Mowlem Technical Services (scotland) Limited (formerly Skillbase Services Limited) Against A Decision Of The Employment Appeal Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Nimmo Smith,Lord Kingarth |
| Docket Number | XA49/03 |
| Date | 10 June 2005 |
| Court | Court of Session |
| Published date | 10 June 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Nimmo Smith Lord Kingarth
| XA49/03 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL TO THE COURT OF SESSION under section 37 of the Industrial Tribunals Act 1996 by MOWLEM TECHNICAL SERVICES (SCOTLAND) LIMITED (formerly SKILLBASE SERVICES LIMITED) Appellants; against A decision of the Employment Appeal Tribunal dated 12 January 2004 and communicated to the Appellants on 26 January 2004 _______ |
Act: I. Truscott, Q.C.; Lindsays, W.S.
Alt: B. Napier, Q.C.; Maclay Murray & Spens
10 June 2005
The background
[1]The appellants in this matter are Mowlem Technical Services (Scotland) Limited, formerly Skillbase Services Limited. The respondents are first, Raymond John King, and second, Falkirk Council. The background to this appeal is that the housing maintenance contract of the second-named respondents was put out to tender in about 1997. The contract was won by the appellants. The main purpose of the contract was the provision of building maintenance to a portion of the second-named respondents' council housing stock. This involved work being executed by a variety of trades. For the purpose of the performance of the contract, the appellants employed around 60 people and made use of about 50 vehicles, together with other assets. These other assets included premises which were made available to them by the second-named respondents on a rent free basis. It was a condition of the contract that the appellants delivered services through what were called local repair teams operating out of the premises just mentioned. This housing general maintenance contract was a substantially larger contract than any of the others held by the appellants in the area. Nevertheless, they did have certain other contracts and these and the housing general maintenance contract were administered out of a depot at Grangemouth, which had existed before the housing general maintenance contract was won by them.
[2]Among the staff based at the Grangemouth depot was a branch manager, who was responsible for managing all the contracts supervised out of that branch. In essence central functions were carried out through the Grangemouth depot and service delivery was carried out through the local repair teams. The first-named respondent was appointed as the branch manager at the Grangemouth depot some months after the housing general maintenance contract was won. The administration processes for executing the maintenance work were essentially the same before and after the transfer of responsibility to the appellants in 1997. Work orders came from the housing offices to the local repair teams. These were then handed out to the tradesmen who executed the work. The associated paperwork was returned to the appropriate personnel after the works had been completed, for checking and pricing. About 80% of the Grangemouth branch turnover emanated from the housing general maintenance contract in the period immediately preceding certain changes which occurred in 2002. In addition to the tradesmen who were actually carrying out work, staff were required to organise the tradesmen and materials, to administer the orders for work, to check jobs, to deal with invoicing and recovery of payments from the second-named respondents and to deal with the bonus system which the appellants had introduced. The role of the branch manager was to supervise the Grangemouth branch. He was responsible for all of the contracts which were managed out of that branch. He did have contact with the second-named respondents at periodic liaison meetings. However, on a day-to-day basis the contact was effected by an assistant, who supervised the local repair teams directly. A Mr. Alan Small and a Mr. David Stirling Gray were members of the staff of the Grangemouth branch carrying on the function of schedule of rates surveyors. Mr. Gray worked primarily out of the Grangemouth branch and also at Abbotsinch, near Falkirk. He spent about 80% of his time on the housing general maintenance contract for the second-named respondents. The remaining 20% of his time was spent doing other similar work on other contracts.
[3]In 2001, the second-named respondents conducted a review of their housing maintenance function, the result of which was that they decided that the contract mentioned above should be determined and the work undertaken by them in-house. The appellants were notified of this decision by letter dated 23 October 2001, after which discussions took place as to how the change was to be handled. The appellants' expectation was that relevant employees would be transferred to the second-named respondents. Pursuant to that the appellants provided a list of employees for the second-named respondents. An issue arose as to who should be transferred with the undertaking to which the contract had related. Subsequently, the issue was partly resolved in that there was agreement over the tradesmen who should be transferred. However, there remained a dispute over certain other staff members. Relations between the appellants and the second-named respondents deteriorated in the lead up to the transfer of responsibility in 2002. Each suspected the motives of the other. The second-named respondents suspected that the list of employees was being "loaded" with administration staff personnel in order to reduce the appellants' prospective redundancy responsibility, since the latter had decided to close their Grangemouth branch. The issue as to which employees were to be transferred to the second-named respondents remained unresolved in relation to Mr. Small, Mr. Gray and Mr. King. Eventually this issue became the subject of proceedings before the Employment Tribunal. By a decision dated 23 May 2003 and entered in the register on 6 June 2003, the Employment Tribunal decided that the housing and general maintenance contract and the activities associated therewith carried on by the appellants between 1998 and 2001 constituted an undertaking for the purposes of regulation 3 of the Transfer of Undertaking Regulations 1982; that there was a relevant transfer of that undertaking as between the appellants and the second-named respondents on 1 April 2002; that Mr. King was not wholly or predominantly employed in that undertaking; and that Mr. Small and Mr. Gray were wholly or predominantly employed in that undertaking.
[4]Since this appeal is in substance concerned with the decision of the Employment Tribunal in so far as it relates to the position of Mr. King, it is appropriate for us to narrate that part of that tribunal's decision which relates to him. At page 7 of the decision of the Employment Tribunal, they say this:
"Turning now to consider the question of Mr. King, we have no real difficulty in holding that Mr. King was not wholly or mainly assigned to the contract. Mr. King had only infrequent contact with the respondents (the second-named respondents in these proceedings) (evidence of Mr. Don and Ms. Letts); he was not directly involved in the operational aspects of the contract on a day-to-day basis (Mr. Don) and we think that he was, as Mr. Don said, more of a figurehead in relation to this matter. There were other contracts being administered out of the Grangemouth or central depot and Mr. King was the branch manager for that depot. He accepted that he had responsibility for those other contracts.
In these circumstances we consider that it is not possible to say that he was assigned in any way to this contract. The fact that he may have been spending more time on it latterly is simply indicative of a change in the relative proportions of turnover being generated. He had no particular responsibilities in relation to this contract other than those which went with his role as branch manager. We therefore hold that Mr. King was not wholly or mainly assigned to the undertaking which was the subject of transfer.
This leaves the other surveyor, Mr. Gray. In our view it is clear that Mr. Gray was doing substantially the same job as Mr. Small. It has been conceded that Mr. Small was wholly or mainly assigned to the undertaking. The only difference between Mr. Gray and Mr. Small was that Mr. Gray for about 20% of his time was working on administration connected with other contracts. That percentage was not disputed and indeed was confirmed by other witnesses. Accordingly, in our view, although it is not possible to say that Mr. Gray was assigned to the Falkirk contract, it is appropriate to say that he was mainly assigned to it."
[5]Following this decision, the appellants appealed to the Employment Appeal Tribunal. That Tribunal refused their appeal in a decision dated 12 January 2004 and communicated to the appellants on 26 January 2004. The appellants have now appealed to this court against that decision under section 37(1) of the Industrial Tribunals Act 1996 on a "question of law". The grounds of appeal are set forth in the appeal document. At the commencement of the hearing before us, certain...
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