United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D IBEKWE (Union Representative) Public Transport Staff Consortium 31b Mervan Road Brixton London SW2 1DP
For the Respondents	MR J HAND QC and MR R PIRANI (Of Counsel) David Wagstaff & Co Treviot House 186-192 High Road Ilford Essex IG1 1LR


 


MR JUSTICE LINDSAY: We have before us a great many appeals where the Appellants are employees or former employees of London General Transport Services Ltd and where the Respondent is that company, London General Transport Services Ltd ("LGTS"). Sometimes the Applicants are described as Mr P Dixon & Others and Henry & Others and sometimes just Henry & Others, but there are a large number of individuals who are in that way before us as Appellants. Mr Ibekwe has appeared before us for all the Appellants.

The only Notice of Appeal which is before us is dated 8 August 1997, although I think it was received by the EAT on 14 August. It is an appeal only against the decision of the Industrial Tribunal on 14 April. At the date when that Notice of Appeal was composed, the particular details had not been received of the Extended Reasons of the Industrial Tribunal on 14 April 1997, but the Notice was accompanied by what was called "Application for leave to fully particularise Notice of Appeal ...... pending receipt of the Industrial Tribunal's decision of 14 April". In fact, the decision of 14 April 1997 was not promulgated to the parties until 21 August 1997.

On 4 September, the Appellants by then having seen the Extended Reasons given by the Industrial Tribunal for their decision of 14 April, they supplied to the EAT what were called "amended full particulars of appeal" and they applied to amend their original particulars of appeal accordingly.

The appeals came briefly before the EAT on 9 August. Part of the appeal relating to the breach of contract jurisdiction of the EAT has been directed to be heard at another hearing and we are not concerned with that question today.

Two other aspects of the decision of 14 April are appealed and are before us. In looking at the decision of the Chairman, Mr John Warren, and the two Members, Mrs R P Martin and Mr R J Wood, the unanimous decision of the Tribunal on 14 April 1997 was as follows:

"(i) There was no transfer of undertaking within the meaning Transfer of Undertaking (Protection of Employment) Regulations 1981 on the acquisition by Mockett Ltd of the shares of the Respondent in November 1994.

.........

(iii) The Applicants as per schedule annexed to each pay the sum of £15 to the Respondent as a contribution towards the Respondent's costs."

That is the totality of the decision on 14 April. One needs to have in mind that that was what was decided.

We have in front of us not only the oral address from Mr Ibekwe but also a very full series of pages of close-typed writing under the heading "Amended full particulars of appeal". I think that combining what has been said to us with what is in there and dealing with all of the points as we see them, there are, in effect, six broad headings to the Appellants' appeals.

The first one might be given the heading "Discovery". The Appellants claim that there is a misdirection of law in relation to the decision of 14 April in that on that day the Industrial Tribunal failed to correct defects which had occurred in relation to an earlier hearing as to discovery of documents. That earlier hearing was on 19 March 1997, before only the Chairman, Mr Mahoney. What had happened so far as concerned the most relevant production of documents on that day was that the Chairman then ordered that there should be production to the Chairman himself within seven days of the sale agreement of November 1994 by which Mockett Ltd acquired LGTS. That, of course, was the very question which the Industrial Tribunal was later examining into on 14 April and that was how the Industrial Tribunal understood the matter on 14 April. What they say in paragraph one of their Extended Reasons is:

"These applications came once more before the Industrial Tribunal to determine two preliminary issues: namely,

(i) whether the Transfer of Undertaking (Protection of Employment) Regulations 1991 applied to the acquisition of the Respondents by Mockett Ltd in November 1994"

On the 19 March 1997 there was also further provision as to discovery, in the sense that paragraph 4 of that Order required:

"The Respondent to disclose to the Applicants all relevant documents relating to those Applicants employed prior to the incorporation of the Respondent in 1988."

and there was also provision at paragraph 5 that:

"Any amendment to any Originating Applications proposed by any Applicant are to be made within 7 days of today [ the Order continued in terms though whether the effect would have been such] and if not made within that time limit such Applicant is debarred from making any further amendment."

But, reverting to the subject of the production of a document within seven days, what had been ordered on 19 March was that the Respondent was to provide within seven days of that day, to the Tribunal, for Mr J Warren, Chairman, a copy of the sale agreement under which Mockett Ltd acquired the Respondents, for him to consider what parts of that document should be disclosed to the Applicants, for the purpose of assisting the Tribunal in the determination of the preliminary issue referred to at paragraph 2(i) of the Order, excluding, in particular, commercially sensitive matters not relevant to that preliminary issue.

How that question and approach came about on 19 March was as follows: the Applicants were seeking to find whether the November 1994 sale agreement represented a transfer of undertaking for the purposes of the legislation. LGTS was then contending that it was an agreement only for the sale of shares and therefore, in their contention, not a transfer of an undertaking. They were also claiming that that sale agreement of November 1994 was commercially sensitive and they were loth to give discovery of it. So the Chairman ordered a production of the document to the Chairman himself in the manner that I have just indicated. That seemed to be a sensible practical arrangement because it had the effect that there was no further argument, at any rate for the time being, on whether it was a justifiable ground to refuse discovery to rely upon commercial sensitivity and also it meant that there was no argument further on the question of what was the proper range of discovery. Moreover, the costs of avoiding what are called redacted copies, where there are sometimes pages after pages left blank as being immaterial, was also avoided. The idea was that at the hearing on 14 April the Chairman would be in a position to indicate what his view was of the propriety of discovery of the sale agreement that had been produced to him.

Accordingly, on 14 April 1997 there was produced, or by then had been produced, a copy of the November 1994 sale agreement. The Chairman considered that agreement and he came to a ruling on the subject. He said this:

"6. The Respondents had produced to the Tribunal pursuant to the Order made by Mr Mahoney at the directions hearing on 19 March 1997 a copy of the sale and purchase agreement relating to the sale and purchase of the issued share capital of the Respondent Company. The Respondents contended that the sale contract contained sensitive information and should not be disclosed in full to the Applicants. The Chairman inspected the sale purchase document which runs to some 57 pages together with a large number of additional schedules which inter alia contained details of the individuals who were employed by the Respondent Company at the particular time."

7. The Chairman inspected the agreement and ruled that it was not necessary to disclose the whole of the agreement to the Applicants. The document was drawn in a standard form for the sale and purchase of shares with appropriate warranties being given by the vendor.

8. The sale and purchase agreement is dated 1 November 1994. It is made between London Regional Transport, therein referred to as "the vendor", of the first part Mockett Ltd (the Purchaser) of the second part and London General Transport Services Ltd (the Company) of the third part. The agreement records the sale of shares in "the Company" by "the Vendor" to "the Purchaser". The operative clauses are at page 4 of the agreement. The Chairman ordered disclosure by the Respondents to the Applicants of pages 1 to 4 of the agreement and details of the agreements execution."

Now, even where discovery is automatic it does not give a party the right to forage as he might wish amongst the other side's documents. The conventional test is that as set out in a case called Peruvian Guano and where a party swears that he has already produced everything that is relevant to the case within the Peruvian Guano test, then, broadly speaking, it is not possible for the other side to go behind that oath.

In the EAT and in the Industrial Tribunal there is no automatic discovery. Discovery is much more limited. One simply gets what is ordered. Here there was, so far as relates to the sale agreement of November 1994, no order that it should be discovered to the Applicants. Rather that it should be produced in the manner that I have indicated to the Chairman himself. There was no appeal against that ruling, as it seems, and there was no review of it, either on the Applicants' motion or by the Tribunal of its own motion. The Appellants therefore cannot complain that there was no discovery ordered, direct to them, under that Order. If they had wished to argue that they should have appealed the Order of 19 March or sought to have it reviewed. But what they can complain of is that on 14 April the Chairman did not give them sight of the whole of the share agreement. That is a thing that, theoretically, they could complain of. There is, as it seems to us, no good ground made out for any such complaint. The Chairman looked at the document to see whether there was anything within it material to its being a transfer of an undertaking within the regulations, or to see whether there had been such a transfer. He ruled that it was a standard form share sale agreement and therefore, in his view, irrelevant to its being a transfer of an undertaking. He could have ordered there to be supplied a whole series of fifty-three or more blank pages, plus the four that were disclosed, but that, of course, would have been an entirely pointless exercise. There is no good reason whatsoever advanced for thinking that the Chairman was wrong in law in his assessment of the document and no error of law is demonstrated by the Appellants on that particular part of the case. It comes, we think, to this, the Order of 19 March was for production to the Chairman, for him to assess relevance. There was production to him and he did assess relevance. No error in law is shown relative to that assessment that he made.

We can see that it is difficult for the Appellants to argue on the point when they have not seen the whole of the document. That, I am afraid, is a familiar position in discovery cases. A party quite often says "but surely there must have been some other documents and therefore can I please see the other documents". But, generally though, a party has to rely on what the other party states to be relevant or what the Court then rules to be within the range of what is discoverable. Here, the Appellants, in fact, did rather better than that. They got the whole document produced to the Chairman under an Order and so they then had an independent professionally qualified Chairman examine into the document to see whether there was anything in it of relevance.

Discovery in Industrial Tribunals is not encouraged. It does make cases longer. It makes them more expensive. We can only go behind the decision if there is good reason made out here before us to indicate that there was an error of law. But we have no material put before us to suggest that the Chairman was wrong, or that there must have been some other transfer to Mockett Ltd in November 1994 other than that which was shown in the pages illustrated and produced by the Chairman to the Appellants on 14 April. In the absence of that error of law being shown, there is, as we see it, no ground for disturbing what was done below on the subject of discovery.

The second broad heading of the case could be headed using the familiar abbreviation "TUPE". It was the Applicants' case, the Appellants' case also, that there was here a transfer of undertaking in November 1994. On that the Industrial Tribunal on 14 April found that all of the Applicants whose applications were before them were employed by the Respondent prior to privatisation in November 1994 and they also found that the Respondent company continued after the sale, as before; the employer remained the same. In paragraph 11 of their decision they say this:

"The Applicants called no evidence and put forward no argument and made no submission in support of their contention that on the sale by London Regional Transport to Mockett Ltd of the shares in the Respondent company there was a transfer of a business which came within the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 save to remind the Tribunal that the sale was of 100 per cent of the shares in the Respondent Company. However despite making no submission to support their claim the Applicants were not prepared to concede that there was no transfer as the business remained in the same hands after the 2 November 1994 as before - they left it to the Tribunal to decide.

12. The Respondents case simply put is that the Transfer of Undertaking Regulations do not apply to a transfer of shares. There is no evidence that Mockett Ltd was other than a genuine company. The transaction was genuine it was not a sham. The employer throughout was the Respondent. The Respondent continued to exist as a company. There was no change of employer. There was no relevant transfer. The Transfer of Undertaking Regulations are to protect individuals who are in a situation where otherwise the employment contract would cease; that position does not arise in this case. The relevant law is quite clear. The Transfer of Undertakings (Protection of Employment) Regulations 1981 were brought into force to implement Council Directive 77/187/EEC the Acquired Rights Directive. The Regulations are to be read subject to that Directive and for that purpose article 8(1) provides that where either before or after a relevant transfer any employee of the transferor or transferee is dismissed that employee shall be treated for the purposes of the 1978 (now 1996) Act as unfairly dismissed."....

and they continue and they point out that the Applicants' employer continued to be the Respondent.

It is worth looking briefly at the Directive to which there was reference. The heading of the Directive of 14 February 1977 is on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses. Note, there is no reference to shares. Article 1 says this:

"This Directive shall apply to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger."

Again, no reference to shares. Article 2 is instructive. It is the definition section:

"For the purposes of this Directive—

(a) "transferor" means any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), ceases to be the employer in respect of the undertaking, business or part of the business.

(b) "transferee" means any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), becomes the employer in respect of the undertaking, business or part of the business."

Article 3 (I think it do not need to read it, it is there in the public law) presupposes that there has been a cesser of employment and a starting of employment. It presupposes that there is a transferor and a transferee, and that necessarily requires, having regard to the definitions that I have read, that someone has ceased to be the employer and someone has become the employer. So for the Appellants to invoke the letter or the spirit of the Directive, when throughout the LGTS was their employer, does not assist them at all. I say "throughout", looking to the period with which the Industrial Tribunal was concerned in their decision in April, which is therefore relating to the period in November 1994. So much for the Directive. I have already read the findings of fact that the Applicants were employed by the Respondent immediately prior to the privatisation in November 1994 and continued to be the employer after the privatisation.

Turning from the European Directive to our own domestic law, the Transfer of Undertakings (Protection of Employment) Regulations 1981, one sees in paragraph 2 that "undertaking" includes any trade or business. There is no reference there to shares or to shares in a company carrying on a trade or business. Paragraph 2(2) and 3(1) states:

"References in these Regulations to the transfer of part of an undertaking are references to a transfer of a part which is being transferred as a business and, accordingly, do not include references to a transfer of a ship without more.

Subject to the provisions of these Regulations, these Regulations apply to a transfer from one person to another of an undertaking situated immediately before the transfer in the United Kingdom or a part of one which is so situated."

There is nothing there that seems to relate at first blush to a transfer merely of shares. Indeed, there would be immense difficulties if that was the case. Would every transfer of even one share be regarded as transfer of part of an undertaking? That, of course, would be quite ludicrous. Or perhaps it would be that only where all shares were transferred that there would be taken to be a transfer of an undertaking. But that would be ludicrous too because one would then be able to avoid it by simply withholding one share. Indeed, if a share represents an undertaking in the sense that the sale of a share can be a transfer of an undertaking, then within the regulation that I read the shares would have to be situated in the United Kingdom. One would therefore simply be able to avoid the whole of the legislation by creating bearer shares which one then transferred somewhere out of our jurisdiction. There is not a single authority cited to us to suggest that a sale of shares and shares only can ever be the transfer of an undertaking within TUPE or within the spirit of the Directive and so that head of the appeal, which in any event Mr Ibekwe has emphasised more in his written passage than in his oral address, seems to us to fail.

The third heading I have labelled, because these words are used in the particulars of appeal, "Natural justice". The Appellants complain that they have been denied access to documents. So far as that relates to their not seeing the full version of the sale agreement of November 1994, we have already ruled against them on that point. But, in any case it is not a legitimate form of argument first to suppose that there must be documents in your favour which would assist you and then to complain that they have not been supplied. There is no transaction which is ruled on by the Industrial Tribunal on 14 April other than the one which is specifically referred to in sub-paragraph 1 of their decision, namely, the acquisition by Mockett Ltd of the shares of the Respondent in November 1994. As to that particular transaction, it is not, as it seems to us, a want of documents that embarrasses the Appellants but a want of substance. We see nothing offensive to natural justice in the Chairman vetting the document of November 1994 as he did, or in concluding as he did. We have been given no reason to think that the only transaction being then ruled upon was other than it seemed to be, namely, a transaction providing, and providing only, for a sale of shares.

Mr Ibekwe tries to compare the price which is understood to have been paid as the price of the share sale with an in-house magazine entry which suggests that overall, somehow, a higher price was paid, and he says that means there must be some other transaction which might be a transfer of an undertaking. But the question is not whether there has been here a transfer of an undertaking, but whether the instrument and transaction of November 1994 by which Mockett Ltd acquired shares and that alone was a transfer of an undertaking, and that is a subject which the in-house magazine and the comparison which Mr Ibekwe seeks to make does not usefully address.

It is not for us to encourage the Appellants to put their case on transfer of undertaking in some different way. It has to be remembered that the Industrial Tribunal on 14 April 1997 was ruling only on the very limited question which I have now identified a number of times over.

If it is the Appellants' wish that they, having learnt more since April 1997, wish now to expand their case to claim that there is some other form of transfer of undertaking that is fairly to be argued for, as to which we say nothing, and if it is their case that they need to amend their pleadings or case to introduce that argument (again, as to which we say nothing) then that is for them later to attempt to do in some other forum. But, limiting ourselves to the particular question of the November 1994 acquisition by Mockett Ltd by way of shares, we do not see that there was any breach of any rule of natural justice in connection with that case. Equally, if having, by amendment or otherwise, introduced the topic into the case of some acquisition by way of a transfer of undertakings other than that of November 1994 to Mockett, the Appellants seek and obtain discovery in relation to that new form, then they can take the matter forward and seek documents and get orders and so on, as might be appropriate. We are not concerned with that; limiting ourselves to the question of natural justice in relation to documents, we see no relevant shortcoming on the part of the Industrial Tribunal on 14 April.

A fourth heading is costs. For that I need to read what was said about costs in the decision of 14 April and the relevant passage is at paragraph 22:

"The Tribunal awarded costs of £15 against each Applicant. The Applicants' representative called no evidence at this hearing and made no submissions to the Tribunal to support them against that the Transfer of Undertaking (Protection of Employment) Regulations apply and conceded the question of jurisdiction of the Tribunal in respect of claims for breach of contract in respect of claim brought by Applicants who were still employed at the date of application. We consider the Applicants behaved unreasonably in pursuing the above aspects of their claims especially bearing in mind the previous decision of this Tribunal under the Chairmanship of Mr Lamb in the case of Hillman v. The Respondent heard on 21-22 May 1996 decision sent to the parties in February 1997 where that Tribunal at paragraph 81 of its decision concluded there had been no Transfer of an Undertaking in the acquisition by Mockett Ltd of the shares in the Respondents. We also take this opportunity to draw the Applicants' attention to paragraph 59 of the Hillman decision where the Tribunal record their finding that the Respondent Company is not an emanation of the State as this is an issue Mr Ibekwe wishes to reargue in these cases."

The Appellants' argument on costs, which has not been orally advanced to us, but which was plainly how the matter was put below and how the matter is touched on in the expanded particulars of appeal, runs as thus: this is the primary way in which the Appellants put their argument on costs. They say that the case of Mr Henry and all the other cases were consolidated into one case. Therefore there was, they say on the employees side, just one party. Therefore, they say, the maximum possible award of costs against the employees together was £500. They draw attention to Industrial Tribunal Regulations 12(3)(a). But here, they go on to say, the £15 per capitum award that the Industrial Tribunal made amounted in all to over £1200. In other words, £700 more than the maximum which they say is appropriate. Consequently, they say that that Order as to costs was ultra vires and improper. This argument is entirely hopeless. There is not a consolidation of all cases into one. Rather what happens under Rule 18 is that the cases are combined to heard together. That is the effect of the Order.

On 19 March 1997 the Order was:

"1 The cases listed on the sheet annexed to this Order are to be heard together by the same Tribunal in accordance with Rule 18 of the Industrial Tribunal Rules of Procedure 1993."

So that, strictly speaking, there were still as many separate applicants as there were separate cases, and as many separate cases as there were applicants, albeit that they were all to be heard together. In any event, there is no reason why one should not be able to have more than one party on one side. The Industrial Tribunal on 14 April could, had they chosen, have made an award as high as £500 per claimant. Having that in mind, the award of £15 a head could be regarded as rather more modest. The argument that I have described on the Appellants' behalf discloses no error of law and so far, therefore, there is nothing we could interfere with. But a secondary argument on costs is that the Industrial Tribunal improperly regarded itself as bound by the earlier Industrial Tribunal decision in the Hillman case. The only time the Hillman case is mentioned is in paragraph 22 of the Industrial Tribunal's decision of 14 April, which I have read, where there is reference to:

".... especially bearing in mind the previous decision of this Tribunal under the Chairmanship of Mr Lamb in the case of Hillman v The Respondent heard on 21-22 May 1996 decision sent to the parties in February 1997"....

The Industrial Tribunal therefore on 14 April 1997 had it in mind as a factor, (not the only factor, as the word "especially" indicates) but a factor contributing to their overall view that the employees had been unreasonable in that, in the case of another LGTS employee, a case heard some 10½ months earlier, it had already been ruled that there had been no transfer of an undertaking on the very occasion on which the Tribunal on 14 April was having to enquire into, namely the acquisition in November 1994 of shares by Mockett Ltd. It cannot be said and it is not said that the employees' representative did not know of the Hillman case and, indeed, in the decision of the Industrial Tribunal on 19 March there had been express reminder to the parties of the existence of that case; at paragraph 6, the decision was:

"In the light of the Respondent's assertion that the Industrial Tribunal at London South had made a determination on similar matters in case number 49397/95 [the Hillman case] the Tribunal felt it appropriate to request the Applicant's representative to bring to his client's attention the provisions of Rule 12 of the Industrial Tribunal's Rules of Procedure 1993."

In other words, in March 1997 the Chairman was firing a shot across the bows of the claimants to warn them that if they went ahead, it really did need to be brought to their attention that they might be running a risk in costs.

The Industrial Tribunal in April did not purport to be bound by the Hillman decision but its existence seems to us to be a factor that could properly be taken into account when judging whether it was reasonable or unreasonable for the Applicants to have continued to argue that there was a transfer of an undertaking in the acquisition by Mockett Ltd in November 1994 and to require that to be ruled upon as a preliminary point, at all events unless some new clear case on good evidence was to be adduced; and yet one knows that when it did come up on 14 April, the employees called no evidence and advanced no argument.

We are concerned on this appeal, so far as concerns costs, with whether there is an error of law in the mention of the Hillman case en route to the Industrial Tribunal's decision on costs at £15 per head, as I have mentioned. Mr John Hand QC appearing before us has, as we think rightly, merely submitted that this question of costs was a matter for the discretion of the Tribunal. That, we think, is correct and looking at that discretion we find no error of law in the mention of the Hillman case in the way that it was mentioned and both aspects of the appeal as to costs must therefore be dismissed.

A fifth heading (and, again, this has been little touched on by Mr Ibekwe but is gone into at some length in his written form of Notice of Appeal) is what I call "blinkers". Here the complaint is that instead of looking merely at the transaction in November 1994 by which LGTS was acquired by Mockett Ltd, instead of ruling as they did that that was not a relevant transfer of an undertaking, the Industrial Tribunal should, say the Appellants, instead have looked at the whole privatisation process back to the 1980s and worked its way forward and looked at the whole of the process to see whether the whole of the process represented the transfer of an undertaking. This point, in our view, is entirely misconceived. On 19 March the Industrial Tribunal ruled that there should be a preliminary question, namely whether the Transfer of Undertakings (Protection of Employment) Regulations 1981 apply to the acquisition of the Respondent by Mockett Ltd in 1994. There was a note on that decision of 19 March which reads as follows:

"3) The Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed but can only do so for good cause. Any such application should be made to this Office before the date for compliance mentioned above, giving reasons for the application."

So far as concerns transfer of undertakings it was only the transaction of November 1994 to Mockett Ltd that was before the Industrial Tribunal in April 1997. That was exactly what the Industrial Tribunal understood the position to be. I have already read that paragraph 1(i). It would, in fact, have been improper for them to have ruled on any transfer of undertakings subject other than on that transaction of November 1994.

The complaint of the Appellants is summed up in a passage in their particularised appeal, it says:

"In reaching such conclusion, the Industrial Tribunal of 14 April 1997 blinkered itself and only adjudicated on the issue of the purported Share sale of London General of 1 November 1994, disregarding the very essence that it forms but a part of the whole picture and totality of the Privatisation process."....

But, as I hope we have now sufficiently indicated, that general approach was not one which was before the Industrial Tribunal in April 1994, but only the limited form which I have described many times and so this subject of the Industrial Tribunal being "blinkered" is not one that gives rise to any error on the part of the Tribunal.

A last, sixth, point (and again this is one that Mr Ibekwe did not develop but which is mentioned in the further particulars of appeal) is a further costs point. The complaint seems to be this, that the reasons which were given orally by the Industrial Tribunal on 14 April for requiring the Applicants to pay £15 costs per head differed from the reasons in the written extended reasons when they eventually emerged. It is also said as part of this further costs argument that on 14 April the Industrial Tribunal failed sufficiently to have regard to the fact that the Appellants' cases had begun before the Hillman decision to which the Industrial Tribunal had referred and moreover that the Hillman decision had been arrived at without a sight of the 1994 sale agreement.

The position is that the decision of an Industrial Tribunal can be given orally but its reasons are required to be given in writing. It is therefore, when one comes to make an appeal, to the extended written reasons that one looks. Courts quite often express themselves better on reflection than they do ex tempore in the court on the day. In the absence of very strong grounds for looking otherwise than at the written reasons, it is the written reasons alone that are examined on an appeal. Taking the Industrial Tribunal's reasons as they express them in their written extended reasons, we have already indicated that, examining those, there is no discernible error of law and that on that part of the case the award of costs must stand.

There is nothing, as it seems to us, in the fact that these Applicants began their cases before Hillman that means that such consideration as the Industrial Tribunal gave to the Hillman case was improper. The Industrial Tribunal raised the question of whether the 1994 transaction to Mockett Ltd was a transfer of an undertaking. The Appellants had been represented when that was ordered to be a preliminary question on 19 March; indeed, it seems that it may have been at least in part their wish that that should be raised as a question and yet when they came to have that question ruled upon, on 14 April, they called no evidence, they made no submission and yet they made no concession. LGTS had attended with a witness who gave evidence; he need not have been called if the matter had been considered earlier by the Appellants.

It is hard for us to capture the flavour of the hearing of 14 April but we do not feel able to say that no Industrial Tribunal properly instructing itself could have concluded as they did on costs; could have concluded, in other words, that the Applicants had been unreasonable in the way that they had conducted the proceedings. We see no error of law at that part of the case and accordingly the sixth ground of the appeal, as I have summarised it, fails.

I was going to make a reference to the Employment Appeal Tribunal Rules on costs and expenses, but that, it seems to me, would be inappropriate at this stage. Simply looking to the various grounds which I have examined and which we have all studied in advance, we have dealt with each of them separately and we find no ground that succeeds and accordingly dismiss the appeal.

[After discussion as to costs of the appeal]

So far as concerns the costs of the appeal, we are disturbed to find that the matter has been brought here by a union which, it is said, is unable to fund the men for whom it was appearing. That does disturb us. It is an unusual situation but, having said that, we make no order as to the costs of the appeal.