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ECM appeal rejected by Mike Jewell • ECM (Vehicle Delivery

18th June 1998, Page 12
18th June 1998
Page 12
Page 12, 18th June 1998 — ECM appeal rejected by Mike Jewell • ECM (Vehicle Delivery
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Service) unfairly dismissed 24 drivers and yardmen by refusing to employ them after taking over a contract for the carriage of VAG vehicles from Grimsbybased Axial.

Dismissing an appeal by the company against the ruling of a Hull Industrial Tribunal, the Employment Appeals Tribunal made it plain that the 1981 Transfer of Undertakings Regulations cannot be avoided by refusing to employ the workforce when a contract is taken over from a competitor.

Axial lost the VAG contract to ECM in 1993 and ECM decided not to employ any of the ex-Axial workers. The industrial tribunal found that, if there had been no contract, the drivers and yardmen would have not had any jobs: it was that feature that distinguished the case from a mere loss of a customer.

The tribunal was satisfied that an under taking had been trans ferred from Axial to ECM.

For ECM, Patrick Elias QC argued that all that had been transferred was a particular activity so there was no basis for saying that there had been a transfer of an undertaking for the purposes of the TUPE regulations.

But Mr Justice Morrison ruled that it would not be proper for a transferee to be able to control the extent of his obligations by refusing to comply with them in the first place.

He said the continued employment of the 24 men was contingent upon the continued existence of the contract.

He ruled that the industrial tribunal had correctly drawn the distinction between the transfer of an activity and the transfer of an undertaking, and between the loss of a customer and the loss of a business.


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