England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(His Honour Judge Winstanley)

		Royal Courts of Justice Strand London WC2 Tuesday, 27th February 2001

Tuesday, 27th February 2001

1. LORD JUSTICE PETER GIBSON: Two important principles of English law underlie the exclusionary rule of res judicata or estoppel by a judgment. One is that there should be finality in litigation. The other is that no-one should be sued twice on the same ground. Of the two types of that estoppel, cause of action estoppel and issue estoppel, we are concerned on this appeal with the second, issue estoppel. It is not in dispute that the requirements for such estoppel are that (1) the judgment in the earlier action which is claimed in the later action to give rise to the defence of an estoppel is that of a court of competent jurisdiction, is final and conclusive and is on the merits, (2) the parties (or privies to parties) in the earlier action are the same as those in the later action, and (3) the issue in the later action is the same as that decided in the earlier judgment. But to such issue estoppel there is a possible exception, recognised by the House of Lords in Arnold v National Westminster Bank [1991] 2 AC 93, when relevant further material, unavailable at the time of the earlier action and tending to show that the earlier decision was wrong, becomes available. Such material, it was held in Arnold, is not confined to factual material but may include a later decision constituting a change in the law.
2. The main issue on this appeal is whether the circumstances of this case fall within the exception.
3. It is an appeal from the order made by His Honour Judge Winstanley in the Wandsworth County Court on 23rd September 1999 on a preliminary issue in two actions. The Judge held that Securicor Ltd ("Securicor") was estopped from arguing in those actions certain points which had been the subject of decisions by an Employment Tribunal and by the Employment Appeal Tribunal ("the EAT") in proceedings brought by eight former employees of Securicor to which Securicor and Group 4 Total Security Ltd ("Group 4") were the respondents. I shall call those former employees "the Employees", including in that term the personal representatives of a deceased former employee. The claimants in the two actions are six of the Employees and the personal representatives of the other two. In the first action Securicor is the sole defendant. In the second action Securicor and Group 4 are the defendants. Securicor now appeals with the permission of the single Lord Justice (Sir Anthony McCowan).
4. I summarise the facts relevant to this appeal largely from the agreed statement of facts.
5. For many years prior to 31st December 1998 Securicor was engaged under contract with the Home Office to run the Immigration Detention Centres for Heathrow Airport and for Gatwick Airport. The Employees were employed by Securicor as Immigration Escorts at Gatwick Airport until 31st December 1988. A Memorandum of Agreement between Securicor and MATSA (the Managerial, Administrative, Technical and Supervisory Association), of which trade union the Employees were members, was incorporated into the contracts of employment of the Employees; this provided in Section H of Part VI (relating to redundancy) that each employee entitled to a statutory redundancy payment would receive in addition a supplementary payment equal to one and a half times the amount of the statutory payment.
6. The Home Office terminated Securicor's contract with effect from 31st December 1988 after a compulsory competitive tender was won by Group 4. From 1st January 1989 the Employees, save for the fourth claimant, Mr Mitchell, who obtained work elsewhere, were employed by Group 4 in the same jobs as those in which they had been employed by Securicor. Group 4 obtained confirmation from Securicor that it had subjected those Employees to positive vetting procedures in accordance with the standards of the British Security Industries Association of which both Securicor and Group 4 were members. There was no break in the provision of the services which had been provided by Securicor when Group 4 commenced work under its contract. That work was the same as that which had been done by Securicor, and was conducted in the same premises provided by the Home Office as had been provided for Securicor. Group 4 adopted Securicor's shift pattern. It provided its own vehicles and communications equipment as Securicor had done.
7. Between January and June 1989 most of Securicor's former employees working on the contract with the Home Office applied to Employment Tribunals, claiming statutory redundancy payments against Securicor or Group 4. The Employees who had been employed at Gatwick applied to an Employment Tribunal in Brighton. Some 50 former employees at Heathrow applied to an Employment Tribunal in London (North).
8. The Brighton Tribunal, after a six-day hearing, by a decision promulgated on 20th November 1989, dismissed the Employees' applications, holding that

(a)Securicor had not dismissed the Employees; but

(b)if wrong on that, there had been no transfer of an undertaking from Securicor to Group 4 under the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE"), each of the Employees was dismissed by reason of redundancy, only one (Mr Evans) may have been offered other suitable employment but he was not unreasonable in refusing it, and it would have awarded a redundancy payment to each of the Employees.

9. On the Employees' appeal and Securicor's cross-appeal, the EAT held, in a reserved judgment delivered by Knox J on 28th July 1992 (reported at [1992] IRLR 549), that:

(a)Securicor had dismissed the Employees by reason of redundancy;

(b)there had been no transfer of an undertaking from Securicor to Group 4; and

(c)the EAT should not interfere with the findings of fact by the Tribunal that there was no offer of suitable alternative employment, save possibly for Mr Evans and there was no basis for distinguishing his case from that of the other employees.

10. The Employees' appeal was therefore allowed and Securicor's cross-appeal dismissed.
11. Securicor applied to the EAT for permission to appeal, but that was refused and no application to this court was made for permission.
12. Securicor duly paid statutory redundancy payments to the Employees. Securicor did not pay the supplementary payments referred to in the memorandum of agreement with MATSA and on 26th May 1994 the Employees commenced proceedings ("the first action") against Securicor alone in the Wandsworth County Court, claiming the supplementary payments, such sums varying from a little under £1,500 to a little over £5,000. By its defence Securicor denied liability, claiming that it had offered suitable alternative employment to each of the Employees and that there had been a transfer of an undertaking within TUPE from Securicor to Group 4. In their reply the Employees claimed that Securicor was estopped by (inter alia) the EAT's decision from maintaining that the Employees' employment was not terminated by reason of redundancy or that any of the Employees had refused an offer of suitable alternative employment or that there had been a transfer of an undertaking within TUPE.
13. In the meantime, at a two-day hearing, an Employment Tribunal in London (North) had heard a preliminary issue in the application of the former employees of Securicor at Heathrow. This raised the question whether there had been a transfer of an undertaking from Securicor to Group 4 within TUPE. Group 4 submitted that there was no case to answer on terms that it reserved the right to call evidence if that submission failed. But in a decision promulgated on 16th August 1994 the Tribunal, without hearing evidence from Group 4, held that there had been such a transfer. Group 4 appealed on substantive and procedural grounds, but the appeals were settled on 21st May 1997 by a compromise which did not involve Securicor.
14. On 8th December 1994 the Employees commenced further proceedings ("the second action") in the Wandsworth County Court against Securicor and Group 4, claiming against Securicor, alternatively against Group 4 on the basis that there had been a transfer of an undertaking to it, as damages for breach of contract the supplementary payments and also the pay to which the Employees were entitled if they had received, as they should have done under section 49 Employment Protection (Consolidation) Act 1978 ("the 1978 Act"), notice of the termination of their employment contracts. Such sums varied from £500 to over £3,000. By its defence Securicor denied the claims, again relying on a transfer of an undertaking to Group 4. Group 4 in its defence denied the claims, raising the defence of issue estoppel. In their reply the Employees also raised issue estoppel against Securicor.
15. The first action and the second action were consolidated by order of His Honour Judge Sumner on 22nd September 1995. That judge heard an application by the Employees for a preliminary issue to be directed as to whether Securicor was estopped by the EAT decision from arguing that the Employees' employment by Securicor was transferred on 1st January 1989 to Group 4 under TUPE. He held that the two actions should be stayed pending the outcome of Group 4's appeals from the decision of the Tribunal at London (North).
16. Following the settlement of Group 4's appeals, District Judge Walker on 20th November 1998 ordered the trial of the following issue:

"whether by reason of the decision of the [Employment] Tribunal sitting at Brighton ... and/or by reason of the decision of [the EAT] ... [Securicor] is estopped from arguing, contrary to those decisions, that:

(a)The provisions of [TUPE] and/or Directive 77/187 EEC (the Acquired Rights Directive) applied to the termination of the contract between [Securicor] and the Home Office and the grant of a new contract by the Home Office to [Group 4] in respect of the provision of immigration officers and related services to the Home Office in or about December 1988/January 1989 and/or that the [Employees'] employment contracts or any part or parts thereof or any or all of [Securicor's] rights, powers, duties and/or liabilities under or in connection with any such contract transferred from [Securicor] to [Group 4] and/or that anything done before the termination of [Securicor's] contract with the Home Office as aforesaid by or in relation to [Securicor] in respect of any or all of the [Employees] or any contract of employment of any or all the [Employees] with Securicor shall be deemed to have been done by or in relation to Group 4.

(b)The [Employees] were not dismissed, by reason of redundancy, from their employment with [Securicor] in or about December 1988;

(c)On the termination of their employment as aforesaid, the [Employees] were offered and/or refused suitable alternative employment."

17. That issue came before Judge Winstanley. He found that there was an issue estoppel in respect of all the questions set out in the preliminary issue. He then considered whether the case fell within the exception recognised in Arnold. That was stated by Lord Keith [1991] 2 AC at page 109 in this way:

"In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings."

18. Further, Lord Keith agreed with the following statement by Sir Nicolas Browne-Wilkinson, Vice-Chancellor, [1989] Ch 63 at pages 70-1:

"In my judgment a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel should be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from the subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not possess. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case."

19. Judge Winstanley considered the submission of Securicor that there had been a change in the law since the EAT's decision, in particular by the decision of this court in Dines v Initial Health Care Services Ltd [1994] IRLR 336. The Judge rejected that submission, holding that in Dines there was no change in the law but just an application of the general principles laid down in a series of cases decided by the European Court of Justice and going back to Spijkers v Gebroeders Benedik Abattoir CV [1986] ECR 119. The Judge held that there were no specific circumstances present in the instant case to justify bringing it within the exception. Accordingly he answered the preliminary issue in the affirmative and gave judgment for the Employees against Securicor in the consolidated action.
20. Mr Toby Hooper QC for Securicor challenges the correctness of the Judge's conclusion on issue estoppel. It is his submission that between the EAT's decision on 28th July 1992 and 19th May 1994 when this court gave judgment in Dines there was a change in the law such as to prevent issue estoppel from arising. He pointed to the recitals to the Acquired Rights Directive as suggesting that it was contemplated that the law would develop as economic changes occurred. Thus the fifth recital is:

"Whereas economic trends are bringing in their wake at both national and Community level, changes in the structure of undertakings, through transfers of undertakings, businesses or parts of businesses to other employers as a result of legal transfers or mergers".

21. He said that his submission in favour of a transfer of an undertaking gave employees greater protection to continuity of employment and that protection was one of the purposes of the directive. He submitted that whereas prior to July 1992 it had been held that there could be no transfer of an undertaking without a transfer of assets, since then the European Court of Justice and this court in Dines had come to recognise that a contract for the provision of services alone is capable of transfer such that there is a transfer of an undertaking. He said that two decisions of the European Court of Justice were of particular significance. One was the decision in Dr Sophie Redmond Stichting v Bartol [1992] IRLR 366 on 19th May 1992. In that case it was held that there is a transfer of an undertaking when a public authority decides to terminate the subsidy paid to a foundation set up to assist drug addicts, as a result of which the foundation's activities are fully terminated, and to transfer it to another foundation with a similar aim. The other decision was that in Rask v ISS Kantineservice A/S [1992] ECR 1-5755. In that case there was a transfer of an undertaking when the owner of one business, by a contract, assigned for value to the owner of another business responsibility for running a staff facility which was formerly managed directly, the assignee taking over the assignor's staff on the same terms and conditions. Mr Hooper argued that in Dines in circumstances indistinguishable from the present case, where a public authority which had awarded a cleaning contract to one company awarded it to another under a competitive tendering process, this court held that there was the transfer of an undertaking within TUPE. He submitted that the EAT's decision in July 1992 was correct in law at the time it was given but was inconsistent with and in effect overruled by Dines. Accordingly, Mr Hooper said that there had been a change in the law through the further interpretation of the law since 1992, such that the change came within the exception recognised in Arnold for the issue estoppel which otherwise, subject to one further submission to which I will come later, he accepted would apply.
22. I am not able to accept these submissions which seem to me to proceed on some fundamental misconceptions. First, I doubt that the recitals to the Directive are of much assistance on any material point. They record the factors in 1977 which led the European Council to adopt the Directive with a view to harmonising the laws of Member States which had previously differed one from another in this particular area. Whilst no doubt Mr Hooper's submissions in favour of a transfer do lead to continuity of employment, the question whether a transfer has occurred must be determined in accordance with the principles laid down by the European Court of Justice in a series of decisions all of which, on their face, apply the same principles. It is common ground that the cardinal principles were set out in Spijkers. In that case the question raised was whether there was a transfer where buildings and stock of the alleged transferor were taken over and the alleged transferee was thereby enabled to continue the business which had previously been carried on by the alleged transferor and did in fact subsequently carry on business activities of the same kind in the buildings in question. The European Court of Justice said at page 1128:

"11.... the decisive criterion for establishing whether there is a transfer for the purposes of the directive is whether the business in question retains its identity.

12.Consequently, a transfer of an undertaking, business or part of a business does not occur merely because its assets are disposed of. Instead it is necessary to consider, in a case such as the present, whether the business was disposed of as a going concern, as would be indicated, inter alia, by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.

13.In order to determine whether those conditions are met, it is necessary to consider all the facts characterizing the transaction in question, including the type of undertaking or business, whether or not the business's tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred and the degree of similarity between the activities carried on before and after the transfer and the period, if any, for which those activities were suspended. It should be noted, however, that all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation.

14.It is for the national court to make the necessary factual appraisal, in the light of the criteria for interpretation set out above, in order to establish whether or not there is a transfer in the sense indicated above."

23. Thus, contrary to the thrust of Mr Hooper's submissions, as early as the Spijkers case in 1986 the presence or absence of any assets transferred was recognised as being only one of the factors to be taken into account.
24. The numerous subsequent cases in the European Court of Justice apply the Spijkers principles, most of them expressly. They include the Redmond Stichting case (see [1992] IRLR 316 at page 319, paragraphs 22 to 25). The latest case to which we were referred, Allen v Amalgamated Construction Company [2000] ICR 436, similarly contains numerous references to Spijkers as well as to the cases decided by the European Court of Justice before and after 1992. Whilst in an English authority, Betts v Brintel Helicopters Ltd [1997] ICR 792 and 807, it was suggested in this court that a decision of the European Court of Justice in 1997, Süzen v Zehnacker Gebauderreinigung GmbH [1997] ICR 662, represents a shift of emphasis or at least a clarification of the law and that this might call for reconsideration of some of the reasoning of earlier decisions if not the decisions themselves, that obiter observation may have gone too far (see ECM (Vehicle Delivery Service) Ltd v Cox [1999] ICR 1162 at page 1168). In my judgment the submission that there was a material change between 1992 and 1994 in the jurisprudence of the European Court of Justice cannot be sustained. I note that in a case in the Times Law Reports today Liskojärvi v Oy Liikenne Ab, a decision of the European Court of Justice on 25th January 2001, it was held that while the directive could apply to a transfer that resulted from the award of a public service contract and could apply where there was no direct contractual link between two undertakings successively awarded a public bus service contract, it did not apply where there was no significant transfer of tangible assets between the undertakings, in circumstances where the bus service required substantial plant and equipment and where the tangible assets contributed significantly to the performance of the activity. This illustrates the truism that each case turns on its own particular facts and that it is for the tribunal of fact to apply the principles laid down in Spijkers to those facts. It is of course the case that economic circumstances change and the broad principles of the directive as explained by the European Court of Justice and as introduced into national laws of Member States (such as by way of TUPE in the United Kingdom) have to be applied to the changing circumstances. But no change in the law has been shown to have been effected by the decisions of the European Court of Justice between 1992 and 1994.
25. In the EAT's decision itself there was an express acceptance that the decision whether or not there is a relevant transfer in the circumstances of the present case depends on the facts. Knox J said ([1992] IRLR at page 553, paragraph 18):

"Where successive contractors are engaged by a person who owns premises upon which an enterprise is conducted it will in our view be a question of fact whether or not in all the circumstances there is a transfer of undertaking from the first contractor to the second. No absolute hard and fast rule can be laid down."

26. The EAT then considered a number of authorities, including O'Connor v Brian Smith Catering Services, a decision of the EAT on 18th March 1992. This was the case of a contract with a public authority for catering services going from one caterer to another who had obtained the contract by a successful tender. The EAT held that the business in question was not vested in the outgoing caterer but in the public authority. Knox J said of that decision:

"We would accept that that decision is not one that there can never be a transfer of an undertaking within the Transfer Regulations between successive contractors but whether there was one or not is a question of fact for the tribunal of fact."

27. The basis of the decision of the EAT, reached after considering a number of cases of the European Court of Justice, was that the Tribunal, in concluding that the economic unit was that of the Home Office and not that of Securicor or Group 4, had factual material upon which that conclusion was based and so the EAT could not interfere.
28. Was that decision overruled by Dines? It was not expressly overruled even though Knox J's judgment was cited to this court. No reference is made to the EAT's decision in the judgment of this court. Nor, as Mr Bruce Carr for the Employees in a helpful argument supported by Mr John Taylor for Group 4 has convincingly demonstrated, is there any inconsistency between the decision of the EAT and the decision in Dines of this court. In Dines the Tribunal had found that the provision of cleaning services at a hospital constituted an undertaking, but that, on the termination of the contract of the earlier contractor following competitive tendering, the business of the contractor ceased and when the new contractor was awarded the contract a new business commenced and for that reason there was no transfer of an undertaking within TUPE.
29. Neill LJ (with whom Henry LJ and Sir Christopher Slade agreed) reviewed the European authorities and said at page 21:

"It will be seen that a possible transfer of an undertaking can take place in a number of different circumstances, including the following. (a) The undertaking may be sold direct by A to B. (b) A may carry on certain activities as part of its business and then decide to contract these activities out to B. (c) A may be carrying on an undertaking on B's premises and then, at the expiration of a lease or for some other reason, a similar undertaking may be carried on thereafter either by B or by a new lessee C. The reason for cessation of A's activities on B's premises may be as a result of a system of competitive tendering, whereby after the cessation of A the activities are carried on by C."

30. Neill LJ at page 23 found a misdirection by the Tribunal when it said:

"10. However when one company enters into competition with a number of other companies to obtain a contract, as happened in this case, and a different company wins the contract from the company that was previously providing the services then this is a cessation of the business of the first contractors on the hospital premises, and the commencement of a new business by Pall Mall when they are awarded the contract."

31. Neill LJ said:

"The European Community cases demonstrate that the fact that another company takes over the provision of certain services as a result of competitive tendering does not mean that the first business or undertaking necessarily comes to an end. Moreover, as was pointed out in the decision in Daddy's Dance Hall [1988] ECR 739 and elsewhere, a transfer may take place in two phases.

I have given careful consideration to whether this passage in paragraph 10 of the industrial tribunal decision can be interpreted as merely a decision on the facts and no more. It seems to me, however, that the words `when one company enters into competition with a number of other companies to obtain a contract, as happened in this case' the industrial tribunal was in effect applying a general proposition to the facts of the case. In my judgment, the general proposition does not accord with the approach of the Court of Justice. In these circumstances I would be disposed to allow the appeal because this misdirection was of fundamental importance."

32. It is to be noted that Neill LJ was indicating that if he had been able to conclude that paragraph 10 was merely a decision on the facts and not a general proposition, he would not have felt it right to interfere.
33. In my judgment therefore Dines, which turned on the misdirection of law relating to cessation, was not concerned with the question of the identification of who owned the economic unit said to be transferred, the subject of the EAT's decision in the present case. Dines plainly did not overrule the EAT decision. It recognised, as all the European Court of Justice cases and Knox J himself recognised, that it is a question of fact in each case whether there has been a relevant transfer, and provided that the tribunal of fact does not misdirect itself, that tribunal is left to determine whether or not a transfer within TUPE has occurred. In my judgment, therefore, Mr Hooper's principal submission must be rejected.
34. I would add that even if a change in the law could have been said to have occurred, I would not have thought it right to allow an exception to the issue estoppel which so plainly applied in the present case. It must be recognised that Arnold was a case on its own very special facts. A rent review clause had been misconstrued by the Judge at first instance, as subsequent authorities at a higher level had shown. Because the proceedings were arbitration proceedings, the certificate of the Judge under section 1(7)(b) Arbitration Act 1979 was needed if the point was to be taken further, but the Judge prevented any appeal by refusing a certificate. Thus the landlord was stuck with a decision which on the ordinary application of issue estoppel would have prevented it from arguing to the contrary on four subsequent rent reviews, and the amount at stake on each rent review was very considerable. In the special circumstances, it was hardly surprising that the House of Lords thought it only just to allow the exception to issue estoppel.
35. The facts of the present case are not nearly so compelling. Securicor, when refused permission to appeal by the EAT, did not apply to this court for permission. If Mr Hooper is right and Dines effected a change in the law, Securicor could have applied for permission to appeal out of time. True it is that it would have been the best part of two years out of time, but that was a possibility of which Securicor chose not to avail itself. I accept that the Employees were themselves not very prompt in pursuing their contractual claims. But Securicor had known by May 1994 that contractual claims were being pursued. In the present case the contractual relationship between Securicor and the Employees ceased at the end of 1988. In my view the court should be very slow, so long after the material event, to allow a claim the effect of which would be that the employment of all the Employees, except Mr Mitchell, on the terms and conditions under their contracts of employment with Securicor continued after 31st December 1988, despite the fact that they worked for Group 4 from that date.
36. In Arnold at first instance the Vice-Chancellor said ([1989] Ch at page 70) that there was great danger in allowing allegations that the law had changed. I respectfully agree. In my judgment, even if I had thought that there was a change in the law, I would have held that issue estoppel should apply.
37. I come now to a further submission made by Mr Hooper. He submits that the Judge failed to hold that the decisions of the Tribunal and the EAT in respect of statutory redundancy payments did not cover the issue of the Employees' entitlement to contractual supplementary payments. Mr Hooper pointed to the difference in wording between the statutory provisions and the contractual provisions. By section 81(1)(a) of the 1978 Act:

"Where an employee who has been continuously employed for the requisite period-

(a)is dismissed by his employer by reason of redundancy,

...

then ... the employer shall be liable to pay to him a sum (in this Act referred to as a `redundancy payment') calculated in accordance with Schedules 4, 13 and 14."

38. By section 82(3):

"If an employer makes an employee an offer (whether in writing or not) before the ending of his employment under the previous contract to renew his contract of employment, or to re-engage him under a new contract of employment, so that the renewal or re-engagement would take effect either immediately on the ending of his employment under the previous contract or after an interval of not more than four weeks thereafter, the provisions of subsections (5) and (6) shall have effect."

39. I need only refer to subsection (5):

"If an employer makes an employee such an offer as is referred to in subsection (3) and either-

(a)... ; or

(b)the first-mentioned provisions would differ (wholly or in part) from those corresponding provisions, but the offer constitutes an offer of suitable employment in relation to the employee; and in either case the employee unreasonably refuses that offer, he shall not be entitled to a redundancy payment by reason of his dismissal."

40. In relation to those provisions the Tribunal said in paragraph 36 of its decision:

"Mr Langstaff [counsel for the Employees] adopted the terminology of the Employment Appeal Tribunal in their judgment in the Cardiff case, in saying that there was a canvassing of possibilities, but that things never arrived at the stage where any of the applicants could have said `Well, that is an offer, which I must either decide to accept or reject'. He submitted that there must be a sufficiently precise and clear offer to be capable of acceptance. What the respondents had done here was to say, here is a basket of possibilities, pick one which is suitable, and we will talk about seeing whether you will have it. That, he submitted, was not an offer, and the duty was on the employer to make the offer. We accept that submission in respect of all the applicants, with the exception of Mr Evans."

41. That conclusion was upheld by the EAT, Knox J, saying at [1992] IRLR 555 paragraph 23:

"Finally, there was the issue raised by the cross-appeal whether the Industrial Tribunal erred in law in finding that, with the possible exception of Mr Evans, there was no offer of suitable alternative employment. This is essentially an issue of fact. The Industrial Tribunal took each case and considered it individually. No useful purpose would be served by our doing likewise for that is a function of the fact-finding tribunal. We should, however, deal with the submission made to us that Securicor could not be in a worse position as a result of offering a multiplicity of suitable jobs rather than a single one to each of the employees. That is by itself of course true, but in our view it misses the point which was that the Industrial Tribunal concluded on the facts that no offer capable of acceptance was made. A multiplicity of insufficiently specific offers may well not be an adequate substitute for an offer of a single suitable alternative employment ... . Here again we see no ground upon which to interfere."

42. The contractual claim to supplementary payments was based on the following provisions of the memorandum of agreement between Securicor and MATSA:

"In addition to the payments set out above the following payments will be made:-

(i)All employees entitled to the statutory payments described above will receive a supplementary payment equal to 1½ times the amount of the Statutory payment.

...

Supplementary Payments will not be paid if an individual:

(i)Refuses suitable alternative employment not involving additional travel and/or change of residence or which, though involving additional travelling is the subject of an adequate offer by the Company to meet the additional costs."

43. As I understand Mr Hooper, his submission was that the word "refused" does not imply that a specific offer was made. He says that suitable alternative employment may be available and, for the purposes of the contract of employment, "refused", even if not the subject of an offer. He submitted that the fact that, as the EAT said, there had been a multiplicity of insufficiently specific offers for the purpose of statutory redundancy payments did not mean that there had been a contractual refusal of suitable alternative employment.
44. The Judge was unable to accept this submission and neither can I. In my view "refused" connotes that there has been an offer of such employment; and in my judgment that is supported by that part of the contractual provisions which refers to alternative employment involving additional travelling being the subject of an adequate offer to meet the additional costs. The finding by the tribunal of fact that for the purpose of statutory redundancy payments there had been no offer capable of acceptance seems to me to cover the question whether there has been a refusal of suitable alternative employment. Without one or more offers there would not be a refusal.
45. No other grounds of appeal were pursued before us.
46. For these reasons I respectfully agree with the admirably clear reasoning and conclusions of the Judge. I would dismiss this appeal.
47. LORD JUSTICE MUMMERY: I agree.
48. LORD JUSTICE RIX: I also agree.
Order: Appeal dismissed. We think it right to take the exceptional course in this case of making a summary assessment. The parties are not that far apart and we are fearful that the costs that would be incurred by going to a detailed assessment would simply add to the overall costs of this litigation unduly. We think that the costs of the claimants is a little on the high side. We would reduce that to £9,000. The costs of Group 4 we would reduce only very slightly to £6,000. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)