CPL Distribution Ltd v Todd

For the purposes of a transfer of an undertaking, whether an employee is assigned to the transferred undertaking is a question of fact. The tribunal must assess the employee’s actual function and work, considering all relevant circumstances. Relevant factors may include time spent on the transferred activity, the value attached to it, contractual terms and cost allocation. No single factor is necessarily decisive.

Where an employee is a personal assistant, the nature of the manager’s work may be important, but the employee does not transfer merely because the manager performs work connected with the transferred undertaking. An inadequately expressed tribunal decision may stand where, read fairly, its factual findings disclose the correct test and a legally justified conclusion.

The appeal arose from a unanimous Employment Tribunal decision on preliminary points concerning the transfer of a concessionary coal distribution contract to Gateway Fuels Ltd under the Transfer of Undertakings (Protection of Employment) Regulations 1981. The tribunal found that the undertaking had transferred but that Mrs Todd, the personal assistant to Mr Brennan, had not been assigned to it.

The Employment Appeal Tribunal dismissed the employer’s appeal. The employer argued that the tribunal had wrongly treated Mrs Todd as assigned to Mr Brennan, regardless of the work he performed, and sought either reversal or remission for inadequate reasoning. The central issue was whether the tribunal had applied the correct factual test for assignment.

1. Appeal dismissed. The tribunal had correctly directed itself that assignment was a question of fact and that several factors were relevant, including time spent on the transferred work, the value given to that work, contractual terms and allocation of costs.
2. The tribunal’s statement that Mrs Todd was assigned to Mr Brennan, whatever role he happened to be performing, was open to criticism because it could suggest that the nature of their work was immaterial. The proper inquiry concerned the work actually performed by Mrs Todd and the extent to which it related to the transferred concessionary coal contract. Since she was Mr Brennan’s personal assistant, his functions were an important factor, but not a conclusive one.
3. The tribunal was entitled, on the limited evidence, to find that Mr Brennan had substantial duties as business acquisitions manager and was not assigned to the transferred undertaking. The fact that those duties alone did not justify a personal assistant did not establish that they were minor. The typing log, although showing that most typing related to concessionary coal, was not conclusive because a personal assistant normally has broader duties.
4. The court would not infer from the tribunal’s earlier expression of surprise that Mr Brennan was omitted from a list of transferring employees that the tribunal had found him assigned to the transferred undertaking. That observation arose in a different context and was too slender a basis for such an inference.
5. Although the tribunal’s reasoning was unfortunately expressed and should have stated expressly why Mr Brennan was not assigned, its conclusion was supported by the evidence, was neither perverse nor erroneous in law, and did not require remission. Lord Justices Waller and Dyson agreed. The appeal was dismissed with costs assessed at £7,446.35 inclusive of VAT.

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed.
• Employment Appeal Tribunal: appeal from the Employment Tribunal dismissed; decision sent to the parties on 14 January 2002.
• Employment Tribunal: found that the concessionary coal contract was a transferred undertaking but that Mrs Todd was not assigned to it; decision sent to the parties on 10 April 2001.