Appeal No. EAT/564/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 February 1994

	Before

	THE HONOURABLE MR JUSTICE WATERHOUSE

	MR J C RAMSAY

	MR P M SMITH

MR KENNETH WILLIAM HIGGINS	APPELLANT

CABLE MONTAGUE CONTRACTS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D VAN HEE
	(OF COUNSEL)
	Messrs. Durlings
	Solicitors
	2 High Street
	Gillingham
	Kent ME7 1BB

For the Respondents	NO APPEARANCE BY OR 	ON BEHALF OF 	RESPONDENTS

	MR JUSTICE WATERHOUSE:  We have decided that the Appellant should be allowed to proceed with his Appeal to a full hearing.

	The short background to the case is that the Appellant was employed by the Respondents from 26 October 1987 as a heavy goods vehicle driver.  It appears that the document upon which he relied as his contract was dated 1 February 1991.  The findings of the Industrial Tribunal do not indicate what the position was before then but it seems likely that a document was issued more or less annually to the Appellant, setting out his terms of contract.  Curiously, the document shown to us has the heading 1.2.91 but was actually signed on behalf of the Respondents on 12 March 1992.  Accompanying that document was a statement of main terms and conditions of employment pursuant to Section 1 of the Employment Protection (Consolidation) Act 1978.  It is unnecessary to read the terms of that statement, save to say that it concluded with the following words: 

	"This statement does not itself constitute a contract."

	  What happened in August 1992 was that a meeting took place with the relevant trade union at the instigation of the employers.  The respondents were in financial difficulties and, without going to unnecessary detail, an agreement was made between the members of their workforce and the Respondents and the trade union on 7 August 1992, when the Appellant himself was on holiday, to the effect that the wages of the Respondents' employees should be reduced by 20% with effect from 10 August 1992.  The Appellant's complaint is that unlawful deductions were made from his wages pursuant to that agreement in contravention of Section 1(1) of the Wages Act 1986.  He says that the variation was not made in accordance with any agreed terms and that he had neither been informed in advance of the variation nor asked to assent expressly to it. He never agreed to it.

	The case for the Respondents was that the Appellant was bound by the terms of the agreement made on 7 August 1992 because it was a term of his contract that collective agreements made between and on behalf of the company and the trade union concerned were binding upon him, whether or not he himself assented to them.  In support of that submission the Respondents relied upon the two well-known decisions of the Court of Appeal in Robertson v. British Gas Corporation [1983] I.C.R.351 and Marley v. Forward Trust Group Ltd [1986] I.C.R.809-891.  

	The Industrial Tribunal, before whom the Appellant appeared in person, accepted the Respondent's argument that the preamble to the statement of main terms and conditions of employment, to which reference has already been made, was incorporated in the Appellant's terms and conditions of employment, that is, a statement purported to have been made on 12 March 1992, which was the same date as that on which the most recent contract of employment between the Appellant and the Respondents had been signed on behalf of the Respondents.  

	In support of the Appeal, Counsel has now appeared on behalf of the Appellant.  The ground that it is sought to argue before the Appeal Tribunal is that the Tribunal wrongly concluded that the reduction agreement, as it was called, could be incorporated into the Appellant's contract of employment.

	In his submissions in support of that ground of appeal, Mr Van Hee has suggested that there are three matters of law that are properly arguable.  The first is that the Tribunal were not justified on the material before them in concluding as a matter of law that the provision in relation to collective agreements referred to in the statement was incorporated into the Appellant's own contract of employment.  He submits that there was an express disclaimer at the end of the statement to the effect that the statement was not itself a contract.  Moreover, there was no reference either express or to be implied in the actual contract to collective agreements or collective bargaining.  Accordingly, this case is quite different, it is said, from the Robertson and Marley cases and the principle underlying those decisions does not apply.  In particular, it is pointed out, Lord Justice Ackner, in the latter case, based his reasoning upon the terms of a letter forming the contract rather than upon the statement of terms of employment.

	The second point of law is whether or not the preamble to the statement of terms and conditions of employment can properly be construed as a provision binding the Appellant to the terms of collective agreements to be negotiated in the future from time to time or whether it was simply a declaration in effect that his own terms and conditions of employment at the time that the contract was negotiated were then in accordance with such collective agreements as existed at the time.  For what it is worth, our own view is that this narrow point of construction is probably less arguable than the first point but, in view of our decision, it is not appropriate for us to seek to limit the arguments that may be presented at the full hearing of this appeal.

	Finally, Mr Van Hee draws attention to the problem of variation of an individual employee's contract.  There was no provision in the contract of employment dealing expressly with variations.  Variations were referred to only at paragraph 12 of the statement of terms and conditions that accompanied the contract: that paragraph stated that the conditions were subject to variation at any time but that notice of changes would be not less than one month.  A residual point that the Appellant wishes to argue is that, even if he was to be bound ultimately by any collective agreement, that would be subject to the requirement of notice set out in the statement.  That is very much a backstop argument, because it would be of limited benfit to the Appellant. 

	We consider that there is an arguable case in relation to the first point relied upon by the Appellant.  The object of the preliminary hearing is to assertain whether or not there is a genuine point of law that is properly arguable.  We find that to be so in this case and we direct that the case should proceed to a full hearing.