MRS M A NORRIS & OTHERS v BROWN & ROOT EALING TECHNICAL SERVICES LTD [2002] UKEAT 386_00_1004

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 386_00_1004Case No Appeal No. EAT/386/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M A NORRIS & OTHERSAPPELLANTBROWN & ROOT EALING TECHNICAL SERVICES LTDRESPONDENT
Before
Mr Justice Maurice Kay Ms N Amin Mr P A L ParkerDate 10 April 2002
[1]APPEARANCES For the Appellant PROFESSOR ROY LEWIS (of Counsel) Instructed By: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST For the Respondent MR RICHARD HITCHCOCK (of Counsel) And MS C VINES (of Counsel) Instructed By: Hillburton Law Department Hillpark Court Springfield Drive Leatherhead Surrey KT22 MR JUSTICE MAURICE KAY : In the early 1990's the London Borough of Ealing (LBE), in common with many other local authorities, was under pressure to reduce costs. To this end it decided to contract out the work of its Technical Support Group (TSG). It invited tenders pursuant to a prospectus that made it clear that what was envisaged was a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) would apply. The Respondent, Brown & Root Ealing Technical Services Limited (BRETS), was awarded the contract on 10 February 1994 and the transfer took place on 1 April 1994. The BRETS bid and the contract of transfer were predicated on a five year period with year-on-year efficiency savings which would total 25% by the end of the five years.[2]Over 80% of the employees who were subject to the transfer were trade union members, the vast majority of whom were GMB members, with five other unions having small numbers of members. Prior to the transfer, negotiations on pay and conditions were carried out at National Joint Council (NJC) level and local negotiations took place within a Joint Works Committee. BRETS was never party to these arrangements and, soon after the transfer, it commenced negotiations with the GMB. On 20 October 1994 BRETS and the GMB concluded a Single Union Agreement (SUA) establishing a Works and Services Committee (WSC). The SUA acknowledged that the transfer to BRETS was one to which TUPE applied. The GMB were accorded exclusive negotiating rights and, thereafter, BRETS gave notice of de-recognition to the other unions and indicated to the workforce its intention to review terms and conditions of employment.[3]In the meantime, on 17 October 1994, the NJC gave notice that agreement had been reached "in the 1994 pay negotiations". Its effect was a two-stage pay increase, the first stage to take effect in October 1994, the second on 1 June 1995. In the event, BRETS implemented the first stage on 27 January 1995 but did not implement the second stage, about which no complaint was made at the time. Further NJC awards became operative in April 1996, April 1977 and April 1998 but none of these was implemented by BRETS.[4]Although BRETS achieved the stipulated efficiency savings in the first two years after the transfer, problems arose thereafter. It seems that the contract between LBE and BRETS was substantially underfunded. This was at least partly the result of an understatement of costs in LBE's pre-contractual accounts and a protracted delay on the part of LBE in making contractual adjustments to payments until a dispute between the parties was settled in late 1977.[5]On 6 August 1996, BRETS' managing director explained the adverse financial position to the GMB and gave advance notice of redundancies in accordance with section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 . BRETS did not wish to reduce the workforce but was concerned that, if it could not negotiate acceptable changes in terms and conditions of employment, it should be made plain that it would seek to bring in new terms and conditions following dismissals. On 28 August, new terms and conditions were outlined by BRETS at the WSC and, the next day, a newsletter was sent to the employees setting out the proposals. At the WSC meeting on 18 September the GMB made it clear that the proposals were not acceptable and preparations for a strike were indicated.[6]On 9 October 1996 BRETS sent a newsletter to the employees, offering an immediate lump sum and a further lump sum to reflect loss of holiday entitlement in return for an agreement to new terms and conditions. Some employees, referred to as the Fisk/Parker group, accepted this offer and it was implemented in relation to them on 11 November without their being dismissed. The remaining employees remained in dispute with BRETS. On 15 October BRETS sent them another newsletter to the effect that if the proposed changes were not accepted, the company would have to consider dismissing them and offering them re-engagement on new terms and conditions with no cash benefit in return. The remaining employees were divided in their response. Some, referred to as the Conway group, said they would accept the offer "under duress" but BRETS rejected that qualified acceptance. On 15 November BRETS made a reduced offer to those employees who had not accepted without qualification the October offer. It was accepted by some employees who are referred to as the Johnson/Downes group.[7]On 2 December 1996 BRETS gave notice of termination to all those other than the Fisk/Parker and Johnson/Downes groups. That notice expired on 9 February 1997 and on 10 February those employees were re-engaged on new terms and conditions. They are referred to as the Norris/Feaver group. Only one employee refused re-engagement and he stood dismissed. In addition to the groups to whom we have referred, there were other smaller groups or sub-groups – the Adhyaru and Brett groups - to which we shall refer later.[8]These events gave rise to a large number of applications to the Employment Tribunal and resulted in a lengthy hearing in June and November 1999. Leaving aside the smaller or sub-groups for the moment, the Employment Tribunal came to the following decisions.(1) the transfer of 1 April 1994 was a TUPE transfer;(2) complaints of unauthorised deductions from wages by reason of the failure to implement the second stage of the NJC award on 1 June 1995 were out of time and the Tribunal had no jurisdiction to consider them;(3) complaints of unauthorised deductions from wages in respect of the NJC pay award payable on 1 April 1996 succeeded until "the date that a new contract of employment was entered into by the respective Applicants";(4) complaints of unauthorised deductions from wages by reference to the NJC pay awards payable on 1 April 1997 and 1 April 1998 and any other NJC pay awards failed;(5) the Fisk/Parker group were not dismissed and their claims in respect of changes in their terms and conditions of employment failed;(6) the Johnson/Downes group and the Norris/Feaver group were fairly dismissed by reason of "some other substantial reason such as to justify dismissal". This finding was on the basis that the dismissal were not "transfer – connected" in the TUPE sense but were the result of the subsequent underfunding by LBE and the delays arising out of the dispute between LBE and BRETS concerning contractual adjustments, resulting in severe cash-flow difficulties for BRETS.(7) contractual claims by the Conway group were dismissed. Although the question whether the transfer of 1 April 1994 was a TUPE transfer was very much in issue before the Employment Tribunal, it is no longer disputed that it was a TUPE transfer. However, this is a wide-ranging appeal. We shall endeavour to deal with the various issues sequentially. The NJC award in relation to 1 June 1995: the time - limit point.[9]This complaint was made under section 23 of the Employment Rights Act 1996 . By section 23(2):
"Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with – (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made…."
Section 23(3) provides:
"Where a complaint is brought under this section in respect of (a) series of deductions or payments, or (b) a number of payments falling within subsection 1 (d) and made in pursuance of demands for payment subject to the same limit under section 21(1) [which provides a limit on amount] but received by the employer on different dates the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received."
[10]Subsection (4) confers upon the tribunal a discretion to extend time where it was not reasonably practicable for the complaint to be presented before the end of the relevant period of three months.[11]In the present case, so far as the award in relation to 1 June 1995 was concerned, the complaint was presented in February 1997. No reliance was placed on section 23(4). The issue was whether there had been a series of deductions and, if so, whether the last underpayment in that series was made more than three months prior to the presentation of the complaint.[12]The Employment Tribunal concluded that there had been a series of relevant deductions or payments but that it had come to an end on 31 March 1996 and that, therefore, the complaints had been presented well outside the three month period which came to an end on 30 June 1996. Its reasoning was related to the language of a letter written by Mr. Charles Nolda, the secretary of the National Employers' Organisation for Local Authority Staff, to chief executives of local authorities on 17 October 1994. It began:
"Enclosed with this circular are copies of the two stage pay agreements lasting until 31 March 1996…" and ended: "
These settlements now pave the way to single table bargaining…..and a new pay review date of 1 April from 1966." The Employment Tribunal fastened on to the words " lasting until " 31 March 1996 and added:
"It was noted that the pay award from 1 April 1996 specified exact rates per week and did not merely give a percentage uplift. In the light of the 1994 pay agreement lasting up to 31 March and the specified weekly rate of pay from 1 April 1996, the Tribunal reached the decision that the NJC pay award for 1994, in respect of which the 1 June 1995 second-stage payment was not made, came to an end on 31 March 1996"
[13]On behalf of the Appellants, Professor Lewis mounted a wide-ranging attack on this reasoning. Notwithstanding the subtlety of some of his arguments and their inherent fascination, we have come to the conclusion that this aspect of the Employment Tribunal's decision was erroneous for the most uncomplicated of the reasons advanced by Professor Lewis. Once the June 1995 award had become incorporated into the individual contracts of employment (and it is implicit in the reasoning of the Tribunal that it had), in our judgment it was not a permissible finding that that contractual entitlement came to an end on 31 March 1996. A construction which would lead to a conclusion that, in the absence of a further consensual arrangement from 1 April 1996, pay would revert to its pre-October 1994 level would make no sense in law or in industrial relations. The reality in law is that, once the June 1995 award had become incorporated into the individual contracts of employment, it remained there until consensual variation or termination. We do not accept Mr. Hitchcock's submission that the conclusion of the Employment Tribunal was a permissible finding of fact. It was based on an erroneous legal analysis. Moreover, the error was compounded by the reliance on Mr. Nolda's letter. What Mr. Nolda wrote to his members could never be determinative of the contractual position. As it happens, read as a whole, his letter does not, in our view, bear the meaning which the Employment Tribunal sought to derive from it. For these reasons, we have concluded that the appeal succeeds on this point. The complaints were not out of time. 2. The NJC award in relation to 1 April 1996.[14]The conclusion of the Employment Tribunal was that the complaints of unauthorised deduction from wages in respect of the NJC award payable on 1 April 1996 succeeded "in respect of the period until the date that a new contract of employment was entered into by the respective Applicants". The appeal against this conclusion relates to the differential cut-off points. The Tribunal decided that the cut-off point for the Fisk/Parker group was 11 November 1996 on the basis that, in the light of their acceptance of the improved terms, they "were not dismissed but were re-engaged on new terms and conditions of employment in consideration of the receipt of compensation". So far as the Johnson/Downes and Norris/Feaver groups were concerned, the findings were that, in each case, they had been dismissed with an effective date of termination of 9 February 1997 and re-engaged on new terms and conditions of employment the following day. Their cut-off points were therefore held to be 9 February 1997. In relation to all these groups, the complaints had therefore been presented within the three-month time limit.[15]Professor Lewis expressed his criticism of these cut-off points thus in his Skeleton Argument:
"These decisions were perverse and legally erroneous since the entitlement to the 1996 NJC [award] did not cease on the variation of contracts in the Fisk/Parker category, who did not in any event enter new contracts. Nor did it cease on the re-engagement for the Johnson/Downes and Norris/Feaver categories…..In addition, given that the Employment Tribunal found that there was an existing and enforceable entitlement to the 1996 award, it is difficult to see how such an existing benefit could cease in the absence of an express and unambiguous provision to that effect agreed to by the parties to the individual contract of employment."
[16]It is clear that the Employment Tribunal was correct to find that the Fisk/Parker group were not dismissed. The alternative possibilities were that there had been consensual terminations followed by re-engagement on agreed new terms or no termination at all but a continuation of the same contract on consensually varied terms. We infer that, from its use of the word "reengagement", the Employment Tribunal considered that there had been consensual terminations and re-engagements. The question then becomes: what was the contractual entitlement to pay – the 1966 award or something else?[17]The document which precipitated the acceptance of new terms and conditions by the Fisk/Parker group was "Newsletter 3", dated 9 October 1996. It made specific proposals about immediate lump sum payments "equivalent to a year's increase in basic pay based on the current Retail Price Index". These one-off payments were in amounts ranging from £223 to £294. In addition, there would be a payment of either £60 or £120 (depending on length of service) as compensation for the loss of three days' holiday entitlement. These items were referred to in the Newsletter as "the benefits package" "Your endorsement will also bring with it a guarantee, from BRETS that there will be no further changes to your Statement of Main Terms and Conditions of Employment during the remainder of the current contract with LBE, due to expire on 31 March 1999." It invited employees to sign and return the document by 18 October to signify willingness to accept "the new Terms and Conditions of Employment". Also:
"You will then receive a full Contract of Employment incorporating the proposed changes which will take effect from 11 November 1996. This you will need to sign and return to us to give sufficient time for the payments to be paid to you along with your normal wages on 22 November 1996." (Emphasis supplied)
[18]It is apparent that BRETS did not put forward any new proposals about pay. On the contrary – the only reference to wages was the one to "your normal wages". In our judgment, if the Fisk/Parker group were contractually entitled to the April 1996 award until 11 November 1996 (as the Employment Tribunal correctly held), there was no proper basis upon which it could have found that the contractual entitlement to pay was any different following the re-engagement. The finding of the cut-off point of 11 November was legally erroneous.[19]What, then, of the Johnson/Downes and Norris/Feaver groups? The findings of dismissal followed by reengagement in February 1997 are undoubtedly correct. So far as the Johnson/Downes group are concerned, the letter of 15 November 1996 which gave rise to their re-engagement was headed "Offer of Re-employment: New Terms and Conditions of Service". It was in terms a letter of dismissal coupled with an offer of re-engagement. As with the Fisk/Parker group, the "new terms and conditions" expressly referred to in the letter concerned matters other than wages. However, the letter of 15 November referred also to an accompanying document headed "Statement of Main Terms and Conditions of Employment" to be signed by the recipient employee. There is an example in the Bundle. It relates to an employee, William Ayres, who was one of the Johnson/Downes group. He signed and returned that document. It was highly specific about wages - £194.61 per week, with other specified supplementary payments. The signature of the employee was added to a declaration that he had read and accepted the terms and conditions and "the accompanying Company Conditions of Service Booklet". That Booklet included these provisions:
"Your rate of pay is given in the Statement which accompanies this Booklet…..Unless you have been notified otherwise the rate of pay quoted in the statement is your basic rate of pay……… Pay is reviewed annually on 1 April each year with any changes being effective from that date unless otherwise notified The conditions of service referred to above replace in their entirety all terms and conditions of service…..which existed prior to the date of acceptance. "
There can be no doubt that this documentation is definitive as far as the Johnson/Downes group was concerned. We therefore conclude that if the provisions regarding pay reflected and repeated those in the NJC award of April 1996, then it was erroneous to fix a cut-off point of 9 February 1997. On the other hand, if the express terms differed from those in the NJC award of April 1996, the cut-off point was correctly fixed at 9 February 1997.[20]The Norris/Feaver group, we apprehend, were re-engaged pursuant to exactly the same documentation as that which related to the Johnson/Downes group.[21]On this basis, the outcome of the appeal in relation to the cut-off points for these two groups should be obvious to the parties. Unfortunately, we were not told about the relationship between the April 1996 figures and those expressly agreed to by individual employees on re-engagement. We invite further brief written submissions on this narrow issue within 14 days after the handing down of this judgment, so that the Order can properly reflect this aspect of the appeal. 3. The NJC awards for April 1997 and April 1998: the Adhyaru group[22]A further group, known as the Adhyaru group, presented additional Originating Applications in March 1999 complaining of unauthorised deductions from wages in respect of NJC pay awards which became payable to those entitled to them on 1 April 1977 and 1 April 1998. The group comprised individuals from within the Fisk/Parker , Johnson/Downes and Norris/Feaver groups. The Employment Tribunal dismissed these complaints stating:
"In relation to the NJC pay awards claimed by the Adhyaru category…..in relation to 1997 and 1998, these pay awards came after the dates upon which each of the Applicants were re-engaged on new terms and conditions of employment and it is the unanimous decision of the Tribunal that…the Applicants have entered into new contracts of employment which do not incorporate the NJC negotiating arrangements."
The grounds of appeal and Professor Lewis' skeleton argument deal at length with legal argument about the incorporation of collective material into individual contracts of employment and also allege perversity. However, all this overlooks the crucial documentation to which we have referred in relation to the April 1996 NJC award. As we have found, it is clear beyond doubt that when the Johnson/Downes and Norris/Feaver groups were dismissed and re-engaged in February 1997, their new contracts of employment were on the terms and conditions set out in their respective Statements of Main Terms and Conditions of Employment and that these in turn expressly incorporated the Company Conditions of Service Booklet. It is equally clear that NJC awards were no longer incorporated. Accordingly, the Employment Tribunal was no doubt correct as far as the Johnson/Downes and Norris/Feaver elements of the Adhyaru group are concerned and their appeals on this issue fail.[23]Once again, we hesitate about those of the Adhyaru group (a small number) who were drawn from the Fisk/Parker group. They were not dismissed. Their original contracts were terminated consensually and they were re-engaged. However, and as we have already pointed out, it is not clear to us whether their new contracts of employment took the same form as occurred with the other groups who were later dismissed and re-engaged. If they did sign equivalent documentation, then no problem arises and the appeals of all these elements in the Adhyaru group fail for the same reason. On the other hand, if neither in November 1996 nor subsequently did they sign equivalent documentation, different considerations will apply. Accordingly, in their case (the Fisk/Parker group), we invite further brief written submissions on this specific issue within 14 days after the handing down of this judgment. 4. The Christmas bonus, 1996[24]This issue relates to a number of employees referred to as the Brett group. LBE and, subsequently, BRETS needed to ensure that key staff in refuse collection and street cleaning were available over the Christmas period when required. An internal memorandum dated 27 November 1989, addressed by LBE's Service Manager to all refuse service operatives, stated:
"….. most refuse staff will be needed to work on 12 days normally regarded as 'non-working' days. These are: (i) the 3 Council holidays between Christmas and New Year; (ii) 2 Saturdays after Christmas; (iii) Saturdays in each of 5 Bank Holiday weeks other than Christmas; (iv) the Tuesday Council holidays after the Spring and August Bank Holidays. So that the Council can be sure that there will be enough staff working on these twelve days you are being asked to voluntarily change your conditions of service and, after talking with the Trade Unions, the Council has agreed the following compensations for you to change your existing conditions. (i) a lump sum payment of £350 on 7 December 1989; (ii) a further lump sum payment of £400 in March/April 1990…. (iii) pick up payments as paid at holiday periods this summer; and (iv) payments in accordance with the terms and conditions applicable to all other Council employees for working on the 3 Council holidays at Christmas." (Emphases supplied) The memorandum then went on to quantify the "pick up" payments before proceeding: "you will, of course, be paid your full pay with bonus for the three concessionary days at Christmas, when you will be required to work a normal day, but in addition…. you will get for each day: (i) an additional payment at the plain time rate for the hours worked; (ii) an additional day to be added to your annual leave for each day worked. However, if you wish, these extra leave days can be converted to cash at plain time rates."
It is common ground that these terms became contractual and transferred upon the TUPE transfer. Before the Employment Tribunal, the submission on behalf of the relevant employees was that they were thereby contractually required to work and entitled to receive enhanced payments over Christmas. The Tribunal disagreed. It stated:
"The wording is clear. It states that ' most refuse staff will be needed'. This does not suggest that all refuse staff will be needed and the interpretation put upon the letter by the Tribunal is that, in consideration of the payment of £750 for agreeing to change the conditions of service, the employees agreed that LBE and subsequently BRETS were entitled to call upon them to work on the twelve days that were regarded as non-working days if the individuals were needed but conferred no right on the Applicants to work over the Christmas period. The discretion to call on the individual Applicants rested with the employer….the Brett category….had no right to work over the Christmas period and…their claim fails."
[25]Professor Lewis seeks to meet this reasoning by emphasising the second appearance of the word "will" in the passage of the memorandum reading "you will…..be paid your full pay and bonus for the three concessionary days at Christmas, when you will be required to work a normal day". We have no doubt that the correct construction, reading the memorandum as a whole, is that postulated by the Employment Tribunal. The whole assumption is that "most" or "enough" staff will work, not that all, or all agreeing to the variation, will have the right to work, or the right to be paid if not needed. This ground of appeal fails. 5. Unfair dismissal and "transfer connectedness".[26]Before the Employment Tribunal, the case for those employees who had been dismissed was that their dismissals were automatically unfair because they were connected with the TUPE transfer. The relevant provisions of the 1981 Regulations are to be found in Regulation 8, which provides:
"(1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated….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 an employee – (a) paragraph (1) above shall not apply to his dismissal; but (b) without prejudice to [the statutory test of fair dismissal], the dismissal shall for the purposes of [the substantial reason for dismissal test] 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."
[27]The findings of the Employment Tribunal are to be found in the following passages:
"……the reasons for the dismissal were the under-funding and the delay in amending the contracts following the negotiations with LBE…the decision to dismiss was not made until August 1996, which was two years and four months into the five year contract……In this case there have been intervening events. The principal of these is that the extent of the under-funding due to the error in the original pricing schedule by LBE has become manifest and then LBE were slow in resolving issues under the permitted adjustment mechanism, which resulted in serious cash-flow difficulties for BRETS. BRETS had not been provided with the work for which they had budgeted and had not obtained other work that they had hoped to obtain from other local authorities. The Tribunal also places reliance on the evidence that a number of large-scale cost saving measures were instigated by BRETS and it was only in August 1996 that BRETS reached the conclusion that they had to consider changing the terms and conditions….. It is the unanimous decision of the Tribunal that the dismissals were not connected with the transfer of undertaking from LBE to BRETS on 1 April 1994 and accordingly the dismissals are not automatically unfair under Regulation 8(1)."
[28]Professor Lewis submits that this conclusion is flawed for a number of reasons. First , the Tribunal does not address the basic question required by Regulation 8(1), namely whether the transfer or a reason connected with it was the reason or principal reason for the dismissals. Secondly , the Tribunal disregarded the general principles of causation as illustrated in the sex discrimination case of O'Neill v. Governors of St. Thomas More School [1996] 1RLR 372, which in turn relied on the common law case of Banque Bruxelles v. Eagle Star [1995] 2 WLR 607 (CA). Those principles justify the proposition that if the efficiency savings embodied in the transfer contract were an effective cause of the dismissals, it would follow that the reason or principal reason for the dismissals was a reason connected with the transfer. Moreover, the same could be said of the under-funding. Thirdly , the conclusion was perverse because the Tribunal ignored relevant evidence and/or misunderstood the evidence. Fourthly , the Tribunal failed to adopt the purposive approach to TUPE as demonstrated in Litster v. Forth Dry Dock [1989] ICR 341 (HZ).[29]These submissions, in their written and oral forms, and Mr. Hitchcock's responses to them, occupied many pages and a great deal of time at the hearing and included an extensive examination of the evidence. We say at once that we are unimpressed by the second and fourth of the submissions. In O'Neill the causation issue turned on the wording of section 1(1)(c) of the Sex Discrimination Act 1975 – less favourable treatment "on the ground of her sex" – in the context of a dismissal alleged to be unlawful by reason of section 6(2)(b) of that Act. Those provisions do not embrace the language of " the reason or principal reason". Accordingly, it is not justifiable to resort to the language of " an effective cause" which was appropriate in the O'Neill case. Moreover, the reference to a purposive approach in Litster is to an approach to statutory interpretation. In the present case, the relevant words of Regulation 8(1) are clear and unambiguous. What is in issue is their application to the facts of this case.[30]What, then, of the perversity submission? Clearly the question of what was the reason or the principal reason for a particular dismissal is a question of fact: Thompson v. SCS Consulting [2001] IRLR 801, para 84. Accordingly, unless the findings of fact by the Employment Tribunal were not a permissible option on the basis of the evidence before it, the Employment Appeal Tribunal cannot interfere. Having found, in the passages which we have quoted, that "the dismissals were not connected with the transfer", the Employment Tribunal went on to find that " the reason for the dismissals was the underfunding by LBE and the delay by LBE in dealing with the amendment to the Master Agreement and with permitted adjustments, resulting in severe cash-flow difficulties for BRETS," It found that this reason amounted to "some other substantial reason" under section 98(1)(b) of the Employment Rights Act 1996 and that the dismissals were substantively and procedurally fair, having regard to the provisions of section 98 (4).[31]In the light of all this, we do not doubt that the Employment Tribunal was entitled to find that the transfer itself was not the reason or the principal reason for the dismissals. It was also justified in relying on the words of Lord Slynn of Hadley in Wilson v. St. Helens Borough Council [1998] IRLR 706 , at para. 90 (HL):
"However, it seems that there must, or at least may, come a time when the link with the transfer is broken or can be treated as no longer effective."
However, the question which then arises is: Given that it was permissible to find that the transfer itself was not the reason or the principal reason for the dismissals, was the reason found by the Tribunal (underfunding and delay by LBE in dealing with adjustments) a "reason connected with" the transfer? On a very strict analysis of the decision of the Tribunal, it might be possible to find some support for Professor Lewis's first submission to the effect that the Tribunal did not expressly distinguish between the alternatives of the transfer itself as the reason for dismissal and "a reason connected with" the transfer as the reason for their dismissal. However, in our judgment, an analysis of such strictness would be inconsistent with the approach customarily adopted by the Employment Appeal Tribunal when analysing the extended reasons of an Employment Tribunal. It seems to us that, taking a broad view of those extended reasons and reading them as a whole, they do amount to a finding that the reason or reasons for the dismissals were not a reason or reasons "connected with the transfer". We consider that that follows from the use of the term "transfer conectedness" and the ways in which the Tribunal explained its findings about the reason or the principal reason for the dismissals. It is plain that it did not consider the underfunding and the delay in dealing with adjustments to be reasons "connected with the transfer". In our judgment, that too was a permissible conclusion on the evidence. In this context, we derive some assistance from Whitehouse v. Charles A. Blatchford & Sons Ltd. [2000] ICR 542 (CA); and Ralton v. Havering College of Further & Higher Education [2001] IRLR 738 (EAT), although they are on a slightly different point.[32]Accordingly, we do not consider that the attack on the conclusion of the Employment Tribunal to the effect that the reason or principal reason for the dismissals was the transfer or a reason connected with it is well-founded. The conclusion was a permissible, even if not an inevitable one. It follows from this that it is unnecessary for us to address Regulation 8(2) which concerns "an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer" as the reason or principal reason for dismissal. As we have upheld the Employment Tribunal on Regulation 8(1), it is as unnecessary for us to venture into that field as it was for the Employment Tribunal, which also declined.[33]Before we leave the TUPE/unfair dismissal point, it is appropriate for us to record that, although counsel on both sides took us through a great deal of documentary material, which they had to do in view of the perversity allegation, we have concluded that it would assist no one for us to set it all out in this judgment. We also record that we did not have the benefit of the Chairman's notes of evidence (an application for them having been refused at the Preliminary Hearing). We should also add that, to the extent that the appeal sought to raise unfair dismissal issues in relation to the Fisk/Parker group, these foundered on the permissible conclusion of the Employment Tribunal that this group were never dismissed. 6. The Conway group: reasons.[34]The facts concerning this group are, to say the least, elusive. The Employment Tribunal defined them as "those claiming unfair dismissal who accepted an offer 'under duress' but had their acceptances rejected by [BRETS] and who make claims in respect of working arrangements." In its extended reasons the Tribunal stated:
"They claimed sick pay, holiday pay and other benefits and were a pool of temporary workers. Under their Originating Application they claim an unauthorised deduction from wages in respect of loss of benefit such as sick pay and holiday pay, and a declaration of their terms and conditions of employment. The Notice of Appearance denies that BRETS made an unlawful deduction from wages and denies refusing to issue a permanent contract of employment. No mention is made in either the Originating Application or the Notice of Appearance of a claim of unfair dismissal. It is the unanimous decision of the Tribunal that the claims of the Conway category of Applicants are not made out and that these claims fail."
The Notice of Appeal takes two points: (1) insufficiency of reasons, on the basis of Meek v. City of Birmingham District Council [1987] IRLR 250 (CA); and (2) failure to make a finding on whether the changes to their terms and conditions were transfer-connected.[35]We have considered the written submissions which were advanced by Professor Lewis on behalf of this group before the Employment Tribunal. They accept that there were no dismissals. The case put on their behalf was that, as they had accepted "under duress" and their acceptances were rejected by BRETS, they were still employed on their previous terms and conditions.[36]We have also considered the contemporaneous documentation in relation to Mr. Conway and his unsigned witness statement that was before the Employment Tribunal. The contemporaneous documentation shows that on 15 November 1996 the personnel manager wrote to Mr. Conway, rejecting the acceptance "under duress" and pointing out that the offer was one of permanent employment, rather than the existing temporary employment relationship. Along with the other employees who had not unequivocally accepted the proposed terms, Mr. Conway was there and then offered the revised (i.e.reduced) terms. He indicated his acceptance by his signature on 16 November, and without qualification. He also signed a "Statement of main Terms and Conditions" the same day. It was in the same form as that relating to the Johnson/Downes and Norris/Feaver groups, including a specific sum in respect of wages and the incorporation of the Conditions of Service Booklet. On 5 December, Mr. Conway wrote a further letter in which he purported to "withdraw the disclaimer" because he had been wrongly advised. However, on 30 April 1997 he was again offered permanent employment on specific terms (effectively the same as in November) and he accepted these, including the incorporation of the Conditions of Service Booklet, by his signature on 30 April. It is clear, therefore, that he is bound by those terms. We infer that the other members of the group (which numbers only five in total) are in the same position. All this documentation was before the Employment Tribunal.[37]We accept that the reasoning of the Employment Tribunal in respect of the Conway group was insufficient. However, it is appropriate for us to consider whether, in the circumstances, it is necessary or appropriate for us to quash the decision of the Employment Tribunal and to remit the case of the Conway group for further consideration. In our judgment, such a course would serve no useful purpose. This group obtained a positive benefit from the new terms and conditions. They changed their status from temporary to permanent employees. Mr. Hitchcock makes the justified observation that the final submissions on their behalf to the Employment Tribunal do not reflect the contents of the unsigned witness statement and neither was any coherent case on behalf of the group put to the BRETS witnesses. Professor Lewis does not dispute any of this and frankly concedes that, in relation to this group, it was and is difficult to identify the issue. If that is the case, and we are satisfied that it is, it gives us an insight into why the Employment Tribunal expressed itself so laconically. In our judgment it would be wholly inappropriate to remit this part for a redetermination, in effect so as to give the group a second opportunity to present a coherent case. Moreover, we simply cannot perceive any merit in their claim which, on any basis, was always going to stand behind and be dependent on the success of the claims of the other groups on transfer-correctedness. We therefore conclude that this ground of appeal fails. Other observations.[38]This appeal is against a decision of an Employment Tribunal following a hearing which lasted about two weeks. The Skeleton Arguments for the appeal ran to about 50 pages and the appeal hearing took two days. Much of the debate at all stages related to matters which, in the end, have not featured prominently in this judgment. One of the reasons is that we have not found it necessary to set out factual matters at great length. However, a substantial reason is that, in relation to some of the central issues, we have decided the appeal on the basis of the contractual documentation. All of this, we are assured, was before the Employment Tribunal, but for some reason it did not all feature prominently in the lengthy hearing. This caused Professor Lewis to submit to us that we should not base our decision on the Conditions of Service Booklet in particular, as express reliance was not placed upon it in the Employment Tribunal for the purpose advanced before us. We are unable to adopt the approach suggested by Professor Lewis. The relevant documents were all before the Employment Tribunal – they were, to that extent, part of the evidence. They remain so. It would be wholly inappropriate for us to decide an appeal about the terms of a contract by closing our eyes to the contractual documents. Conclusion.[39]It follows from what we have said that the appeal will be allowed in relation to the NJC award in relation to 1 June 1995 and the time-limit point and the cut-off point in relation to the Fisk/Parker group as regards the April 1966 award. It will be dismissed in relation to the NJC awards of April 1996 and April 1997 in respect of those of the Adhyaru group who were part of the Johnson/Downes and Norris/Feaver groups; in relation to the Brett group (Christmas 1996); in relation to unfair dismissal and "transfer – correctedness"; and in relation to the Conway group. So far as the cut-off points in respect of the April 1996 award are concerned, we invite further and brief written submissions in relation to the Johnson/Downes and Norris/Feaver groups on the narrow issue to which we have referred. Likewise in relation to the Fisk/Parker element of the Adhyaru group as regards NJC awards for April 1996 and April 1997. Written submissions should reach the Employment Appeal Tribunal within 14 days after the handing down of this judgment and should be served on the opposing party at the same time. Of course, if the parties can reach agreement on these two remaining issues without further submissions, all well and good. It is the view of this Tribunal that this ought to be possible. In any event, we expect counsel to agree a draft order to reflect this judgment. We also express our gratitude to them for their respective contributions to an interesting case.