England and Wales Court of Appeal (Civil Division) Decisions

Tran v Greenwich Vietnam Community [2002] EWCA Civ 553 (25th April, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th April 2002

Lord Justice Sedley:

1. This appeal arises out of the dismissal of the appellant, Mr Dan Tran, by the small charitable project for which he had worked for over ten years. A series of allegations of misconduct had been investigated by the entire management committee of twelve or thirteen people, which then sat again in full as a disciplinary committee, found some of the charges proved and dismissed him. There was no body to which he was able to appeal.
2. Mr Tran contended that his dismissal was both procedurally unfair, for reasons which will be immediately apparent, and substantively unfair because the evidence could not sustain the charges.
3. The Employment Tribunal before whom his claim for unfair dismissal came sat for two days in April 1999 and for a further two days in late September 1999. On 4^th October they sent out their decision, accompanied by a page of summary reasons, dismissing his application. It read as follows:

“1. The Applicant was employed from 16 March 1987 to 17 June 1998.

2. The Applicant was dismissed with effect from 17 June 1998 and the reason, pursuant to section 98(2)(c) of the Employment Rights Act 1996, was conduct of the Applicant. More particularly, it was because of his gross misconduct as set out in the Respondent’s letter dated 17 June 1998.

3. In accordance with section 98(4) of the Act, we have to consider the fairness of the dismissal. Mr Jenkins, on the Applicant’s behalf, has submitted that the dismissal was procedurally unfair. He pointed out that there was no written disciplinary procedure, although one was referred to in the Applicant’s contract. It is correct that there was no written disciplinary procedure and this is a defect which should be rectified. However, we have to have regard to the size and administrative resources of the Respondent, and also to what actually happened in practice. In this case, the Applicant was made aware in writing of the allegations against him. He was given all the relevant documents and was given the opportunity of attending, with his union representative, the investigatory meeting and the disciplinary hearing. The Applicant did have a fair hearing and the opportunity of presenting his side of the case.

4. Mr Jenkins had also submitted that there was no appeal in this case, nor any procedure for an appeal. Again this is correct, but there is no strict legal requirement for an appeal, although good industrial relations practice dictates that there should be one. In this case, the whole Management Committee were involved in the disciplinary proceedings and, in these circumstances, there was no person or body to which an appeal could be made. We find the absence of an appeal is not a defect which renders this dismissal unfair. We find that any failure in the procedure in this case does not render dismissal unfair.

5. Mr Jenkins has also submitted that the dismissal was substantively unfair. We have heard in detail all the allegations against the Applicant and the Applicant’s explanations. In a case such as this, it is not for us to substitute our own views. We have to have regard to the situation as the Respondent saw it at the date of dismissal. We find that the Respondent did have a reasonable belief in the Applicant’s misconduct, that belief was based on reasonable grounds, and a proper investigation had been carried out. We find that dismissal was a reasonable response.

6. We find that this dismissal was fair and the application is dismissed.”

4. Mr Tran’s representative applied, as he was entitled to do, for extended reasons to be given. These were sent out on 16 December 1999. They cover three pages. The first two contain in paragraphs 1 to 18 a recital of the procedural history of the case and this paragraph of factual background:

“5. The members of the Management Committee were unpaid volunteers and the day to day activities of the Respondent were carried out through one full time co-ordinator and two full time community workers. The Respondent was therefore an extremely small organisation with only three full time employees.”

5. There follow two short paragraphs summarising the submissions of each side’s lay representative. The remainder of the extended reasons reads as follows:

“21. In considering the fairness of the dismissal in accordance with section 98(4) of the Act we do have regard to all the circumstances of the dismissal and also to the size and administrative resources of the Respondent. In this case the Respondent is an extremely small organisation relying to a large part of its existence on a grant from the local council.

22. There were various matters which had come to light and which the Management Committee felt should be investigated. As a result they did have an investigatory meeting with the Applicant who was represented by his Union representative. Subsequently there was a disciplinary hearing before the full Management Committee when again the Applicant was represented and he knew the allegations against him in advance.

23. Some of the main criticisms have been that the whole Management Committee were involved in the investigation and in the disciplinary hearing and in the decision to dismiss and that there was no further right of appeal.

24. It is somewhat unusual to have the whole Management Committee involved in both the investigation and the disciplinary hearing but in cases such as this we have to consider not just the way in which matters were dealt with but whether they were dealt with fairly or unfairly. We accept the Respondent’s evidence that in calling for the whole Management Committee to deal with these matters they were attempting to be fair and to provide an opportunity for all the Management Committee to take part. The fact that the Management Committee acted thus was not, in our judgement, any act of unfairness. Indeed the Applicant did have a full hearing on each occasion and was allowed to put his side of the case fully.

25. It is correct that there was no appeal but the Respondent has explained that since the whole management committee were involved in the dismissal process there was then nowhere else for the appeal to go. In an ideal world there should have been an opportunity for the Appellant to appeal but we find that the absence of an appeal is not a defect which renders this dismissal unfair.

26. We find that the Respondent did have a reasonable belief in the misconduct, that belief was based on reasonable grounds as set out in the evidence before us and in the relevant documents. The Respondent did carry out a sufficient investigation and in all the circumstances dismissal was an appropriate sanction.

27. In these circumstances we find the dismissal was fair and this application is dismissed.”

6. No application was made to the Employment Tribunal to review its decision by amplifying its reasons. By notice of appeal given on the 23^rd January 2000 Mr Tran appealed to the Employment Appeal Tribunal. On 18 April 2000 the EAT, Mr Commissioner Howell QC presiding, held a preliminary ex parte hearing and sent the case on for a full hearing, requesting the Chairman to provide his notes of evidence on the single issue of why there was no appeal process. The EAT did not ask for fuller reasons to be given, nor did they accelerate the hearing with a view to remission for this purpose.
7. It was not until 5 April 2001 that the appeal came on for hearing. The EAT, presided over by Mr Recorder Langstaff QC, accepted that to have had the entire Management Committee first investigating then adjudicating, especially when more than one of them had been involved in the material event, and with no appeal, was in itself an indicator of procedural unfairness. But they accepted that the Employment Tribunal’s finding in paragraphs 24 and 25 of their extended reasons was sufficient to rebut it. As to the substantive fairness of the dismissal, the EAT accepted that the notice of appeal complained of a lack of clarity in the Employment Tribunal decision, but they took the view that inadequacy of reasons was not spelt out as a ground of appeal. They nevertheless briefly considered the point and held that the decision did not fall foul of the principles established in Meek v. The City of Birmingham [1987] IRLR 250. They said in particular:

“23. This was a misconduct case. In a misconduct case it is a matter of importance that the misconduct should be clearly identified. If it is not clearly identified by the Employment Tribunal evaluation of the facts relating to it by the Tribunal is liable to fall into error. Here, the Employment Tribunal said little about the nature of the misconduct save that it was set out in the documentation and save for the outline which they gave in very summary form between paragraphs 10 and 14 in the course of their decision.

24. However, we have been told (and it is a matter of agreement between the parties) that this Employment Tribunal had a bundle consisting of no less than 153 documents or pages before it. Although the wording is terse and is close to the border of being so terse as to be uninformative we think that taken as a whole there is sufficient within it for the employee to know why it was that he lost his case. We are forced to remind ourselves that an Employment Tribunal cannot be expected to dot every ‘i’ and cross every ‘t’. What matters is whether it deals with the allegations in substance. And here we have little doubt that the substance of the matters which the employer had canvassed against the Appellant were sufficiently identified for this decision to tell the Appellant why it was that the Employment Tribunal took the view that the employer had reasonable grounds for reaching the honest belief which they found him to have reached after reasonable investigation so as to make the dismissal substantively justified.

25. We are fortified in that conclusion by the fact that when the Notice of Appeal was first drafted it does not appear to have occurred to the mind of the draftsman that the Employment Tribunal were at fault in failing to sufficiently express themselves. Rather the allegation is one against the employer that the employer had not himself made it clear what had been held against the employee. To that we add that the skeleton argument of Mr Jenkins similarly did not address this as a point of substance. We are reassured therefore that we are right to come to the conclusion, which we would in any event have done, that this decision does not fall foul of the principles established in Meek v. The City of Birmingham. There is no other ground which has been seriously pursued before us.

26. Suffice to say that in paragraph 26 of its decision the Employment Tribunal said this:

‘We find that the Respondent did have a reasonable belief in the misconduct, that belief was based on reasonable grounds as set out in the evidence before us and in the relevant documents. The Respondent did carry out a sufficient investigation and in all the circumstances dismissal was an appropriate sanction’

It seems to us that in that summary paragraph, having already dealt with and disposed of the procedural arguments put before them, the Employment Tribunal were saying all that was required of them under Section 98 in the light of the facts that they had earlier set out in their decision.”

8. Hale LJ adjourned the application for permission to appeal to an oral hearing on notice, with the appeal to follow if permission were granted. She wrote:

“(1) Although appellate courts should be slow to criticise reasons given by a first instance tribunal which are likely to be perfectly intelligible to those who are familiar with the events in question and were present at the hearing, it is difficult in this case to determine why the employment tribunal reached the conclusions in para 26 of their extended reasons that the respondent had reasonable grounds for believing the applicant to be guilty of the acts of misconduct found against him and carried out a sufficient investigation. This is not readily apparent from the documentation referred to and there is no reference to any oral evidence. No reasons are given for the tribunal’s stated conclusion that in all the circumstances dismissal was an appropriate sanction.

(2) Of particular concern is Matter 7 in the decision letter of 17 June 1998, which might be thought the most serious of the allegations against him. Making all due allowances for the problems facing a small voluntary organisation with very limited resources, it is arguably unfair that the matters of the management committee whose expenses were said to have been paid with this sum took part in the decision-making process, as opposed to contributing to the investigation, if there were other fairer ways in which the matter might have been handled.”

9. Each party was represented at both instances below by experienced lay representatives. Before us, each has the advantage of representation by counsel, in the Respondent’s case acting pro bono. Having heard Mr Westgate’s opening for the appellant, we granted permission to appeal and proceeded to hear out the appeal.
10. The grounds of appeal to this court begin:

“The Employment Appeal Tribunal erred in that it failed to hold that the Employment Tribunal had given insufficient reasons for its decision.”

They go on to assert that the dismissal could only have been found to be unfair. The Employment Appeal Tribunal, however, was faced with grounds of appeal which failed to present the case in this way. They read:

“The grounds on which this appeal is brought are that the employment tribunal erred in law in that:

It failed in paragraph 24 of the extended reasons to consider whether the reason given by the respondent for involving the whole management committee, in both the investigation and the disciplinary hearing, viz. a desire to avoid factions in the committee constituted a relevant circumstance under section 98(4) of the Act and whether it involved a breach of principles of natural justice:

It failed in paragraph 25 of the extended reasons to consider whether the reason given by the respondent for not having an appeal procedure, viz. that the respondent misconstrued the guidance in the handbook from which they took the procedure followed in the disciplinary hearing, constituted so serious and unreasonable a misconception as to render unfair the decision not to have an appeal procedure:

Having perversely reached the conclusion that the procedure was fair, it failed to consider whether there had been substantive unfairness, and specifically failed to consider whether the respondent had failed to make clear their findings of fact and to clarify what in their findings constituted gross misconduct: whether matter 6, which formed part of the investigation, could fairly be treated as a disciplinary charge within the same investigation: whether in respect of matter 3 the respondent had acted inconsistently; and whether in respect of matter 8 the evidence was insufficient for a reasonable employer to reach the conclusion which the respondent reached.”

11. It is evident that the EAT was grappling with the same problem as we have been faced with: a set of what purport to be extended reasons which tell the reader no more than did the initial written decision of how the employment tribunal had reached its conclusion that this dismissal was both procedurally and substantively fair. I have little doubt that if the point which is in the forefront of Mr Westgate’s grounds in this court had been taken below, the EAT would have been less forgiving. It is one thing to absolve the employment tribunal of the need to dot every ‘i’ and cross every ‘t’: it is another to have to interpret a text in which the ‘i’s and ‘t’s are missing. But the point was not taken.
12. It is a general rule that once permission has been given in an employment case to appeal to this court, it is the employment tribunal’s, not the EAT’s, decision which is under scrutiny. This is a common-sense consequence of the confinement of the EAT’s jurisdiction to questions of law but, as Mr Westgate for the appellant readily recognised, it did not enable him to leap over the problem that his best point was a new one. Indeed, for reasons I will come to, it was in effect his only point.
13. The EAT, faced with a notice of appeal drawn by an experienced lay representative which took no overt point on the adequacy of the extended reasons, had a choice. It could offer the point to the appellant’s representative and, if he took it, adjourn the hearing if necessary so that the respondents could consider it. Or it could stay with the written grounds of appeal. If the adequacy of its reasons were an issue that went to the employment tribunal’s jurisdiction, the EAT itself would have been obliged to take the point, and even if it had not done so we would have been required ourselves to entertain it. But it has not been suggested that the question falls into this class. Nor can it be suggested that the EAT was obliged to offer the point to Mr Tran’s representative. Instead it heard out his critique of the employment tribunal for, in short, failing to grapple with the particular issues set out in the grounds of appeal.
14. Mr Westgate, in a cogent submission, has argued that these grounds amounted to the same thing as a challenge to the adequacy of the extended reasons. There may well be cases in which this would be right; but in the present case the distinction corresponds with a real difference. The difference is that explained by the EAT: so long as the extended reasons are treated as doing what they purport to do – that is, to explain the tribunal’s conclusions – it is permissible to look to the documents to which the reasons refer for the explanation, and to read them in the sense favourable to the respondent employer in which the employment tribunal evidently read and construed them. It is only if the reasons are frontally attacked for inadequacy that the distinct Meek v City of Birmingham issue arises. But it is unfair to a respondent to let it in by stealth if it has not been squarely posed in the grounds of appeal.
15. On this necessary premise, the reasons given by the employment tribunal for dismissing the claim can – albeit with difficulty - withstand Mr Westgate’s critique. True it is that the role of the entire management committee first as accuser and then as jury, in the absence of any further recourse, called for some cogent justification if it was to be held fair. If the straightforward point had been taken that the employment tribunal’s extended reasons provided absolutely none, I cannot for my part see how it could have been answered; though it does not follow that a properly reasoned decision would necessarily have gone the other way (see Slater v Leicestershire Health Authority [1989] IRLR 16). But argued, as it was, as a failure to consider the issue, it let in the evidential material which contained reasons that the employment tribunal must have found acceptable: in particular the chairman’s evidence, the notes of which had been bespoken on the preliminary hearing in the EAT, about the smallness of the organisation, the absence of contractual disciplinary procedures and the desire to involve everybody on the management committee in its processes so as to avoid the development of factions. The decision is, in my view at least, a surprising one, given the obvious steps to make the process fairer which Mr Westgate has pointed out; but it is not so remarkable as to be perverse, and the availability of a strong and self-evident critique of it, while it points up the inadequacy of the extended reasons, is of no further materiality.
16. For analogous reasons the appeal on the finding of substantive fairness is also bound to fail. That Mr Tran had a triable defence to each of the eight matters spelt out against him is undoubted. But here too, as the EAT held, once the vacuity of the extended reasons is taken out of the picture the question resolves itself into whether there was material before the employment tribunal on which it could find, as it did, that the committee had formed a reasonable belief on reasonable grounds “as set out in the evidence before us and in the relevant documents” that Mr Tran had been guilty of misconduct meriting dismissal. Mr Westgate has understandably not felt able to suggest that there was not such material. Everything turned, as he accepted, on his being allowed to argue the failure of the employment tribunal to set out anything amounting to adequate reasons for its conclusion.
17. For these regrettable reasons the appeal to this court cannot succeed. But it is necessary to make clear what is being decided and what is not. Mr Fodder, in his generally well-directed submission for the respondent, was prepared if necessary to defend the tribunal’s extended reasons as (to coin a phrase) Meek-compliant. While for the technical reasons set out above this appeal does not depend on the answer, no employment tribunal and no advocate or representative practising in the employment field should imagine that a decision as short on reasoning as the present one complies with the legal obligation, if asked, to explain how the tribunal has got from its findings of fact to its conclusions. It may be done economically, but simply to recite the background and the parties’ contentions and then to announce a conclusion is not to do it at all; and an opaque reference to the evidence which has been given does not save it. The giving of adequate reasons fulfils many functions, among them the important one of concentrating decision-makers’ own minds on what they are doing and demonstrating to the parties and (if necessary) to appellate tribunals that they have given acceptable answers to the right questions. I find it disturbing that an experienced lay representative appears to have resigned himself to grappling with reasons which were not there instead of confronting their absence as a primary ground of appeal; and I hope that it does not signify that extended reasons like those given in the present case are becoming usual.
18. Finally, what could have been done to address this issue suitably early? Section 35 of the Employment Tribunals Act 1996 provides:

(1) For the purpose of disposing of an appeal the Appeal Tribunal may – (a) exercise any of the powers of the body or officer from whom the appeal was brought, or (b) remit the case to that body or officer.

But to have sent the case back for fuller reasons had the appeal to the EAT succeeded would have been impossible: a year and a half had gone by. It would have had to be remitted to a fresh tribunal to start again.

19. In Reuben v London Borough of Brent [2000] ICR 102, Morison P held that remission was not an option short of allowing the appeal. His reasons (see paragraphs 14 to 18) were not based on a limited construction of s.35 but on considerations of legal principle: in short, that to invite a tribunal to make good a deficient decision was to invite ex post facto rationalisation, to risk having two inconsistent sets of reasons (the second of dubious legal status) and to short-circuit the appeal process. But he accepted that at the conclusion of an appeal s.35 allowed remission for fuller reasons to be given.
20. It seems to me, with great respect, that the question of remission requires a somewhat different approach. The objections of principle to inviting a first-instance tribunal to improve on reasons which are now under challenge are just as cogent at the conclusion as at the start of an appeal. They suggest that the s.35(b) power should rarely if ever be exercised purely for the purpose of letting the original tribunal improve its written reasons in response to a challenge. Remission to the same tribunal has many other uses, for example where they must now proceed to decide on remedies.
21. For my part I would have held that the s.35 power is not confined to orders made at the conclusion of an appeal: it exists “for the purpose of disposing of an appeal” and can therefore in my judgment be exercised at any appropriate stage. But my view is not shared by the other members of the court. In these circumstances it will not be helpful to explore what would otherwise have been the possibility – though subject to Morison P’s powerful caveat – of the EAT’s using the occasion of the preliminary procedure, only four months or so after the extended reasons were given, in order to remit them for amplification. Instead, attention has to be concentrated on the potentially catastrophic consequences of having to allow an appeal because of the inadequacy of the tribunal’s written reasons.
22. I am not satisfied that the employment tribunal’s own power of review can be invoked for this purpose. We have looked with counsel’s help at rule 11 in the rules of procedure set out in Sch. 1 to the Employment Tribunals (Constitution etc) Regulations 1993 (replicated in rule 13 of the 2001 regulations which have replaced them). It provides for an employment tribunal to review its own decision on various specific grounds going to due process, and also if “(e) the interests of justice require such a review”. We were tempted in the course of argument to think that inadequate reasons might be dealt with here, making an instant application to the tribunal possible; but it is plain from the preceding rule, 10(3), that the decision is one thing and the reasons for it are another:

“The tribunal shall give reasons for its decision…”

As sub-rules (6) and (7) confirm, what rule 11 contemplates is the retaking of a decision, not the revision of the reasons for it.

23. In the result I would dismiss the appeal.

Lady Justice Arden:

24. I gratefully adopt the summary of the facts in this case and of its procedural history appearing in the judgment of Sedley LJ. The order sought on this appeal is that the decision of the EAT should be quashed and remitted to a new employment tribunal and indeed that this is the only realistic outcome to this appeal if successful.
25. Sedley LJ has set out the notice of appeal to the EAT in his judgment. The primary submission of the appellant is that a challenge to the sufficiency of the reasons given by the employment tribunal (referred to below as “a reasons challenge”) was within that notice of appeal properly construed. Mr Westgate submits that the challenge to the employer’s reasons in the third ground inevitably involves a challenge to the way in which the employment tribunal expressed its conclusions. He submits that “failed to consider” means “to give adequate reasons for their conclusions”. The employment tribunal failed to demonstrate how it reached its conclusion in paragraph 26 of its extended reasons. The EAT had to consider what findings the employer had made in order to know whether the employer had acted within the band of reasonable responses. Mr Westgate submits that the employment tribunal did not have to form a view as to what had actually happened but it had to be satisfied that the employer had carried out a reasonable investigation and that the employer’s belief that Mr Tran had been guilty of gross misconduct was reasonably held. In addition, in a situation where the employer knows the facts are to the contrary, he cannot have a reasonable belief that there has been misconduct. So, submits Mr Westgate, the third ground for appeal merged with a reasons challenge to the employment tribunal’s decision.
26. Moreover, on Mr Westgate’s submission, the EAT has power in section 35 of the Employment Tribunals Act 1996 to remit the matter to an employment tribunal. He relies on Askew v Victoria Sporting Club [1976] ICR 302 and Irvine v Prestcold [1981] IRLR 281, where cases were remitted to the employment tribunal for rehearings on the amount of compensation.
27. Mr Westgate submits that the decision of this court in Miriki v Bar Council [2001] EWCA Civ 193 is distinguishable. The EAT should regard itself as bound by the notice of appeal but the first question is how the notice of appeal in this case should be construed. However, Mr Westgate accepts that if the notice of appeal cannot be construed as he submits, a reasons challenge cannot be made either in the EAT or this court unless the notice of appeal were to be amended. There was no application to the EAT for permission to amend the appellant’s notice and there is no application for that purpose before this Court. Such permission could not be given without taking into account the prejudice to the respondent.
28. As regards the reasons challenge, Mr Westgate submits that the purpose of requiring reasons is that they tell the parties “in broad terms why they lose or, as the case may be, win” (see Meek v City of Birmingham DC [1987] IRLR 250) and they should enable the parties to determine whether the tribunal has erred in law. Moreover, they assist in concentrating the mind of the decision-makers so that they appropriately consider all the issues. Mr Westgate submits that there is an irreducible and fundamental requirement that when the employment tribunal is called upon to exercise its judgment then the reasons must include sufficient factual findings to support its conclusions and how the tribunal got there. This is so, even if the only question is whether the employer acted within the reasonable band of responses. The reasons are primarily addressed to the parties. The tribunal can have regard to the facts within the parties’ own knowledge. Accordingly, the reasons need not be wholly self-contained. Here the parties were in dispute about the underlying facts. In particular, there was a dispute as to why the management committee reached the decision to dismiss. The findings made by the management committee were unsatisfactory in several respects. In reaching its final decision to dismiss Mr Tran for gross misconduct the management committee looked at the matters which it found to be unacceptable or gross misconduct cumulatively and regarded them all as gross misconduct as could be seen from the last sentence of its decision letter dated 17 June 1998.
29. Mr Westgate also submits that the decision of the management committee was unfair because the management committee were not only the judge on the question whether there should be a dismissal but also were witnesses in some of the matters complained of, for instance in relation to the management expenses which it was said Mr Tran had improperly allowed. In this regard, Mr Westgate relies on Moyes v Hylton Castle Working Men’s Social Club & Institute Ltd [1986] IRLR 482 and distinguishes Slater v Leicestershire HA [1989] IRLR 16 in which it was said that rules of natural justice are a guide as to whether the employer acted reasonably and no more. In Mr Westgate’s submission the breach of natural justice may be sufficiently serious to render the dismissal unfair, as in this case.
30. The reasons given by the management committee for not appointing a sub-committee to hear the dismissal question were explained in the notes of evidence and were addressed by the employment tribunal in paragraph 24 of its extended reasons. (This paragraph is set out in the judgment of Sedley LJ.)
31. Mr Fodder, for the respondent, submits that a reasons challenge is not within the notice of appeal. The notice of appeal relies on a failure to consider matters not on conclusions expressed without reasons. Moreover, the skeleton argument produced by the appellant for the permission hearing and appeal hearing in the EAT steered the tribunal in the opposite direction by stating that there was no significant disagreement on any facts and inviting the EAT to substitute its own judgment.
32. Moreover if the appellant’s notice had taken the point about reasons, it would have been possible to ask the employment tribunal to review its own decision.
33. Mr Fodder submits that there is no jurisdiction under section 35(1) to remit a case to the tribunal unless the EAT is also disposing of an appeal. (Section 35(1) is set out in the judgment of Sedley LJ.) Mr Fodder relies on the opening words “For the purpose of disposing of an appeal ...”. If the EAT had made an order under section 35 or refused permission to amend the notice of appeal there would have been an appeal on discretion, and in those circumstances there would only have been a limited basis for any review. The case of Langston v Cranfield University [1998] IRLR 172 is distinguishable because it deals with matters of which a tribunal is seized.
34. Mr Fodder submits that the respondent suffered significant prejudice as a result of the delay. There were seven witnesses at the hearing which lasted four days, and five of the witnesses required interpreters. If a reasons challenge had been made, the EAT could have expedited the hearing of the appeal and remitted the case back to the employment tribunal. As it was, the respondent had wasted nearly two years in which time its grant had been cut back further and inevitably there would be difficulties of recollection. Employment tribunals were meant to entertain applications as soon as possible. There was a possible injustice to the respondent here.
35. In the reasons challenge, Mr Fodder submits that it is sufficient if the decision refers to documents. In this case, everyone would have known who the witnesses were. The extended reasons refer to the relevant documents. It was not thought that there was much issue about the facts and therefore matters were not spelt out. When the notes taken by the parties of the disciplinary hearing are read together, it is clear what happened. The tribunal was only concerned with whether the respondent conducted a reasonable investigation and responded within the reasonable band of responses to what the investigation threw up.

Conclusions

36. In my judgment the notice of appeal to the EAT does not include a reasons challenge. The relevant part of the notice of appeal complained of the failure to give reasons on the part of the respondent, not on the part of the employment tribunal. Moreover, I am satisfied that the power of remission in section 35 of the Employment Tribunals Act 1996 can only be utilised where the employment tribunal is making a final order on an appeal, generally an order allowing the appeal. I do not consider that a court or tribunal can be said to be “disposing” of an appeal if it simply makes an interim order such as would be involved in remitting a case to the employment tribunal to clarify its reasons prior to a further hearing of the appeal. As Brooke LJ observes, retaining an appeal is not the same thing as disposing of it.
37. Accordingly I do not consider that, if the notice of appeal had included a reasons challenge, it would have been open to the EAT at (say) the preliminary hearing to take the view that the reasons were inadequate and that further reasons should be given by the employment tribunal before the EAT decided whether to allow the appeal on other grounds. If the EAT takes the view that the reasons challenge is a good one, it should allow the appeal and (if appropriate) remit the matter to a fresh tribunal. In respectful disagreement with Sedley LJ, I do not think that remission in circumstances other than final disposal could be said to be “for the purpose of” disposing of the appeal. In those circumstances, the purpose of the remission would be to achieve the object identified by the EAT as the reason justifying remission at that interim stage.
38. So far as the reasons challenge is concerned, the tribunal referred to documents but did not identify the principal elements of the evidence which it had heard or make findings thereon. This Court has looked at some of the documents which were before the employment tribunal. The decision letter written by the management committee and confirming Mr Tran’s dismissal on the grounds of gross misconduct listed eight allegations against Mr Tran. For example the seventh allegation concerned a withdrawal of petty cash in the sum of £102 which Mr Tran contended represented expenses paid to members of the management committee for attending meetings of the management committee. Mr Tran believed that the members of the management committee signed receipts for this particular expenditure but he could not be certain because of the lapse of time and lack of access to the documents. The decision letter stated that the management committee considered that Mr Tran’s explanation, that the amount referred to management committee expenses, was “unacceptable”. The notes of the disciplinary hearing do not make it clear why the management committee rejected Mr Tran’s case. There was oral evidence before the employment tribunal which may have covered this allegation but it is not the subject of any findings or narrative in the decision. Furthermore, it is not possible to deduce the reasons of the employment tribunal from the evidence because no note or transcript of it is available. Moreover, in relation to the sufficiency of the investigation, the employment tribunal made no mention of the fact that the management committee had a conflict of interest in relation to the allegation relating to the reimbursement of their expenses. Other examples of situations where it is difficult to deduce the tribunal’s reasons were given by Mr Westgate in the course of his submissions.
39. The EAT took the view that Mr Tran would know the substance of the employer’s allegations and therefore the reasons why the employment tribunal had reached its conclusions in paragraph 26. We have not heard full argument on the implications of the Meek test. However, for my own part I doubt whether on a reasons challenge it is sufficient that the parties would have known the employment tribunal’s reasons if they cannot also be ascertained by the appellate court at least in a case where there is not only a reasons challenge but also a challenge to the substance of the relevant reasons. I proceed on that basis. In this case, as illustrated by the example which I have given, the reasons for the management committee’s decision were not clear. Neither party has referred us to any relevant oral evidence although paragraph 26 of the employment tribunal’s decision itself refers to such evidence. Accordingly, while finding assistance in the EAT’s judgment, I would not myself have reached the same conclusion with respect to the sufficiency of reasons. Had the point been open, I would on the material now available have held that in the circumstances of this case it was not possible for an appellate court to deduce the general basis on which the tribunal reached its conclusions that the respondent was reasonable in its belief that there had been gross misconduct and that the respondent had acted reasonably in the way it carried out an investigation.
40. I would not go so far as to say that terse reasons can never or only very rarely be given if a successful reasons challenge is to be avoided. It all depends on the circumstances of the case whether the test in Meek v City of Birmingham is satisfied. Where (for instance) the issue is simply one of credibility and it is clear from the evidence and the decision read together that the tribunal must have preferred one set of witnesses to another, it is likely to be clear in broad terms how the tribunal had reached its conclusions even if (as here) very briefly expressed. Moreover, I see no reason in principle why the tribunal should not indicate its reasons by reference to a document or evidence. However, the goal for which the tribunal should strive is one where the requisite findings of fact and reasons are apparent from the face of the decision.
41. I am satisfied, however, that the tribunal gave sufficient reasons in relation to the respondent having no appeal process. They are found in paragraphs 24 and 25 of the extended reasons set out in the judgment of Sedley LJ. In my judgment, for the reasons given by Sedley LJ, it cannot be said that these reasons were insufficient or that the conclusion of the employment tribunal on this point was perverse. I also agree with Sedley LJ for the reasons he gives that the appeal on the finding of substantive fairness must fail.
42. This case highlights the need, following Mariki v Bar Council, for parties to formulate their grounds of appeal from the employment tribunal to the EAT with precision.
43. I agree with what Sedley LJ says about rule 11 in schedule 1 to the Employment Tribunals (Constitution etc) Regulations 1993.
44. In the circumstances I also agree that this appeal must be dismissed.

Lord Justice Brooke:

45. In this case Mr Tran felt that he had been unfairly treated when he was summarily dismissed by this employers for gross misconduct. He had been suspended on full pay on 19th February 1998, and following an investigatory hearing a month later he was required by a letter dated 19th May to attend a disciplinary hearing to respond to the eight matters of complaint set out in that letter. The hearing took place on 10th June, and a week later he was informed in writing of the management committee’s decision. His dismissal took immediate effect, and no internal right of appeal was provided for.
46. He filed his application with the Industrial Tribunal on 30th June 1998. We heard this second appeal on 21st February 2002, over three and a half years later. The important dates in the history of these proceedings are these:

1999	2 & 15 April, 23 & 24 September	ET hearing
	4 October	ET decision: summary reasons
	21 December	ET extended reasons
2000	23 January	Notice of Appeal to EAT
	18 April	EAT preliminary hearing
2001	5 April	EAT dismisses appeal
	10 July	EAT judgment sent to parties
	24 July	Notice of appeal to CA.

47. It will be seen that this comparatively small dispute within a small unit dedicated to aiding the Vietnamese community in Greenwich took a year and a half to resolve at Employment Tribunal level and a further year and a half at EAT level. Delays of this magnitude when an employee has been concerned to complain to a statutory tribunal about what he believes to be unfair treatment are an affront to justice. They are unfair to the aggrieved employee who has to wait so long for a decision. They are also unfair to his employers, even if they are ultimately successful, because they have this case hanging over their heads as unfinished business for such a very long time.
48. In recent years great efforts have been made within other jurisdictions to reduce the law’s delays. Sometimes delays have been reduced by procedural reforms, sometimes by primary legislation, and sometimes by the allocation of greater resources, whether judicial or administrative, to combat an unmanageable workload. Since the Law Commission’s 1994 report on the scandalous delays in what was then called the Crown Office List (1994 Law Com No 226, Part II and Appendix C) very successful efforts have been made in that jurisdiction, in the Civil Appeal Office and, following the introduction of the Woolf reforms, in the administration of civil justice generally, to address problems which were disfiguring the face of justice a few years ago. More recently the delays within the Immigration Appeal Tribunal have been addressed with equal vigour.
49. This is the third appeal from the Employment Appeal Tribunal to reach a division of this court in which I have been sitting within a three week period where the proceedings in the lower tribunals have been characterised by excessive delay. In the disability discrimination case of Wilding v British Telecommunications plc, heard on 26th February 2002, the employment tribunal accommodated a heavy initial hearing and a separate remedies hearing within a year, but it then took more than 18 months for an appeal to be heard by the EAT, and the parties then had to wait for more than 10 weeks before receiving the judgment. (In other words, again nearly three years). In the very heavy race discrimination case of Yeboah v Crofton, heard on 4-7th March 2002, which involved a 104-day hearing before the employment tribunal and a 12-day hearing before the EAT, the proceedings before the lower tribunals took six and a half years to resolve.
50. I mention these matters because this is a court of justice and delays on this scale constitute an impediment to those whose job it is to do justice. If we were to allow this appeal, we would be exposing the parties to a re-run, more than four years after the events in question, of the employment tribunal hearing which Mr Tran first sought in June 1998. Memories will have faded and witnesses may no longer be available. In the event, however, we are constrained to say that although the extended reasons of the employment tribunal were inadequate, we cannot remedy this inadequacy because Mr Tran’s representative failed to take the point on Mr Tran’s appeal to the EAT. It is a very unhappy story.
51. I agree with Sedley LJ that this appeal must be dismissed for the reasons he gives. The reason why I consider that the EAT does not possess the power to remit a case to the employment tribunal for fuller reasons while retaining jurisdiction over the appeal is that the power to remit which is conferred by section 35 of the Employment Tribunals Act 1996 is a power granted to the EAT for the purpose of “disposing of an appeal”. The EAT would not be disposing of the appeal in such circumstances. It would be retaining it, which is a wholly different matter.
Order:
52. Appeal dismissed.
53. Appellant be given permission to appeal against the decision of the Employment Appeal Tribunal dated 10 July 2001
54. Costs of appeal be assessed in accordance with Regulation 107 of the Civil Legal Aid (General) Regulations 1989.
(Order does not form part of the approved judgment)