South Durham Health Authority v Unison

Factual and Procedural Background

The Appellee, a recognised independent Trade Union, challenged the Appellant, a Health Authority, alleging breach of the duty to inform and consult under Regulation 10 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("the 1981 Regulations") and Article 6 of the Acquired Rights Directive EC/77/187. The dispute arose from the proposed creation of an NHS Trust at a hospital, effective 1st April 1994. The Health Authority provided some information to union representatives on 7th February 1994. The Appellee responded on 24th February 1994, requesting further information urgently to comply with statutory consultation obligations. The Health Authority replied on 11th March 1994, providing additional information and proposing a meeting to discuss remaining issues. On 16th March 1994, the Appellee filed a complaint with the Industrial Tribunal alleging failure to inform and consult sufficiently in good time before the transfer.

The Health Authority denied the allegations and, initially, did not dispute jurisdiction. However, approximately two weeks before the Industrial Tribunal hearing in August 1994, the Health Authority amended its Notice of Appearance to raise a jurisdictional objection, contending that the complaint was premature as it was presented before the relevant transfer date of 1st April 1994. The Industrial Tribunal rejected this objection and held that it had jurisdiction to hear the complaint. The Health Authority appealed this decision.

Legal Issues Presented

1. Whether the Industrial Tribunal had jurisdiction to consider a complaint presented before the completion of the relevant transfer under Regulation 11(8) of the 1981 Regulations.
2. Whether Regulation 11(8) should be interpreted as permitting complaints only on or after the date of the transfer, or whether complaints presented before the transfer date can be validly entertained.
3. Whether the complaint was premature and thus outside the Tribunal’s jurisdiction.

Arguments of the Parties

Appellant's Arguments

• Regulation 11(8) permits presentation of a complaint only on or after the date the relevant transfer is completed; thus, the complaint filed before the transfer was premature.
• The Industrial Tribunal erred by failing to apply interpretations consistent with earlier case law on similarly worded statutory provisions concerning premature applications for redundancy payments.
• Reference to cases such as P J Watts v. Rubery Owen Conveyancer Ltd and Pritchard-Rhodes Ltd v. Boon established that applications made before the triggering event (e.g., termination) are premature and outside jurisdiction.
• Comparison to Section 67 of the Employment Protection (Consolidation) Act 1978 shows that complaints cannot be presented before the effective date of termination unless specifically allowed.
• The Industrial Tribunal’s reliance on obiter comments from Banking Insurance & Finance Union v. Barclays Bank Plc was misplaced and per incuriam.

Appellee's Arguments

• The duty to inform and consult under Regulation 10 arises well before the transfer date, and the complaint concerns failure to consult "long enough before" the transfer.
• Regulation 11(8) only specifies an end date for presenting complaints (three months after transfer), not a start date, so complaints before transfer are not precluded.
• Literal interpretation of Regulation 11(8) would leave no remedy where an employer fails to consult and the transfer is delayed or does not occur, which would be contrary to the purpose of the Regulations and Directive.
• The complaint was made while the alleged failure to consult was ongoing, and thus the complaint was not premature.
• Regulation 11(8) should be given a purposive construction to effectively implement the Directive’s requirements for prior information and consultation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that prematurity may bar proceedings, but only where no cause of action exists or no real threat of infringement is present. It emphasized that the 1981 Regulations impose a duty to inform and consult well before the transfer date. Regulation 11(8) was interpreted as a limitation provision specifying only the final date by which complaints must be presented (three months after transfer), not a provision that restricts when complaints may commence.

The court distinguished the present case from redundancy payment cases, where no cause of action arises until after termination, making early complaints premature. Here, the complaint concerned ongoing failures to consult prior to the transfer, meaning there was a present grievance at the time of filing.

The court rejected the Appellant's argument that complaints must await the transfer date, reasoning that such an interpretation would leave no remedy for failures to consult before transfer or in cases where transfers are delayed or do not occur. The court found the Industrial Tribunal’s approach consistent with the purpose of the Regulations and the Directive.

The court also noted that the Appellant's reliance on obiter comments from previous cases was misplaced and that the Tribunal’s reasoning was sound.

Holding and Implications

The court DISMISSED the appeal, affirming the Industrial Tribunal's jurisdiction to hear complaints presented before the completion of the relevant transfer under Regulation 11(8) of the 1981 Regulations.

The direct effect is that complaints alleging failure to inform and consult under these Regulations may be validly presented before the transfer actually takes place, provided they are within the prescribed limitation period after transfer. No new precedent was established beyond confirming the interpretation of the relevant Regulation in context. The decision clarifies that the duty to consult arises well before transfer and that the Tribunal may entertain complaints concerning ongoing consultation failures during that period.

Additionally, the court ordered the Appellant to pay the costs of the appeal, finding the appeal unreasonable and unnecessary, as the issue had been properly decided by the Tribunal and further appeal was unwarranted.