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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Metropolitan University v Sackur & Ors [2006] UKEAT 0286_06_1708 (17 August 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0286_06_1708.html Cite as: [2006] UKEAT 286_6_1708, [2006] UKEAT 0286_06_1708

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APPEARANCES

 

For the Appellant	Miss Suzanne McKie (of Counsel) Instructed by: Messrs Simpson Millar Solicitors 165 The Broadway Wimbledon London SW19 1NE
For the Respondent	Written submissions


 


SUMMARY

Judgment PH: the Employment Tribunal adopted the test of "what was the sole reason for the dismissal and was it related to the TUPE transfer", as jointly put to it. It answered it as a matter of fact that the harmonization of contracts 2 years after a transfer was the sole reason for the dismissal of university staff, and this related to the transfer. The Employment Tribunal was entitled to make that decision which was correct on the findings.

For the Rule 3: the Judgment of the CA in Berriman is not "wrong". On the contrary it is correct and was correctly applied in Crawford not just where there was no reduction in the workforce but also where there was no change in the functions performed. Harmonization did not come under either description. The ETO point fell with it.

The decision to dismiss the Claimants and offer new contracts was to effect harmonization of all the academic staff conditions, and was related to the relevant transfer in 2002. The Employment Tribunal so found as a matter of fact and there was no basis for interfering.

There was no basis for saying, even if the EAT had power, that Berriman and Crawford are wrongly decided. They are correct and were correctly applied.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about unfair dismissal in the context of the transfer of an undertaking. The judgment represents the views of all three members who pre-read the relevant papers for the purposes of a preliminary hearing and represent my views for the purposes of the rule 3 hearing. We will refer to the parties as the Natfhe Claimants being those supported by their union and the Respondent, being the London Metropolitan University.

Introduction

2. This is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal sitting over nine days including two in chambers at London Central. Chairman Mr T Ryan, registered with reasons on 28 February 2006. The Claimants for the most part were represented by Counsel; the Respondent was represented there and here by Miss Susan Mckie of Counsel. The Claimants claimed unfair dismissal arising out of a breach of the Transfer of Undertakings (Protection of Employment) Regulations 1981 following a relevant transfer in 2002. The claim was for a basic award of compensation for unfair dismissal only, as they continued, with two exceptions, to be employed by the Respondent albeit on less favourable terms. The Respondent contended the dismissals were not related to the transfer and if they were, they were for an organisational reason and were fair. If unfair, the Claimants' basic awards should be reduced by reason of their conduct.

The issues

3. The essential issues as defined by the Employment Tribunal were these:

"8. The claims of the remaining claimants arose out of the termination of their contracts of employment as members of the academic staff of the former London Guildhall University ("LGU") which merged on 1 August 2002 with the University of North London ("UNL"). The merger was effected by a transfer of the undertaking of UNL to LGU and immediately upon that transfer the Respondents in this case was created. It was common ground that the transfer was one governed by the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE') and by the outset of the hearing it was common ground that the termination of the contracts of the Claimants, was a dismissal within the terms of section 95(1)(a) of the Employment Rights Act 1996.

9. The Respondent took issue with the claims, asserting that: the dismissals were for an economic, technical or organisational ("ETO") reason entailing changes in the workforce of LGU; alternatively, that they were for some other substantial reason and that they were not unfair. Accordingly, the issues that the Tribunal had to determine were as follows:

9.1. Were the dismissals of the Claimants solely because of the transfer?

9.2. if the dismissals were because of the transfer, were they for an economic, technical or organisational ("ETO") reason entailing changes in the workforce?

9.3. If they were not for such a reason, what was the Respondent's reason for the dismissal?

9.4. Was that some other substantial reason of a kind justifying the dismissal of those employees?

9.5. Were the dismissal in those circumstances fair or unfair having regard to the provisions of section 98 of the Employment Rights Act 1996?"

4. The tribunal decided in favour of the Claimants and awarded £80,000 or so by way of basic awards to 23 Claimants. It refused to make any reduction of the award. Mr Roberts and Mr Parrot who are non-Natfhe Claimants, were awarded compensation of over £37,000 and £38,000 respectively. The Respondent appeals against the judgment but not against the refusal to reduce the compensation. On the sift of this Notice of Appeal in accordance with Practice Direction 2004 paragraph 9, His Honour Judge Altman exercised his power under rule 3(7). He concluded in chambers that the case disclosed no reasonable grounds for bringing the appeal in respects of grounds 2 and 3, saying

"2) Ground 2 discloses no arguable point of law: the Employment Tribunal were bound by BERRIMAN in the Court of Appeal and it cannot be said to be wrong. In any event the Employment Tribunal were entitled to exclude, harmonization of terms and conditions from entailing changes in the workforce.

3) Ground 3 and remaining matters follow the decision on Ground 2."

5. Where no point of law is found, section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction to hear the case. The Respondent was given the opportunity to amend the Notice of Appeal or to have the case heard before a judge under rules 3(8) or (10). I am thus hearing the case on more material then was available to the judge and form my own view of the appeal. The question for me is whether there are any or no reasonable grounds in the appeal. Directions sending one ground of this appeal ground 1 to a preliminary hearing were given by Judge Altman. The Claimants were directed to file written submissions in opposition to the appeal if so minded and they have been drafted by Mr Damien Brown of Counsel who had conduct for the Natfhe Claimants of their cases below. As the submissions and the documents in this case are the same for both of the hearings, I invited the Lay Members to be present during the rule 3 passage. I have consulted them but the judgment which I give on rule 3 is mine alone. We have drawn upon our experience as we were expressly invited to do by Miss Mckie when considering the realities facing employers in situations like this and we have particularly drawn upon Mr Lyons' experience of being on a governing body of a university.

The legislation

6. The relevant provisions of the legislation are not in dispute and are as follow: TUPE regulation 8:

"8 Dismissal of employee because of relevant transfer

(1) 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 Part V of the 1978 Act and Articles 20 to 41 of the 1976 Order (unfair dismissal) as unfairly dismissed if the transfer or a reason connected with it is the reason or principal reason for his dismissal.

(2) Where an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer is the reason or principal reason for dismissing an employee-

(a) Paragraph (1) above shall not apply to his dismissal; but

(b) without prejudice to the application of section 57(3) of the 1978 Act or Article 22(10) of the 1976 Order (test of fair dismissal), the dismissal shall for the purposes of section 57(1)(b) of that Act and Article 22(1)(b) of that Order (substantial reason for dismissal) be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held…"

7) A dismissal for the purposes of the Employment Rights Act is defined by section 95(1)a)) in this case:

"95 Circumstances in which an employee is dismissed

(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2)…., only if)-

(a) the contract under which he is employed is terminated by the employer (whether with or without notice)"

That is a direct dismissal by an employer. The tribunal directed itself by reference to those provisions and what we hold to be the relevant authorities which are set out in paragraph 90 of its judgment. Of particular relevance will be the judgment of the Court of Appeal in Berriman v Delabole Slate Ltd [1986] ICR 546 CA and Crawford v Swinton Insurance Brokers Ltd [1990] IRLR 42 EAT.

7. The Tribunal set out the facts in findings stretching from page 3 to 19 of its judgment. This is a comprehensive description of the circumstances giving rise to these claims and we at once reject the criticism made on behalf of the Respondent by Miss McKie that the tribunal ignored the evidence and facts. This account shows the history of the merger of the London Guildhall University and the University of North London, which took effect on 1 August 2002 to become the London Metropolitan University. A number of trade unions was recognised including Natfhe for academic staff, who are the subject matter of this dispute.
8. There were many meetings involving the trade unions and management representatives and it was acknowledged from the outset that a transfer of an undertaking was involved in the process. The conduct of the meetings was in the hands of various officers of the universities and at stages the Vice Chancellors themselves attended. They attended in particular one meeting on 10 July 2002 and made representations to the representatives of the trade unions that the default position for contracts of employment would be that the former LGU contracts would be in force. That position changed, or as the tribunal put it, exactly the opposite approach was adopted within a few months since it then became the default position that the academic staff should revert to or should be placed upon contracts which emanated from UNL and that became the preferred contract. Between October 2001 and August 2004 the issue of the proposed contracts was first the subject of consultation and discussion and then of dispute, culminating in claim forms being presented by the various Claimants in this case from November 2004 onwards. The university gave notice of its intention to move staff on to UNL type contracts by a letter of 2 April 2004 from Lyn Link, who was the senior HR officer. That was followed on 2 August 2004 by a letter which indicated that if staff continued to work after 1 September 2004 they would be deemed to have accepted the preferred UNL type contract. 387 academic staff were engaged in this operation and they constitute over a third of the complement of 900 academic staff now within the merged university. The tribunal cited a document which is at the heart of this dispute for it said this:

"14.22. In her report under the heading "TUPE" Ms Link noted the two employment frameworks in the merged University and said that whilst she thought there was a large degree of similarity: "There are a substantial number of local variations in their application, not least of which are the formal contracts of employment for the various staff groups." She went on to say at paragraph 2.3.4:

"Of particular importance is the contractual form to be adopted. The City Campus academic staff are on the existing national contract of employment which is now being reviewed at national level. This contract no longer meets the needs of the Sector and it is anticipated that the national employers will be seeking to negotiate a new contract of employment not dissimilar from the one currently applicable to the North Campus staff. Appendix 3 contains a comparison between the two contracts and a summary of the key benefits. It is therefore proposed that the North Campus contract of employment be immediately adopted to apply to all new staff and promotees. It is further proposed that the Committee give consideration to applying it to all existing city campus academic staff, either gradually over a period of time by means of turnover and incentives to change, or by giving formal notice to implement it within the next few months following consultation. It will be invidious to maintain two sets of working conditions for any length of time. The latter option is more problematic from an industrial relations perspective, but should be possible given that the North Campus Contract is accepted by local Natfhe and national Natfhe as a contract which still falls within the national contractual framework. Allowing time for consultation and notice, It would be feasible to move all academic staff onto the contract set out in appendix 3 with effect from 1 January 2003."

9. It came to the conclusion that the dismissal of the Claimants was for a reason relating to the transfer of UNL to LGU. That was the mechanism by which the staff became employed by London Metropolitan University; in other words there was a transfer of UNL to LGU and a change of name. When that occurred, the two universities became LMU. The tribunal went on to say as follows:

"20.10. The Tribunal bears in mind that the University's fundamental reason as we find it to be for the dismissal, was to compel harmonization of contract, and whilst harmonization of contracts was recognized by all parties as being beneficial and a point at which they should arrive in the long term, the University to secure its own negotiating position and as the events turned out, secure a contract of employment that was much more akin to that in the old UNL contract than that in the former LGU contract, chose to do it in this particular way. In the Tribunal's judgment that was unfair. The contractual terms as compared by Mr Roberts in relation to those which he raised at his appeal, were and were acknowledged by the Respondent in the course of the Hearing, to be, "relatively minor changes but not unimportant"."

It also concluded this:

"The effect of our decision in relation to transfer is that we necessarily find that the University had decided to effect these changes by dismissal at a time when consultation had not taken place and that having decided prior to consultation, whilst it cannot be said that the consultation was necessarily rendered ineffective."

10. Finally in a different part of its judgment but which reflects it reasoning equally, the tribunal said this:

"In order to secure the variation, as in effect it was to those terms, the Respondent deliberately decided to break the terms of the contracts into which it had entered. To suggest that resistance to that action by the employer was unreasonable is in the Tribunal's judgment simply unsustainable."

11. The tribunal rejected arguments that the Claimants, themselves or through their union, were responsible for their dismissal or contributed to it and that their compensation should be reduced on the grounds that they were bloody-minded. There is no appeal against those findings. The tribunal supported its conclusion by the following reasoning:

"The reasons for that conclusion were that the Respondent's evidence as to when the decision to dismiss was taken was vague and unsatisfactory. We did not hear evidence from any member of the Board of Governors other than Ms Link, who attended in her capacity as Director of Human Resources. No minute of the Board of, Governors or indeed of the FHR Committee specifically referred to a decision to terminate the contracts other than that of the FHR Committee on 10 June 2003. It is clear that Ms Link had it in mind that there would be a need to impose the terms on the 'LGU staff from the time of the transfer. The Tribunal infers that the employment framework that was first shown to the FHR Committee and the Board of Governors soon after the transfer, was similar in terms to that which was referred to in the very first Board of Governors Meeting immediately after the transfer and the merger. At that time those Minutes did not make it explicitly clear that the formal notice to move to new terms and conditions, the preferred contract, would be effected by dismissals. But in the absence of the evidence that we would expect to see clearly showing when that was first considered, by whom and in what terms, and given the terms in which Ms Links' subsequent report speaks of the terminations of the contract being effected by formal notice, the Tribunal inferred that that was in the mind of Ms Link and consequently of the FHR Committee and the Board of Governors that affirmed its decision from the time of the transfer or shortly thereafter.

The Tribunal was conscious of the fact that it appears that a relatively long period of time passed between the merger and the date when notice was given to the staff of the termination of the contract on 2 April 2004. However, it was the very absence of clearly minuted information between 10 June 2003 and subsequent Board of Governors' meeting and the sending out of the letters of 2 April 2004 that the Tribunal considered to be significant. It was inconceivable to this Tribunal that the question of effecting the move to the preferred terms by the University by means of termination of contracts, which would fall squarely within the definition of "dismissal" contained in section 95(1)(a) of the Employment Rights Act 1996, was not specifically discussed and agreed upon at Board of Governors level.

In the Tribunal's judgment the fundamental difficulty with The Respondent's argument in relation to this aspect of the claim is that, as Ms Link was at pains to point out in nearly all her correspondence, the University did not wish to see any single member of staff leave its employment as a result of the change in terms of conditions. It was not suggested that the University would attract more staff by having the new terms and conditions, nor that it would impose the new terms and conditions as a means of reducing staff. It explicitly said that all members of staff could continue in their jobs on 1 September 2004 if they wished to do so."

12. The tribunal directed itself by reference to Berriman and to Crawford and came to a conclusion that it was engaged upon the task of determining what the sole reason was for the dismissal, a task and a conclusion not disputed at the tribunal nor before us. It held that a reduction in the workforce is generally to be required, although some attenuation of that position was illustrated by the judgment of the EAT in Crawford, in that the expression was not limited simply to a reduction at staff; however it could not include harmonisation.
13. The tribunal concluded from its industrial experience, in answer to an argument addressed to it by Miss McKie, that other ways of achieving harmonisation could have been achieved in an enterprise such as this, for example; by free and open consultation at the outset, by offering financial incentives and by red circling, one by one or all together. The tribunal thus upheld the claim of unfair dismissal and made basic awards to all of the employees listed in the schedule and individual awards to the two employees who had actually left rather then be engaged upon ex UNL terms.

The Respondents' case

14. The Respondents' case is addressed in three ways. First it is contended that the tribunal reached an impermissible conclusion in holding that the sole reason for dismissal was the transfer or a reason connected to it. Secondly, the tribunal wrongly followed Berriman for Berriman "is wrong". And thirdly the tribunal reached an impermissible conclusion in deciding that there was not an economic technical or organisational reason.
15. As to the first, it is contended that the tribunal ignored the evidence that there were other reasons in play for the decision made by the university. Counsel acknowledged that the primary vehicle for the disposition of the evidence to the tribunal was Miss Link who was reporting on her account and on account of other decision makers. Miss McKie accepted that a reason for dismissal is a question of fact and a tribunal is engaged in making findings of fact having regard to the reason shown by the Respondent.
16. It was contended that there was a multiplicity of reasons including a desire to retain students, that the maintenance of two sets of contracts was impracticable and that Natfhe had itself agreed to the UNL contract two years earlier when it was in place at UNL. The decision to harmonise the terms and conditions of the academic workforce was not related in any way to the transfer which had taken place in 2002 and that the tribunal had ignored relevant evidence, alternatively had reached a perverse conclusion. Unless this judgment were overturned, the reality of life for many employers facing the consequences of TUPE would be unmanageable.
17. As to the second issue, this too reflects upon the difficulties in economic life for employers if Berriman remains in place. Miss McKie acknowledged that a judgment to overturn Berriman would have to be taken by the House of Lords. Berriman was found to be binding by the Employment Tribunal on it, it is of course binding on us and would be binding on the Court of Appeal. It was submitted that flexibility was introduced into the approach to this question by the EAT's judgment in Crawford. Although the tribunal in our case accepted that there was no need, applying Berriman, for there to be a reduction in the numbers, there was necessarily here a reduction in numbers for the changes required changes in the workforce.
18. As to ground 3 it was contended that the decision made by the tribunal was impermissible, a potentially fair reason was thrown up by these findings and the chronology of the consultations indicated that there was indeed a proper ETO. This third ground is parasitic on the second and it seems that the submissions would fall if the second ground failed.

The Claimants' case

20) On behalf of the Claimants in their written submissions it is contended that in reality this appeal simply seeks to relitigate the issues below, that the tribunal had made correct findings of facts which were open to it and has drawn the conclusion in law that there was a dismissal for a reason related to the transfer. Secondly, on the Berriman point it is accepted that the tribunal applied the test correctly and that being so no error can occur. Berriman was correctly decided. As to ground 3, that the ETO was a potentially fair reason and the tribunal considered all of the reasons in turn.

The legal principles and conclusions

19. It is first necessary to consider the reason given by the Employment Tribunal. In our judgment the tribunal is at pains to show that the apparent distance in time of about 18 months - from the transfer to the warning that changes would take effect - must be seen in context. The further away a transfer is from a dismissal, the less likely it is that it will be found to be connected to it or related to it. However this is always a matter of fact and degree for an Employment Tribunal.
20. We reject the contention that the tribunal has ignored relevant evidence. Its findings are a detailed exegesis of the circumstances from which these dismissals arose. The tribunal knew exactly what it was to determine: whether there was a connection; and if the connection was the principal reason between the dismissal and the transfer. The tribunal held that the reason was harmonisation.
21. We reject the submission that the harmonisation is not related to the transfer. Again that is a matter of fact for a tribunal to establish and it has done here. The chronology is telling. From the outset, notwithstanding the blip of the Vice Chancellors' representation, the intention was to place all of the academic staff on UNL terms. Thus when it was actually implemented two years later it did not in any way lose its connection or its relationship to the merger. In our judgment the tribunal was entitled to make that finding and it did so for reasons which are cogent see paragraph 20.2 of its reasons.
22. This kind of appeal truly does raise a question of fact and in our view there is no question of law associated with it. The tribunal criticises the material which was put before it by the Respondent in that no other decision maker was a witness and there was a distinct absence of relevant minutes. On that basis it had to make findings and draw influences from its primary findings and the inferences which it draws were entirely permissible.
23. Ground 2 relates to Berriman and represents my direction under rule 3, but I have to say having had the advantage of discussing this matter with my colleagues it would also be their view if they were called upon to give a judgment on it. Mr Berriman was required upon a transfer to accept a substantial reduction in his weekly working wage and was then dismissed constructively when he refused. The issue was whether or not he was dismissed for a reason relating to the transfer. He was and the next issue was whether there was an economic technical or organisational reason for the dismissal. The tribunal directed itself in relation to the relevant regulation but dismissed the Claimant's complaint. On appeal to the EAT Nolan J and members found that the reason for dismissal did not entail changes in the workforce and allowed the appeal. The Respondent appealed to the Court of Appeal where a judgment of all three members of the court (Sir John Donaldson MR, Mustill and Browne-Wilkinson LJJ) was given by Browne-Wilkinson LJ. It will be recalled that that constituted two former Presidents of the NIRC/EAT. The argument which was addressed to the court included this at [1986] ICR 546, 550:

"Mr Tabachnik, for the company, does not persist in the argument which he unsuccessfully advanced at the EAT that the words 'changes in the workforce' were wide enough to cover changes in the terms and conditions of the workforce. He accepts that what must be shown are changes in the number of the workforce or possibly changes in the job descriptions of the constituent elements of the workforce which, although involving no overall reduction in numbers, involves a change in the individual employees which together make up the workforce."

24. The Court of Appeal accepted that part of the argument but not the remainder for the Court went on to say this at 551:

"Then, in order to come within regulation 8(2), it has to be shown that that reason is an economic, technical or organisational reason entailing changes in the workforce.

The reason itself (ie to produce standardisation in pay) does not involve any change either in the number or the functions of the workforce. The most that can be said is that such organisational reason may (not must) lead to the dismissal of those employees who do not fall into line coupled with the filling of the vacancies thereby caused by new employees prepared to accept the conditions of service, in our judgment that is not enough. First, the phrase 'economic, technical or organisational reason entailing changes in the workforce' in our judgment requires that the change in the workforce is part of the economic, technical or organisational reason. The employer's plan must be to achieve changes in the workforce. It must be an objective of the plan, not just a possible consequence of it.

Secondly, we do not think that the dismissal of one employee followed by the engagement of another in his place constitutes a change in the 'workforce'. To our minds, the word 'workforce' connotes the whole body of employees as an entity: it corresponds to the 'strength' or the 'establishment'. Changes in the identity of the individuals who make up the workforce do not constitute changes in the workforce itself so long as the overall numbers and functions of the employees looked at as a whole remain unchanged.

Mr Tabachnik points out that, if the construction we favour is correct, following a transfer of an undertaking employers will be precluded from imposing on the employees taken over necessary changes in their conditions of employment which, if there had been no transfer, could properly have been imposed on their existing workforce: see Hollister v The National Farmers' Union [1979] IRLR 238. This, says Mr Tabachnik, would be an undesirable result. We do not find this argument persuasive. Regulation 8(1) will only render unfair a dismissal for failure to accept new conditions of service if the reason for dismissal is a reason connected with the transfer of the undertaking. If the reason for seeking to impose, say, standard conditions of service is connected with the transfer, it is far from clear that it was the intention of the legislature (or of the EEC Directive 77/1 87 which required the regulations to be made) that immediately following a transfer the employees of the transferred undertaking could be made to accept new terms of service. The purpose of the directive was 'the safeguarding of employees' rights in the event of transfers' and the regulations themselves include in their name the words 'Protection of Employment'. Amongst the most crucial rights of employees are their existing terms of service. We are not satisfied that there is a clear statutory intention to ensure that, following a transfer, the transferee company can insist on equating the terms and conditions of the 'transferred' employees to those of his existing employees notwithstanding the fact that such alteration may constitute a detriment to the transferred employees."

25. The case generally is authority for the proposition that there should be reduction in the numbers before there can be an ETO defence but that position was to some extent attenuated by the judgment in Crawford. In that case, on a takeover a typist and clerk who often worked at home was required to change her functions so that she was required no longer to type but to sell insurance and to attend the office and work normal hours. The Employment Tribunal rejected her claim for unfair dismissal, applying Berriman, holding that the changes in the workforce can encompass changes in the functions of personnel and that these were envisaged during the transfer of that particular business. Since the functions of a number of employees changed the employer was entitled to avail itself of the defence that the dismissal was not unfair. On appeal, Knox J Deputy President of the EAT sitting with members allowed the appeal and remitted the case to the Employment Tribunal. The principal holding is contained in paragraph 30 [1990] IRLR 42:

"What, in our judgment, has to be looked at, is the workforce as an entity, that is to say, as a whole, separate from the individuals who make it up and it then has to be seen whether the reason in question is one which involves a change in that workforce, strength or establishment and we are satisfied that there can well be a change in a workforce if the same people are kept on but they are given entirely different jobs to do. We would regard a workforce that was engaged in a different occupation as being, for the purposes of regulation 8(2) changed if that happened as a result of an organisational change on a relevant transfer. Accordingly, we are not persuaded by Mr Giffin's first point that there must be a change in identity amongst the workforce for there to be an organisational reason entailing a change in the workforce.

The second argument that was adduced was quite different and was that there has to be identified by the Industrial Tribunal the only, if there is only one, or the principal, if there are several, reasons for the dismissal. That, in accordance with the Berriman [1985] IRLR 305 case in a case where there is constructive dismissal, involves looking at the reason for the conduct of the employer, which entitled the employee to terminate the contract and it is only when one has looked at those reasons for the employers' conduct that one can identify, first of all, the only one, if there is only one, or the principal one, if there are several reasons. Having isolated that, one then examines whether it is an economic, technical or organisational reason which entails a change in the workforce. If 'yes' regulation 8(2) will apply, if 'no', it will not, and 8(1) will reign supreme.

In the present case, the Industrial Tribunal found and there is no appeal from this, that paragraph 8(1) did apply because they were satisfied that the transfer or a reason connected with it, was the reason or principal reason for the dismissal of Mrs Crawford. That, they said, was clear and they went on to say, in para.23, that it was also clear to them that Mrs Crawford's resignation was motivated by changes being imposed upon her contract of employment and that those changes were dictated by the Respondents' organizational requirements. The reason for the dismissal was therefore an organisational reason. Pausing there for a moment that, of course, is looking at what Mrs Crawford's motivation was and, strictly speaking, it is not the initial process which has to be gone through which, as I have already said, involves looking at the employers' conduct and the motivation for that. However, here again there is no appeal before us from their conclusion that the reason for the dismissal was an organisational reason. What is the subject matter of an appeal before us, is whether the principal reason, because it is submitted there were several, was one which is not only organisational but one which entailed changes in the workforce.

It will be noted that that process of reasoning is one which involves an identification of the principal reason for Mrs Crawford's dismissal in the minds of the employers in connection with their plan.

The other way of reading para.24 is to interpret it as a statement of the effect of Berriman's [1985] IRLR 305 case as including changes in function in the expression 'changes in the workforce'. This is a sentiment with which we have earlier expressed our agreement. Secondly, on this interpretation, the Industrial Tribunal identified as a distinguishing feature in the present case before us from that in Berriman's [1985] IRLR 305 case, the existence of a reason connected with the change of function involved for Mrs Crawford and deduced from the existence of that reason the proposition that regulation 8(2), therefore, necessarily applies."

26. In my judgment Crawford does not depart from Berriman. Crawford does indeed take the words used by the Court of Appeal in Berriman as including changes in functions, thus the correct approach to regulations 8(1) and 8(2) is that an ETO defence may be available where changes in the workforce are entailed by reason of a reduction in the numbers, or of the functions being changed, of relevant employees.
27. The outcome of that analysis if I am right is that Berriman remains good law and is not adjusted or made significantly more flexible by Crawford, Crawford simply being an application of the clear words in Berriman. In this case it was correctly applied by the tribunal, there was an organisational reason for the demand for a change in the terms and conditions so that they be harmonised but these were simply changes in terms and conditions. The tribunal noted that it was the Respondent's contention that the changes were not unimportant and the finding of the tribunal was that these were not relatively minor changes but represented a potential detriment in terms and conditions of employment.
28. There is no suggestion in the tribunal's findings that the numbers changed or the functions changed in a way envisaged by Berriman and thus the tribunal has correctly applied it. That of course is binding upon me but Miss McKie says that there would be no adjustment in the law over time unless cases were allowed to be taken on appeal in order to challenge legal orthodoxy. I accept that approach and there is provision within the EAT for appeals to be allowed if they have no prospect of success but there is some compelling reason why the issue should be taken. There is no such compelling reason here. I consider if I may say with respect without any submission from the Claimants that Berriman and Crawford are correctly decided and that I see no prospect of success in this appeal. Miss McKie does not shrink from the prospect of taking her clients' cases to the House of Lords in order for this matter to be clarified but in my judgment the Court of Appeal correctly applied the regulations and interpreted them correctly.
29. The second issue attached to the rule 3 hearing relates to the ETO and since it is accepted that this depends upon the former this must fail as well and I indeed consider the tribunal made a correct decision. The tribunal was alert to its own finding that apparently the intention to harmonise and if not to dismiss was made before the merger or at least before the consultation properly began. In my judgment neither of these points stands a reasonable prospect of success and I will dismiss the application. No further action will be taken on these two grounds and therefore the appeal is effectively dismissed, on those grounds which together with the judgment of the three of us means that this appeal is dismissed. We would very much like to thank Miss McKie for her careful presentation orally and in writing.