Chesterfield Solicitors

Chesterfield Solicitors McIntosh Fleming & Co specialise in providing low cost legal services to Chesterfield residents and businesses. McIntosh Fleming provide cheap fixed price legal services to Chesterfield in the areas of conveyancing, probate and divorce. Few other Chesterfield solicitors act for a guaranteed fixed fee preferring instead to charge by the hour. We say that is like asking how long a piece of string is. If you want a guaranteed and fixed low price for your legal work then look no further. Just call us on (0800) 1712215 or e-mail gary@Chesterfield-solicitors.co.uk.

Mullineaux v Mitie Group

Employment – Continuity – Transfer of trade, business or undertaking – Duty of transferee to provide information to transferor – Whether employee having individual right of complaint against transferee for failure to provide such information – Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981/1794, reg 10(3).

The appeal would be allowed.

There was no individual right to complain by an ‘affected employee’ when a transferee failed to provide the information to a transferor as required by reg 10(3) of the Regulations.

The proper mechanism for bringing a transferee into the proceedings where the complaint was that the transferee failed to provide that information was to issue proceedings against the transferor at the outset and then seek the joinder of the transferee.

R (on the application of Montgomery) v Hertfordshire County Council

Judicial review – Availability of remedy – Public authority – Control of admission to authority buildings – Ban on previous employee entering buildings or contacting members of staff for the purposes of professional duties – Whether public authority decision amenable to judicial review.

Where there was an interface between the private law rights and public law responsibilities of the local authority it was under a duty to act fairly before it took any measures to prevent the claimant from entering its premises or contacting its staff. In the circumstances, the local authority had failed to act fairly and the decision to ban the claimant would be quashed.

The application would be allowed.

Where there was an interface between the private law rights and public law responsibilities of the local authority it was under a duty to act fairly before it took any measures to prevent the claimant from entering its premises or contacting its staff. In the circumstances, the local authority had failed to act fairly and the decision to ban the claimant would be quashed.

In order to act fairly the local authority had to give the claimant an opportunity before the action was taken to make representations on the reasons for the action, the extent of the action, the impact of the action and to take those representations into account.

Dolphin Drilling Ltd v Tor Drilling (UK) Ltd

Employment – Continuity – Transfer of trade, business or undertaking – Appeal from Employment Appeal Tribunal – Whether undertaking existed to be subject of transfer.

The appeal would be dismissed.

In these circumstances of the instant case, the Employment Appeal Tribunal’s decision that there was no error of law on the part of the employment tribunal had been correct.

There was no substance in the argument that by the material date there had already ceased to be an undertaking that was capable of being transferred. Further, there had been no judicial determination that the management agreement had ended.

Rose v Dodd (formerly trading as Reynolds & Dodd Solicitors) and others

Employment – Dismissal – Termination of contract of employment by operation of law – Intervention by Law Society in solicitors’ practice – Whether intervention an event terminating solicitor’s employee’s contract of employment – Employment Rights Act 1996, s 136(5).

Section 136(5) of the Employment Rights Act 1996 provides: ‘Where in accordance with any enactment or rule of law—(a) an act on the part of an employer, (b) an event affecting an employer (including, in the case of an individual, his death) operates to terminate a contract under which an employee is employed by him, the act or event shall be taken for the purposes of this Part to be a termination of the contract by the employer.’

The employee was employed by D, a sole practitioner practising as R&D, a firm of solicitors. On 9 December 2002 the Law Society, acting through the Adjudication Panel of the Compliance Board and without any warning, intervened in the practice on the ground of suspected dishonesty. The operation of D’s practising certificate was automatically suspended by virtue of s 15A of the Solicitors Act 1974. The employee continued to work in the firm’s office between 9 December and 24 December, for which she was paid £400 by D. D challenged the intervention in the High Court under para 6(4) of Sch 1 to the 1974 Act, and those proceedings were compromised on 20 December, D having entered into a written agreement to sell the practice and goodwill To T and L, who had been employed as solicitors by the practice. In March 2003 the employee presented an originating application to an employment tribunal, claiming redundancy payments and pay in lieu of notice against D. She stated that her employment had ended on 9 December 2002. She also claimed that she had been underpaid and that further sums were payable to her by D. The tribunal dismissed her complaint, and her appeal to the Employment Appeal Tribunal was also dismissed. She appealed against that decision.

The issue on the appeal was whether, as a matter of law, the intervention itself was an event which had operated to terminate the employee’s contract of employment within the terms of s 136(5) of theEmployment Rights Act 1996, so as to be taken as a dismissal by D.

The appeal would be dismissed.

The intervention by the Law Society was not, on the facts of the instant case, an ‘event affecting’ D which terminated the employee’s contract of employment by operation of law, and was not to be taken as a dismissal by him of the employee within s 136(5).

Neither D’s inability to practise as a solicitor nor the possibility of his ceasing to be a person qualified to supervise during the period of his suspension meant that contracts of employment with him automatically terminated. He could employ staff to do other work for him as long as it did not involve the conduct of the practice of a solicitor. Engaging in work other than providing or offering the services of a solicitor or holding him out as a solicitor would not undermine the public protection purpose for which the power of intervention was conferred and exercised, or contravene the suspension.

Barnes and Thomas (t/a Barnes Thomas & Co) v Leavesley [2000] All ER (D) 982 distinguished.

Per curiam: (1) A contract of employment is not necessarily terminated by the dissolution of a partnership on the happening of an event, such as intervention and the suspension of a practising certificate, which makes the carrying on of the business of the partnership unlawful. General contractual principles need to be applied to the circumstances of the particular case.

(2) The application of the Transfer of Undertakings (Protection of Employment) Regulations 1981, SI 1981 1974 to cases of intervention in partnerships depends on whether, in the particular case, the contract of employment survived the dissolution and remained in existence at the date of the transfer.

Decision of the Employment Appeal Tribunal [2004] All ER (D) 449 (Nov) affirmed.

Akhavan-Moossavi v Association of London Government

Employment tribunal – Originating application – Presentation of complaint – Application submitted electronically – Tribunal receiving complaint out of time – Tribunal finding it had no jurisdiction to hear employee’s complaint of unfair dismissal – Whether tribunal erring in law – Employment Rights Act 1996, s 111.

The appeal would be allowed.

On the facts, the tribunal had erred in law in its approach to the reasonable practicability test, and, in the circumstances, the one-day delay was reasonable.

The tribunal erred in its interpretation of the message appearing after the submission of the employee’s originating application. The message could reasonably have been understood by an applicant, and was understood by the employee, to mean that his application had been received by the tribunal.

The tribunal should proceed to consider the employee’s complaint of unfair dismissal.

Per curiam: Delay in presenting claims is a frequent occurrence in employment tribunals, and occurs for a variety of reasons, but applicants would be well advised, even when making applications online, not to leave matters until such a very late stage, so that problems of the kind that arose here can be avoided. It would be advisable for those responsible for the wording of the online information provided for applicants, to consider amending the wording of the automatically generated message sent after submission, so as to remove the ambiguity we have identified. Online applicants should be told in plain language that at this stage their application is merely being held in a central system and cannot be taken as having been formally received by the tribunal, for the purposes of relevant time limits, until receipt has been confirmed by the tribunal office dealing with the case.

Skittrall and others v Camden Primary Care Trust and another

Employment – Continuity – Transfer of trade, business or undertaking – Employment tribunal finding that no relevant transfer had taken place – Whether tribunal in error.

The appeal would be allowed.

The tribunal failed to take into account relevant factors and had taken into account irrelevant factors in reaching its decision.

The conclusion that there had been no relevant transfer could not stand and would be set aside.

European Commission v Germany (Case C-386/03)

European community – Freedom of movement – Services – Air transport – Groundhandling services – Whether Germany having adopted measures contrary to community law – Failure to fulfil obligations – Council Directive (EC) 96/67, arts 16, 18.

Having examined German legislation, the Commission concluded that it had not transposed arts 16 and 18 of Council Directive (EC) 96/67 (on access to the groundhandling market at community airports) correctly into national law. It therefore sent Germany a letter of formal notice inviting it to submit its observations. Germany denied the allegations and the Commission, not persuaded by the explanations provided, sent Germany a reasoned opinion calling on it to adopt within two months of the date of notification of that opinion the measures necessary to comply with its obligations under that directive. Finding Germany’s reply unsatisfactory, the Commission brought an action for failure to fulfil obligations.

The Commission submitted, inter alia, that the German legislation in question had not met the requirements of the directive, since it drew a distinction between the managing body of the airport, and the suppliers of groundhandling services and self-handling users. It therefore impeded access to the market for the groundhandling services and self-handling users, and distorted competition between those different categories of operators.

The Court ruled:

By adopting measures contrary to arts 16 and 18 of Council Directive (EC) 96/67 in national legislation on airport groundhandling services, Germany had failed to fulfil its obligations under the directive.

On account of its financial obligations, national legislation posed a risk that it would impair the rational use of airport infrastructures and the reduction of the costs of the services charged to users, thus jeopardising the opening up of the groundhandling markets and the useful effect of the directive.

Williams v Advance Cleaning Services Ltd and another

Employment – Transfer of undertakings – Relevant transfer – Loss of contract – Employment tribunal concluding employee not employed in transferred undertaking – Correctness of decision.

The appeal would be dismissed.

The tribunal had not erred in law or been perverse.

The distinction drawn by the tribunal could have been more felicitously worded. However, reading the decision as a whole, their findings were clear and unappealable.

Leonard v Amey Services Ltd

Employment – Redundancy – Redundancy payment – Local government – Constructive dismissal – Effect of constructive dismissal on contractual right to redundancy payment – Effect of employee continuing to work for employer – Employment Rights Act 196, ss 136(1)(c), 139(1)(a)(i).

Section 139(1) of the Employment Rights Act 1996, so far as material, provides: ‘For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to (a) the fact that his employer has ceased or intends to cease (i) to carry on the business for the purposes of which the employee was employed by him, or … ‘

Section 136(1) of the Employment Rights Act 1996, so far as material, provides: ‘… an employee is dismissed by his employer if (and only if)…(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’

Issues arose, inter alia, as to whether, having regard to cl 11.6 of the scheme and cl 2.1 of the code, the redundancy benefits therein applied to a case of constructive dismissal, and whether the claimant had been constructively dismissed by reason of redundancy given that she had continued to work for the defendant.

The court ruled:

(1) Redundancy for the purposes of the civil service compensation scheme embraced dismissal, whether direct or constructive dismissal.

On its true construction, the word ‘compulsory’ in cl 2.1 of the scheme qualified only early retirement on grounds of structure or limited efficiency. It had been deliberately omitted where the clause related to early retirement on the grounds of redundancy. In any event, the provisions of cl 11.6 of the code made it clear that the distinction between compulsory and voluntary redundancy was not the distinction between compulsory and voluntary redundancy. Secondly, cl 11.6 expressly incorporated the statutory definition of redundancy, which, having regard to ss 136 and 139 of the 1996 Act, included constructive dismissal.

(2) Where the agreement to do work on a temporary basis arose from a redundancy situation and its termination was by reason of the employer’s failure, in the eyes of the employee, to use that time to make an offer of suitable alternative employment, then the real cause of the dismissal was the underlying redundancy situation rather than the immediate occasion for the dismissal. It followed that, in all the circumstances, the claimant had been constructively dismissed by the defendant by reason of redundancy.

To hold otherwise would undermine the entitlement to redundancy payments of employees who co-operated with their employers. Furthermore, the agreement to work on the project was a variation to the contract of employment, containing an implied term, having regard to the correspondence between the parties, that the claimant could bring the agreement to an end on reasonable notice and she had given such notice.

Thornley v Land Securities Trillium Ltd

Employment – Unfair dismissal – Constructive dismissal – Imposition of new job description – Employee contending that contract of employment fundamentally breached by changes to her duties imposed by employer – Employment tribunal upholding complaint – Correctness of decision.

The appeal would be dismissed.

In the circumstances, the tribunal was entitled to conclude as they did in relation to the changes to the employee’s duties under her contract of employment. The tribunal did not err in their construction of the employee’s contract or in concluding that by the changes proposed to her duties, the employer had evinced an intention not to be bound by her contract. The tribunal’s decision that the employee was entitled to resign and complain of constructive dismissal was one that it was entitled to reach.

No error could be detected in the way the tribunal identified the employee’s express duties under her contract of employment. Further, the tribunal’s conclusions on the evidence that there were significant changes to her duties, which would have had the effect of deskilling her as an architect, were unimpeachable. Moreover, the employee’s contract, read as a whole, did not permit the employer to change the employee’s duties to the extent and nature it proposed.

King and another v Skillbase Services Ltd

Employment – Transfer of undertakings – Relevant transfer – Activities constituting a transferable undertaking – Employment tribunal concluding activities associated with housing maintenance contract constituting an undertaking – Tribunal ruling that a branch manager not wholly or predominantly employed in that undertaking – Employment Appeal Tribunal upholding tribunal’s decision – Correctness of decision.

The appeal would be dismissed.

The tribunal had not erred in law, nor was its decision perverse.

There was no reason to suppose that it had not followed the correct approach to the question of assignment, namely to consider a wide range of circumstances. Reading the tribunal’s decision as a whole, it was apparent that the branch manager’s evidence had been taken into account. In relation to the contention of perversity, it was not possible to say that the tribunal had reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. The branch manager’s job and that of G were substantially different, and the time spent on the contract was only one of the factors which the tribunal had to consider. In all the circumstances of the instant case, the tribunal had reached a decision which they were entitled to reach.

Celtec Ltd v Astley and others (Case C-478/03)

Employment – Transfer of undertakings – Continuity of employment – Transferor’s rights and obligations arising from contract of employment or from employment relationship existing at date of transfer – Reference for preliminary ruling – Interpretation of directive – Meaning of ‘date of a transfer’ – Council Directive (EEC) 77/187, art 3(1).

In 1989, the United Kingdom transferred part of its vocational training responsibilities to private bodies managed by employers, the Training and Enterprise Councils (TECs). Under that privatisation process, civil servants from the Department of Employment were invited to put themselves forward for temporary secondment to the newly created TECs. During their secondments, those concerned retained their status as civil servants. In due course, the Department of Employment and the TECs entered into an agreement dealing with the reciprocal obligations upon a seconded civil servant electing to join a TEC permanently, in which the United Kingdom government undertook to reimburse a TEC should a court or tribunal decide, in the case of dismissal of a former civil servant, that his or her period of employment with the civil service followed by the period of employment with the TEC had to be deemed continuous for the purpose of calculating that person’s rights. The respondents were civil servants who had taken up permanent employment with the applicant TEC in 1993. In 1998, one of the respondents was dismissed by the applicant, which refused to recognise continuity of employment since the date on which she had joined the civil service. The two other respondents feared that they would be dismissed shortly, and all three therefore sought a determination by the employment tribunal as to the length of the period of continuous employment on which they were able to rely. The employment tribunal found that the respondents could rely on a continuous period of employment, running from the date of the commencement of their employment with the civil service. The Employment Appeal Tribunal subsequently allowed the applicant’s appeal against that decision (see [2001] All ER (D) 66 (Oct)). It took the view that the transfer of the undertaking in question was completed in September 1990, long before the respondents became employees of the applicant. Thereafter, the Court of Appeal quashed that decision (see [2002] All ER (D) 287 (Jul)). The applicant appealed against that judgment to the House of Lords, which stayed proceedings and referred to the Court of Justice of the European Communities for preliminary ruling the questions: (i) whether the words ‘the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer’ in art 3(1) of Council Directive (EEC) 77/187 (on the approximation of laws of the member states relating to the safeguarding of employees’ rights in the event oftransfers of undertakings, businesses or parts of businesses) were to be interpreted as meaning that there was a particular point in time at which the transfer of the undertaking or part thereof was deemed to have been completed and the transfer of rights and obligations pursuant to art 3(1) was effected; and if so (ii) how that particular point in time was to be identified; and if not (iii) how the words ‘on the date of a transfer’ in art 3(1) were to be interpreted.

The Court ruled:

(1) Article 3(1) of the directive had to be interpreted as meaning that the date of a transfer within the meaning of that provision was the date on which responsibility as employer for carrying on the business of the unit transferred moved from the transferor to the transferee. That date was a particular point in time which could not be postponed to another date at the will of the transferor or transferee.

(2) For the purposes of applying that provision, contracts of employment or employment relationships existing on the date of the transfer within the previously stated meaning of the operative part between the transferor and the workers assigned to the undertaking transferred were deemed to be handed over, on that date, from the transferor to the transferee, regardless of what had been agreed between the parties in that respect.