TRANSFER OF UNDERTAKINGSAn employee dismissed for a reason connected with a transfer of an undertaking can pursue an unfair dismissal claim, even if he or she has been continuously employed for less than two years.

This was the important and controversial ruling of the employment appeal tribunal in Milligan v Securicor Cleaning Ltd [1995] IRLR 288.The EAT based its decision on its interpretation of art 4 of the Acquired Rights Diective and stated that the issue had not previously arisen for decision.

However, in Macer v Abafast Ltd [1990] IRLR 137, Wood J said: 'It is only if the qualifying period under [the Employment Protection (Consolidation) Act 1978] can be established .

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that the employee applicant will have any remedy at all,' and a similar point was made by Tuckey J in Harrison Bowden Ltd v Bowden [1994] ICR 196.It also seems odd, as a matter of principle, that a short serving employee unfairly dismissed for a transfer-related reason should enjoy greater protection than short-serving employees dismissed without the benefit of a fair procedure in a wide range of other circumstances.

Leave to appeal against the decision in Milligan was granted, but the case has now been settled.An appeal against another surprising decision of the EAT was allowed by the Court of Session in Stirling District Council v Allan [1995] IRLR 30.

The court held that the Transfer of Undertakings (Protection of Employment) Regulations 1981 provide unambiguously that the rights of an employee unfairly dismissed in connection with a transfer of an undertaking lie solely against the transferee rather than against the original employer.

Any other interpretation of the 1981 regulations is inconsistent with the Acquired Rights Directive.An increasingly common question associated with the transfer of undertakings concerns the position of employees who do not work exclusively in the part transferred.

In Michael Peters Ltd v Farnfield and Michael Peters Group plc [1995] IRLR 190, the EAT applied the test enunciated by the European Court of Justice in Botzen v Rotterdamsche Droogdok Maatschappij BV [1986] 2 CMLR 50: whether the employee was assigned to the part-undertaking transferred.

The Botzen test was also applied in Sunley Turriff Holdings Ltd v Thomson and others [1995] IRLR 184.

In that case, the EAT held that an employee's employment automatically transferred to the appellants when they purchased a business from receivers, since he was employed in the past-undertaking transferred on the day on which the transfer took place.CONTRACTS OF EMPLOYMENTAn employer is 'entitled to expect an employee not to compete with him for contracts with the employer's existing customers', according to the EAT in Adamson v B&L Cleaning Services Ltd [1995] IRLR 193.

A foreman working on a lucrative contract which was due for renewal told his employers that he had asked for his name to be put on the client's tender list.

He refused to sign an undertaking not to seek to obtain, by competitive tendering or otherwise, any contract in his employer's line of business while his job lasted.

His dismissal was held to be fair: he had breached the implied contractual duty to give faithful service to his employer.

Laughton v Bapp Industr ial Supplies Ltd [1986] IRLR 245, was distinguishable: in that case, preparing to set up in competition with the employer in the future was held not in itself to breach a contract.In Euro Brokers Ltd v Rabey [1995] IRLR 206, the High Court granted an interlocutory injunction restraining a money-broker from working for a competing business until trial of his employers' action to enforce their right under his contract of employment to require him to remain on 'garden leave' for six months following his resignation without due notice, rather than the three months that he had offered.

On the facts, the employers had a real customer connection which required to be protected.The Court of Appeal's decision in Malik v BCCI (in liquidation) [1995] The Times, 12 April, is worth noting.

In Addis v Gramophone Co [1909] AC 483, the House of Lords ruled that damages for wrongful dismissal cannot include amounts reflecting the manner of dismissal.

In Malik, the plaintiffs argued that Addis does not apply in the case of a breach of the implied duty of trust and respect during employment.The Court of Appeal held that to accept that argument would, in practice, be to negate Addis.

The court did accept, however, that the authorities already recognise exceptional cases, in circumstances where the nature of the contract provides a particular status or opportunity, eg for an actor to play a particular role.It is a mistake to assume that cases such as Wickens v Champion Employment [1984] ICR 365, establish a general proposition that a worker whose services are supplied by an employment business to a third party client on a temporary basis does not have a contract of employment with the employment business or with its client.This important point was made by the EAT in McMeechan v Secretary of State for Employment [1995] ICR 444.

It is necessary to consider all the terms of the contract in question, rather than blindly to follow the result of earlier judicial decisions on different contracts.INDUSTRIAL TRIBUNALS AND THE EATIn Drinkwater Sabey Ltd v Burnett and another [1995] IRLR 238, the EAT in England followed the EAT in Scotland in Gillick v BP Chemicals Ltd [1993] IRLR 437, and held that the addition of a party to proceedings is a matter of discretion for the industrial tribunal, even where the time limit for an application against that party has expired.An industrial tribunal does not have the power to make an order that members of the public, apart from witnesses, would be excluded from the hearing of the case in circumstances where the tribunal considers that the evidence to be given would be of a sensitive or salacious nature: R v Southampton Industrial Tribunal ex parte INS News Group Ltd and Express Newspapers plc [1995] IRLR 247.

Brooke J said that in cases where the press or news media had disobeyed a clear restricted reporting order, 'there can be no question .

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that -- and the time may well be coming soon -- the courts will be making severe exemplary orders against representatives of the media in cases where there has been a breach of clear orders.'The Queen's Bench Divisional Court has also recently ruled in Peach Grey & Co v Sommers [1995] The Times, 16 February, that it has jurisdiction to punish contempt of an industrial tribunal, since the tribunal is an inferior court within ord 52, r 1(2)(iii) of the Rules of the Supreme Court.

United Arab Emirates v Abdelghafar [1995] IRLR 243, provides useful practical guidance on how the EAT should approach a decision whether to exercise its discretion to extend the 42-day time limit for appealing against the decision of an industrial tribunal.

It should ask: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? and (c) Are there circumstances which justify the tribunal taking the exceptional step of granting an extension of time?REDUNDANCYThose concerned with the conduct of large-scale redundancy exercises should note British Aerospace v Green [1995] The Times, 18 April.

Employees selected for redundancy because they achieved low marks in a grading process sought in unfair dismissal proceedings the discovery of the assessment forms of those employees who were not made redundant.The Court of Appeal refused to grant discovery and Stuart-Smith LJ said that in his opinion, in cases of mass redundancy, it would be only in rare and exceptional cases that the assessment forms of other employees who were not made redundant were relevant.

That was because the tribunal was not considering whether those employees were unfairly not made redundant, but whether the applicant was unfairly dismissed.In Rowell v Hubbard Group Services Ltd [1995] IRLR 195, employees were sent a letter in mid October, warning them of impending redundancies and setting out the selection criteria.

In mid November, the employee received a further letter saying that she was to be made redundant, reiterating the criteria and giving details of the compensation.

That letter said that any matters arising could be discussed with management.The EAT held that this was unfair: the obligation to consult is distinct from the obligation to warn.

Consultation must be fair, genuine and should be conducted while proposals are at a formative stage and with any views expressed being considered properly and genuinely.EQUAL OPPORTUNITIESIn Meade-Hill v British Council [1995] The Times, 14 April, a majority of the Court of Appeal held that a clause in the contract of employment of a British Council employee that she should serve in such parts of the UK as the Council might require was unlawful discrimination within ss 1(1)(b) and 6(1) of the Sex Discrimination Act 1975, unless the employer could justify the requirement in the clause, irrespective of the sex of the person to whom it was applied.Millett LJ said, however, that this did not mean that the employee 'had won a great and glorious victory': all the employers had to justify was their need to be in a position, if circumstances required at any time in the future, to direct an employee of her grade to work elsewhere in the UK, even if he or she could not in practice comply.

Moreover, even if the mobility clause could not be justified in its present form, its objectionable aspects would disappear if it were modified in a relatively minor respect so that compliance could not be required from an employee who was unable to comply with it in practice.OTHER DEVELOPMENTSThe government has published proposals as to how employment legislation should be amended in order to implement the European Community v United Kingdom [1994] ICR 664, with regard to the right of employees to have their representatives consulted by their employers in the context of collective redundancies or a transfer of undertaking.

The government proposes a minimalist approach: the legislation should be changed so as to 'require an employer to consult, at his choice, either a recognised independent trade union or elected representatives of the affected employees'.The means by which elected representatives should be elected are not specified, and although the right to complain to an industrial tribunal about a failure to consult with be extended to elected representatives, it will be a defence for an employer to show that he consulted with a trade union where the complaint is brought by the elected representatives, or vice versa.The government also proposes to restrict the requirement to consult with trade unions or elected representatives to circumstances where the employer proposes to dismiss 20 or more employees as redundant over a 90 day period.The Equal Opportunities Commission has published a draft code of practice on equal pay which sets out guidance for those concerned with pay arrangements.

A suggested equal pay policy is set out in an annex and comments are sought by 6 October 1995.