United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR BRIAN NAPIER (of Counsel) Messrs Biddle & Co Solicitors 1 Gresham Street London EC2V 7BU
For the Respondents	MR THOMAS KIBLING (of Counsel) Director of Legal Services UNISON 1 Mabledon Place London WC1H 1AJ


 


MR JUSTICE LINDSAY: We have before us an appeal by BET Catering Services Ltd against the decision of the Industrial Tribunal given on the 9th April 1996 in favour of Mrs J.P. Ball and others.

The Tribunal, under the Chairmanship of Mr N. Mahoney, found firstly that it had jurisdiction to consider the complaint of Mrs Ball and others that she had suffered what was said to be a deduction from her wages which was unlawful under section 1 (1) of The Wages Act 1986 and secondly that such complaint was well-founded; there had been, the Tribunal held, such an unlawful deduction.

Neither Mr Napier who appears before us for the Appellant ["BET"] nor Mr Kibling for the Respondent Employees appeared below, but it appears from the Industrial Tribunal's extended reasons and it is confirmed to us that no evidence was called below. There was before the Tribunal a single sheet marked "Agreed Facts" and a large bundle of agreed documents which has also been provided to us. Part of the Tribunal's reasons - paragraph 1, sub-paragraphs (1)-(8) - is headed "The following facts are agreed by the parties"; although that paragraph goes further than or differs from matters specified in the single sheet we have no reason to believe that any of the matters so described as agreed was not agreed by the time the hearing before the Industrial Tribunal ended.

We must first set out some of the agreed facts and in so doing we will amplify them from the agreed papers in those areas where there has been, as we have understood it, no dispute.

The London Borough of Richmond Upon Thames ["Richmond"] employed the Respondent employees ["the Employees"] as cooks or dinner-ladies. No distinction has been sought to be drawn at any stage between the cases of any of the individuals concerned, nor has it been suggested that any distinction is even possible to be drawn for material purposes. Each of the Employees had a Contract of Employment which had, against the side note "Conditions of Service" an expression such as "NJC for LA's - Manual Workers". That is a reference to the terms and conditions from time to time published and from time to time varied by the National Joint Council for Local Authorities' Services for Manual Workers. The "NJC" consists of a large number of members, representatives of Local Authority employers and trade unions. The employers' representatives are appointed so as to represent bodies concerned with local authority employment all over the country. For example, under the 1988 revision of the NJC's constitution, of the 43 members representing Local Authorities 7 were to be appointed by the Association of Metropolitan authorities, 6 by the Association of County Councils, 4 by the Association of District Councils and so on. Presumably Richmond was indirectly represented amongst the membership of the Council but whether there was any employee of Richmond who was a member at any material time we were not told. The function of the NJC, as declared by paragraph 8 (a) of its Constitution is or was "To secure the largest possible measure of joint consideration and determination of the wages, hours and working conditions of the workers within its scope ...". In paragraph 3 (a) of the Constitution they are described as "All manual workers in the employment of all local authorities established under the 1985 Local Government Act and other bodies of equivalent status".

At the NJC terms and conditions are negotiated and agreed, then promulgated; they are from time to time revised. Whilst in this appeal it is the conditions as to pay that will be relevant, those promulgated terms relate to a great variety of subjects from, for example, sick pay, maternity leave and holiday entitlements to laundry allowances. By way of the use of phrases such as "NJC for LA's (Manual Workers)" in the Employees' contracts those many pages of terms and conditions were incorporated into the Employees' contract with Richmond. Thus the Tribunal described as an agreed fact at its paragraph 1 (3):-

"(3) The Applicant's terms and conditions of employment with the London Borough of Richmond incorporated the National Joint Council for Local Authorities Services (Manual Workers) Terms and Conditions ... under a joint employer-union bargaining agreement affecting Local Authority manual workers nationally.".

More specifically, as to pay, the Industrial Tribunal described at paragraph 1 (4) as an agreed fact that:-

"(4) Under the NJC conditions increases in pay were determined by the National Joint Council which was a body comprising 43 employers' representatives drawn from Local Authorities throughout England and Wales and 30 Union representatives ...".

On the 1st January 1994 Richmond contracted out its school meals services and awarded a contract as to that service to BET. At that date all the Employees were still employed by Richmond in that school meals service. There was, in relation to the Employees, a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 ["TUPE"] was applicable. Thus at paragraph 1 (1), and expressly at that point dealing only with the case of Mrs Ball the Industrial Tribunal found it to be agreed that:-

"1. The Applicant was at all material times formerly employed as a dinner-lady by the London Borough of Richmond and latterly by the Respondent. The transfer of the Applicant's employment from the London Borough of Richmond to the Respondent was one to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 applied ... Formal notice of the change was notified by letter to all staff and no concerns were raised by either staff or Trade Unions".

After that transfer, on the 1st September 1994, the NJC promulgated terms of an increase in pay. The Industrial Tribunal described at paragraph 1 (5) as follows:-

"(5) On the 1st September 1994 the NJC agreed a pay increase which applied to all employees who were at that time the subject of the NJC conditions.".

The only remaining parts of the matters found to have been agreed below which are necessary for our immediate purposes are paragraph 1 (7) and 1 (8) which read as follows:-

"(7) Since 1st September 1994 the Respondent has not paid to the Applicant the increase set out in clause 1 (5) above

(8) Unison [the Applicants' Union which had negotiated on their behalf] and the Respondent have not agreed any changes to the terms and conditions in the Applicant's employment with the Respondent."

As to the first point held by the Industrial Tribunal -the point as to jurisdiction - there has been no argument on this appeal. Section 8 (3) of the Wages Act 1986 provides:-

"Where the total amount of any wages that are paid on any occasion by an employer to any worker employed by him is less than the total amount of the wages that are properly payable by him to the worker on that occasion (after deductions) then, except insofar as a deficiency is attributable to an error of computation, the amount of the deficiency should be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion".

The Industrial Tribunal held that there was duly raised before it an issue as to whether wages which were "properly payable" to the Employees had, by reason of not having been paid, to be treated as having been deducted from their wages. Absence of any contrary argument apart, we have no reason to doubt the Industrial Tribunal's conclusion that it had jurisdiction to hear the matter.

Whether the pay increase promulgated by the NJC on the 1st September 1994 was "properly payable" to the employees was then the question to which the Industrial Tribunal turned. We need first to refer to the material parts of Regulations 5 and 6 of TUPE above:-

"5. (1) ... a relevant transfer shall not operate so as to terminate the Contract of Employment of any person employed by the transferor in the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have affect after the transfer as if originally made between the person so employed and the transferee.

(2) Without prejudice to paragraph (1) above, ... on the completion of a relevant transfer -

(a) all the transferor's rights powers duties and liabilities under or in connection with any such contract shall be transferred by virtue of this Regulation to the transferee; and

(b) anything done before the transfer is completed by or in relation to the transferor in respect of that contract or a person employed in that undertaking or part shall be deemed to have been done by or in relation to the transferee. ...

6. Where at the time of a relevant transfer there exists a collective agreement made by or on behalf of the transferor with a Trade Union recognised by the transferor in respect of any employee whose contract of employment is preserved by Regulation 5 (1) above, then, -

(a) ... that agreement, in its application in relation to the employee, shall, after the transfer, have effect as if made or on behalf of the transferee with that Trade Union, and accordingly anything done or in connection with it, in its application as aforesaid, by or in relation to the transferor before the transfer, shall, after the transfer, be deemed to have been done by or in relation to the transferee;

..."

The argument before the Industrial Tribunal circled mainly around Regulation 6 of TUPE but it cannot be said that Regulation 5 was not in their minds. Regulation 6 itself contains reference to Regulation 5 and BET's representative before the Industrial Tribunal specifically argued that under the Regulations both the Contract of Employment, the subject-matter of Regulation 5, and, as a separate thing, a collective agreement, the subject-matter of Regulation 6, were transferred from Richmond to BET. Equally, the Employee's representative advanced some arguments directed not to any collective agreement or its effect but to the terms and conditions of employment of the Applicants, the proper concern of Regulation 5. The Industrial Tribunal accepted the submission that the Applicants' terms and conditions of employment remained the same before the transfer of employment to BET. It cannot be said that Regulation 5 was left unconsidered.

Before us, neither side now wishes to analyse the position in any way that needs to refer to any collective agreement or to put any material emphasis upon Regulation 6. It is a little unfortunate that it was Regulation 6 that was spot-lit below but it cannot be said that Regulation 5 was not also on the stage. The Appellants' skeleton argument before us itself accepts that the Industrial Tribunal's decision involved an interpretation of Regulation 5 (but not, it asserts, a correct one).

On the central issue of the existence or not of a "deduction" under the Wages Act, the Industrial Tribunal's conclusion reads:-

"8. The Tribunal is unanimously of the view that the submission on behalf of the Applicant is to be preferred and that the Applicant is entitled to a declaration that the Respondent has made a deduction from the Applicant's wages in contravention of section 1 (1) of the Wages Act 1986."

The Industrial Tribunal then adjourned the matter generally for consideration of the amount of the deduction.

Before we turn to looking at the rival submissions before the Industrial Tribunal so that it can be seen which were preferred as that paragraph 8 indicates, we first turn to the authorities to see what guidance there is as to the fullness with which and Industrial Tribunal is to be required to give its reasons. We are here particularly concerned with the degree to which reasons of law need to be stated. Our concern as to this is because the first of the two principal points advanced by Mr Napier for BET was that the failure of the Industrial Tribunal to give reasons for its preference for the employees' submissions so vitiates its decision that its decision cannot be permitted to stand. He referred us to Meek -v- City of Birmingham District Council [1987] IRLR 250, Britannia Building Society -v- Griffiths (unreported) EAT/493/95 transcript of 26th January 1996 and Martin -v- MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198 on this part of his argument. Each was a case concerning unfair dismissal. In Meek in the Court of Appeal in 1987 Bingham L.J. said at paragraph 8:-

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which had led them to reach the conclusion on which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and Trade Unions as to practices which should or should not be adopted."

Bingham L.J. also there cited an earlier authority - UCATT -v- Brain [1981] IRLR 225 - where Donaldson L.J. said:-

"I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given".

He quoted further from Eveleigh L.J. in Varndell -v- Kearney & Trecker Marwin Ltd [1983] ICR 683 that:-

"It is impossible for us to lay down any precise guidelines. The overriding test must always be; is the Tribunal providing parties with the materials which will enable them to know that the Tribunal has made no error of law in reaching its finding of fact?".

A little further on Bingham L.J. quoted from the Martin case above that:-

"The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Industrial Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the Industrial Tribunal".

Bingham L.J. continued:-

"Judged by those yardsticks, the decision of the Industrial Tribunal did in this case, as the EAT rightly held, fall far short of the minimum necessary. There was no account of the basic story of what had occurred ...".

In Martin -v- MBS Fastenings (Glynwed) above the passage most material for our present purposes is the one which we have already cited and, after it, Sir John Donaldson M.R. continued:-

"In the instant appeal, I can see no grounds for considering that the Tribunal's conclusions of fact were such that no reasonable tribunal could have reached."

In Britannia Building Society above the EAT (Tucker J and Members) regarded the principal issue as whether a dismissal was or was not unfair. The range of reasonable responses on an employer's part was also put into issue. The secondary issue was whether the respondent there was guilty of contributory fault. The EAT held that the Industrial Tribunal failed to give sufficient reasons on any of those three points - see p. 3 of the transcript.

We do not see the Martin or Britannia Building Society cases as altering the position as it appears from Meek above. So far as concerns the fullness with which an Industrial Tribunal should give its reasons to support its conclusions as to the law (and leaving aside that discussion of that must have been obiter in Meek above) there has to be sufficient account given of the reasoning so that the EAT or a higher Court is able to see whether any question of law arises and whether there has been an error of law. But we would be content also to take it that Bingham L.J.'s remarks as to "Why they have won or lost" - should be required as well of the law as of fact. Further, we would echo the passage from Donaldson L.J. cited in Meek that it would be a thousand pities if Industrial Tribunal's reasons generally, or, a fortiori, as to points of law, were to be subjected to detailed analysis. That, as was said in the passage we have cited, would be to misuse the purpose for which the reasons are given. On that basis we turn to see what can be made of the Industrial Tribunal's preference for one set of submissions over another.

BET's own submissions before the Tribunal included that the transfer of the 1st January 1994 transferred Contracts of Employment. It was common ground that the Employees' terms with Richmond incorporated the NJC terms and the Employee's argument added that the Employees' terms and conditions remained the same after the transfer as before, that no changes had since been agreed between the Employees' Union and BET and that therefore the increase promulgated by the NJC after the transfer was an increase to which the Employees were entitled.

Although, undoubtedly, the decision would have been improved by being more explicit and was marred by repeated references to Regulation 6 and collective agreements, there is no real difficulty in spelling-out from the short statement that the Employees's submissions were preferred that the conclusions and argument we have set out in our immediately preceding paragraph was taken to be the law. BET could see why they lost. We have had no difficulty in seeing whether any question of law arises. We can see, at least by implication and often expressly, to what questions the Industrial Tribunal addressed its mind and we can discern at least one route, the Regulation 5 route, by which they reach the conclusion which they reached. Had we felt BET was hamstrung in this Court by reason of being so unable to identify the case as found against it below that it was put at a real and unjustified disadvantage in its appeal we would on that ground have been willing to set aside the order below but we feel quite unable to come to any such conclusion.

We turn next to a point raised by BET and concerning a letter of the 27th June 1994. It is contained in the large bundle of agreed documents. On the face of things it is addressed to "All Catering staff - Camden and Richmond schools" from the Head of Human Resources at BET. However, in another letter in the agreed bundle it is said on behalf of the Employees that a great number of them had been asked whether they ever received a letter from BET telling them of an intention to switch to local pay negotiation and that without exception they all denied receiving such a letter. In that circumstance it cannot be the case that the mere inclusion of the letter of the 27th June in the larger bundle could be taken to be an acceptance that it had been either sent or received and it was plain its receipt by the Employees would be challenged if BET wished to rely upon such receipt. BET, however, addressed no argument to the Industrial Tribunal on the letter, no evidence was called as to it, no concession was made as to its sending, receipt or admissibility and the agreed facts contain no reference to it, nor does the Industrial Tribunal's decision refer to it in any way. In those circumstances while, to use a phrase perhaps more common in The Royal Courts of Justice than here, we allowed BET to refer to it "de bene esse", we do not think it right to allow BET to rely upon it before us. However, as we shall consider below, even if we had allowed it to be referred to, it would not, in our judgment, effect our conclusion.

We now turn to BET's most substantial argument. It is as follows. Each Employee's contract had the expression, against the side note "Conditions of service" the entry - "NJC for LA's (Manual Workers)" or some equivalent phrase. The full effect of a contract of such a kind, like that of all contracts, is a matter of construction and the construction has to take account of the factual matrix in which the contract is set. Mr Napier cites from the judgment of Sir Thomas Bingham M.R. in Adams and Others -v- British Airways plc [1996] IRLR 574 at p. 577 paragraph 21 as follows:-

"The Court is not concerned to investigate the subjective intentions of the parties to an argument (which may not have coincided anyway). Its task is to illicit the parties' objective intentions from the language which they used. The starting point is that the parties meant what they said and said what they meant. But an agreement is not made in a vacuum and should not be construed as if it had been. Just as the true meaning and effect of a mediaeval charter may be heavily dependent on understanding the historical, geographical, social and legal background known to the parties at the time, so must a more modern instrument be construed in its factual setting as known to the parties at the time. Where the meaning of an agreement is clear beyond argument, the factual setting will have little or no bearing on construction; but to construe an agreement in its factual setting is a proper, because a common sense, approach to construction. It is not necessary to find an agreement ambiguous before following it.".

The reference there to matter known to the parties "at the time" must be a reference to the time of the making of the contract. The conclusion that the factual setting will have little or no bearing on construction when the meaning is clear is not to be overlooked.

Moving on, Mr Napier argues that whatever was the effect of the words "NJC for LA's (Manual Workers)" before the transfer, its effect is not necessarily the same afterwards. The accepted consequence of Regulation 5 being that the Employees' contract is now to be given effect as if it had been originally made between the Employees and BET - Regulation 5 (1) - it is now necessary to consider the factual matrix to find whether it throws any light on what the effect of the contract should be in the new and changed structure brought about by the transfer. It may be, he accepts, that when the investigation of the factual matrix is completed it will be seen that the effect of the transferred contract leaves BET liable to pay the NJC increases just as Richmond would have been but that, he submits, is not necessarily the case and that, as the Industrial Tribunal failed altogether to look into the possibility of the factual matrix throwing light on what the true construction of the Employees contracts now is, its conclusion cannot stand. The surrounding circumstances, he says, need to be examined to find, for example, what is the intended contractual consequence when the Employer or Employee ceases to be in the Public Sector, or when the Employer ceases to be a member of, or a person represented at, the NJC or ceases to have any influence whatsoever on the terms emerging from the NJC? Yet, he argues and rightly argues, the Industrial Tribunal conducted no such inquiry. At this point Mr Napier relies on Morris Angel & Son Ltd -v- Hollande [1993] IRLR 169.

In Morris Angel the managing director of a Group of companies agreed a covenant in restraint of trade in his service contract. For one year after ceasing to be so employed he would not do business "With any firm or company who has at any time during the one year immediately preceding done business with the Group". The Group was then taken over by the Plaintiffs and the managing director was dismissed. There was a Regulation 5 (1) transfer. The Plaintiffs sought to enforce the restrictive covenant against the managing director. What did the contract mean in the context of the transfer? Did it bar the erstwhile Group managing director from doing business with people who had done business with the Plaintiffs in the next preceding year (a thing he was not attempting to do) or with those who had done business in that period with the original Group? Turner J., having referred to the words in Regulation 5 (1) that the effect was to be as if the contract was made with the transferee Plaintiff, held the former to be the case. As that type of breach of covenant was not threatened, Turner J. granted no injunction against the managing director. In the Court of Appeal, Dillon L.J. at first dealt with the question of the transfer generally in paragraph 21 (where he cited from Lord Templeman and Lord Oliver in the Litster case below) and then, in paragraph 23, speaking of Turner J.'s construction he said:-

"The difficulty about that approach to my mind is that it turns the obligation on the employee [under the relevant clause] into a quite different and possibly much wider obligation than the obligation which bound him before the transfer, that is to say an obligation not to do business etc. with the person who had done business in the relevant year with the Plaintiffs and not the company. Such an obligation was not remotely in contemplation when the services agreement was entered into and I can see no reason why the regulation should have sought to change the burden on the employee. As Lord Templeman pointed out, the object was that the benefit and burden should devolve on the new employer. That would mean in the present context that the transferee should be able to enforce the same restriction. The more reasonable construction is in my judgment that the words "the transfer shall have effect ..."are to be read as referring to the transferee as the owner of the undertaking transferred or in respect of the undertaking transferred. The effect therefore is that [the relevant clause] can be enforced by the Plaintiffs if Mr Hollande within the year after 27th April 1992 does business with persons who in the previous year had done business with the undertaking transferred, of which the Plaintiffs are deemed as a result of the transfer retrospectively to have been the owner. The Plaintiffs are thus given locus standi to enforce the restriction".

A number of material points emerge: the object of the EEC directive, which had been referred to earlier by Dillon L.J. by way of citing from Lord Templeman's and Lord Oliver's speeches in Litster -v- Forth Drydock and Engineering Co Ltd [1989] IRLR 161 at p. 164-165, was that both the benefit and the burden of the contract of employment should devolve. It is not said that some different benefit or burden should devolve. It is, the case suggests, a telling point against a suggested construction relative to a transfer that it would impose a different obligation to that to which the employee had originally bound himself. The fact that the changed obligation was unlikely to have been in the contemplation of the parties at the time of the original contract also weighs against there being a change. Moreover, on the Court of Appeal's construction there was no change; after the transfer the Plaintiffs were entitled to enforce the clause against Mr Hollande "... if he solicits or does business with those who have done business with the company in the previous year" - paragraph 25 of the Report.

We are unable to see Morris Angel as requiring that on a Regulation 5 (1) transfer there has necessarily to be any investigation of "factual settings", either as they were at the outset or as they are at or after the date of the transfer. We would accept that in some particular cases there may be a need to introduce words having the effect of the succinct phrase "mutatis mutandis" into the provision in Regulation 5 (1) that the pre-transfer contract "shall have effect as if originally made between the" employer and the transferee if a just and business-like contract of employment is to emerge. But there would need to be a compelling reason for the change and we do not see either Regulation 5 (1) or the Directive or the Morris Angel case as providing a general need or a licence for a review of the "factual setting" of a contract of employment, still less if the contract is clear or where the only object of the proposed review is to seek, if possible, to increase the burden on the employee, or, as a correlative of that, to deny to him the fruits to which those clear terms apparently entitle him.

Turning from the general to the more particular, we see no conceptual or legal difficulty in an employer agreeing (or being treated as if having agreed) a system under which he agrees to pay his own employees wages which are determined, directly or indirectly, by some third party or by a reference to the awards of third parties purporting to be directed to categories other than his own employees. Contrary to BET's argument, we do not see that to be commercially unreasonable and the experience of the members suggests that it is not uncommon. Nor is it the case, either for reasons of law or of business, that that would only occur where the employer could or might influence the third party. We have no difficulty in contemplating a contract by BET that has the effect that it should pay its employees NJC rates. It is not as if the reference in the Employees' terms and conditions to NCJ terms was frozen in time so as to relate only to those terms as they were at the date of the commencement of employment or as at the date of the transfer; Mr Napier very sensibly accepts that the reference is to the terms as they should from time to time be. We have been unable to see any reason, either, why a private sector employer should not be able to bind himself or to be taken to have bound himself to pay public sector rates, nor any reason why Regulation 5 (1) should not operate so as to have the effect that he had so bound himself. Nor can we see any reason why NJC rates should not be payable by BET simply because the rates are addressed to a category - public sector employees - within which, after the transfer, the Employees, of course, ceased to be included. It is not as if the manner of the incorporation of NJC rates or terms and conditions made any reference such as "If and so long only as the employee shall be in the public sector" or "If and so long only as the employee is within a category to which the NJC terms and conditions purport to refer". To revert to the passage we have cited from Adams above, the parties (who, after the transfer, must be taken to be BET and the Employees) said that the Employees' terms and conditions are the NJC terms and conditions and the starting point is that they said what they meant and meant what they said. That meaning is clear and the factual setting will have little or no bearing on the construction of the contract which Regulation 5 (1) deems there to have been made.

We thus see the construction preferred by the Industrial Tribunal as the correct one; the NJC terms and conditions were incorporated and the Employees' terms and conditions were the same after as before the transfer. On and after the transfer Regulation 5 (1) thus operated to oblige BET to pay the applicable NJC rates as they were from time to time. That, in our judgment, is the clear and only present meaning of the reference made in the Employees' contracts alongside the description "Conditions of Service". BET has been unable to give us examples of matters which could possibly be found in any relevant factual setting such that that simple construction should not obtain. A further difficulty in BET's way is that unless one could hope to frame some possible factual setting regard to which could be said only to affect pay, the surely unthinkable consequence would be not just that the NJC's terms and conditions as to pay ceased to apply to the Employees but all those terms and conditions so ceased. However, we are absolved from attempting any such daunting feats of imagination because, even if it were the case that the Industrial Tribunal could have had, but did not have, any such material before it, that, of itself, could not justify the remission to the Industrial Tribunal for which BET presses. If the material presented to the Industrial Tribunal was inadequate to support a construction other than the one to which we have referred and at which the Industrial Tribunal arrived then (absolving those now instructed) BET has only itself to blame for failing to present that material. Such a failure could not, in our view, justify a re-hearing of the case.

That leaves only the letter of the 27th June to be dealt with. Describing this next paragraph as a benefit that employment with BET offered the Employee the letter went on to say:-

" Trade Union recognition and employment negotiations - I am pleased to confirm that BET ... recognises your Trade Union "Unison" for consultation and negotiation purposes. BET ... needs to be able to manage its business on a commercial basis and will work in partnership with Unison. Rather than being tied to National negotiations (NJC terms and conditions), BET ... will be negotiating on a local level with Unison when it comes to issues such as terms and conditions of employment, working practices and pay reviews".

We accept, of course, that it is possible for parties such as BET and the Employees to change their contractual arrangements but, even assuming that that letter was sent and received, we do not read its reference to future negotiations "When it comes to issues such as terms and conditions of employment" as having a force sufficient to procure that on the 27th June 1994 (or even when such negotiations commenced, if they did) the clear contractual incorporation of the NJC terms was displaced. That BET did not mention before the Industrial Tribunal the effect which it now says the letter had is no-one's fault but BET's but, even had the letter been relied upon and had proved to have been sent and received, we cannot see that the Industrial Tribunal's conclusion could thereby have been any different.

Accordingly we dismiss the Appeal and remit the matter to the Industrial Tribunal for quantification of the deductions that were improperly made.