Curling & Ors v Securicor Ltd & Anor

Issue estoppel may be subject to the exceptional qualification recognised in Arnold v National Westminster Bank [1991] 2 AC 93 where genuinely new material, including a subsequent change in law, could not reasonably have been adduced earlier. The exception depends on the precise circumstances and the justice of applying the estoppel.

The later authorities concerning transfers of undertakings had not changed the law established in Spijkers v Gebroeders Benedik Abattoir CV [1986] ECR 119. Whether a transfer occurred remained a fact-sensitive question. A finding by the tribunal of fact was binding where it had applied the correct approach. Contractual entitlement to a supplementary redundancy payment was also defeated only by a refusal of suitable alternative employment following an offer capable of acceptance.

The Employees worked for Securicor under contracts incorporating a collective agreement providing supplementary redundancy payments. When Group 4 obtained the Home Office contract, the Employees continued working for Group 4.

An Employment Tribunal held that Securicor had dismissed the Employees by reason of redundancy and that no transfer of an undertaking to Group 4 had occurred. The Employment Appeal Tribunal upheld those conclusions, reported at [1992] IRLR 549. Securicor paid the statutory redundancy payments but denied liability for the contractual supplements.

In consolidated County Court proceedings, Judge Winstanley held that Securicor was issue-estopped from disputing the earlier findings. The central questions were whether later transfer-of-undertakings authorities constituted a change in law within the Arnold exception, and whether the earlier finding of no offer of suitable alternative employment also resolved the contractual issue.

1. The appeal was dismissed. The requirements for issue estoppel were satisfied: a final decision on the merits by a competent court, identity of parties or privies, and identity of issue.

2. The exception recognised in Arnold v National Westminster Bank [1991] 2 AC 93 is exceptional and depends on the exact circumstances and justice between the parties. No material change in the law had occurred between the Employment Appeal Tribunal’s decision in 1992 and Dines v Initial Health Care Services Ltd [1994] IRLR 336. The governing principles had already been stated in Spijkers v Gebroeders Benedik Abattoir CV [1986] ECR 119.

3. The Spijkers approach required an overall assessment of all the circumstances, including the nature of the undertaking, assets, employees, customers, similarity of activities and any interruption. No factor, including the transfer of assets, could be considered in isolation. Whether a transfer occurred was a question of fact for the tribunal.

4. Dines concerned a misdirection that competitive tendering necessarily ended the first contractor’s business. It did not decide who owned the economic unit and did not overrule the Employment Appeal Tribunal’s decision in the present dispute. The later decision therefore provided no basis for displacing the estoppel.

5. Even if there had been a change in law, the Arnold exception would not have applied. Securicor had failed to seek permission to appeal and could have applied out of time. The court was particularly reluctant to reopen the position many years after the employment relationship had ended.

6. Under the contractual provision, “refused” suitable alternative employment connoted an offer of employment capable of acceptance. The tribunal’s finding that no such offer had been made therefore also determined the contractual issue.

The court summarily assessed costs at £9,000 for the claimants and £6,000 for Group 4.

• Court of Appeal (Civil Division): Appeal from the Wandsworth County Court was dismissed. The court upheld Judge Winstanley’s preliminary-issue decision that Securicor was estopped from contesting the earlier Employment Tribunal and Employment Appeal Tribunal findings.
• Employment Appeal Tribunal: Employees’ appeal allowed and Securicor’s cross-appeal dismissed; the decision is reported at [1992] IRLR 549.
• Employment Tribunal, Brighton: Applications for statutory redundancy payments dismissed, subject to alternative findings that the Employees had been dismissed by reason of redundancy and that no transfer of an undertaking had occurred.