United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOWERS QC (of Counsel) and MR S SWEENEY (of Counsel) Instructed by: Legal & Corporate Services Civic Centre Regent Street Gateshead NE8 1HH
For the Respondents	MR O SEGAL (of Counsel) Instructed by: Thompsons St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 1TH


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This appeal is concerned with the terms of employment of part-time workers in the School Meals Service at Gateshead. First they were employed by Gateshead Metropolitan Borough Council ("Gateshead"), then, upon an out-sourcing by Gateshead, by Castle View Services, then, upon the out-sourcing coming to an end, once again by Gateshead, with a "TUPE" transfer upon each change. The Employment Tribunal at Newcastle upon Tyne held that some of these workers had well-founded claims against Gateshead that there had been unlawful deductions from their wages; a 5.4.% rise had not been paid. Gateshead, asserting that the 5.4% was not due in respect of the period claimed-for, now appeals.
2. Gateshead appears by Mr Bowers Q.C. and Mr Sweeney, the latter having also appeared for Gateshead below. The applicants below, respondents here, part-time employees of Gateshead, appear by Mr Segal, who did not appear below.
3. On 26th November 1999 and thereabouts a number of part-time manual workers engaged in the School Meals Service in or around Gateshead presented IT1s against "Castle View Services". Mrs Robinson's IT1 was of typical brevity. It said:-

"On the introduction of the 37 hr week which came into effect in April 1999 we were entitled to an additional payment for the loss of 2 hours; at this moment in time my employers, Castle View have not made a payment."

Shortly thereafter, on 1st January 2000, there was a TUPE transfer from Castle View Services (earlier, as we have said, the transferee of a TUPE transfer from Gateshead) back to Gateshead. Gateshead was later joined as a respondent; Castle View Services ("CVS") were dismissed from the proceedings and Gateshead, the employer of the applicants as from 1st January 2000, remained as the only respondent.

4. On 20th March 2000 Gateshead put in its IT3. On 1st January 2000 the staff transferred from CVS to Gateshead had consisted, said Gateshead, of two classes; first, those who had been employed by Gateshead before 1st January 1995 (the date of the TUPE transfer to CVS), who had then transferred to CVS and who were still in the employ of CVS as at 1^st January 2000 and who then were transferred back to Gateshead. We will call that class "Class I". Class II consisted of those who had joined CVS after 1st January 1995 or otherwise than on the TUPE transfer from Gateshead and who transferred to Gateshead on the transfer of 1^st January 2000. There had been a collective agreement, said Gateshead, which gave part-time workers of CVS an increase but only those in class I were entitled to its benefit. In any event, said Gateshead, the increase had been paid by CVS and nothing remained payable. Moreover, said Gateshead, the applicants were out of time.
5. On that far from clear basis the matter went to a hearing at the Tribunal at Newcastle upon Tyne, spread over 3 days in December 2000.
6. On 17th January 2001 the decision of the Tribunal, under the Chairmanship of Mr R.J. Barton, was sent to the parties. It held that the cases of those applicants in class II were dismissed; there is no appeal against that. The Tribunal also held that liability for such wrongful deduction from wages as they found had been passed to Gateshead; again there is no appeal. However, Gateshead does appeal the Tribunal's conclusion - item (2) of its decision - that in respect of persons in Class I there had been an unlawful deduction from their wages. The appeal is only as to that part of the Tribunal's decision, which reads:-

"(2) The applicants insofar as they consist of employees of [Gateshead] whose employment had been transferred out to [CVS] in 1995 and transferred back to [Gateshead] on 1st January 2000 are applicants whose complaints of unlawful deductions from wages are well-founded."

7. As argument developed at the Tribunal below it emerged that the core issue was as to the terms as to pay per hour on which Class I Gateshead employees had been employed in the interval from 1st April 1999 and 31st December 1999, when they had been CVS employees. More particularly, had CVS been liable to pay them an increase of 5.4% per hour worked over that period? If CVS had been so liable then Gateshead accepted, under TUPE, that it would now be liable to pay that increase in respect of that past period. One complication in what both employers and employees could reasonably have expected to be a straightforward issue was that the employees' terms and conditions referred to a body of standard-form, widely used terms and conditions drawn up for Local Authority manual workers which embody a procedure for variation by reference to decisions of a body which had ceased, or was said to have ceased, to exist. Another complication was that the 5.4% increase was arguably awarded only to the employees of Local Authorities and that CVS was not one and hence not an employer plainly falling within the scope of the standard-form terms.
8. There was little, if any, contest on the facts and the most convenient way of explaining the position is by looking at the documents relating to one of the Class I workers, Mrs Ackinclose, and to take them in chronological sequence.
9. On 2nd November 1993 Gateshead offered further part-time employment to Mrs Ackinclose; the letter to her said:-

"....... I am pleased to confirm the offer of a permanent appointment as a General Kitchen Assistant at Winlaton Park Lane Infants School Kitchen for 20 hours per week, effective from 01.11.93. Wages and Conditions of Service will continue to be in accordance with the NJC (Manual Workers) Agreement, the current hourly rate being £3.4439. You will be paid by credit transfer."

She was asked to complete and return an acceptance form, which she did.

10. On 28th September 1994 Mrs Ackinclose was sent by Gateshead "an outline of your main terms and conditions of service". Full details, said Gateshead:-

"are contained within the National Joint Council for Local Authorities' Services (Manual Workers) Handbook insofar as they are adopted by this Authority."

How far they were adopted was not explained. The details given in that outline included:-

"Grade/Hourly rate. NJC (Manual workers) Agreement

Grade 1 (3.4957)"

11. At and around the dates of those documents the National Joint Council for Local Authorities' Services (Manual Workers) - "the NJC (Manual Workers)" - specified standard wage rates intended to be applicable to all manual workers within its description save where there was other agreement. Weekly rates were specified for different grades of full-time workers (Grades 1-6) and, for part-time employees, the NJC terms provided:-

"Part-time employees shall be paid according to the number of hours worked, pro rata to 39 hours."

That is understood to mean that for every hour worked the part-time employee would become entitled to 1/39th of the pay of a full time employee of the corresponding grade.

12. Whilst the NJC terms shown to us do not expressly provide for how those should be changed, that rates should change over time was inevitable and the functions of the NJC (Manual Workers) were expressed to include consideration of proposals and the taking of action as to the provision of machinery for the regular consideration of wages, hours and working conditions. The constitution of the NJC (Manual Workers) specified that it was to have a membership of 73, 43 appointed to represent organisations of Local Authorities and 30 organisations of workers. The constitution provided for the numerical distribution of the employers' representatives between specified organisations (for example Provincial Councils and Associations of Metropolitan authorities) and, on the Union side, for distribution between the GMB, the then National Union of Public Employees and the T & G. There was provision for voting with a requirement that no resolution should be regarded as passed unless approved by a majority of the members present on each side, the Employers and Unions sides, on the Council or Committee concerned.
13. The constitution of the NJC for Manual Workers provided that it might be amended with the assent of the employers' associations and the body of Trade Union representatives which it had earlier described and of the Convention of Scottish Local Authorities. No express provisions were made as to its winding up or cessation or the consequences thereof.
14. The comprehensive document which is the whole NJC (Manual Workers) Handbook was in the Gateshead area commonly called "the White Book".
15. So far we have looked at Mrs Ackinclose's employment with Gateshead. By way of a TUPE transfer on 1st January 1995 she was transferred to the employ of CVS (then called CCG). As it was a TUPE transfer Mrs Ackinclose's terms of employment remained as they had been; CVS became her employer as if her contract of employment with Gateshead had been made with CVS - TUPE regulation 1981, regulation 5 (1). She continued to be paid for her hours worked rateably to the pay of a full-time manual worker on White Book terms at the rate of 1/39th of that full-time rate for every hour she worked. CVS did not contemplate its wage rates as immutably fixed; in the course of its agreement with GMB and Union on several subjects it was agreed in April 1995 that:-

"All rates will be subject to review on the anniversary of the contract commencement (1st January 1996) and annually thereafter."

Whilst some of the terms of that agreement between CVS and the Unions distinguished the cases of the transferred former Gateshead employees on the one hand and new employees on the other, nothing in that cited provision did so and the reference to "all rates" would seem to mean what it says. CVS's agreement with the Unions was no direct part of Mrs Ackinclose's contract but one could expect CVS to honour its promise to the Unions. It would seem that it did. Thus, for example, in July 1996, having agreed a pay increase with the relevant Unions, CVS made an increase of 2.9% backdated to 1st April 1996. Whether that precisely mirrored a White Book increase is not certain.

16. Then on 31st March 1997 the NJC for Manual Workers ceased to exist; the Tribunal so held. That is uncontested in the papers before us. A new body - the National Joint Council for Local Government Services was created, having functions relating to all employees of local authorities other than those covered by other national negotiating machinery. It looked, therefore, beyond just manual workers. The new body was to have a membership of 83, 25 to represent employers, 58 the employees. The earlier balance had been 59% employers, 41% of employees; it was now 30% employers, 70% employees. The distribution of membership on the Union side also changed, with UNISON now entitled to more representation than the GMB (previously entitled to the largest number) and the T & G entitled to fewer than UNISON rather than to the same number. The previous requirement that for its passing a resolution required the support of both sides remained. An "Implementation Agreement" was drawn up providing, inter alia, that from 1st April 1997 there would be one handbook of terms and conditions - "the Green Book" - replacing, so far as concerned the local authority workers previously within the scope of the NJC (Manual Workers), the White Book. Negotiating machinery for manual and other previously separate classes of workers was merged. Clause 4 of the Implementation "Single-Status" Agreement provided:-

"4. Employees within scope of the Green Book are all employees of local authorities or other authorities of equivalent status in the U.K., except those for whom other national negotiating machinery already exists ......."

Clause 7 said:-

"7. Single table bargaining will operate nationally from 1st April 1997 as part of the Single Status agreement to wind up the former APT & C and Manual NJCs and to establish a new National Joint Council for Local Government Services."

17. More importantly for the purposes of this appeal, clause 17 provided:-

"17. From 1st April 1999 the standard weekly hours for all full-time employees will be 37. For part-timers there will be corresponding increases in hourly basic rates from the date of the reduction in standard hours for their full-time counterparts ....... For part-time employees it is the view of the NJC that existing contractual hours will be maintained. Wherever possible efforts will be made to offset the increased hourly rates of pay by more productive working methods."

18. Another document, described as "Key National provisions of the Single Status Agreement", provides that the standard working week for full-time employees was 37 hours and that part-time employees should in general have applied to them pay and conditions of service pro rata to comparable full-time employees in the same authority.
19. If a part-time worker continued, as so suggested, to work the same number of hours as he or she had done previously, the move from 1/39 to 1/37 of a full-timer's pay per hour would represent an increase in pay of close to the 5.4% pay increase that is here the issue.
20. On 1st August 1997 Gateshead sent a circular to its staff. Mrs Ackinclose at this time was, of course, not an employee of Gateshead or of any employer ostensibly within the range of the new NJC but of CVS. Gateshead's circular to its staff said that the two previously separate regimes for administration, professional, technical and other staff and for manual workers had been merged into a single agreement - the Single Status agreement - and that:-

"Following agreement between the employer and employee side of [the 2 previously separate NJCs] held on 10th July 1997, the existing national agreements have been replaced by a new single agreement of the NJC for Local Government Services. This is contained in a new handbook - the "Green Book" - which will be available for inspection at your administrative headquarters in due course ...... The NJC for Local Government Services is now the body that negotiates National agreements affecting your employment. Any further changes which arise from the Single Status Agreement will be subject to negotiations or consultation with the appropriate trade unions and notified to you separately. You should note that this letter amends your current Statement of Particulars of Employment (Contract)."

21. There is no suggestion that Mrs Ackinclose was sent any such a circular either by Gateshead or by her then-current employer, CVS, which was then still holding the out-sourcing contract from Gateshead. Although we do not have the full correspondence, it would seem that CVS asked Gateshead to reflect the increased rates payable to Local Authority staff by paying it, CVS, more under the out-sourcing contract so that, in turn, it could the better remunerate its own CVS employees. On 3rd October 1997 Gateshead told CVS that it was up to the latter as employers to settle upon the amount of any pay increase it was to give its own employees. Gateshead added:-

"Because the NJC for Local Authority Manual Workers ceased to exist on 31st March 1997, a situation not provided for in the contract [meaning, in the out-sourcing contract], correspondence was entered into with the Local Government Board who identified the relevant percentage as 3.615% .... It is intended therefore that the percentage figure of 3.615% will be used as a limit to any review of the "labour cost" position of the contract price consequent upon the notification of any pay increase awarded to your employees."

22. There is no indication that CVS had independently obliged itself to its employees to follow or adopt Green Book rates or changes in rates but that last citation suggests that its out-sourcing contract with Gateshead contemplated Gateshead paying more under it when, in some circumstances, CVS paid its staff more, though not necessarily that the extra under the out-sourcing contract should match the staff pay increase. CVS had, though, as we have seen, agreed with the Unions that there would be reviews.
23. There then followed a period in which there were from time-to-time Green Book increases - see the Tribunal's paragraph 3 (l), (m) and (n) - and CVS increases to its staff not always precisely in step in time or amount but far from unrelated, as Gateshead from time-to-time agreed with CVS that CVS ought, on account of the increases it paid to its staff, to receive more under the out-sourcing contract. On occasion Gateshead made the payment of more to CVS conditional on CVS paying more to its staff. There is, though, nothing to suggest that a Green Book increase in rates was recognised or agreed by either Gateshead or CVS as, without more, requiring Gateshead to pay more under the out-sourcing contract or requiring CVS to pay more to its employees or any class of them.
24. Throughout this period - after the apparent cesser of the White Book on the introduction of the Green Book and during the out-sourcing to CVS - Mrs Ackinclose and her colleagues working part-time continued to be paid per hour by CVS without regard to the change in the Green Book from 1/39th to 1/37th of the rate paid to any full-time colleagues of corresponding grade. It is not that that increase was overlooked. Thus, speaking of meetings in March and July 1999, Mr T.N. Scarr, a full-time officer of the GMB, who gave written evidence to the Tribunal, said:-

"8. I definitely raised the issue of the 37 hours week and the entitlement to the pay rise with Dan Curtis [of CVS]. Dan indicated that he would be willing to consider it if we would be willing to consider a new contract for all staff. He also indicated that he would only consider it when Gateshead had fully implemented it for their own staff. That wasn't the position as at the 29th March.

9. We raised it again at the meeting of the 16th July, by which time Gateshead had implemented the 37 hour week, although Ernie was not actually sure that they had actually made the payments to all staff by that date. In any event Dan Curtis made it clear that he would be prepared to implement the 37 hour working week but only if we would agree to substantial changes to the terms and conditions of employment. We were not willing to agree to the strings that were attached. An agreement was therefore never reached and [CVS] did not implement the 5.4% increase for the ex-Gateshead staff."

Mr Scarr was of the view that CVS always implemented with its staff whatever increases had been recognised nationally under the Green Book, presumably meaning whatever increases apart from the (1/39 to 1/37) 5.4% increase.

25. By 3rd August 1999 Gateshead had taken a decision to cease the out-sourcing of school meals and to take back the service "in house". It implemented that decision, presumably on the expiry or termination of CVS's out-sourcing contract, on 1st January 2000, in circumstances accepted to represent a TUPE transfer of the CVS employees within the School Meals Service, including Mrs Ackinclose. From 1st January 2000 Gateshead has paid its part-time workers 1/37th of the corresponding full-time rate for each hour worked, but its Class I part-time workers did not enjoy that enhancement as between 1st April 1999 (when the White Book was superseded and when the Green Book changed the working week from 39 to 37 hours) and 1^st January 2000, when the enhanced rate began to be paid.
26. It is against that background of fact that the argument before us proceeds.
27. Mr Bowers' argument for Gateshead is, at root, very simple. It is this. As from 1^st January 1995 CVS, by way of TUPE, became bound to honour the contracts Gateshead had earlier made with part-timers such as Mrs Ackinclose. The White Book was part of those contracts; the Green Book was not. Nothing within the White Book contemplated or provided for the case of a winding up of the NJC for Manual Workers or for the cessation of the applicability of the variable code which comprised the White Book nor provided for its replacement by some other body of terms deriving from or variable by some organisation other than the NJC for Manual Workers. On the transfer CVS Mrs Ackinclose thus remained on White Book terms. Next, argues Mr Bowers, nothing in the Green Book applies expressly to employees of bodies other than Local Authorities or similar bodies. The Green Book thus did not purport to affect CVS employees in any way. True it is that CVS would be obliged to honour changes the NJC for Manual Workers made to the White Book terms but that Council made no changes to those terms and, as it ceased to exist after 31st March 1997, it could not make any changes after that date. Whilst CVS had agreed with the Unions for annual reviews, it was not bound by any contract to pay whatever increases were made from time to time under the Green Book terms, increases not ruled upon by the NJC for Manual Workers but by a different body with a different constitution and different functions, namely the NJC for Local Government Services. Although CVS did increase pay from time-to-time for its employees, that of itself, whether or not the increases were completely in line with Green Book increases, did not indicate that it accepted that it was bound by the Green Book as, leaving aside its agreement for reviews with the Unions, market forces would in any event lead it to need at least roughly to match Green Book changes. In any event, as Mr Scarr's evidence showed, the Unions had expressly sought to get CVS to agree the 37 hour week and the consequential effective 5.4% rise for part-time workers but CVS had failed to agree that change. Accordingly, argues Mr Bowers, CVS, never having become liable to pay the 5.4% increase, nor, on the TUPE transfer back to Gateshead, did Gateshead become liable to pay it in respect of periods during which CVS had been the employer. Gateshead paid the increase for periods after 1st January 2000 when it was the employer but could not be liable for periods when CVS had been. All the transferor's, CVS's, liabilities under its contracts with Mrs Akinclose and her colleagues were accepted on 1st January 2000 to have been transferred to Gateshead - TUPE reg 5 (2) (a) - but that did not serve to transfer anything not within CVS's contracts with such employees.
28. Large parts of that argument were accepted below and, indeed, the Employment Tribunal held that the basic facts were not in dispute. That the transfers were both TUPE transfers was not in issue and it was accepted that the staff transferred to CVS in 1995 were on terms and conditions governed by the White Book. It was accepted that in 1997 the Green Book replaced the White Book. The Tribunal set out Mrs Ackinclose's terms and conditions by reference to the letter of 2nd November 1993 which we have cited. The Tribunal referred to the rule in the constitution of the NJC for Manual Workers providing for its amendment (but made no express finding that any amendment had been made pursuant to the rule). They referred to the terms and conditions of other classes of workers - School Caretakers, School Crossing Patrol Officers, Gardeners, Drivers and Labourers - but not only were those terms for different classes of workers they were in the main terms which expressly referred to the NJC for Local Government Services and hence could only have been made later than the contracts made with Mrs Ackinclose and her colleagues in the Class I which we have described. The Tribunal held that the NJC for Manual Workers ceased to exist on 31st March 1997 and was replaced by the NJC for Local Government Services and that a new single agreement known as the Green Book or Single Status agreement was drawn up. It held that CVS had not paid the 5.4% increase, that Gateshead paid it for the future from 1st January 2000 but that it had refused to backdate it. It heard evidence from, inter alios, Gateshead's Principal Personnel Officer which it summarised as follows:-

"In evidence Mr Robson confirmed that the variances between the different groups of manual workers whose contracts had been produced had simply depended upon who had drafted the particular contracts at the time. The practical effect was the same across the Authority. Pay was arrived at as a result of national bargaining and implementation took place across the board. When asked in cross-examination whether there was any fundamental difference in the reality of the contracts he replied "not in reality". He also confirmed that if the group into which the applicants fall had still been in employment in Gateshead in 1997 they would have received a variation letter and the benefit of the negotiated terms under the Green Book. Indeed, the only difference was that these employees were not at that time employed by [Gateshead]."

We will need to comment on that passage but in its decisive paragraphs the Tribunal concluded:-

"4. After considering the matter at some length the Tribunal were of the view that the document which comprised the applicants' terms and conditions of employment was not exhaustive but was in effect simply a statement of main terms and conditions. Literal reading of the clause which appears at R50 might incline to the view that it was simply the National Joint Council for Local Authorities Services (Manual Workers) handbook, namely the White Book which formed part of the terms and conditions which transferred. However, having regard to the existence of the contract conditions of the other manual worker groups employed by the respondents and in particular to the evidence of Mr Robson 'in reality' there was no difference in these groups, we have concluded that upon a proper construction of the agreement reached between the respondent and the applicant and which transferred to Castle View and back to the respondent it was the national bargaining machinery which was intended to be incorporated rather than a particular document which might have represented that agreement at the particular time."

A little later in its paragraph 5 the Tribunal held:-

"In essence what we believe to be the case on the facts as we have found them is that it was not that a collective agreement that had been entered into and then changed but rather that the collective agreement was to adopt the national bargaining process and that had not changed at all. The fact that it was reflected by a different document was something negotiated between the local government parties and the unions concerned and must properly have been in contemplation at the time of the transfer to Castle View. .... Castle View [if] they wished to dissociate themselves from the agreement could have done so at any appropriate time by re-negotiation with the workers involved or by giving appropriate notice. As they did not, we conclude that the agreement binds them and as such their failure to pay the increased percentage negotiated represents an unlawful deduction from wages in respect of which by virtue of Regulation 5 (2) (a) & (d) of TUPE passes to the respondent."

29. In our judgment the reasoning of the Tribunal cannot be supported; it is not an acceptable answer to Gateshead's argument. The NJC (Manual Workers) is a different body to the NJC for Local Government Services; they have different functions, a different balance between members and different constitutions. The differences cannot be glossed over. A reference to one is not, without more, a reference to the other. If, as the Tribunal rightly held, a literal reading of the letter from Gateshead to Mrs Ackinclose of 28th September 1994 supra, as an outline of her main terms of contract, might lead to a view that it was only the White Book that was incorporated, it would not at law be possible to avoid that conclusion by reference to the different terms upon which different classes or workers were later engaged. In any event, accepting that the letter of 28th September 1994 was only an outline of the main terms, as the Tribunal itself said, that would still leave the earlier offer and acceptance as the contract itself, and that refers to her contract continuing to be in accordance with the agreement of the NJC (Manual Workers) without mention of any successor body. A contract is to be construed by reference to its own terms (those which it contains or which it incorporates) and not by the terms of quite extraneous contracts.
30. Mr Segal argues that the reference in Mrs Ackinclose's offer and acceptance to her conditions of service continuing to be "in accordance with the NJC (Manual Workers) Agreement" should be construed as continuing "or such other agreement as is nationally collectively agreed by the same parties to the NJC (Manual Workers) to be the successor or merged agreement to replace it". That some such words could have been added is clear but they were not, nor did the Tribunal find them to exist, nor is any route, acceptable in law, to their addition identified by the Tribunal.
31. As for Mr Robson's evidence, his views, which we have cited, should not have been entertained on a question of construction. Even assuming he had authority to speak of Gateshead's contractual intentions some 7 or so years earlier, he had no apparent authority to speak as to the intentions of Mrs Ackinclose or her colleagues and the intentions of both were properly to be discovered not from later oral evidence but from the very words they had used. His answer "Not in reality", upon which the Tribunal fastened, was, even leaving aside its remarkable vagueness, not an answer to which, in law, any weight could properly have been given where the questions at issue were what was the language, and what was the meaning of the language, of the contract under which Mrs Ackinclose was employed, given, as Mr Segal accepted, that the Tribunal was not concerned with a contract of which any oral exchanges or any reliance upon conduct formed part. Further, a factor relied on by the Tribunal was that CVS never disassociated itself from the Green Book terms. That fails to acknowledge that in negotiations they were asked to agree the 5.4% but declined to do so except as part of a larger agreement that was never reached. Moreover, unless CVS were bound by the Green Book they had no cause to disassociate themselves from it so that the Tribunal's reliance on this point is not only a reliance on a post-contractual event but it begs the very question it was intending to answer.
32. The Tribunal thus was in error of law and item (2) of its decision must be set aside. However, whilst we have held the Tribunal's reasoning to be insupportable we would wish to emphasise that we are not holding that its conclusion was necessarily wrong. The two of us with actual experience of the negotiation of terms and conditions of employment in sectors where collective agreements of wide application are used would have been entirely unsurprised had the case included evidence of customs or practices such that the expectation of not only employers and employees but also of the NJC (Manual Workers) would have been that there would have been a seamless transfer of all on the White Book to the Green. That would have accorded, they feel, with common employment experience. On such evidence those on the White Book could be expected to pass automatically to the Green Book, even where the Green Book, directed to Local Authority employees, did not purport directly to regulate them. In the absence of specific agreement by the employee and his employer to the contrary, once on the collective terms an employee would remain on them, whatever was their current form.
33. The Judge amongst us was troubled a different way; where was the proof that the NJC (Manual Workers) had ceased to exist? What resolution had that effect and was it seen by the Tribunal? Given that the "old" Council's constitution provided for amendment, was amendment pursuant to that rule ever made? Did that "old" Council not foresee (if about to bring about its own non-existence) that unless it made some express provision that the terms propounded from time-to-time by its successor should become or were to be treated as if the current version of its own terms, there would be difficulties of the kind which this case illustrates? Is it not, therefore, the case that the last resolutions of the "old" NJC should have made and may have made some such provision and had to be examined by the Tribunal? Or did the "old" Council proceed on some implied or express understanding that all on the White Book would pass to the Green? Was there not a need for the Tribunal to have looked into the final deliberations of the "old" Council? On a different tack, Mr Robson having given evidence that some parts of the White Book were retained as transitional provisions in the Green Book, did that not suggest that other parts, not expressly kept in force, must be taken to be spent as from 31st March 1997?
34. Without there having been either an exploration of the possibilities of such evidence as the lay members of this Tribunal are concerned about or an investigation into the questions the Judge would have wished had been explored, neither of which the Tribunal below inquired into, we, whilst setting aside the judgment on its item (2), feel quite unable to say what, on an adequately informed basis, the correct answer must necessarily have been and, as we have mentioned, must not be thought to be saying that the conclusion the Tribunal reached, as opposed to its reasoning, was necessarily wrong. In that circumstance, having set aside item (2) of the decision, we remit that subject for hearing afresh by the same Tribunal as before.
35. On that remission the issues the Tribunal should deal with will include whether in any event, as CVS is said to have had no full-time workers of the material kind in the relevant period, an hourly rate of 1/37 or 1/39 of what they were paid was a rate without meaning (an issue raised below but not dealt with in the Tribunal's reasons). Further, if the Applicants have pleaded or are permitted adequately to plead such, it will be necessary to examine whether there is any term proper to be implied or imported (whether by custom and practice or otherwise) that touches a switch from White Book to Green. It will be for the Tribunal to rule upon whether it will hear further evidence after address from the parties on that and it may be that the next convenient step will therefore be for there to be a directions hearing at the Employment Tribunal. That, though, is a question for that Tribunal; reverting to what we do, we set aside paragraph (2) of the Decision and remit that subject to the same Tribunal as indicated above.