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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/143.html
Cite as: [2000] ICR 1109, [2000] EWCA Civ 143, [2000] IRLR 411

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Case No: EATRF 99/0285/A1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19th April 2000

B e f o r e :
LORD JUSTICE BELDAM
LORD JUSTICE CHADWICK
and
LORD JUSTICE ROBERT WALKER
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	THE SECRETARY OF STATE FOR INDUSTRY	Appellant
	- and -
	MR M. LASSMAN & OTHERS PAN GRAPHICS INDUSTRIES LTD. (In Receivership)	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr Bruce Carr (instructed by the Treasury Solicitor) for the Appellant
Miss Dinah Rose as Amicus Curiae
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE BELDAM:
The Secretary of State appeals from the decision of the Employment Appeal Tribunal on 27th November 1998 allowing appeals by Mr Lassman and ten other former employees of the respondent company, Pan Graphics Industries Ltd. (in receivership) ("Pan Graphics"), who had sought redundancy payments from the Secretary of State on the insolvency of their employer.
The appeal calls in question the validity of a decision made in 1988 by the Secretary of State to make redundancy payments to Mr Lassman and the other respondents who became redundant when their then employer, Rotaprint plc ("Rotaprint"), went into receivership.
In 1988 the respondents had been employed by Rotaprint plc for periods varying between five and twenty-five years when the company experienced financial difficulties. By March 1988 a receiver had been appointed and on 4th March 150 of the workforce of 400 employees were dismissed on grounds of redundancy. The receiver was anxious to realise the value left in the business and on 29th March Rotaprint entered into an agreement with Pan Graphics Industries Ltd. ("Pan Graphics") under its then name of Tiltcode Ltd., giving it an option to buy the business of Rotaprint as a going concern when the remainder of the workforce, including Mr Lassman and his fellow employees, had been dismissed on grounds of redundancy.
On Maundy Thursday, 31st March 1988, notice of redundancy was given to the remaining employees who were asked to report for work after the Easter weekend. On 5th April they did so and were then employed by Pan Graphics on the same terms and conditions as they had been employed by Rotaprint doing the same work.
Rotaprint was insolvent and unable to meet its liabilities or to make the statutory redundancy payments under section 81 of the Employment Protection (Consolidation) Act 1978, (now section 135 of the Employment Rights Act 1996). Accordingly the respondents applied to the Secretary of State for payment under Section 106 of the 1978 Act (now section 166 of the 1996 Act).
In June 1988 the Secretary of State paid the respondents a sum calculated in accordance with Schedule 7 of the 1978 Act representing redundancy payments for the periods of their employment up to 31st March 1988. The respondents continued to be employed by Pan Graphics until 1995 when that company also went into receivership and became insolvent. The respondents applied once more to the Secretary of State for redundancy payments and, acting under section 106, the Secretary of State made payments to the respondents of sums calculated in accordance with Schedule 7 but on the basis that in each case the period of service began on 5th April 1988, the date on which they became employed by Pan Graphics.
The respondents appealed to the Industrial Tribunal. They submitted that the Secretary of State should have calculated the payments from the dates on which they first entered the service of Rotaprint on the ground that the transfer of the business of Rotaprint to Pan Graphics did not break the continuity of their service. They relied on the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) as having preserved their employment and, instead of the seven years service with Pan Graphics, the Secretary of State should have made payments calculated on the basis of continuous service for periods between eleven and twenty years.
Treating the respondents' service with Rotaprint and Pan Graphics as being interrupted by the transfer of Rotaprint's business to Pan Graphics can have an adverse effect on the total redundancy award. This can be illustrated by taking the case of Mr Lassman, the first respondent. He is now 67 years of age. He was 62 in 1995. He joined Rotaprint on 16th August 1979 and on his redundancy on 31st March 1988 received a payment of £1,968. On the insolvency of Pan Graphics in 1995 he received a further payment of £2,152.50. The two payments together total £4,120.50. If his service with Rotaprint was deemed to have continued with Pan Graphics, he would in 1995 have been paid £5,040, a figure based on sixteen years service. Thus the separation of the two periods of employment in his case resulted in his receiving £919.50 less than he would have been paid had his service been regarded as continuous. However this is not the effect in every case.
Before the Industrial Tribunal the Secretary of State conceded that there was a relevant transfer from Rotaprint to Pan Graphics within the meaning of the Transfer of Undertakings Regulations (TUPE). However the Secretary of State argued that there had been an interruption between the termination of their employment with Rotaprint on grounds of redundancy and their re-employment by Pan Graphics.
The Secretary of State further argued that the continuity of the period of employment was broken by reason of the terms of paragraph 12 of Schedule 13 of the 1978 Act (now section 214 of the 1996 Act). As it is accepted that the relevant provisions of section 214 of the 1996 Act are in all relevant respects identical in effect to the provisions of paragraph 12 of Schedule 13 of the 1978 Act, the Industrial Tribunal considered the position under the later Act which was effective at the date of its decision on 13th March 1997. The Tribunal concluded that as the Secretary of State had paid a sum to the employees in respect of a redundancy payment under section 167, it operated to break the continuity of employment and accordingly the respondents were not entitled to any payment beyond the payments made by the Secretary of State.
The respondents appealed to the Employment Appeal Tribunal which on 27th November 1998 allowed their appeals. The Employment Appeal Tribunal said it was an absolute prerequisite of entitlement to a statutory redundancy payment that the employee had been dismissed by reason of redundancy. Section 214(2) plainly envisaged that a redundancy payment had to be made in respect of a dismissal and the payment made by the Secretary of State in 1988 was not made in respect of dismissal because the respondents' employments continued by reason of the transfer of Rotaprint's undertaking to Pan Graphics. Accordingly there had been no renewal or re-engagement under a new contract of employment. Thus section 214(2) did not operate on the facts of the case to break the continuity of the employment which was to be taken as commencing with the respondents' employment with Rotaprint.
Mr Bruce Carr presented the Secretary of State's case on appeal. The case for the respondents was put by Miss Dinah Rose acting as Amicus. We are grateful to both counsel for the clarity of their arguments.
At the end of argument the question for the court seemed to me to depend on whether the payment made by the Secretary of State to the respondents in 1988 was a valid payment in the sense that it was a payment which under the relevant legislation the Secretary of State was empowered to make.
Again it is convenient to cite the statutory provisions as they now appear in the Act of 1996.
The Argument for the Appellant.
Mr Carr submitted that the EAT were wrong to hold that there had been no dismissal when Pan Graphics acquired the business of Rotaprint. He pointed to an inconsistent passage in the Tribunal's extended reasons in which it said:
"On Maundy Thursday, 31st March 1988, all remaining employees of Rotaprint, including these appellants, were dismissed."
I do not think these passages are necessarily irreconcilable. In holding that there had been no dismissal the EAT were referring to the fact that there had been a relevant transfer within the meaning of Regulation 5 of TUPE when the business of Rotaprint was acquired by Pan Graphics in 1988. In its earlier reference the EAT was in my view referring to the notices of dismissal which had been given to all the remaining employees of Rotaprint. Mr Carr next submitted that on the basis of the law as it had been interpreted in 1988 the claimants had indeed been dismissed. The law at that time was correctly stated by this court in The Secretary of State for Employment v Spence [1987] QB 179.
Although the EAT did not refer to this case by name, it noted that as the law was then understood the Secretary of State could be assumed to have taken the view that the appellants (the present respondents) had been dismissed by the receivers of Rotaprint by reason of redundancy on 31st March 1988. In those circumstances transfer of the undertaking to Pan Graphics did not preserve their continuity of employment and that accordingly the Secretary of State was, as the law then stood, obliged to make the employers' payment under what is now section 167 of the 1996 Act. That understanding of the law was not to be altered until the House of Lords pronounced judgment in Litster v Forth Dry Dock & Engineering Co. Ltd. [1990] 1AC 546. Mr Carr submitted that the Secretary of State in deciding whether he should make a payment on behalf of the insolvent employers under section 167 of the 1996 Act was entitled to have regard to the law as it was understood at the time. The requirements of section 214(2) of the Act had been met because the respondents had received a redundancy payment and their contracts of employment were renewed or, alternatively, they had been re-engaged. Further, by virtue of section 214(5)(c) of the Act, a redundancy payment was to be treated as having been paid and thus to have broken the continuity of a period of employment under section 214(2).
Miss Rose submitted that whether the requirements of section 214(2)(a) were met depended upon the proper construction of section 214(5)(c) and the proper construction of section 167. She neatly summarised the first question in this way.
"Does section 214(5)(c) require that a payment has been properly and lawfully made by the Secretary of State under section 167? Or merely that a payment has been made which is formally valid under section 167? In other words does section 214(5)(c) permit the Tribunal to investigate the vires of the payment under section 167 or require it to assume that it was lawful?"
She said that under section 167 of the Act the Secretary of State could not be satisfied that an employer's payment was due unless he directed himself properly in law and made a reasonable assessment of the relevant facts. If his decision to make a payment was reached on the basis of a misdirection of law it was not lawful and that was so whether the law was clear at the date of the decision or was subsequently clarified by the House of Lords. Regulation 5 of TUPE applied to the claimants in 1988, the notices of dismissal on grounds of redundancy were ineffective and their contracts of employment were to be deemed to have continued. Accordingly the payments made by the Secretary of State in 1988 were payments he was not empowered to make. The claimants' continuity of employment was unbroken.
The Statutory Requirements.
The provision for payments to be made by the Secretary of State are set out in Chapter VI of the Act. Those relevant to this appeal are:
Section 166. Applications for Payments.
"(1) Where an employee claims that his employer is liable to pay to him an employer's payment and either -
(a) ... or
(b) that the employer is insolvent and that whole or part of the payment remains unpaid,
the employee may apply to the Secretary of State for a payment under this section."
In these proceedings it is accepted that Rotaprint was insolvent for the purposes of Subsection (1)(b).
Section 167, Making of Payments, provides:
(1) Where, on an application under section 166 by an employee in relation to an employer's payment, the Secretary of State is satisfied that the requirements specified in subsection (2) are met, he shall pay to the employee out of the National Insurance Fund a sum calculated in accordance with section 168 ...
(2) The requirements referred to in subsection (1) are -
(a) that the employee is entitled to the employer's payment, and
(b) that one of the conditions specified in paragraphs (a) and (b) of sub-section (1) of section 166 is fulfilled ..."
The section further provides that where the Secretary of State makes a payment to an employee any rights and remedies which the employee might have in respect of the redundancy payment are transferred to and vest in the Secretary of State and that if the Secretary of State recovers any money in the employer's liquidation it is to be paid into the National Insurance Fund.
The employee's right to a redundancy payment arises under Section 135 which provides:
"(1) An employer shall pay a redundancy payment to any employee of his if the employee -
(a) is dismissed by the employer by reason of redundancy, or
(b) ..."
Further, section 136 provides that an employee is dismissed if the contract under which he is employed by the employer is terminated by the employer whether with, or without, notice.
The amount of a redundancy payment is calculated in accordance with section 162 by allowing the appropriate amount for each year of continuous employment. Section 214 contains special conditions for redundancy payments. It provides:
"(1) This section applies where a period of continuous employment has to be determined in relation to an employee for the purposes of the application of section 155 or 162(1).
(2) The continuity of a period of employment is broken where -
(a) a redundancy payment has previously been paid to the employee (whether in respect of dismissal ...) and
(b) the contract of employment under which the employee was employed was renewed (whether by the same or another employer) or the employee was re-engaged under a new contract of employment (whether by the same or another employer) ...
(5) For the purposes of this section a redundancy payment shall be treated as having been paid if -
(a) ...
(b) ...
(c) the Secretary of State has paid a sum to the employee in respect of the redundancy payment under section 167."
Having set out the statutory provisions, I now turn to the relevant decisions of the courts.
In The Secretary of State for Employment v Spence & Ors [1987] QB 179, the employers went into receivership in November 1983. A number of the employees were made redundant but the receiver hoped to carry on with the remaining workforce until February. However, a major customer threatened to withdraw its custom unless the undertaking had been sold as a going concern by Thursday, 24th November. Negotiations for a sale could not be completed in the time available and on Monday, 28th November, the remaining workforce was dismissed with immediate effect at 11 a.m. They were, however, told to return to 2 p.m. when it was hoped that an agreement might be reached with the purchaser. At 2 p.m. the workforce were told to report for work the following morning when they were re-employed, being given fresh contracts of employment. The employees claimed redundancy payments. The Industrial Tribunal held that there had been no transfer of an undertaking within the meaning of Regulation 3 of TUPE and no continuity of employment. Alternatively the regulations did not apply because the workforce were not employed "immediately before the transfer" within the meaning of Regulation 5(3). The Secretary of State appealed and his appeal was dismissed by the EAT and by this court. Lord Justice Balcombe, after construing the regulations in the context of EEC Directive No. 77/187, held that as the applicants' contracts of employment were not subsisting at the moment of transfer it followed that for the purposes of the legislation they had been dismissed before the relevant transfer and that accordingly they were entitled to redundancy payments. At page 190 he said:
"If a person is dismissed because of the transfer, either the impending transfer or one which has already taken place, then he is given specific rights under Regulation 8. Applying that construction of Regulation 5 to the facts of the present case, it is clear that the applicants were dismissed before the relevant transfer. Their contracts of employment were not existing at the moment of the transfer. There was nothing on which Regulation 5 could bite and accordingly the Secretary of State is liable for redundancy payments."
In March 1988 Litster & Ors v Forth Dry Dock & Engineering Co. Ltd. came for decision by the Second Division of the Inner House of the Court of Session, see [1988] IRLR 289. The facts were similar. Twelve applicants worked for an employer who became insolvent and went into receivership. The receivers agreed to sell the business assets to the transferee and one hour before completion of the purchase was due to take place the workforce was dismissed by being handed letters of dismissal which stated that no payments would be made for holiday pay or damages for failure to give the statutory period of notice. None of the applicants was taken on by the new owners of the undertaking. The Industrial Tribunal had held that the dismissal was unfair, that the applicants were employed immediately before the transfer and were dismissed by reason of the transfer. Their dismissal was therefore unfair under Regulation 8 of TUPE and the liability of their former employers was transferred to the transferee. The Inner House allowed the transferee's appeal but the applicants appealed to the House of Lords who on 16th March 1989 allowed their appeal.
Two matters of importance emerge from the opinions delivered in the House of Lords. The first is that, if the applicants' dismissals had been on grounds of redundancy, they would probably not have been held to be unfair. The second is that the case of Spence was distinguished, although the House had been invited to say that it was wrongly decided. Lord Oliver said that from the findings of fact in Spence's case, the reason for dismissal was not one connected with the transfer but was due to economic considerations with the result that Regulation 8(1) did not render the dismissals unfair. He upheld the reasoning of Lord Justice Balcombe that Regulation 5(1) did not operate to transfer the obligations of the original employer to the transferee. He said [1990] 1 AC at page 575:
"Where before the actual transfer takes place the employment of a employee is terminated for a reason unconnected with the transfer, I agree that the question of whether he was employed "immediately" before the transfer cannot sensibly be made to depend upon the degree of temporal proximity between the two events, except possibly in a case where they are so closely connected in point of time that it is for practical purposes impossible realistically to say that they were not precisely contemporaneous. Either the contract of employment is subsisting at the moment of the transfer or it is not and if it is not, then, on the pure textural construction of Regulation 5 neither paragraph (1) nor paragraph (2) (which is clearly subsidiary to and complementary with paragraph (1)) can have any operation."
Lord Oliver interpreted Regulation 5(3) as if there were inserted after the words "immediately before the transfer" the words "or would have been so employed if he had not been unfairly dismissed in the circumstances described in Regulation 8(1)."
He emphasised that this did not involve any disapproval of the reasoning of this court in Spence's case [1987] QB 179.
Reliance was placed by the respondents on Rowan v Machinery Installations (South Wales) Ltd. [1981] IRLR 122. The claimant in that case received notice terminating his employment on 30th September 1977. He received an amount calculated in accordance with the statutory redundancy provision but never ceased to work for the company. Before the termination of his contract of employment took effect he was kept on on a week to week basis. Two years later he was dismissed on grounds of redundancy and paid a redundancy payment calculated on the basis that his continuity of employment had been broken by the termination of his original contract. The EAT held that although paragraph 12 of Schedule 13 of the 1978 Act provided that the continuity of employment should be treated as broken where a redundancy payment had been paid to the employee, whether a redundancy payment had been paid within the meaning of paragraph 12 depended on the circumstances in which the payment was made. To amount to a redundancy payment it had to be made in circumstances in which the employer was liable to pay a sum under the redundancy provisions of the section. Mr Justice Slynn (as he then was) said:
"If a sum of money is paid under the belief that a redundancy payment is due or for any other reason, but where there is no liability on the employer to make it as a redundancy payment, then it seems to us that subparagraph (a)(i) of subparagraph (2) of paragraph 12 is not satisfied, and accordingly no reliance can be placed upon the provisions of paragraph 12(1) that the period of employment is to be treated as having been broken."
Miss Rose relied upon Rowan's case arguing that the Secretary of State was not liable in the circumstances of this case to make a payment under section 167 and if the Secretary of State erroneously paid the sum in circumstances not falling within the scope of section 167, the claimants' continuity of employment was not broken.
Decision.
Persuasively though Miss Rose argued the claimant's case, I do not think it is correct.
Under section 167 the Secretary of State is bound to pay to the employee out of the fund the appropriate amount in circumstances:
"Where on an application under section 166 by an employee in relation to an employer's payment, the Secretary of State is satisfied that the requirements specified in subsection (2) are met."
Miss Rose argued that the Secretary of State could not be satisfied that the employee was entitled to the employer's payment in the circumstances of this case, and cited from the judgment of Lord Denning MR in Employment Secretary v ASLEF (No. 2) [1972] 2 QB 455 at 493 where speaking of the words "if it appears to the Secretary of State" used in the statute there in question:
"If the Minister did not act in good faith or he acts on extraneous considerations which ought not to influence him or if he plainly misdirects himself in fact or in law it may well be that a court would interfere." [Emphasis added].
She also referred to Education Secretary v Tameside BC [1977] AC 1014 at page 1047 where Lord Wilberforce discussing a section framed in the subjective form - "if the Secretary of State is satisfied" endorsed Lord Denning's views.
It is often helpful to approach the interpretation of a statutory provision by considering the purpose of the relevant enactment. Redundancy payments were introduced by the Redundancy Payments Act 1965. The Act created an obligation on employers to make redundancy payments to employees who had been dismissed because there was no longer any work for them or who had been laid off or kept on short time. The object of the Redundancy Fund set up by section 26 of that Act under the control of the Minister (now the Secretary of State) was to enable him to make the appropriate payment for an insolvent employer. Redundancy payments were intended to provide income for an employee while he was seeking new employment or was on short time. I find it difficult to think that Parliament could have intended the Secretary of State's decision to be challengable by judicial review (as Miss Rose suggested) at the instance, for example, of a receiver or liquidator. In the light of the decision in Spence's case the Secretary of State directed himself correctly on the facts of this case. Further Rotaprint purported to dismiss the claimants on grounds of redundancy. The dismissal took effect on 31st March and the claimants were not re-employed until 5th April. Again on the basis of Spence's case, the Secretary of State could in 1988 have properly concluded that the claimants were not employed immediately before the transfer within Regulation 5 of TUPE and that consequently they were entitled to redundancy payments. The respondents who applied for the payments appear to have taken a similar view. In my view Parliament required the Secretary of State to be satisfied that an employee was entitled to an employer's payment by taking a view of the facts and the law which acting in good faith he could reasonably entertain. On this basis his decision is not to be set aside simply because thereafter someone thinks that his view was wrong. It would be an unreasonable construction which required the Secretary of State every time he was called upon to act under section 167 to gaze into a crystal ball and to foretell future developments in employment law.
As Mr Carr points out, in employment law the Secretary of State's construction in fact results in an employee receiving a payment for every week of his employment. The fact that in the most unusual circumstances of this case in which the insolvency of one employer was followed some years later by the insolvency of another does not in my view require the court to place a strained meaning on the words "satisfied". Parliament could only have expected the Secretary of State to act upon a view of the law as it was at the time he had to reach his decision. I also bear in mind that the Secretary of State will often have no personal knowledge of the facts which have given rise to the employer's insolvency or of the nature of the negotiations for and precise terms of a transfer of the business and will largely be dependent on others to inform him. He must, of course, make reasonable enquiries to ascertain the facts and to apply to them the law as it is then understood to be. Parliament cannot have expected him to do more. I would uphold the argument of the Secretary of State and allow the appeal.
Lord Justice Chadwick: This appeal raises a short question of statutory construction: whether the circumstances in which a payment was made to Mr Lassman by the Secretary of State in 1988 were such as to fall within the provision now enacted as section 214(2)(a) of the Employment Rights Act 1996? I agree that that question must be answered in the affirmative; and that, accordingly, this appeal should be allowed.
Section 214(2) of the 1996 Act provides that "the continuity of a period of employment is broken where - (a) a redundancy payment has previously been paid to the employee . . ." For the purposes of that provision a redundancy payment shall be treated as having been paid in the circumstances described in section 214(5). Those circumstances include . . . "if - (c) the Secretary of State has paid a sum to the employee in respect of the redundancy payment under section 167".
Sections 166 and 167 of the 1996 Act contain provisions formerly enacted as section 106(1) and (2) of the Employment Protection (Consolidation) Act 1978. Section 166(1) provides that, "where an employee claims that his employer is liable to pay to him an employer's payment and . . . (b) that the employer is insolvent and the whole or part of the payment remains unpaid, the employee may apply to the Secretary of State for a payment . . ." In that context "an employer's payment", in relation to an employee, includes a redundancy payment which his employer is liable to pay to him - see section 166(2)(a) of the 1996 Act. Section 167 of the Act is in these terms, so far as material:
167(1) Where, on an application under section 166 by an employee in relation to an employer's payment, the Secretary of State is satisfied that the requirements specified in subsection (2) are met, he shall pay to the employee out of the National Insurance Fund a sum calculated in accordance with section 168 but reduced by so much (if any) of the employer's payment as has already been paid.
(2) The requirements referred to in subsection (1) are -
(a) that the employee is entitled to the employer's payment, and
(b) that one of the conditions specified in paragraphs (a) and (b) of subsection (1) of section 166 is fulfilled, . . .
It is to be noted that Parliament has not thought it right to impose a test which is wholly objective. The obligation to make a payment under section 167(1) of the Act does not arise "if the requirements specified in subsection (2) are met"; the obligation arises "if the Secretary of State is satisfied that the requirements specified in subsection (2) are met". There are, as it seems to me, good reasons for the inclusion of the words which I have emphasised. Parliament intended that payments out of the Fund should be controlled by administrative decision. Of course, that decision had to be taken upon a proper consideration of the facts, and with a proper appreciation of the law as it was understood at the time; but, subject to that, the decision whether or not he was satisfied that the requirements of section 167(2) of the Act were met was entrusted to the Secretary of State. If he was so satisfied, then he was required, by section 167(1), to make the payment.
In the light of those provisions it does not seem to me to be open to serious doubt that a payment made to an employee out of the Fund, following a decision by the Secretary of State that he is satisfied that the requirements specified in section 167(2) are met, is properly to be described as "a sum [paid] to the employee in respect of the redundancy payment under section 167" for the purposes of section 214(5)(c) of the Act. I do not think that Parliament contemplated that, in deciding whether or not a payment made by the Secretary of State in response to a claim under section 166 on some earlier occasion was to be treated as a redundancy payment in the context of reckoning the period of continuous service on a subsequent occasion, the employer or the industrial tribunal (on that later occasion) should be concerned to investigate the basis upon which the Secretary of State reached his decision, on the earlier occasion, that he was then satisfied that the requirements of section 167(2) were met. The possibility that a tribunal should have been intended, on the later occasion, to review an administrative decision taken on the earlier occasion seems to me implausible. The tribunal's task, on the later occasion, is to satisfy itself that the earlier payment was made following a decision by the Secretary of State that he was satisfied that it should be made; not to enquire into the question whether the Secretary of State was entitled to reach the decision which he did reach.
For those reasons, and for the reasons given by Lord Justice Beldam, I would allow this appeal.
Lord Justice Robert Walker: I also agree. I add two short comments. As Lord Oliver noted in Litster [1990] 1 AC at pp.574H-575A, regulation 8(1) of TUPE does not apply where the sole or principal reason for an employee's dismissal is "an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee" (regulation 8(2)) . That is a question on which views may differ and on which the Secretary of State (in exercising his powers under section 167 of the 1996 Act) would have to form a view on information derived from others. It would be extraordinary if his view could be the subject of a collateral challenge, many years later, on the occasion of a second insolvency.
The other point is that this court was referred, on the subject of collateral challenges to past official decision-making, to the decision of the House of Lords in Chief Adjudication Officer v Foster [1993] AC 754. I suspect that all the cases in this area of the law now have to be considered in the light of their Lordships' decision in Boddington v British Transport Police [1999] 2 AC 143. The speech of Lord Steyn refers to a wealth of academic work on this difficult area. But Boddington was not cited and it is not necessary for the disposal of this appeal to discuss it further.
Order: Appeal allowed. No order as to costs.
(Order does not form part of the approved judgment)