United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G PRICHARD (of Counsel) Messrs Taylor Walton Solicitors 36-44 Alma Street Luton Bedfordshire LU1 2PL
For the Respondent Mr Oakes All Other Respondents	MISS MORGAN (of Counsel) Messrs Kidd Rapinet Solicitors Western House Rickfords Hill Aylesbury Bucks HP20 2RX NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF ALL OTHER RESPONDENTS


 


MR JUSTICE LINDSAY: We have before us an appeal by Clark & Tokeley Ltd ("C & T") against the decision of the Industrial Tribunal under the chairmanship of Mr A.B. Pollok promulgated on the 25th November 1996. That decision was given in proceedings in which 26 employees, including Mr A.R.J. Oakes, were applicants and in which the first respondent was the Secretary of State for Trade and Industry and the second was C & T. In the appeal before us only C & T and Mr Oakes take part as, respectively, appellant and respondent. Before we come to the appeal it will be useful to sketch in the background to the events.

Biss Vehicles Ltd ("BVL") and Biss Truck Hire Ltd ("BTHL"), associated companies in the ownership of the Biss family, carried on business in Hertfordshire as garage men and motor vehicle dealers and hirers. Both held franchises granted to them by Mercedes Benz (UK) Ltd. In May 1990 Mr Oakes began to work for BVL and thereafter continued in its employment. In December 1995 BVL was told by Mercedes that its franchise would be ended. In late 1995 and early 1996 Mr Clark and Mr Tokeley made offers to purchase BVL and BTHL (presumably through C & T) and detailed negotiations were entered into for their sale and purchase (or perhaps the sale and purchase of their undertakings) as going concerns. By this time neither BVL nor BTHL was in a sound financial position and on the 1st March 1996 Mercedes, who had some form of charge over vehicles held by the companies as stock, appointed a Receiver. His powers are not described by the Industrial Tribunal but he is described as having been appointed to safeguard those vehicles belonging to Mercedes and forming part of the companies' stock. A few days later, on the 5th March 1996, BVL's bankers appointed a different individual as Administrative Receiver. He is described as appointed "under the terms of the debenture which the bank held over the assets of the Biss companies". Negotiations for the sale of the companies or their businesses continued, now in the hands of the bank's receiver, perhaps in conjunction with the Mercedes' appointee. Mr Oakes' originating application, speaking of this period says:-

"Mr Elwell, the Mercedes Benz's finance receiver, asked if I would be prepared to carry on working for him in order to deal with the sales of the vehicles subject to the receivership and I agreed. The bank's receiver was also happy for me to carry on working since he was trying to sell the business as a going concern. I continued to be the person dealing with the practical day-to-day management of the business and supervised and gave orders to staff who had been retained, namely the service manager, the office manageress and an accounts clerk. Both receivers were happy for me to carry on using my company car and mobile phone, and petrol was not limited."

There is nothing in the Industrial Tribunal's reasons which suggests that that passage was not accepted as correct and it is not inconsistent with the Industrial Tribunal's findings of fact. Moreover, although the Industrial Tribunal does not in terms so hold, as it describes later provisions for the sale of the businesses as not preferred by the bank's receiver by reason of them not being as favourable as the terms "previously agreed with C & T", the Industrial Tribunal must have had in mind that the bank's receiver had arrived at least at an agreement in principle with C & T for the sale of the businesses, a sale which, at that stage, before the liquidation which we shall come on to mention, was going to be a sale as a going concern.

On the 7th March 1996 both companies were put into Voluntary Liquidation; the details are not described by the Industrial Tribunal but it seems that the members of the companies resolved upon windings-up which were or became creditors' voluntary windings-up. A liquidator was appointed on the same day, the 7th March. There is no finding that Mr Oakes ceased work upon the appointment of the liquidator.

On the 14th March the liquidator dismissed all employees of both companies, including Mr Oakes. However, Mr Oakes continued to attend at the premises, adjoining one another, from which the businesses of the two companies were conducted and continued to carry on the activities of the business which was then, as the Industrial Tribunal held "in the process of transfer". The Industrial Tribunal found that Mr Oakes "Had been asked to stay on by the liquidator to provide a degree of continuity" and that from the 14th March the business "ticked-over" with only a handful of employees, including Mr Oakes. Both parties before us agree that it was, in fact, not the liquidator but the Mercedes Benz receiver who had asked Mr Oakes to stay on and that the Industrial Tribunal's reference to the liquidator was an error. We accept that to be the case. It has not been suggested to us, and no evidence before the Industrial Tribunal seems to have been led to support any agrument, that the Mercedes Benz receiver was at this stage in a position as agent of BVL to employ Mr Oakes in the name of BVL or that he or the Bank's receiver purported to do so. Speaking of the period beginning with the liquidator's dismissals of the 14th March, the Industrial Tribunal held:-

"Mr Oakes had been asked to stay on by the liquidator to provide a degree of continuity. During the interregnum Mr Oakes and others carried on with their normal duties in so far as that was possible in the changed circumstances."

Neither of the parties suggested below or has suggested before us that Mr Oakes was other than unemployed in the days between his dismissal by the liquidator and his fresh employment on the 21st March, which we shall come on to describe below. He was unpaid in this interval and his attendance at the companies' premises was voluntary. There is no suggestion, either, of any collusion between the receivers or either of them and the liquidator in relation to the dismissal of employees; on the contrary, the Industrial Tribunal held that the liquidator had not advised the bank's receiver of his intention to dismiss the employees and that the effect of his appointment was to thwart, temporarily at least, the sales which the receivers had discussed. The appointment of the liquidator "Frustrated the coming into being of sale agreements on the terms which had earlier been discussed ........" but negotiations resumed between the bank's receiver and C & T.

On the 21st March 1996, a Thursday, an agreement for the sale and purchase of the assets of BVL was signed and on the 11th April a similar one was signed relating to BTHL. We have seen neither, but the Industrial Tribunal found that the assets disposed of "included securities, goodwill, spare parts, plant and machinery, work-in-progress and the benefit of the companies' existing contracts".

Mr Oakes attended the premises as usual on the 21st March 1996. He was taken into employment by C & T on the evening of that day, the reference to the evening perhaps suggesting that the employment was after the transfer signed on that day. He worked for C & T on Friday the 22nd March and was paid for that day by C & T. He worked for C & T the following week and then, on Tuesday the 2nd April, he was dismissed by C & T. All others of the 26 applicants had been offered employment with C & T on the same terms as they had previously enjoyed with BVL and BTHL.

In those circumstances, on the 2nd June 1996 Mr Oakes made against C & T an application to the Industrial Tribunal for unfair dismissal. For the purposes of satisfying section 64 of the Employment Protection (Consolidation) Act 1978 Mr Oakes needed to show himself to have been continuously employed for not less than 2 years ending with "the effective date of termination", a term defined in section 55 (4) of the 1978 Act and here being the 2nd April 1996.

Arrangements were made with the Industrial Tribunal for the hearing, as preliminary issues, of a number of points, including whether Mr Oakes' employment was of sufficient length to give the Tribunal jurisdiction to hear his application for unfair dismissal against C & T. As to that, the Industrial Tribunal concluded:-

"The applicant Mr A.R.J. Oakes was continuously employed for a period in excess of two years. The Tribunal does have jurisdiction to hear the application which he has brought against the second respondent that he was unfairly dismissed."

The correctness or otherwise in law of that conclusion of the Industrial Tribunal is the only issue before us in the present appeal.

Miss Morgan, who appeared for Mr Oakes both before us and below, had advanced three arguments on his behalf to the Industrial Tribunal. The first involved consideration of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE"). That argument failed. The Industrial Tribunal held there had been "relevant transfers" for the purposes of TUPE but held also that none of the applicants was employed immediately before the relevant transfer (taking that to be the date of the signing of the sale agreement to C & T) and that the dismissals by the liquidator on the 14th March had not been for any reason connected with such transfers. We are not concerned in this appeal by C & T with the TUPE regulations nor with that first argument. We pause only to add, as the legislation we will need to consider in detail is not that of TUPE and has a quite distinct purpose, that it does not follow, because a transition (to use a neutral word) is or is not a "relevant transfer" or is to be treated as having taken place at some particular date for the purposes of TUPE, that the same conclusions must be arrived at under the different legislation to which we shall turn. We are not, then, concerned with TUPE; we are, though, concerned with both of Miss Morgan's other arguments.

The first was described as the "whole week" point. Although the point was argued below by reference to section 218 and other sections of the Employment Rights Act 1996, a consolidating enactment, that Act did not come into force until the 22nd August 1996, after the events in question and after Mr Oakes' originating application. Section 218 is laid out differently to its predecessor and the better course is for us to refer to the applicable and almost identical provisions of the 1978 Act.

We have already referred to the need for Mr Oakes to satisfy the requirement of section 64 of the 1978 Act that he was "continuously employed for a period of not less than two years" ending on the 2nd April 1996 His difficulty, of course, is that he was dismissed out of the employ of BVL on the 14th March and was not in the employ of C & T until the evening of the 21st March. What is and is not to be regarded for the purposes of section 64 as continuous employment is regulated by legislation and an introduction to the machinery for the computation of periods of employment is to be found in section 151 of the 1978 Act which, so far as concerns Mr Oakes' case, then refers us on to Schedule 13 to the 1978 Act -see section 151 (1) (2) (b).

Schedule 13 is headed "Computation of period of employment". There then follow a number of paragraphs making provision for the particular cases there described until one comes to paragraph 17 which is headed "Change of employer". For the purposes of the "whole week" point it is necessary at this stage to read only sub-paragraph (1) of paragraph 17 which reads as follows:-

"17 (1) Subject to this paragraph and [paragraphs 18 and 18A], the foregoing provisions of this Schedule relate only to employment by the one employer."

Mr Oakes'case is, of course, a case which relates to employment by two employers. By disapplying all the preceding 16 paragraphs of Schedule 13 to Mr Oakes' case paragraph 17 (1) has the effect, inter alia, that the presumption of continuous employment provided for in paragraph 1 (3) of Schedule 13 does not apply to Mr Oakes' position, unless it then is re-introduced by the other provisions of paragraph 17 or by paragraphs 18 or 18A, which it is not. Mr Oakes thus cannot pray in aid the paragraph 1 (3) presumption in attempting to satisfy the other provisions of the Act - Secretary of State for Employment -v- Cohen and Anor [1987] ICR p. 570 at p. 573 D-E, H; p. 575 G.

To return to the "whole week" point, it runs thus; any week during the whole or part of which the employee's relations with the employer are governed by a contract of employment which normally involves employment for 16 hours or more weekly (as did Mr Oakes') shall count in computing a period of employment - Schedule 13 paragraph 4 (and its successor, section 212 (1) of the 1996 Act). As Mr Oakes worked for Monday the 11th, Tuesday the 12th and Wednesday the 13th March 1996 before his dismissal by the liquidator on the 14th March, that week beginning the 11th March is, by reason of Schedule 13 paragraph 4, to count in computing his period of employment. Correspondingly, as he was, in the very next week, employed by C & T on the evening of Thursday 21st March and on Friday 22nd March, that week beginning the 18th March is also to count, as also are the weeks from Monday 25th March and Monday 1st April. There was thus, runs the argument, no discontinuity for the purposes of section 151 and section 64 of the 1978 Act. The same conclusions are reached if instead one looks at weeks ending with Saturdays - see section 153 (1) of the 1978 Act and its definition of "week". This argument has the support of all three members of the Court of Appeal in Teesside Times Ltd -v- Drury [1980] ICR p. 338 in a ruling on a predecessor of Schedule 13. However, the significance of the disapplication of all preceding provisions of Schedule 13 (or, as the case then was, of the disapplication of all the preceding provisions of Schedule 1 to the Contracts of Employment 1972) was not then appreciated or, it seems, argued and, of course, the decision in Cohen's case [1987] supra then still lay in the future. Mr Pritchard for C & T argues that once the force of paragraph 17 (1) in disapplying the special provisions of paragraph 4 of Schedule 13 is recognised, as Cohen's case requires, then Teesside Times supra is deprived of all force on this point and the "whole week" point is deprived of its foundations. Miss Morgan recognised that paragraph 17 (1), now section 218 (1), presented her with a difficulty and indicated that she therefore did not press the "whole week" point. The Industrial Tribunal in our case may not have had Cohen supra cited to them. They certainly do not mention it. Not surprisingly, they therefore rely on section 212 (1), not realising that section 218 (1) had at least arguably disapplied the whole chapter (which runs from section 210 to section 219 inclusive) to a case, such as the one in front of them, that related to employment by more than one employer. For that reason the decision in favour of Mr Oakes on the "whole week" point may very well represent an error of law although, given our decision on the remaining subjects and given also that Miss Morgan elected not to press the "whole week" point in argument, it would be both unnecessary and unsatisfactory of us formally so to hold.

The remaining ground upon which the Industrial Tribunal found in Mr Oakes' favour and entitled them, in their view, to regard him as having shown upwards of two years continuous employment involved paragraph 17 (2) of Schedule 13 of the 1978 Act (now mirrored by section 218 (2) of the 1996 Act). As the true construction of paragraph 17 (2) involves the consideration of the remainder of paragraph 17 and of paragraphs 18 and 18A it will be best to set these provisions out at length:-

"17 (2) If a trade or business or an undertaking (whether or not it be an undertaking established by or under an Act of Parliament) is transferred from one person to another, the period of employment of an employee in the trade or business or undertaking at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of the period of employment.

(3) If by or under an Act of Parliament, whether public or local and whether passed before or after this Act, a contract of employment between any body corporate and an employee is modified and some other body corporate is substituted as the employer, the employee's period of employment at the time when the modification takes effect shall count as a period of employment with the second-mentioned body corporate, and the change of employer shall not break the continuity of the period of employment.

(4) If on the death of an employer the employee is taken into the employment of the personal representatives or trustees of the deceased, the employee's period of employment at the time of the death shall count as a period of employment with the employer's personal representatives or trustees, and the death shall not break the continuity of the period of employment.

(5) If there is a change in the partners, personal representatives or trustees who employ any person, the employee's period of employment at the time of the change shall count as a period of employment with the partners, personal representatives or trustees after the change, and the change shall not break the continuity of the period of employment.

18 If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters his employment is an associated employer of the first-mentioned employer, the employee's period of employment at that time shall count as a period of employment with the second-mentioned employer and the change of employer shall not break the continuity of the period of employment.

[18A (1) If an employee of one of the employers described in sub-paragraph (2) is taken into the employment of another of those employers, his period of employment at the time of the change of employer shall count as a period of employment with the second employer and the change shall not break the continuity of the period of employment.

(2) The employers referred to in sub-paragraph (1) are the governors of the schools maintained by a local education authority and that authority.]"

We shall first look at the matter free from authority but before looking at paragraph 17 (2) in detail, it will be convenient to look at paragraphs 17 (2) to 17 (5), 18 and 18A more generally to see if any legislative scheme or pattern emerges. The sub-paragraphs are not cumulative and do not refer to each other. Unlike paragraph 17 (1), none is prefaced with words which make it subject to the provisions of any other sub-paragraph. It is not the case, for example, that paragraph 17 (2), dealing with a change of employer upon a transfer of a business or undertaking, represents a general requirement that has to be satisfied in cases falling within another sub-paragraph. If, for example, the personal representatives of a deceased employer take an employee of his into their employment in such a way as to satisfy paragraph 17 (4) it would apparently not avail the new employer, seeking to avoid continuity of that employee's employment, to point out that there had not been a transfer to him of any trade business or undertaking.

Looking at the separate paragraphs except paragraph 17 (2), in each there is to be found first a reference to an individual, namely to "an employee" or "the employee" or "any person" and then the later phrase "the employee's period of employment at the time" (paragraphs 17 (3), 17 (4) and 17 (5)) or the closely related phrases "the employee's period of employment at that time" (paragraph 18) or "his period of employment at the time" (paragraph 18A). There are two possible relevant functions of such references to time. One is to indicate a time as at which an employee has to be in a described employment; the other is to indicate the point of time as at and down to which the employee's period of employment with the previous employer is to be computed before its metamorphosis into being treated as employment with the successor. However, in sub-paragraphs 17 (3), (4) and (5) there is no need for the phrase to introduce a requirement that the employee should be an employee at the point of change as that is already implicit in the rest of the sub-paragraph. Thus, where the change is by way of statutory intervention (sub-paragraph 17 (3)) the sub-paragraph contemplates that a contract of employment is modified and a different body corporate is substituted as the employer, which seems to reflect that the employee still has a contract of employment and is still an employee at the moment of substitution. In the partnership case (sub-paragraph 17 (5)), the change contemplated is a change in the parties "who employ" rather than "who employ or have employed" any person. In the case of a death, the draftsman could hardly have expected the death and the grant to personal representatives to be simultaneous so that the words "If on the death of an employer the employee is taken into the employment of the personal representatives ........" must mean that the new employment by the personal representatives is not necessarily to be "on" but rather is to be "with effect from" the death. If the employee had been dismissed before the death that would not be the case. On that basis, the later expression "the employee's period of employment at the time of the death" need serve only the function, as described above, of indicating the time as at and down to which the employee's period of employment with the previous employer is to be computed.

In paragraphs 18 and 18A the closely related expressions cited above again seem to have need to serve only that same function although they are, perhaps a little less clearly serving only that function. Even so, any requirement (were there to be one) that someone, in order to fall within their provisions, had still to be in the employment of the previous employer at the point of the change, would in these two cases, seem to be served by the use of the word "employee". Paragraph 18 thus begins "If an employee of an employer is taken into the employment of another employer"; a person who had only formerly been an employee of the first employer would not satisfy that provision. The same point can be made as to paragraph 18A.

Such a study leads to this; in all the provisions of sub-paragraphs (3) to (5) of paragraph 17 and in paragraphs 18 and 18A there is to be found an expression such as "the employee's period of employment at the time", meaning at the time of the particular change under consideration. In none is there an express requirement in terms requiring the employee to be in the employ of the previous employer at the point of change but in each case that requirement can be inferred from the other expressions used. In no case is the expression "the employee's period of employment at the time" or the corresponding provisions of 18 and 18A needed to introduce a requirement that the employee should be in the previous employer's employment at the point of change and in each case there is another function for those words to serve, namely to indicate the time as at and down to which the period of employment under the previous employer is to be computed. Moreover, each of these sub-paragraphs ends with a provision that the particular form of change dealt with "shall not break the continuity of the period of employment" which, by its failure to provide that nothing else but that shall not break the continuity, is at least consistent with the particular identified form of change being the only cause of discontinuity that is being addressed by the sub-paragraph.

With that as background one returns to paragraph 17 (2). The draftsman could have used an expression similar to that used in the other sub-paragraphs; he could, basing himself on paragraph 17 (5), have said, for example, something such as:-

"If, by way of a transfer from one person to another of a trade business or undertaking ....... there is a change in the employer who employs any person, the employee's period of employment at the time of the change shall count as a period of employment with the transferee ........."

But instead a distinctly different approach to that used in paragraphs 17 (3) to (5) and 18 and 18A is used. There is not here, as in 17 (3) to (5), any early reference to "the" or "an" employee or to "any person" followed by a short phrase such as "the employee's period of employment at the time" of the change. Instead one finds, after a number of lines of text,:-

"The period of employment of an employee in the trade or business or undertaking at the time of transfer shall count as a period of employment with the transferee ......."

It is difficult to regard this provision as serving only the function of indicating the time as at and down to which the period of employment with the previous employer is to be computed. If that was the only intended function, would not the draftsman have followed the pattern he used in the rest of paragraph 17 and in paragraphs 18 and 18A but, in this instance, avoiding any inference that the employee had still to be employed at the point of the change? Conversely, it is easy enough to see the phrase used in paragraph 17 (2) as intended to cover that which, in all the other sub-paragraphs, was implicit from other references, namely that the employee has still to be in the employ of the previous employer at the point of change. The words "an employee in the trade ........ at the time of the transfer" are, more readily than the word "employee" on its own, capable of including that requirement and one might expect a requirement that is implicit in all the rest of paragraphs 17, 18 and 18A to be at least implied into paragraph 17 (2) or, if not intended to be implied, to have been clearly disavowed. Moreover, if paragraph 17 (2) were not to include a requirement that the employee should be in the transferor's employ at the point of transfer, there would then be evident to the draftsman a whole series of positions with which he would surely have needed to deal. If, without breaking continuity of employment, it had been intended that there could be a gap between employ under the transferor and employ under the transferee, would there not need to have been some clarification so as to provide for whether the gap could be only before or only after the transfer or could be either before or after, as to how long the gap could be and, perhaps, as to the reasons for it and as to whether those reasons related to the transfer? Nor is there any provision made elsewhere, as it could have been made under paragraph 20 of Schedule 13, for preserving continuity in special cases. Again, the sub-paragraph provides at its foot only that "The transfer shall not break the continuity" which, as we have mentioned, is at least consistent with a view that the discontinuity otherwise inherent in the transfer is the only form of discontinuity which is being addressed. These various factors lead us to conclude that on its true construction paragraph 17 (2) bridges no gaps in employment and therefore if an employee has ceased before the transfer to be in employment in the trade or business or undertaking so that he is not such at the time of the transfer then his earlier period of employment does not count as a period in the employment of the transferee.

However, that is far from being an end of the point. Whether Mr Oakes was an employee in the business at the time of the transfer so that his employment with BVL may count as employment with C & T for the purposes of section 64 depends on whether "the time of the transfer" in sub-paragraph 17 (2) refers only to a single point in time or can refer to a longer period and whether, accordingly, Mr Oakes was employed by BVL at that point or, if appropriate, within or throughout that longer period.

Unlike the cases within paragraph 17 (3), (4) and (5), and paragraphs 18 and 18A which (death being the most emphatic example) are likely to relate only to single points of time, the case of transfer within paragraph 17 (2) is at least capable of being regarded as spread over a period. Whatever the word "transfer" means it has to be competent to deal with a transition in a trade or business or undertaking. The word suggests a shift, but is it in ownership (title) or possession or both and, if in ownership, in equity (in which case the specific enforceability of agreements has to be enquired into) or at law (in which case it may not pass till formal delivery or upon conveyance). Negotiations for a transfer take time; steps are take to facilitate a transfer; steps are taken to make it more attractive to the transferor or to the prospective or actual transferee. It may be agreed orally and then later be wholly or in part put into writing. It may be implemented not at once but over a period with different parts being completed at different dates and even (in the case, for example, of there being charges over machinery, stock or land) between or involving different parties. There may well be a period of many months between agreement in principle or even an agreement in terms and the final conveyance or assignment of the last to be transferred, or even the most significant to be transferred, of the assets that pass. Some provisions may be left voidable or conditional or contractually capable of being undone. Crucial aspects such as price may be left over, for example, to later arbitration (where the price or the transfer of the particular assets is fixed by reference to later performance). Important options involving a transfer of assets (for example the option to buy the freehold behind an acquired lease) may not be exercised for a long while. Some provisions may be agreed but be susceptible to later contractual rescission if this or that condition or pre-contractual representation or warranty is not made good or transpires to be false. Commonly there will not be one agreement which in one blow transfers all the assets to be transferred but there will be assets passing other than by way of the signature on any document and assets which pass by reason of the execution of other than that one document. It is to be noted that paragraph 17 (2) speaks only of "the time of the transfer"; it does not say, as it could have done, the time when the transfer is "agreed" or is "signed" or is "agreed and signed" or then "completed", or is "effected" or completed in whole or in part or is completed to a substantial or to any other particular specified degree or in any specified way. That there is a great breadth of possible situations that may be covered within the word "transfer" unless it is cut down by the addition of further words is so obvious that it is reasonable to assume, in the absence of words cutting it down, that such great breadth is intended to be covered. The Industrial Tribunal here spoke, correctly in our view, of "the process of transfer" and "the course of transfer".

If, then, as we hold, "the time of the transfer" in paragraph 17 (2) is not to be confined to the moment of time at which a signature is put onto a written agreement of transfer but can, in appropriate circumstances, be a reference that describes a greater period, it becomes necessary to inquire when the period began. It would not seem to us necessary to enquire when the transfer, being a period, ended; if Mr Oakes' employment with the transferor survived into the period of the transfer, he could in our view fairly be said to be "in the ..... business .... at the time of the transfer" even if that employment did not continue to the end of the period. Within the ordinary use of language it surely could be said, for example, that Lord Kitchener was alive at the time of the Great War even though he did not live to its end.

We shall not attempt here to formulate any definition to meet all cases or to indicate in all cases when "transfer" or "the time of the transfer" begins and when it ends. The surrounding circumstances that could be material are too many and variable. We leave such elucidation to development incrementally case by case. Instead we shall look merely to the facts of this case. Offers by C & T (or by Mr Clark and Mr Tokeley) to purchase BVL and BTHL were made in late 1995 and early 1996. Detailed negotiations were entered into. It was then envisaged by the parties that the proposed disposal would represent transfers within the meaning of TUPE. The receivers conducted negotiations with C & T for a transfer and arrived, importantly, at what was at least an agreement in principle with C & T. That dealing was temporarily thwarted by the appointment of the liquidator (7th March 1996), which frustrated the coming into being of the sale agreements on the terms earlier discussed. Despite that, the administrative receiver resumed negotiations and sales of the assets to C & T were agreed on the 21st March and the 11th April 1996. Mr Oakes was dismissed by the liquidator, as we have mentioned, on the 14th March and was then employed by C & T on the 21st March 1996. Having regard to that "process" or "course" of the transfer (to use the Industrial Tribunal's terms) and without our needing to put a precise date to the beginning of the transfer, we conclude that the "transfer" did begin earlier than the 14th March and that Mr Oakes was still employed by BVL at its beginning and therefore "at the time of the transfer". Further, as the agreement for transfer was signed on the 21st March and Mr Oakes was employed by C & T on that very day, it is likely (except in the improbable event of title to the transferred assets, which included securities, goodwill, spare parts, plant and machinery, work in progress and the benefit of existing contracts, all completing their passing that very day) that he was also employed by C & T before the end of the period of transfer. Whether or not that latter is correct, there was in our view no gap between Mr Oakes' dismissal on the 14th March and the time of the transfer to the transferee. There was, in other words, a transfer within sub-paragraph 17 (2) (which has not been in issue) and Mr Oakes was, within the meaning of that provision, an employee in the business at the time of the transfer. Subject only to the impact of authorities to which we shall shortly turn, Mr Oakes will, in our view, therefore be able to add the several years of his employment with BVL to his very short period of employment with C & T and can thus satisfy section 64.

Without, as yet, looking at authority, we would conclude that the Industrial Tribunal was correct in its conclusion that it had jurisdiction to hear the claim for unfair dismissal which Mr Oakes brings against C & T. But do authorities deny us the route that we have taken to that conclusion?

The ratio of Teesside supra in the Court of Appeal concerned "the whole week" point which we have dealt with above. There were, though, obiter references to the construction of paragraph 9 (2) of Schedule 1 to the Contracts of Employment Act 1972, an identical predecessor of paragraph 17 (2) of the 1978 Act. Each of the Lords Justices addressed that subject, each, unhappily for our purposes, coming to a different conclusion. Stephenson L.J., albeit "with considerable hesitation" - p. 315 C - preferred that the time of transfer should refer not to a single point of time but to a period. After referring to the Shorter O.E.D.'s definition of time as covering a space or extent of time and after reference to other authorities where the time of a transaction had been taken to be a reference looking beyond the moment of its execution, he continued at p. 351:-

"The first virtue of this construction seems to me that it reads the phrase naturally as a whole and avoids its artificial fragmentation: "the time" and "the transfer" cannot and should not be considered separately; "the time" of something must take its meaning from what that thing is, and if the transfer - of a trade or business or undertaking - is something which takes time, I would infer that "the time of the transfer" more naturally means a period of time than a moment of time."

He continued with what we respectfully regard as powerful further reasons for such a conclusion. Goff L.J. took the view that the time of transfer referred, at p. 355:-

"To the moment when the transaction of transferring the business from one owner to another is effected, or such short period as is necessary to enable that to be carried out."

He continued at p. 355 B:-

"Cases may differ according to their facts, but I do not think that moment or period is necessarily the time when legal instruments of transfer are executed, and, if it be a sale, the price is paid or secured, or perhaps earlier when a binding and enforceable agreement is entered into. If the transferee is let into possession and begins to carry on the business on his own account and at his own risk, I would think that would be the time of transfer."

Despite his earlier reference to a "moment" he plainly did not rule out the time of transfer referring, in an appropriate case, to a period rather than a moment and seems to have contemplated that where it referred to a period that period could run down to the date of conveyances or transfers subsequent to some earlier contractual agreement. Eveleigh L.J. at p. 358 C said:-

"........ the words "at the time of the transfer" do not give rise to any great difficulty. The transfer proceedings may take a few weeks. It may be difficult to select a point in time at which one can say the business was transferred. Those problems have been referred to in the judgments already delivered and I would adopt what Stephenson L.J.has said on that matter. However, for myself, I doubt if it is a vital issue in this case for determining the period of employment."

The reason why he thought it unimportant in that case whether a period or a moment was looked to was because, again obiter, and alone of the three Lords Justices, he would have held under the predecessor of paragraph 17 (2) that if a specified test were satisfied then gaps could be bridged between the end of employment with the transferor and the beginning of employment with the transferee. He said at p 358 F, with regard to that,:-

"I believe that the test should be whether or not the dismissal was a step towards re-engagement."

That approach was specifically rejected by Stephenson L.J.and Goff L.J. preferred to rest his judgment only on the "whole week" point. We regard Teesside supra as furnishing no binding authority against our conclusion that gaps in employment are not bridged but that the employee has still, in a transfer case,to be an employee at the time of transfer. We also regard it as providing, but only as obiter, support for our view that the time of the transfer can be spread over a period, a point on which at least two of the three Lords Justices expressly agreed.

Mr Pritchard in the course of his attractive argument for C & T naturally relies upon the obiter reference by Eveleigh L.J. to the test for gap-bridging being whether the dismissal was a step towards the re-engagement and to the Industrial Tribunal's holding in our case that the dismissal was unconnected with the transfer. There are difficulties, some identified, obiter, by Stephenson L.J., with the view held by Eveleigh L.J., a view which tends to import considerations relevant to TUPE into this quite separate area of the computation of periods of continuous employment for the purposes of section 64 (1). As we have in any event held in Mr Pritchard's favour that gap-bridging is not possible we do not need to come to any conclusion on the possible need for some causal link between the dismissal and the transfer if gaps are to be bridged.

In Macer -v- Abafast [1990] ICR p. 234 the Industrial Tribunal had found there to be an unbridgeable gap in Mr Macer's employment between the 31st December 1986 (when his employment with the predecessor company ended) and the 12th January 1987 (with effect from which date his employment with the successor began). The E.A.T. reversed that and held that Mr Macer could add employment with the predecessor to his employment with the successor and in that way he was able to exceed the two-year minimum. As we do in our case, the E.A.T. there drew attention to the different functions of TUPE and of the computation machinery of Schedule 13 paragraph 17 and, as we are, the E.A.T was there attracted by the notion, which we have arrived on a construction of the legislation, that a transfer does not necessarily occupy only a point of time but can extend over a period - p. 247 E-F. The E.A.T. in Macer, referred, as had the Industrial Tribunal in our case, to "the transfer process". It is not clear, once it recognised that "transfer" can be a process taking place over a period, that Macer decides as a matter of ratio that an employee does not have still to be in the employ of the predecessor at the time of transfer if his continuity is not to be broken. The process could in Macer be taken to have started not later than 18th January 1987 - p. 237 B-C - and Mr Macer was not dismissed till 12th September 1987. We do not find anything in Macer which would strictly bind us to depart from the view we have taken independent of authority. Whilst we thus have no difficulty with the conclusion, arrived at in Macer, that there was no unbridged gap, our adoption of its reasoning would need to be qualified by at least a reference to the fact that Macer relied in part on the presumption of continuous employment in paragraph 1 (3) which, in our view, in the light of Cohen supra, is not here available. Cohen had not been cited to the E.A.T. in Macer.

In Justfern Ltd -v- Scaife D'Ingerthorpe [1994] ICR p. 286 not only was there a gap but the employee had markedly weakened his case by claiming unemployment benefits from the State within that gap. Knox J and the two members with him upheld the Industrial Tribunal's view that the gap was nonetheless bridged. As we have been and as Macer had been, the E.A.T. was impressed by the obiter views of Stephenson L.J. in Teesside supra in respect of "the time of the transfer" being capable of referring to a whole period and process rather than to a single point of time invariably to be identified with only one event in the process. Cohen supra was, unfortunately, not drawn to the E.A.T.'s attention so, again, the presumption of continuous employment in paragraph 1 (3) of Schedule 13 was relied upon to a degree which, in the light of Cohen, we would think would make it vulnerable to criticism. However, as with Macer, we find comfort in the conclusion arrived at in Justfern especially as that was a case which, unlike Macer, bore no taint of device or evasion on the employer's part, a case which, in that respect, was therefore more like the one before us.

A & G Tuck Ltd and Anor -v- Bartlett [1994], E.A.T., ICR p. 379 was a case argued after but decided one day before Justfern supra. Neither case exhibits any consciousness of the imminence or proximity of the other. In A & G Tuck Ltd H.H. Judge Hargove Q.C. and the two members sitting with him upheld the Industrial Tribunal's view that the gap there in question was bridged. The valuable practical point was made at p. 383 F that the fact that an employee brings with him a period of qualification employment may make him less attractive to the transferee company. It is hardly probable that the legislature would have had in mind an invariable preference for making the existing employees less attractive to the successor employer than ones not previously employed in the business transferred. Such a consideration, added to the effect of Cohen supra in disapplying the presumption of continuous employment otherwise supplied by paragraph 1 (3), is another feature which suggests that, when occupied in the task before us, a Court should be cautious before attributing to the legislature an invariable leaning in favour of continuity of employment beyond such as is to be gleaned from the particular words used.

The last of the authorities put before use was Longden and Anor -v- Ferrari Ltd [1994] ICR p. 443. It was not concerned with Schedule 13 paragraph 17 but with and only with TUPE. Unsurprisingly, therefore, Macer, Justfern and Tuck were not cited to the E.A.T. The E.A.T., referring to a word to be found in TUPE but not in the legislation that we are considering and looking, therefore, to when a transfer could be said to be "effected", took the view that for the purposes of TUPE the transfer was "effected" on its completion - p. 452. By its emphasis, in coming to that conclusion, on the word "effected" Longden supra does nothing to weaken our conclusion that for the purposes of paragraph 17 "transfer" can properly be regarded as a process that can in an appropriate case be spread over a period and that "the time of the transfer" can correspondingly be of some duration.

Having considered all the relevant authorities which the parties have put before us, we find nothing that obliges us to depart from the views, and some reason for us to adhere to the views, which we have earlier expressed as arrived at without regard to authority. We end, therefore, by holding that the Industrial Tribunal was correct in its conclusion that it did have jurisdiction to hear the claim for unfair dismissal which Mr Oakes brings against C & T. The appeal is accordingly dismissed.