Recent Posts - TUPE

November 17, 2014
by Jeffrey
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Vernon v Azure Support Services Ltd EAT – 11 November 2014

The Issue

This case raised issues both of an employer’s liability for statutory torts committed before a TUPE transfer and the time limits for bringing claims where the act predates the transfer. (The case also raises other issues not considered here.)

The Facts

V was employed by R2 (‘Port Vale FC’). V’s employment was then transferred under TUPE to R1 (‘Azure’). R3 (‘B’) was also employed by Port Vale FC, but he was not the subject of any TUPE transfer, and worked throughout at the same location as V. B harassed V before and after the TUPE transfer. The ET held that Port Vale FC was vicariously liable for B’s acts whilst V was employed by it.

The ET held that V could not recover from Azure in respect of B’s harassment before the transfer of her employment to Azure.

The EAT Judgment

All parties before the EAT accepted that, as a matter of lawthat Reg 4(2) transferred Port Vale FC’s liability for harassment to Azure.

However, Azure continued to assert a time limit defence. Under the Equality Act 2010, s. 123, proceedings must be brought within 3 months of the date of the act to which the complaint relates, or such other period as the ET thinks just and equitable. R1’s argument was that the position was analogous to the rule under the Equal Pay Act 1970, s. 2(4) (See Sodexho v Gutridge), which meant that V’s pre-transfer claims had to be brought within 3 months of the transfer because the “continuing nature of B’s conduct was stopped in its tracks by the transfer”.

The EAT dismissed this argument. The limitation regime for equal pay claims is very different to discrimination or harassment claims. When time started to run was not determined by when the employment of V ended. Where the conduct complained of constitutes a continuing act which extends after the transfer, as in this case, time does not start to run in respect of pre-transfer harassment until the continuing act ends. Azure was therefore liable for the pre-transfer harassment.

Link to judgment

Comment

The interesting point in this case is that the employee could not bring a claim against the transferee for harassment she continued to suffer after the transfer because the harasser was not employed by the transferee. But that fact did not stop time running. It is not difficult to imagine a case where the transferee has no knowledge of, or control over, continuing harassment but nevertheless will be held liable for pre-transfer harassment a long time after the transfer if that harassment has continued.

November 17, 2014
by Jeffrey
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LLDY Alexandria Ltd v Unite EAT – 30 April 2014

The Issue

Reg 13(2) requires that the employer should inform and consult ‘long enough before’ the transfer. This case concerns the meaning of ‘long enough before’.

The Facts

LLDY operates a distillery. It was engaged in a dispute with employees over pay. Unite negotiated a 3% pay increase, which was put to its members in a ballot, and rejected. The Unite representative gave evidence to the ET that the MD LLDY had threatened to subcontract the work if the offer was rejected. The ET accepted this evidence.

A few weeks later LLDY decided to outsource its spirit handling work to the Peopleforwork Ltd.

LLDY’s reasons for the transfer were provided by letter to employees 10 business days before the transfer. The letter did not mention the pay dispute as a reason. LLDY held a meeting about the transfer with trade union representatives 48 hours before the respondent was to close down for the weekend, with the transfer taking place the following Monday.

Unite sought a declaration that the respondents failed in their duty to inform and consult in contravention of Reg 13(2) because the reasons were incomplete and the employees were provided with insufficient time for effective consultation. The ET made the declaration. LLDY appealed to the EAT.

Judgment of the EAT

The EAT noted that the ET had held that the refusal to accept the pay increase was one of the reasons for the transfer. This was a decision of fact which the ET was entitled to make. If it was a reason, Reg 13(2) required as it was ‘information’ it should have been mentioned to the employees. The letter to employees referred to costs savings, but it did not refer specifically to the refusal of the pay offer. The EAT noted that it would have been a simple matter for LLDY to have been plain that the pay dispute was a reason.

There was no duty on LLDY to consult in relation to Reg 13(6) because it did not envisage that it would “take measures” in relation to an affected employees. However, the EAT held that, in accordance with Cable Realisation Limited v GMB (2010), LLDY had a duty to provide information long enough before the transfer to allow consultation. This did not mean that the information in Reg 13(2) had to be provided at a formative stage. The obligation is only to provide the information “long enough before” the transfer to allow consultation to take place. The ET was entitled to find that, on these facts, this was not sufficient time to allow for consultation.

Link to Judgment

November 7, 2014
by Jeffrey
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Osterreichischer Gewerkeschftbund v Wirtschaftskammer Osterreich CJEU – 11 September 2014

The Issue

The scope of Art 3(3) of the Directive which is concerned with the rights under collective agreements following a transfer

The Facts

The Austrian Chamber of Commerce (ACC) responsible for transport had entered two collective agreements on behalf of Austrian Airlines with the Austrian Confederation of Trade Unions (‘the TU’) One collective agreement was with the parent company and one was with a subsidiary company. The terms of the collective agreement with the subsidiary were inferior to those of the collective agreement with the parent.

On 30 April 2012 the parent company transferred its operations to the subsidiary. This was a transfer to which the Austrian equivalent of TUPE and the Directive applied. The aim was to reduce costs by making employees subject to the terms of the collective agreement with the subsidiary.

The relevant part of Austrian law provided that the terms of a collective would continue after termination in respect of employment relationships existing immediately before termination unless a new collective agreement came into effect in respect of the employment relationships or a new agreement was concluded with the employees.

On the date of transfer the ACC rescinded the parent company collective agreement and the TU rescinded the subsidiary company collective agreement. The subsidiary then unilaterally imposed its own terms and conditions on the transferred employees which reduced some employees’ salaries by as much as 50 per cent.

The ACC’s case was the provisions under Austrian law that provided for the continuation of the effect of a collective agreement after its termination did not apply on transfer because the provisions relating to transfer of collective agreements in Austrian law did not apply to agreements that had been terminated and nor did Art 3(3).

The TU’s case was that as there was no longer in force a collective agreement the terms of the collective agreement with the parent company remained in force and it argued that this was consistent with Art 3(3) which provides:

Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

The Austrian labour court referred to the CJEU for a preliminary ruling the question of whether Art 3(3) should be interpreted to cover terms and conditions in a collective agreement which have continuing effect under national law even though the collective agreement has been terminated. The ACC submitted the case was inadmissible because it concerned an issue of national law only.

Judgment of the CJEU

The CJEU applied a purposive construction to Art 3(3) and held that

“Article 3(3) …must be interpreted as meaning that the terms and conditions laid down in a collective agreement, which, pursuant to the law of a Member State, despite the rescission of that agreement, continue to produce their effects as regards the employment relationship which was governed by them before the agreement was terminated, constitute ‘terms and conditions agreed in any collective agreement’ so long as that employment relationship is not subject to a new collective agreement or a new individual agreement is not concluded with the employees concerned.”

In reaching this conclusion the CJEU made a number of observations about the purpose of Art 3(3):

(i) The Directive is intended to achieve only partial harmonisation in this area, essentially by extending the protection guaranteed to workers independently by the laws of the individual Member States to cover the case where an undertaking is transferred. It is not, however, intended to establish a uniform level of protection throughout the Community on the basis of common criteria.

(ii) Art 3(3) of Directive not intended to maintain the application of a collective agreement as such but to maintain the ‘terms and conditions’ put into place by such an agreement. This requires the terms and conditions put in place by a collective agreement to continue to be observed, without the specific origin of their application being decisive.

(iii) It follows that the terms and conditions put in place by a collective agreement fall within, in principle, the scope of Art 3(3) irrespective of the method used to make those terms and conditions applicable to the persons concerned.

(iv) Accordingly, terms and conditions laid down in a collective agreement cannot be regarded as being excluded from the scope of that provision on the sole ground that they apply to the persons concerned by virtue of a rule maintaining the effects of a collective agreement

(v) The objective pursued is to prevent workers subject to a transfer from being placed in a less favourable position solely as a result of the transfer.

(vi) The rule maintaining the effects of a collective agreement is intended, in the interests of the employees, to avoid a sudden rupture of the standard framework of the agreement governing the employment relationship. If the terms and conditions subject to that rule were excluded from the scope Art 3(3) the transfer alone would have the effect which that rule seeks to avoid.

(v) In addition, that interpretation complies with the objective the Directive which is to ensure a fair balance between the interests of the employees, on the one hand, and those of the transferee, on the other and from which it is clear that the transferee must be in a position to make the adjustments and changes necessary to carry on its operations (see, to that effect, judgment in Alemo-Herron and Others, C‑426/11, EU:C:2013:521, paragraph 25).

Comment

The law relating to collective agreements in the UK is different from Austrian law. There is no statutory provision which has the effect of continuing the terms of a collective agreement followings its termination. (Although Reg 5 of TUPE substitutes the transferor for the transferee as the party to the collective agreement it does not have any effect if the collective agreement is terminated.) However, where the terms of the collective agreement are incorporated, as they often are, into individual employment contracts then the result is that they continue in force following the transfer whether or not the collective agreement is still in force.

Judgment of the CJEU

Opinion of the Advocate General

October 23, 2014
by Jeffrey
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Amatori v Telecom Italia SpA CJEU – 6 March 2014

Facts

Telecom Italia carried out an internal reorganisation, and created an IT Operations Section. 10 weeks later, Telecom Italia transferred that section to its subsidiary TIIT. The applicant employees brought proceedings for a declaration notwithstanding the purported transfer they continued to be employed by Telecom Italia. They argued that; firstly, before the “transfer”, the IT Operations Section had not constituted a functionally autonomous entity. Secondly, the overriding power exercised by the parent Telecom Italia prevented the change being classified as a transfer of an undertaking.

The Issue

The District Court in Trento referred two questions for CJEU.

As regards the “transfer of a part of a business”, does Art. 1(1)(a) and (b) of Directive 2001/23, read in conjunction with Art. 3(1) precludes a rule of national law, which permits the transferee to take over employment relationships of the transferor, without employee consent, where:

The business transferred is not a functionally autonomous economic entity already existing before the transfer (this was permitted under Italian law)?
After the transfer, the transferor exercises extensive and overriding powers of the transferee?

CJEU Judgment

The CJEU answered “no” to both questions.

The use of the word ‘preserved’ in the first and fourth subparagraphs of Art. 6(1) meant that the autonomy of the entity must, as a matter of EU law, exist before the transfer. However, the objective of the Directive at Recital 3 combined with Art. 8 reserve a right for Member States to introduce laws more favourable to employees. Thus, “the mere lack of functional autonomy of the entity transferred cannot, in itself, prevent a Member State from ensuring in its national law for the safeguarding of employees’ rights after the change of employer”. The Directive achieves only “partial harmonisation”. Member States are therefore free to enact more generous protection.

There is nothing in the Directive that contemplates that its application is conditional on the autonomy of the transferee vis-à-vis the transferor. The Directive can apply to a transfer between subsidiaries or parent and subsidiary. The CJEU observed that any other interpretation would allow the Directive “to be circumvented with ease” (Klarenberg [2009] ECR I-803, para 40).

Comment

In English law, the first question is unlikely to have any direct impact, since the economic entity must exist before the transfer. The CJEU’s robust answer to the second question closes off any idea of a “loophole” in respect of transfers between subsidiaries, and demonstrates the CJEU’s teleological approach to interpretation of the Directive.

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September 5, 2014
by Jeffrey
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Ejiofor t/a Mitchell & Co Solicitors v Sullivan EAT – 22 May 2014

The issue here is whether the contract of a person employed by a business operating unlawfully can transfer when that business is acquired by another.

The Facts

the Claimant worked for Aaronson & Co, a solicitors firm. The principle of Aaronson, Mr Aaronson was struck off the solicitors roll in 2010 and he made arrangements to continue the firm and supervise staff which did not comply with the solicitor’s regulatory regime. It was held by the ET that Aaronson & Co continued to trade, albeit in an unorthodox manner and outside of the regulatory requirements applicable to solicitors.

In March 2011 Mitchell & Co entered into arrangements with Mr Aaronson which the ET found involved the staff of Aarons transferring to Mitchell and Co. On transfer the entity retained its identity, it operated exactly the same before. Further, after the transfer the staff, client files operating functions and the service to the public remained the same. The premises were taken over by Mitchell & Co. C’s salary was unilaterally reduced and when she refused to accept this she was dismissed.

The EAT judgment

Mitchell & Co appealed on the facts but also raised the point that there could be no transfer because Aaronson & Co was operating illegally. The EAT held that whilst the undertaking had to be a legal one – it could not be one that was for an unlawful purpose such as drug dealing or money laundering – it was not essential that all activities had to be entirely lawful. Here the operation of a solicitors practice was entirely lawful; the fact that certain activities carried out from time to time may not have fulfilled regulatory requirements and were therefore unlawful did not mean that it was operated for an unlawful purpose.

Link to Judgment

September 5, 2014
by Jeffrey
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Costain Ltd v Armitage EAT – 2 July 2014

This another case emphasising the need in a Reg 3(1)(b) Service Provision Change (SPC) case for the ET to clearly define the ‘organised grouping’ of employees required by Reg 3(3) and to determine whether the Claimant has been assigned to that organised grouping for the purposes of Reg 4.

The Facts

ERH had a contract for provision of services for the Welsh Assembly relating to highway maintenance known as AWRMC. This provided a guaranteed income stream. It also had an ancillary contract which, unlike the maintenance contract, was a framework agreement that guaranteed no work. Costain won the AWRMC contract with effect from 1 February 2013. The ancillary contract did not transfer. Costain accepted there was an SPC; the issue was whether there was an organised grouping of employees and whether Claimant, a project manager, was assigned to the organised grouping.

The ET held that there was an organised grouping by reference to the requirements of the AWRMC contract. He held that the Claimant was assigned to that organised grouping as he spent approximately 67% of his time on AWMRC (although that also included holiday and sickness absence).

The EAT Judgment

Costain appealed , principally on the ground that the Judge had concentrated too much on percentages and had not applied the correct legal test. This was because he had not defined the organised grouping of employees and had not therefore determined whether the Claimant was assigned to that organised grouping.

The EAT agreed and was critical of the ET’s reasoning. HHJ Eady QC restated the fundamental principles relating to assignment:

(1) The tribunal is required to define the organised grouping (Reg 3(3)(a)(i)) and then, in light of that finding, determine whether the claimant is assigned to it (Reg 4) (Eddie Stobart v Moreman).

(2) The concept of an organised grouping implies an element of conscious organisation by the employer of his employees in the nature of a team which has as its principal purpose the carrying out of the activities in question. This must be deliberate and not happenstance (Seawell Ltd v Ceva Freight (UK) Ltd and Eddie Stobart).

(3) Assignment is a question of fact. Not every employee carrying out work for the relevant client will be assigned to the organised grouping. (Edinburgh Home-Link Partnership v The City of Edinburgh Council). Whether there was an assignment required a proper examination of the facts. Being involved in the activities immediately before the transfer does not necessarily mean there has been an assignment (Argyll Coastal Services Ltd v Stirling).

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September 5, 2014
by Jeffrey
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Alhco Group Ltd v Griffin EAT – 10 July 2014

This is a Service Provision Change Case (SPC). At issue was:

(i) Whether the same activities that were being performed by the transferor continued to be performed by the transferee and, if they did;

(ii) Whether the Claimants were assigned to an organised grouping undertaking the relevant work.

The Facts

MJT had a contract with Taunton Deane BC (the Council) to inspect, maintain and repair the gas installations in the Council’s housing stock. The ET found that there were three aspects to the work undertaken by MJT: (i) Repeat Servicing work – maintenance and servicing of heating systems within the contract; (ii) Repeat Installation work – replacing or upgrading existing systems. This work was subject to a schedule or rates and whilst there was no guarantee of the work if MJT quoted within the schedule they would be given it, and; (iii) New Installation work – this was one off project work for which the Council tendered separately.

In April 2012 MJT lost the contract to Alhco (A). Some of MJT’s staff transferred to A others did not. A’s case was that it was only contracted to undertake the Repeat Maintenance work and there was no guarantee it would secure the Repeat Installation work that MJT had previously undertaken. Similarly, as the New Installation work was the subject of separate tendering arrangements there was no guarantee of this work.

The ET judgment

The ET held:

(i) That the activities which formed the Repeat Servicing and the Repeat Installation work had transferred but that which formed the New Installation work had not. The ET’s reason for finding the Repeat installation work had transferred was that, as a matter of fact, after the transfer, A had continued to undertake the same Repeat Installation work as MJT had previously undertaken in accordance with the agreed schedule of rates.

(ii) That the Council contract was MJT’s most important contract and the largest aspect of its business. MJT had an organised grouping that carried out the Council’s work and the claimants were assigned to that organised grouping of employees (Reg 4(1))

The EAT judgment

A appealed against the finding that the Repeat Installation work had transferred on the ground that the ET had looked at what had happened ‘on the ground’ rather than examining the contractual obligations and the position immediately before the transfer. This was a similar, if not identical, argument as that which was advanced in Lorne Stewart plc v Hyde. It failed for the same reasons.

It is not essential, or even necessary, that the activities that transfer have to be covered by the contract. Activities may transfer if they are being undertaken by the transferor immediately before the transfer even if they are outwith the contractual arrangements. In fact here the same arrangements were in place in the contractual documents before and after the transfer albeit that they were more explicit after the transfer. The ET was entitled to look at the position on the ground both immediately before and immediately after the contract.

A also appealed on the ground that ET: Failed to identify the extent of the organised grouping; failed to indicate how it was organised, or; why each of the Claimants was assigned to it. The EJ had failed to apply the requirements of the Eddie Stobart case to identify whether there was in fact any group at all and, if there was, whether the grouping had in fact been organised or whether it had arisen by happenstance. The EAT agreed – the ET had simply failed to adequately explain the reasons for the finding that there was an organised grouping of employees who were assigned as well as how that organised grouping was organised or became separately identifiable.

The case was remitted to the ET.

Comment

The key issues arising out of this case are: (i) it is necessary to look at the position on the ground to see if activities are fundamentally the same before and after the contract and (ii) it is necessary to identify an organised grouping of employees who are assigned to the organised grouping.

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August 22, 2014
by Jeffrey
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Cetinsoy v London United Busways Limited EAT – 23 May 2014

This is another case concerned with a transferee employer requiring bus drivers to change their base depot from the place it was before the transfer to another location after the transfer.

In Musse v Abiello London Limited it was held that a move from Westborne Park to Battersea (an additional 2 hour commute per day) was a substantial change in the drivers’ working conditions to their material detriment such as to amount to a dismissal under Reg 4(9). By contrast here the drivers were required to move from Westbourne Park to Stamford Brook a distance of 3.5 miles (or an addition 30 minute to 1 hour drive per day). The ET held this was not a substantial change in working conditions and nor was it a fundamental breach of contract entitling the drivers to resign.

The EAT Judgment

Langstaff P held:

1. Whether or not a change in working conditions was substantial or a breach of contract fundamental was a question of fact for the tribunal. No surprise there.

2. That where the breach of contract and change in working conditions concern the same issue then the outcome will be the same in both cases. If the change is substantial it will also be a fundamental breach of contract . By contrast if the change is not substantial then it will also not be a fundamental breach of contract (§21).

Comment

The attempt to rely Musse case as a precedent that any change in work location must amount to a substantial change in working conditions to the employee’s detriment failed. This case does not of course address the issue of whether there can be a substantial change in working conditions which is not a breach of contract

Link to Judgment

August 7, 2014
by Jeffrey
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Housing Maintenance Solutions Ltd v McAteer EAT – 1 August 2014

In some cases the date of the transfer can be of crucial importance. This is one such case. If the date of the transfer was the date that the employees relied on, it exposed the transferee to a very substantial claim for unlawful deductions from wages and protective awards for approximately 200 employees. By contrast such a claim would be substantially reduced if the later date contended for by the transferee was to the correct date.

The Facts

LMH is a housing association managing 15,000 homes. It engaged Kinetic to undertake the repair and maintenance of its housing stock. By 2011 LMH was becoming concerned that Kinetic was in financial difficulty and may unable to perform the contract. It drew up a plan to create a wholly owned subsidiary, HMS, to take over the work undertaken by Kinetic. The 1 July 2011 was the target date by for HMS to be position to do so. On 8 June 2011 LMH served notice on Kinetic under the contract. The following day Kinetic went into administration and administrators sent home the employees as there was no money to pay them. HMS was not at that point operational but it needed the Kinetic staff to undertake the work when it did become operational. HMS consulted with the unions and reassured the Kinetic employees that it would employ them from the 1 July. A small management team commenced working for HMS on the 15 June, cleaning staff transferred on the 20 June but the remaining repair and maintenance employees were not employed by HMS until 1 July 2011.

At issue was the date of the transfer – was it 9 June 2011 or was it 1 July 2011?

The ET Judgment

The ET held that HMS ‘accepted responsibility’ for the employees from 9 June 2011 albeit that it did not pay them until 1 July. It accepted responsibility by its continued consultation and reassurance and by its engagement of the small management team followed by the cleaning staff. This acceptance of responsibility had the effect that the transfer (both ‘old style’ transfer and a service provision change) occurred on the 9 June 2011 and not the 1 July 2011. Further the ET held that the there only a temporary cessation of activities which had been of HMS’s choosing.

The EAT Judgment

Slade J held:

(1) The transferee’s submission that a transfer does not take place until the employees commence employment with the transferee was wrong. The transfer takes place when ‘the transferee assumes responsibility for carrying on the business’.

(2) The treatment of employees by the transferee does not determine the date of the transfer. It is the date of the transfer of the undertaking which determines when responsibility for the employees transfers. The employment of employees in a labour intensive business may be a weighty factor but it is not determinative of the date of the transfer.

(3) The ET erred in law as treating the date on which HMS assumed responsibility for the employees as being the date of the transfer. The date of the transfer is not the date that responsibility for employees is assumed by the transferee, it is the date that the responsibility for the activities of the undertaking is assumed by the transferee.

The case was remitted to the ET

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August 1, 2014
by Jeffrey
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Horizon Security Services Ltd v Ndeze EAT – 30 July 2014

Two important Service Provision change (SPC) concepts were considered in this case: (1) Whether services were provided to the same client before and after transfer, and; (2) Whether the client intended that the task be of a short term duration.

The Facts

The employee (N) was employed by PCS as a security guard at a business centre. The site of the business centre was owned by Waltham Forest LBC (the Council) but it was managed by Workspace who had a contract with PCS for the provision of security. PCS were told that the business centre was to be demolished and a supermarket built on its site. PCS were also told by Workspace that, as from 25 January 2013, Workspace would no longer require security as the site would be closing but that the Council might require security to continue in which case PCS would have to contract separately with the Council.

PCS were asked by the Council to quote for the contract for ongoing security. They were not told that it would be of limited duration. The Council also asked another security company, Horizon, to quote for the contract. Unlike PCS, Horizon were told that the contract would be ‘for a period possibly until September/October 2013’ (i.e. 8 or 9 months). Horizon were awarded the contract by the Council. N was told by PCS that his employment had transferred to Horizon. Horizon denied that there was a transfer.

The ET Judgment

The ET held at a PHR that there was a Reg 3(1)(b) transfer from PCS to Horizon. The ET held that the activities were carried out for the same client before and after transfer, i.e. the Council who ultimately owned the site. Furthermore, that when asked to tender, PCS and Horizon had been asked to tender for a continuous service and not one which was of a short term duration.

Horizon appealed on a number of grounds including that: (i) The ‘client’ was not the same before and after transfer. (ii) The ET had failed to consider, if the client was the Council, whether it intended that the activities would, following the SPC, be carried out by the transferee other than in connection with a single specific event or task of short-term duration (Reg 3(3)).

The EAT Judgment

In a characteristically clear judgment HHJ Eady QC held:

Applying Hunter v McCarrick and Eddie Stobart a purposive construction of the SPC provisions was not permissible as they were not founded on any underlying EU provision but were purely domestic provisions.

On the grounds of appeal she held:

(i) Whether the client is the same before and after transfer is a question of fact and it is possible, for example, where there is an agency arrangement, that there may be more than one client. Here, however, Workspace were clearly the client of PCS. They contracted with PCS and moreover the customers of the business centre were Workspace’s customers. The fact that the Council owned the site was not enough of itself to make them the client of PCS. As Horizon’s client was the Council wheras PCS’s client was Workspace, the client before and after the transfer were not the same. The appeal succeeded on this ground. Hunter v McCarrick and SNR Denton UK LLP v Kirwan applied.

(ii) Applying Swanbridge Hire and Sales v Butler it was necessary when considering the issue of the duration to consider the client’s intention . The intention was clear that the contract was to be provided for 8 or 9 months until the business centre was demolished. The fact that the services were still being provided at the date of the ET hearing, a factor taken into account by the ET judge, was irrelevant. It is relevant to consider what has happened in the past in relation to the duration and the structure of prior contracts. The EAT could not, however, say the ET Judge was definitely wrong when considering that 8 or 9 months might not be a period which is ‘short term’. Had the first ground not succeeded the case would have been remitted on this ground .

Link to judgment