Meade & Anor v British Fuels Ltd [1996] UKEAT 652_95_1103

EMPOLYMENT APPEAL TRIBUNAL
BAILII case number: [1996] UKEAT 652_95_1103Case No Appeal No. EAT/652/95, EAT/1277/95Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
Meade & AnorBritish Fuels Ltd
Date 11 March 1996
[1]BAILII case number: [1996] UKEAT 652_95_1103 Appeal No. EAT/652/95, EAT/1277/95 EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 11th March 1996 Judgment delivered on 24th July 1996 THE HONOURABLE MR JUSTICE HOLLAND MR J H GALBRAITH CB MR D J JENKINS MBE(1) MR F A MEADE,(2) MR J BAXENDALE APPELLANTS BRITISH FUELS LTD RESPONDENTS Transcript of Proceedings JUDGMENT Revised 6th August 1996, 17th September 1996 and 23rd January 1997 APPEARANCES For the Appellants MR P TODD (Solicitor) Messrs Hopkin & Sons Solicitors Eden Court Crow Hill Drive Mansfield Nottinghamshire NG19 7AE For the Respondents MR B NAPIER (of Counsel) Messrs Nabarro Nathanson Solicitors City Plaza 2 Pinfold Street Sheffield S1 2GU MR JUSTICE HOLLAND : We are concerned with two associated appeals which have been the subject of one hearing. The scope of each will appear from the respective chronologies. Frederick Alan Meade 13th November 1978 - Mr Meade enters the employ of British Coal Corporation ["BCC"] as a mine worker. 5th January 1988 - His employment is varied inasmuch as he starts work for a wholly owned subsidiary of BCC, National Fuel Distributors Ltd ["NFD"] as a mechanical shovel driver. 15th July 1992 - He is notified by NFD that BCC had taken over British Fuels Group and planned a merger between this latter company and NFD. It would seem that the company as merged is to be British Fuels Ltd ["BFL"]. 18th August 1992 - NFD give notification of redundancies to the Department of Employment. 20th August 1992 - Letter BCC to Mr Meade:
"Further to your recent interview, I am writing to give three months' notice, commencing on 21st August 1992, of termination of your employment with National Fuel Distributors Ltd You will be required to work for the first week of your notice period, and will receive cash in lieu of notice for the outstanding 12 week period. Your effective date of redundancy will therefore be 28th August 1992. You will, by 28th August 1992, receive a cheque for 12 weeks' pay at your present grade rate. I appreciate that this payment, based on grade rate, may be less than your average earnings as calculated for redundancy purposes and any additional amount will be paid at the same time as the lump sum redundancy payment due under the present British Coal Corporation redundancy benefit arrangements. This will be payable by the Corporation within a few weeks." 20th August 1992 - Letter BFL to Mr Meade: "
You will now have been informed by your managers and officers of British Coal of the forthcoming merger of BFL and NFD with effect from 1 September 1992. As a result of the merger you will in future be employed by BFL, and I am therefore pleased to make you an offer of employment on the following terms and conditions. These terms and conditions will differ from those you had through your close linkage with British Coal, but they are the same as those which operate throughout BFL and compare favourably with other private companies within the coal industry." There then follow particulars of wage rate, bonus scheme, hours of work, holidays and notice of termination. Two further passages merit citation:
"This appointment is to be effective from 1 September 1992 and your service with the company will start from that date. All your previous service with British Coal or NFD has been bought out by the Redundancy and Severance payments made to you." [ and ] "
I look forward to receiving your written acceptance of the offer, by 26 August at the latest by signing a copy of this letter an returning it to your manager." The terms thus on offer were significantly less favourable than those previously prevailing when Mr Meade was employed by NFD. 25th August 1992 - Mr Meade signs as accepting the offer. 1st September 1992 - Mr Meade having worked for NFD until 28th August, continued the same work, this time as an employee of BFL. 15th December 1992 - By this date Mr Meade had received from BCC: Wages in lieu of notice 451.00 Redundancy payments 908.44 Total £ 1,359.00 22nd January 1993 - Letter BFL to Mr Meade:
"I am writing to you to tell you about a change to the terms and conditions, set out in your letter of appointment dated 20 August 1992. Because the Transfer of Undertakings (Protection of Employment) Regulations 1981 did not apply to the merger of NFD and BFGL, continuity of employment for NFD staff was not preserved by the Regulations. However we have now decided that, because we are all members of one company, it would be unfortunate if ex NFD staff were being placed at a disadvantage in this regard compared to BFL staff because these regulations did not apply. The company has therefore decided that it would be appropriate that all NFD employees who joined BFL on 1st September 1992 should, for statutory purposes, be treated as though their services with NFD is continuous with their service with BFL. You will shortly receive an amended statement setting out the main terms and conditions of your employment, as required by the Employment Protection (Consolidation) Act 1978, and this will confirm the date which the Company will in future regard as being the commencement of your continuous employment for statutory purposes." 23rd April 1993 - Under the heading "accepted by the employees"
Mr Meade signs a Statement of Terms and Conditions of Employment which statement records, inter alia, that the period of continuous employment with BFL commenced on 13th November 1978. October 1993 - Mr Meade commenced proceedings in the Mansfield County Court against BCC and NFD contending that he had been dismissed by NFD but that he had not received that which was lawfully due following such dismissal. The claim is defended but for reasons unknown to us it is not brought to trial. 21st September 1994 - By an IT1 of this date Mr Meade claims as against BFL "a declaration that I am still employed upon NFD terms" and does so by way of a complaint founded upon Section 11(2) of the Employment Protection (Consolidation) Act 1978 , (for the full text of such sub-section, see below), that is, for a finding as to what particulars should be included in the Statement of Terms and Conditions of Employment. 3rd January 1995 - An Industrial Tribunal sitting at Nottingham dismissed an application by BFL to strike out the IT1 as frivolous and vexatious inasmuch as it could not be reconciled with the still extant County Court proceedings which were founded on the premise that he had been dismissed by NFD. Mr Todd, solicitor for Mr Meade, effectively indicated that the County Court proceedings would not be pursued. 19th April 1995 - A like Industrial Tribunal found "that the terms and conditions of employment to be included in a statement under Section 1 of the 1978 Act are those set out in the statement of terms and conditions of employment signed by the applicant and dated 23rd April 1993, subject to any subsequent pay rises awarded to him since then." The basis for that decision is a finding that he was dismissed by NFD and entered into fresh employment with BFL such as was reflected by the Statement. It is from this decision that Mr Meade mounts an appeal. James Baxendale The earlier history is not materially different. By August 1992 Mr Baxendale had service with BCC and NFD extending back to 21st February 1977 and he was in NFD's employ as yard foreman at their Manton Depot workshop. By September he had been purportedly dismissed by NFD and engaged by BFL, again on less favourable terms. He too received sums in lieu of notice and by way of redundancy payments. 14th May 1993 - He too signed as accepting a revised Statement of Terms and Conditions. 6th February 1995 - He is dismissed on grounds of redundancy. 10th February 1995 - IT1 is presented making various complaints including one such relating to the terms and conditions of his employment. 18th October 1995 - Following a two day hearing, an Industrial Tribunal sitting at Sheffield by way of a reserved decision, inter alia, make a like declaration on the reference pursuant to Section 11(2) to that made in the case of Mr Meade, but by a different route. This tribunal found that he was not dismissed; that there was a transfer of his contract of employment but that such was validly varied, so that as at the making of the complaint the contract was as evidenced by the statement of 14th May 1993. So much for the respective chronologies: for us there are appeals from the respective findings made on complaints based on Section 11(2), appeals which demand careful and dispassionate analysis of fact and law. Mr Meade's Case The Complaint By Section 1 of the Employment Protection (Consolidation) Act 1978 ["the Act"] it is an employer's duty to give to the employee "not later than two months after the beginning of ... (the) employment" a statement containing particulars of various matters all as severally specified. Then:
"Section 11(2) Where (a) a statement purporting to be a statement under section 1 ... has been given to an employee and a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of the this Part ... the employee may require that question to be referred to and determined by an industrial tribunal. Section 11(6) On determining a reference under subsection (2)(a) an industrial tribunal may either confirm the particulars as included or referred to in the statement given by the employer, or may amend those particulars, or may substitute other particulars for them, as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the employee in accordance with the decision of the tribunal."
It is Mr Meade's case that for the particulars presently constituting that which purports to be the statement under Section 1, namely the statement of 23rd April 1993, other particulars should be substituted as may be determined to be appropriate; and that such other particulars should reflect his contract of employment with NFD as at 20th August 1992. It is his essential case that by operation of law BFL as the transferee of NFD's business acquired an obligation to continue to accord to him all the benefits due under this contract with NFD. It is his further case that once the desired particulars are substituted, then thereafter his earnings will be at a higher rate: seemingly, the NFD contract served to pay him more in 1992 than he was actually receiving (even with interim pay rises) at the hands of BFL in 1994. What of back pay? Says Mr Todd, on the basis of the desired findings a claim can then be made in the County Court for back pay. This forensic exercise has had an uneasy response from this tribunal. Effectively by way of a 1994 complaint, first the Industrial Tribunal and now this tribunal are being asked to rule on what could have been made the subject of a complaint within the conventional three months following 20th August 1992, and which relates not so much to the appropriate content of Mr Meade's statement of employment particulars, but to the nature of the contract that should be the source of such content. True, the respondents have not specifically taken any point as to the ambit of Section 11 jurisdiction; further Mr Todd has drawn effective attention to Section 11(9) which provides a three month time limit for a complaint made "where employment to which the reference relates has ceased" - he submits soundly that when the employment is continuing so is the obligation to provide a correctly particularised statement, hence the operation of a time limit only arises when that continuing obligation ceases. That said, this tribunal has been concerned about that which one of our number characterised as the `land mine' point, that is, the apparent ability of Mr Meade suddenly to confront BFL with a complaint essentially based on the events of August 1992, effectively at his own whim in 1994, contending that interim events had had no significance in law. Having put down this marker, we return to the point later. Further, although we are not required to rule upon the point, we must not be taken as specifically endorsing the proposition that a ruling by a tribunal for the purposes of Section 11 necessarily renders the contract of employment and its content res judicata for the purposes of a County Court claim: that must remain for argument in that forum. With the foregoing reservations, we now consider the events of and after August 1992 so as to assess their legal effect. Mr Meade's Case As we understand it, Mr Meade's case is as follows: The purported dismissal of 20th August 1992 was not effective as such; it was no more than a device reflecting an intention to exclude the protection afforded by the Acquired Rights Directive 77/198 and the Transfer of Undertakings (Protection of Employment) Regulations 1981 .[2]The finding of the Industrial Tribunal on the basis of agreed documentary evidence that Mr Meade was dismissed by way of the letter of 20th August 1992 was wrong in law - in parenthesis, the contrary finding by the Industrial Tribunal in the case of Mr Baxendale was right.[3]Given no dismissal, the Regulations operated to transfer from NFD to BFL, inter alia, NFD's duties and liabilities as owed to Mr Meade pursuant to his contract of employment.[4]The purported fresh contract of employment made between Mr Meade and BFL as evidenced by his signature on the copy letter of 20th August 1992 falls to be invalidated in so far as it purports to modify or vary the duties and liabilities previously owed by NFD, that result arising by reference to the Regulations, in particular Regulation 12, to the Directive, to a decision of the European Court of Justice namely Foreningen v Daddy's Dance Hall A/S [1988] ECR 739 , and to a recent unreported decision of this tribunal, Wilson v St Helen's Borough Council [1996] EAT/641/95 .[5]Similarly the relevant parts of the varied contract as evidenced by the signed document of 23rd April 1993 are to be invalidated.[6]In the final result as at 21st September 1994 the particulars to be included in the statement were such as had been provided for by the contract of employment with NFD; and the Industrial Tribunal was wrong. BFL's Case We understand it to be: Transfer of Undertakings (Protection of Employment) Regulations 1981 Notwithstanding subsequent contentions by BFL to the contrary, both parties are now agreed that these Regulations were relevant to that which happened in August 1992. It is helpful to cite certain thereof:
"Regulation 5(1) ... a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor of the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1) above ... on the completion of a relevant transfer- (a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this Regulation to the transferee; and (b) anything done before the transfer is completed by or in relation to the transferor in respect of that contract or a person employed in that undertaking or part shall be deemed to have been done by or in relation to the transferee. (3) Any reference in paragraph (1) or (2) above to a person employed in an undertaking or part of one transferred by a relevant transfer is a reference to a person so employed immediately before the transfer, including, where a transfer is effected by a series of two or more transactions, a person so employed immediately before any of those transactions. Regulation 8(1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part V of the 1978 Act and Articles 20 to 41 of the 1976 Order (unfair dismissal) as unfairly dismissed if the transfer or a reason connected with it is the reason or principal reason for his dismissal. (2) Where an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer is the reason or principal reason for dismissing en employee- (a) paragraph (1) above shall not apply to his dismissal; but (b) with prejudice to the application of section 57(3) of the 1978 Act or Article 22(10) of the 1976 Order (test of fair dismissal), the dismissal shall for the purposes of section 57(1)(b) of the Act and Article 22(1)(b) of that Order (substantial reason for dismissal) be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held. Regulation 12 Any provision of any agreement (whether a contract of employment or not) shall be void in so far as it purports to exclude or limit the operation of Regulation 5, 8 ... above ..."
Directive No 77/187 of the Council The Regulations constituted the United Kingdom's response to this Directive. It is material to cite therefrom:
"Article 3: 1. The transferors rights and obligations arising from a contract of employment relationship existing on the date of transfer ... shall by reason of such transfer, be transferred to the transferee. Article 4: 1. The transfer of an undertaking business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce."
The issues arising in Mr Meade's case In our judgment what falls to be decided is the effect in law of the purported notice of dismissal of 20th August 1992. Thus, did that achieve a dismissal, albeit unfair, and whether by NFD as transferor or BFL as transferee? Alternatively, did the law so protect the employment of Mr Meade in the circumstances of a transfer, that the purported dismissal was in effect, a nullity? If the former construction be appropriate then prima facie he had remedies (in the event, not invoked) for unfair dismissal, but the prevailing contract of employment such as required reflection in the respective statement of Terms and Conditions would be as agreed and varied by BFL. If the latter construction be appropriate, then the contract of employment with BFL, at least initially, would be in terms that which had prevailed with NFD. We write `at least initially' because on the premise of that construction, a subsidiary issue arises as to whether the parties have achieved a lawful variation of any of the transferred NFD terms so as arrive at the terms hitherto though to be prevailing. It is convenient to confront these issues by reference, successively, to common law, to the Regulations and to Community Law. Common Law The Industrial Tribunal made its ruling on the basis of agreed facts. This was perhaps unfortunate. Thus, the letter of 20th August purportedly giving notice is apparently written in furtherance of an interview with Mr Meade. What happened at that interview did not form part of the agreed facts and in the result the issue falls to be resolved at common law on the basis of: In our judgment by reference to common law there can be no doubt but that Mr Meade was effectively dismissed. The letter of 20th August was in plain terms and both parties respectively and understandably acted in reliance upon it. It is fair to interpose that the contrary was not argued before us. Incidentally one implication of common law lies dormant, awaiting our judgment: if we uphold Mr Meade's case then he will prima facie be liable to repay the sums then purportedly paid by way of wages in lieu of notice and redundancy payments. This Tribunal Thus far we are unanimous and we are also unanimous in our judgment as to that which we have categorised as the subsidiary issue (see post). However, there is a difference of opinion as to the crucial matter of the impact of the Regulations, Mr D Jenkins dissenting. Again so much of the ensuing judgment as concerns community law reflects the opinion of the majority: given his views as to the impact of the Regulations, Mr Jenkins does not need to address such law. The full views of Mr Jenkins appear from his dissenting judgment (again, see post). The Regulations For the majority, there is nothing in the Regulations which in terms invalidates, in the context of a transfer of an undertaking, what otherwise would be a dismissal. On the contrary, the validity of a dismissal the reason or principal reason for which is such a transfer is the premise for the provisions of Regulation 8. Thus, such a dismissal is not deemed to be nullity but it is deemed to be unfair for the purposes of the relevant provisions of the Employment Protection (Consolidation) Act 1978 . Community Law It follows that Community Law, as interacting with national law, is for the majority the only potential source of support for Mr Meade. In particular, is Article 4(1) of the Directive as the dominant source of relevant law properly reflected in the Regulations, or does it have some other and overriding import? It will be observed that the first sentence, "the transfer of an undertaking ... shall not in itself constitute grounds for dismissal" raises alternative implications with respect to a dismissal the reason or principal reason for which is such a transfer: either (as the draftsman of the Regulations thought) the dismissal is merely unfair, or (as is contended on behalf of Mr Meade) it is a nullity. This dichotomy is reflected in Wendelboe v LJ Music [1985] ECR 457 at 460 where the Advocate-General's opinion (subsequently reflected in the judgment) included the following passage:
"Whether or not a contract of employment or an employment relationship has terminated at the time of transfer is of course for national law to determine. However, the first sentence of article 4(1) provides that `The transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or transferee" ... Where employees are dismissed, with a view to and before, a transfer falling within the Directive and are re-engaged immediately by the transferee thereafter, their dismissal must be regarded as contrary to article 4(1), subject to the exceptions specified in that paragraph. Whether the remedy for such unlawful dismissal consists in a court order declaring that dismissal to be nullity or the award of damages or some other effective remedy is for the member states to determine. In any event the member states are required to provide for a remedy which is effective and not merely symbolic ... If the remedy consists in treating the dismissal as a nullity, then it would follow that the rights and obligations of the employee concerned are transferred to the transferee."
It further appears in this passage from the judgment of the European Court of

Justice in P Bork International v Foreningen of Arbejdsledere [1989] IRLR 41 , at 44:

"The only workers who may invoke Directive (77/187/E.E.C.) are those who have current employment relations or a contract of employment at the date of transfer. The question whether or not of a contract of employment or employment relationship exists at that date must be assessed under national law, subject however, to the observance of the mandatory rules of the Directive concerning the protection of workers against dismissal by reason of the transfer. It follows that the workers employed by the undertaking whose contract of employment or employment relationship has been terminated with effect on a date before that of the transfer, in breach of article 4(1) of the Directive, must be considered as still employed by the undertaking on the date of the transfer with the consequence, in particular, that the obligations of an employers towards them are fully transferred from the transferor to the transferee, in accordance with article 3(1) of the Directive ..."
These dicta fall to be considered in the light of further guidance from the European Court of

Justice in Daddy's Dance Hall [1988] ECR 739 at 754:

"As was stressed above, the purpose of Directive 77/187/EEC is to ensure that the rights resulting from a contract of employment or employment relationship of employees affected by the transfer of an undertaking are safeguarded. Since this protection is a matter of public policy, and therefore independent of the will of the parties to the contract of employment, the rules of the directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees. It follows that employees are not entitled to waive the rights conferred on them by the directive and that their rights cannot be restricted even with their consent."
All this and more fell to be considered by the House of Lords in Litster v Forth Dry Dock Co Ltd [1989] ICR 341 . This case reflected the following facts. The transferors of an undertaking dismissed the applicant by reason of and shortly before the transfer. They were not re-engaged by the transferees and brought complaints against both transferors and transferees alleging unfair dismissal. The issue was as to whether the liability of the transferors for such unfair dismissal was by operation of law transferred to the transferee. The House of Lords answered `yes'. Being satisfied that such transfer of liability reflected the purpose of the Directive but that the Regulations in terms did not provide for such, it ruled that in Regulation 5(3) the words "a person so employed immediately before the transfer" should be supplemented by "or would have been so employed if he had not been unfairly dismissed in the circumstances described by Regulation 8(1)". The problem presently before us was not immediately in issue in Litster but it was not far removed therefrom. If the dismissal of the applicants should have been regarded as a nullity because the reason or principal reason for such was the transfer, then there had to have been an inferential dismissal by transferees who failed to give them work or wage. In the event the only possible comfort for Mr Meade is to be found in one passage in the leading speech that if Lord Oliver of Aylmerton at 379:
"It is, I think, now clear that under Article 4 of the Directive, as construed by the European Court of Justice, a dismissal effected before the transfer and solely because of the transfer of the business is, in effect, prohibited and is, for the purpose of considering the application of article 3(1), required to be treated as ineffective."
Unhappily for Mr Meade, that comfort is taken away by the next sentence:
"The question is whether the Regulations are so framed as to be capable of being construed in conformity with that interpretation of the Directive."
In short, the answer lies in the Regulations to the extent that they reflect the Directions. There then follows the reasoning that leads to a finding that Regulation 5(3) is to be construed with the addition of the supplementary words already recited - words reflecting as a premise, the validity of the dismissal subject to deemed unfairness, and subject to deemed liability therefor on the part of the transferee. If, going back to the Advocate-General's opinion in Wendelboe , it is for national law to determine the effectiveness of a dismissal then there is ultimately nothing in Litster to gainsay what otherwise would be the operation of common law, and of the Regulations as so construed. All this falls to be considered in the light of a recent unreported decision of this tribunal, Wilson & Others v St Helen's Borough Council 16th February 1996, EAT/641/95 . The issue here arose out of the transfer of an undertaking, in this instance a school, from the Lancashire County Council to St Helen's Borough Council. On 30th September 1992 the applicants, employees at the school, were dismissed by the County Council by reason of redundancy. On 1st October they took up freshly agreed positions at the school on different and not always improved terms. They subsequently (and belatedly) brought complaints alleging under payment of wages, the premise being that the pre-30th September terms persisted by operation of law. On appeal to this tribunal, that construction of the circumstances was upheld. Not surprisingly, Mr Todd urges that only the reasoning that he contends for could have sustained this tribunal in making that finding and plainly close perusal of the judgment is called for. Upon such, what does become apparent is that the purported dismissal of 30th September was not the subject of any submissions or findings. This tribunal appears to have tackled the problem without further reference to that part of the initially recited history. The respective submissions of counsel do not raise a point as to the significance of any dismissal and the premise for the findings of this tribunal was that there was no dismissal. We interpose: it may be noteworthy that there is no mention in the recital of facts of the payment and acceptance of redundancy payments consequent upon dismissal and if that omission reflects the full facts then it may be that there is a true difference in quality between the dismissal of Mr Meade and that of these other applicants. At all events, we cannot regard this decision as calling into question our judgment that Mr Meade was validly if unfairly dismissed. THE SUBSIDIARY ISSUE Let it be supposed that thus far we are wrong and that by reference to Community Law the dismissal of Mr Meade was a nullity, as was the purported notice of dismissal, so that an unimpaired contract of employment transferred to BFL - what of the position as at September 1994 when Mr Meade made his complaint to the Industrial Tribunal? What then were the terms and conditions of his contract of employment as required inclusion in the statement? Submits Mr Napier for BFL, there had been a mutually agreed and lawful variation reflected in the statement signed by Mr Meade on 23rd April 1993. Not so, submits Mr Todd, any such purported variation must be struck down as a nullity inasmuch as such is in conflict with the Directive. In this context he is able to point to so much of Regulation 5(1) as specifies "... any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee" and more particularly to Regulation 12 as already set out herein. He submits that any purported variation of the contract as transferred would be rendered void by operation of Regulation 12. This argument receives support from the already cited decision of this tribunal, Wilson v St Helen's Borough Council . The judgment concludes with the following pertinent passage:
"It is also an error on the part of the Tribunal to conclude that the affirmation of the contract by the subsequent conduct of the parties avoids the mandatory effect of Regulation 5(1), interpreted in accordance with Daddy's Dance Hall decision. The variations in the contract terms, said to have been affirmed by the subsequent conduct of the Applicants, relate back to the time of the transfer when the variations were made and accepted by reason of the transfer and were therefore prohibited. That happened subsequently was confirmation by conduct of what had already happened on and by reason of the transfer. It is true that there may be cases where a variation of the terms of employment does take place subsequently either by express agreement or by conduct. Whether there is such a variation depends on the facts of each case. The reason for the variation depends on the facts of the case. The law, however surprising it may be to English legal tradition, is clear. If the operative reason for the variation is the transfer of the undertaking, then the variation will be ineffective. In this case there was no evidence before the tribunal that the reason for the variation, which took place at the time of the transfer, was anything other than the transfer itself. The "economic, technical or organisational reason entailing changes in the workforce" did not alter the fact that the variations took place by reason of the transfer at the time of the terms of employment after the transfer. The subsequent conduct relied on as affirmation was conduct consistent with variations made at the time of and by reason of the transfer. If, as Daddy's Dance Hall hold, there can be no agreement to vary terms and conditions by reason of the transfer, there cannot be any subsequent effective affirmation of that variation. It remains prohibited by the Regulations. In brief, there was not break in the casual link in the variation between the terms and conditions and the transfer of the undertaking. The cause of the variation was the transfer itself. For that reason the variation was ineffective. The terms of the original contract of employment with the County Council remained in force."
We turn back to the instant facts. Any potential for distinction between this claim and Wilson's case must turn upon the letter of 22nd December 1993 and the ensuing statement as signed by Mr Meade on 22nd April 1993. Did that achieve a valid variation? Or is that struck down by Regulation 12? At first blush, it is challenging to suggest that a statement brought into existence to give Mr Meade an advantage that he had hitherto not enjoyed, (or so it was believed on the fallacious premise that the Regulations were inapplicable to that which had occurred in August 1992), should be struck down as purporting to exclude the operation of Regulation 5. The answer, as we think albeit with some hesitation, is that the statement of 23rd April cannot be isolated from it predecessor, the statement signed on 25th August 1992. Since, on the premise that there was no dismissal and that the original contract transferred, the statement of 25th August must be rendered void by Regulation 12, we think that the second statement, as purportedly a variation of the first, must similarly be struck down. In summary, on the premise `no dismissal' we would decide this subsidiary issue in favour of Mr Meade to the extent that the history up to the making of the complaint does not disclose a variation of the transferred contract of employment that is not struck down by Regulation 12. That said, this view of a forensically difficult situation cannot be regarded as a continuing one. Regulation 12 cannot serve indefinitely to inhibit the parties from bringing the legal position into line with the reality. The longer the period since the transfer, the easier it will be to demonstrate a variation by conduct or to justify a variation by agreement, in either event to equate the position in law with the reality. The `land mine' does not pose an indefinite threat. We have only considered the interconnected statements of August 1992 and April 1993: any later statement might not fall foul of Regulation 12. MR MEADE'S APPEAL In the event the Industrial Tribunal reached the same conclusion as we have come to, and by the same route. Accordingly we dismiss Mr Meade's appeal. MR BAXENDALE'S APPEAL First, we seeing nothing in the relevant facts that raises considerations different to the foregoing. Second, as will already be apparent we have arrived at a conclusion as to the statement identical to that reached by the Industrial Tribunal, but by a different route. We have anxiously considered the Reserve Decision, conscious that this tribunal did have the advantage of receiving evidence. In the event we are respectfully satisfied that their conclusion as to the appropriate statement was correct, but for the reasons alternative to those that operated upon them. In our judgment, like Mr Meade, Mr Baxendale was validly if unfairly dismissed and thus the statement properly reflected the new contract that he then entered as subsequently varied. In so far as this tribunal took the view that a transferred contract was thereafter varied by conduct we cannot reconcile that finding with the operation of Regulation 12. That said, we dismiss Mr Baxendale's appeal. THE DISSENTING JUDGMENT OF MR JENKINS I depart from the majority essentially because I do not think it right to focus solely upon the letter of termination of 20th August 1992. Thus, first, there was a contemporaneous, indeed deliberately coincidental offer of employment which in the event operated so that there was no break in continuity: both Mr Meade and Mr Baxendale remained in regular work. Second, it is now common ground that this continuity was achieved in the course of a transfer of the undertaking. It is thus that I would hold that Regulation 5 did impact upon this situation: by Regulation 5(1) the transfer did not operate so as to terminate either man's contract of employment, and by Regulation 5(2) all the liabilities of NFD under such contract were transferred to BFL. In short, there were no dismissals and no variations to the contracts of employment. Given no dismissals, Regulation 8 is not in point and with it being my view that this main issue can be resolved by reference to the full facts and to the Regulations, I am not concerned to look further into community law. Overall it follows that I would hold that the respective Industrial Tribunals were on this issue, dismissal or no, wrong in the case of Mr Meade and right in the case of Mr Baxendale. Turning to the subsidiary issue, that is as to whether there was in either case a subsequent variation of the transferred contract of employment I have been more hesitant than the majority but in the event I agree with their reasoning and I too would hold that there was no subsequent variation of either contract. It follows that I would be for allowing both appeals. CONCLUSION We would pay tribute to the efforts of the respective Industrial Tribunals in grappling with the subtleties of this branch of the law.