Intention and Detriment
| Author | Brenda Sufrin |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02563.x |
| Published date | 01 January 1987 |
| Date | 01 January 1987 |
94
THE
MODERN
LAW
REVIEW
[Vol.
50
to contracts terminated immediately before transfer but regulation
5(1)
does not as the contract is further required for the purposes
of
regulation
5(1)
to be
one
which would otherwise have been
terminated by transfer.
On
this basis, regulation
5(2)(a)
makes the
transferee liable in respect to termination
of
the contract
immediately before dismissal. Regulation
5(2)(b)
guarantees this
result by deeming him to do the dismissing.
This interpretation has many advantages. It gives some substance
to regulation 5(3), a task Balcombe
L.J.
in
Spence
found impossible.
It
also makes sense of the otherwise obscure regulation
5(2)
without being inconsistent with regulation
5(1)
as interpreted in
Spence.
It also harmonises regulation
5(2)
with regulation
5(4)
which specifically prevents transfer
of
criminal liabilities by making
regulation
5(2)
transfer
all
the transferor’s liabilities except those
mentioned in regulation
5(4).
On the other hand, it can be said
that sub-paragraph
(2)
was thought at the time to be concerned
with preservation of continuity
of
emplo ment and
of
statutory
see
why it should be needed for those purposes. Paragraph
17(2)
of
Schedule 13, E.P.C.A. already ensures continuity
of
employment
in such a case and statutory rights would appear to apply
automatically, since in a case
of
transfer of employment regulation
5(1) deems employment always to have been with the transferee.
A
final objection would be that this interpretation gives no meaning
to the words “Without prejudice
. .
.”
in regulation
5(2).
Yet it can
be argued that within the context
of
a legal system committed as a
matter
of
constitutional principle to the idea that a man’s employer
is not to be changed without his consent, the function
of
the words
“Without prejudice” in regulation
5(2)
is to emphasise that
regulation
5(1)
is the limit
of
the law’s abrogation
of
the principle
just described.
So
the interpretation here advanced does make most sense
of
regulation
5.
It has, however, to be admitted that it is contrary to
the prevailing wind of policy in
Wendelboe
and
Spence.
Both
decisions reflect a desire to reduce the possibility
of
uncertain
liabilities to former employees deterring purchasers
of
insolvent
businesses. Therefore we cannot be optimistic that the effects
of
Spence
will be minimised.
Spence
then, will greatly reduce the
importance
of
the Transfer Regulations to transferees and may
even restore to employers some
of
the freedom unilaterally to
change terms and conditions
of
employment removed by
Berrirnan.
rights when the contract
was
transferred.’
Y
It is difficult though to
RICHARD O’DAIR*
INTENTION
AND
DETRIMENT
Midland Bank
v.
Dobson
&
Dobson’
and
Grant
v.
Edwards’
have
given the Court of Appeal further opportunity to consider the
A
view taken
by
Hepple,
(1982) 11
I.L.J.
28, 34
and Rideout,
(1982)
C.L.P.
240.
*
Lecturer in
Law,
St. John’s College, Oxford.
1986
1
F.L.R. 171.
’
119861 2
All
E.R.
426.
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