Birch & Ors v Nuneaton And Bedworth Borough Council & Anor [1995] UKEAT 1083_93_2106 (21 June 1995)

Birch & Ors v Nuneaton And Bedworth Borough Council & Anor [1995] UKEAT 1083_93_2106 (21 June 1995)

The Industrial Tribunal erred in law by applying an incorrect test for 'commercial venture' and by concluding there was no relevant transfer; the correct approach requires examining all circumstances to determine if the undertaking is in the nature of a commercial venture, and on the facts, there was a relevant transfer of part of the undertaking to SLM.

Citation
[1995] UKEAT 1083_93_2106
Parties
Appellants: Mrs Birch and 37 others; 1st Respondent: Nuneaton and Bedworth Borough Council; 2nd Respondent: Sports and Leisure Management Ltd (SLM)
Jurisdiction
United Kingdom
Judgment Date
21 June 1995
Procedural Posture
Employment Appeal / Appeal From Industrial Tribunal on Preliminary Issue
Outcome
Appeal allowed; matter remitted to a different Tribunal for rehearing on the 'commercial venture' issue.
Legal Topics
Transfer of Undertakings, Unfair Dismissal, Acquired Rights Directive, Interpretation of 'commercial Venture', Compulsory Competitive Tendering
Employment Law European Union Law Local Government Law Transfer of Undertakings Unfair Dismissal Acquired Rights Directive Interpretation of 'commercial Venture' Compulsory Competitive Tendering

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Parties

Mrs Birch and 37 others

Appellants

Nuneaton and Bedworth Borough Council

1st Respondent

Sports and Leisure Management Ltd (SLM)

2nd Respondent

Procedural Posture

Employment Appeal / Appeal From Industrial Tribunal on Preliminary Issue

Legal Issues

  1. 1 Whether the Council's leisure services were 'in the nature of a commercial venture' under the Transfer of Undertakings (Protection of Employment) Regulations 1981
  2. 2 Whether there was a relevant transfer of an undertaking to SLM

Ratio Decidendi

The Industrial Tribunal erred in law by applying an incorrect test for 'commercial venture' and by concluding there was no relevant transfer; the correct approach requires examining all circumstances to determine if the undertaking is in the nature of a commercial venture, and on the facts, there was a relevant transfer of part of the undertaking to SLM.

Court Disposition

Appeal allowed; matter remitted to a different Tribunal for rehearing on the 'commercial venture' issue.

Orders

  • Remit to a different Industrial Tribunal to determine whether the relevant undertaking was 'in the nature of a commercial venture'.
  • Each party granted leave to adduce further evidence and submissions on that issue.