985. In their decision the Industrial Tribunal said: "We are satisfied that at all times the applicant was employed by whoever was from time to time acting as managing agent of the Teanlowe Centre…. he [was at no] time informed of any changes in the identity of the managers of the Centre, after the letter to him of 24th March 1976…We are satisfied that the [employee] was...
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