OCO Mechanical Engineers Ltd v Bissett & Ors

EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 1 November 1998 Before

MR JUSTICE MORISON (PRESIDENT): This is an appeal by OCO Heating and Mechanical Engineers Ltd who I will refer to (as "OCO") from a decision of a Tribunal sitting at London (South), which held that the contract of employment of Messrs Bissett, Harden and Murphy, to whom I shall refer as the Applicants, transferred from Ellis Tylin Benham Ltd, who I will call ("ETB") to OCO as of the 1 May 1995 in accordance with the provisions of the Transfers of Undertakings (Protection of Employment) Regulations 1981 which I shall refer to as the ("Regulations").

Briefly the facts may be summarised in this way. The City of Westminster Council (the "Council") divided up its mechanical and electrical work in relation to residential properties into three areas, A, B and C. The ETB was responsible for the M&E work in areas A and B, the Council's own Direct Services Organisation was responsible for the work performed in area C. In relation to the non-residential work, ETB did the M&E work north of Oxford Street and the Direct Services Organisation performed the work of that type South of Oxford Street.

As part of the process of reorganisation, the Council put the M&E work for the areas A, B and C out to competitive tender, but no longer as the three previous areas, but as eight contract areas with individual contracts within each area. The Council was of the view that the activity which it was carrying out would render the Regulations applicable and accordingly informed those companies who were tendering for the work of this belief.

The M&E work for the eight new contract areas was successfully tendered for by three companies. OCO, Goddard Building Limited ("Goddard") and Seaflame Limited ("Seaflame"). ETB failed to win any of the contracts put out to tender, and accordingly it was their view that its workforce should be transferred proportionately to the three new contractors.