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Cite as: [1992] UKEAT 467_91_2107

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BAILII case number: [1992] UKEAT 467_91_2107

Appeal No. EAT/467/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 July 1992

Before

THE HONOURABLE MR JUSTICE HUTCHISON

MR T S BATHO

MR D A C LAMBERT

GLENROSE (FISH MERCHANTS) LTD APPELLANTS

MR C CHAPMAN & OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR A SUTCLIFFE

(ADVOCACY MANAGER)

Peninsula Business Services

Stamford House

361/365 Chapel Street

Manchester

M3 5JY

For the Respondents MR B LANGSTAFF

(OF COUNSEL)

Legal Department

GMB

22-24 Worple Road

London

SW19 4DD

MR JUSTICE HUTCHISON: This is an appeal by employers against the decision of an Industrial Tribunal in Hull following a three day hearing in March 1991, that the 18 respondents, who had been employed by them as fish filleters, were on 23 September 1988, unfairly dismissed.

The material facts are as follows.

(1) All these men were employed under identical written terms and conditions of employment. They were in general long-serving employees, 14 of them had more than 5 years' service and 3 had 20 years' or more. They were all men of "good character" -none of them has recorded against him any disciplinary action of any sort and they were not, it seems, by nature militant.

(2) The contractual terms as to overtime working, around which this case largely revolves, were contained in clause 7 of the written statement of terms:

"Your basic hours of work are 40 hours per week, from 7.00 a.m. to 4.00 p.m. Monday to Friday, Saturday and Sunday overtime working will be required as and when fish becomes available.

Conditions relating to overtime working are detailed in the Staff Handbook."

The Staff Handbook provided:

"Because the fish industry is a perishable goods industry and fish supplies are uncertain and must be purchased when available, this will necessitate overtime working for all employees, therefore all employees will work a reasonable amount of overtime at Management discretion."

(3) For a considerable time prior to July 1988, the system that in fact operated had been one of guaranteed overtime whereby the men got paid for an hour a day irrespective of whether they worked it. They often did so (depending on supplies of fish) but even when they did not, they got paid. From Monday 8 July 1988, a new system operated with the, albeit reluctant, agreement of the workforce whereby overtime was worked on an "as and when" basis and there was no guarantee. Between 25 July and 5 September, a further variant was introduced whereby those who worked overtime on Monday would have overtime for the rest of the week if it was available and the filleter who did not work on Monday would not be offered overtime during the rest of the week. This system was also found to be unsatisfactory and between 5 September and 22 September the system reverted to "as and when".

(4) On the morning of 22 September - the crucial date - there was a demonstration of a new method of filleting, after which the filleting department manager, Mr Hickson, spoke to each of the men indicating his hope that extra work would be available in future which would boost their chances of job security and overtime earnings. However, as the Industrial Tribunal found on the balance of probabilities, Mr Hickson in those conversations said, or gave the men reason honestly and genuinely to believe that he was saying, that when this new work was brought in at some time in the undefined future, the employers would require the men to work overtime as a matter of compulsion. The tribunal add:

"We are satisfied that whatever the words used, the sense was certainly clear in that overtime would be worked; this therefore was a major change of employment terms which indicated that all that had been said before in relation to reasonable amounts of overtime and at management discretion was being changed to a requirement; it was a compulsion situation."

It will be seen, therefore, on the finding of fact just referred to, that the men understood that they were being confronted with a unilateral variation of their contractual obligations. As compared with the written contract the change was from one where they were required to work a reasonable amount of overtime at management discretion, to one where they had to work all the overtime demanded by management. This problem was compounded by the fact that, as the tribunal found, there had been a conversation during the period between 6-22 September, between Mr Lutkin - who was effectively Mr Hickson's deputy in the sense that if Mr Hickson was away he took charge - and the general manager, Mr Alanson, when Mr Alanson had told Mr Lutkin and Mr Lutkin had told the men that those who wished to leave at 4 p.m. might do so and that overtime was optional.

(We mention at this stage that a major plank of the appellants' argument has been that there was no evidence to support the finding as to the effect or understanding of Mr Hickson's remarks on the morning of 22 September and that it was not really open to the tribunal to accept - no reasonable tribunal could have accepted - the evidence of Mr Lutkin about his conversation with Mr Alanson.)

(5) On the afternoon of 22 September, Mr Hickson, as was his normal course when fish supplies necessitated overtime working, went round the stands to ask the men if they would work overtime and they all declined. Some of them may have had particular reasons for declining and some did not normally work overtime: but it is clear that the vast majority of refusals were the result of a decision taken by the men in consultation with each other- not to work overtime the next time they were requested to do so.

(6) The Industrial Tribunal made a finding as to the reason for the decision of the men to refuse overtime. It is contained in paragraph 14 of their reasons when they say this:-

"We find that as a result of Mr Hickson indicating that the basis of overtime working was now a new basis, a compulsive basis, and, in the light of the changes that have been above referred to, namely "as-and-when" situations, a Monday guarantee situation, and a guarantee situation, that with these changes the applicants wanted to have a meeting with the boss, meaning Mr Rose. That was what they wanted and on balance of probabilities, we find that Mr Hickson was asked on more than one occasion, and certainly be Mr Lutkin, to arrange a meeting with "Rosey" meaning Mr Rose. We are satisfied that Mr Hickson's answer to that request was "No chance." "

(7) Mr Hickson reported what had happened to his superior Mr Potter and Mr Potter advised him to tell the men that their refusals would be logged and if three refusals were logged then there would be a dismissal, or a good chance of dismissal. Mr Hickson conveyed this message to the men who, on being offered overtime, maintained their refusal to accept. The matter was referred to management and a written warning of dismissal was prepared:

"You will be aware that it is a condition of employment, as stated in your statement of Terms and Conditions of employment, that you are required to work a reasonable amount of overtime at the discretion of the Company. This condition of employment is necessary due to the nature of our business, since we deal with highly perishable products and the supply is subject to availability.

..........

The Company wishes to take a reasonable stance in this situation and, if any employee has a genuine reason for not working overtime and this reason is acceptable to Management, then that employee will be excused. However, considering the facts as stated above we do not believe that it is reasonable that the whole department refuses to work a single hour overtime this evening.

In the case of any employee who refuses to work the overtime which is required as of the contract of employment and who does not have a valid reason, this action will be seen as a repudiation of contract constituting gross misconduct. Any such employee will be summarily dismissed from the Company.

..........

I trust that you will give serious consideration to the contents of this memo and that you will work the overtime as necessary. If you have any queries whatsoever you should discuss these with your immediate superior immediately."

Between 3.45 p.m. and 3.50 p.m. copies of this document were distributed to the men, who had, incidentally, been told to clear away their work but remain on the premises, and they set about reading it, which necessitated some of them going to the locker room for their glasses. Mr Lutkin, the tribunal find, again asked to see Management and his request was refused. All the men made it clear that they would come back to work the following morning at the usual hour and went home.

(8) On the morning of 23 September, a director, Mr Cook, was deputed to see each of the men. He was not their manager but had been brought in from another department so he was, perhaps, not the best placed person to undertake this unenviable task. He saw each of them briefly, noted their reasons for not working overtime, did not accept any of them and dismissed them one by one. The tribunal find that he was looking for a reasoned answer rather than just a blank "no" but that the applicants had already made their position plain to Mr Hickson, and so to Mr Cook indicated that it was the attitude of management that was the problem - being dictated to and treated like children was what they objected to. This was borne out by the notes that exist of the interview with Mr Cook.

(9) The men who had been told, on dismissal, that they could appeal to Mr Rose all did so. Their letters notifying their appeal bear a considerable appeal resemblance one to another, as one would expect. They all assert that it is alleged that they were dismissed for refusing to work a reasonable amount of overtime and that this was untrue. The letters do not really address what was the true reason. That from Mr Baker, the shop steward, alone seems to hint at dissatisfaction at the introduction of a compulsory element. The appeals, with two exceptions, were heard on 28 September and dismissed. The two were heard on later dates, for reasons which it is unnecessary to examine, and they too were dismissed.

Having rehearsed in some detail the arguments that were addressed to them on each side, the tribunal in the final paragraph of their reasons set out their conclusions as follows:

"That therefore recounts what we have been doing during the last 2 days. We unanimously conclude the reason for dismissal in each case was conduct, a reason falling within section 57 of the Act. The respondents say it was a sufficient reason to dismiss, and that the refusal to work overtime was a sufficient reason to dismiss. We agree on this point. However, we have to remind ourselves that section 57 goes on to declare that the respondents must act reasonably in treating it as a sufficient reason. Ultimately, we have to decide the fairness of dismissal in accordance with equity and the substantial merits of the case. In our judgement these respondents did not act reasonably when dealing with these men against this background of circumstances. We are quite satisfied that no reasonable employer would have dismissed in the manner, with the speed and for the supposed reason that these respondents did dismiss all these applicants. When faced with men of good character against the background, it all called for, but was denied proper and reasonable investigation. This management abdicated their responsibilities. They failed to come down and find out for themselves, face to face, what was wrong. The lay members of the tribunal advised their chairman that that is good industrial practice both in 1988 and still in 1991. It is not the unanimous decision of the tribunal that the respondents simply did not act as a reasonable employer acting reasonably; no reasonable employer when faced with these circumstances would have dismissed these particular applicants with such small amount of investigation when the circumstances plainly required that an enquiring mind be put to the problem displayed, when 18 well respected men of character and ability had a problem that needed looking at. Certainly no reasonable employer, acting reasonably, would have dismissed in these circumstances and we so hold. We reject any notion of contribution to dismissal. This matter is now adjourned..... "

We mention, in passing, that one of the reasons for the long delays that occurred between the dismissals in 1988 and the decision of the Industrial Tribunal in 1991 was that, all these employees having been dismissed at the same time following their concerted refusal to work overtime, the employers contended that by virtue of section 62 the tribunal had no jurisdiction to entertain the claims for unfair dismissal. In February 1989, dealing only with that issue the Industrial Tribunal held that they had jurisdiction. There was an appeal to this Court and on 11 December 1990, the Industrial Tribunal's decision was upheld on the limited ground that, although what the men were doing on 22 September 1988, did constitute "other industrial action" it had been open to the Industrial Tribunal to conclude - as they had done - that when they were dismissed on 23 September, they were no longer taking part in such action.

Mr Sutcliffe appeared on behalf of the appellants in this Court as he had appeared for them when they were respondents below and we should like to compliment him on his cogent and persuasive arguments which have been extremely helpful to us. While we are mentioning representation, perhaps we may say also that Mr Longstaff has been of the greatest assistance. The simple fact is, that we have received very much help of very high quality from the arguments which have been placed before us in this case on each side.

Mr Sutcliffe's first submission was to this effect, that there was no evidence to support the finding that the employers had given the men to understand that a major change of the terms of employment as to overtime had been - or was to be - introduced. There was nothing in the evidence to show that the contractual position as defined in the written terms ever changed. It is, of course, true that prior to 22 September, no alterations had been made in the strict contractual position - at least if one excludes Mr Lutkins conversation with Mr Alanson as something having a contractual effect - and that nothing that passed on 22 September altered the contract because there was no question of an agreement for an alteration having been reached on that date. In fact, as we indicated during the argument, we are disposed, on the strength of what we have read and the probabilities, to believe that whatever Mr Hickson said, or was understood to say, the management never intended to effect a contractual change. However, that is all beside the point. What matters is whether there was any evidence to support the undoubted finding of fact as to what Mr Hickson said and/or the men understood.

Insofar as Mr Sutcliffe is submitting that there was no evidence on which the Industrial Tribunal could find that Mr Hickson conveyed the impression that in future overtime would be worked in contrast to the previous position where reasonable overtime was the requirement, we must reject his arguments. There plainly was evidence, from the applicants, that this is what Mr Hickson was telling them and the Industrial Tribunal found them to be more reliable witnesses than Mr Hickson. The Industrial Tribunal were, in our view, entitled to prefer the evidence of the employees to the that of Mr Hickson and entitled to conclude that to intimate the substitution of compulsion, where previously there had been a requirement only of reasonableness, was to convey or foreshadow a major change of employment terms.

A subsidiary attack on the acceptance of Mr Lutkin's conversation with Mr Alanson was initially presented as a contention that here also there was no evidence to justify the finding. Mr Sutcliffe was constrained to concede that there was evidence; the evidence of Mr Lutkin, whom the Industrial Tribunal found to be "an absolutely clear witness of truth". It emerged that Mr Sutcliffe's real point was that the Industrial Tribunal should not have accepted Mr Lutkin's evidence as he had never before asserted it. The appellants' witnesses Messrs. Rose, Cook and Hickson had not been asked about it (the questions could only have been directed to whether they had been told about it); and Mr Alanson was not even present before the Industrial Tribunal to be asked - though no application for an adjournment was made. Mr Sutcliffe asserts, we are sure correctly, that Mr Lutkin's evidence was challenged in cross-examination.

None of these matters - urged as no doubt they were upon the Industrial Tribunal - would justify our substituting our own view of the credibility of Mr Lutkin for the very favourable and positive view expressed by the Industrial Tribunal who had the opportunity of seeing and assessing him.

Thus, the first ground of challenge fails.

Mr Sutcliffe concentrated his main attack on the Industrial Tribunal's conclusion (para 25 which has already been cited). He described it as being a very brief exposition of their reasons for reaching such fundamentally important conclusions.

His first point was, that whatever might have been proposed in the future, the overtime request on 22 September, was, and was inferentially accepted by the Industrial Tribunal to be, a reasonable one and the refusal of the men, not for individual reasons which might have been categorised as reasonable, but pursuant to a concerted plan as a means of securing a meeting with Mr Rose, constituted a breach of contract. He points out that the Industrial Tribunal appear to have appreciated this because, addressing section 57 of the Act, they find that the reason for the dismissal was "conduct" and that "the refusal to work overtime was a sufficient reason to dismiss" by which, we interpolate, it is plain given the context that they mean a sufficient reason in terms of strict contract rather than a sufficient reason within sub-section 3.

However, Mr Sutcliffe submits, in going on to find the dismissals unfair for the reasons they give, the Industrial Tribunal had failed to have regard to relevant authorities and misunderstood and misapplied the law in relation to the need for investigation. His criticisms are advanced under a number of heads:

(1) Mr Sutcliffe submits that the Industrial Tribunal wrongly relied on British Home Stores v Burchell [1980] ICR 303 and UCATT v Brain [1981] ICR 542, allowing itself to be persuaded to a wrong approach by the citation of these two cases. He submits, rightly in our view, that Burchell's case has no application to facts such as the present and that UCATT and their reference to the well known passage in the speech of Donaldson LJ, Master of the Rolls, at pages 550-551, in which he indicates the correct approach under section 57, is inappropriate also and appears to be relied upon in support of a conclusion that the respondents had a sufficient reason to refuse to work overtime.

These submissions are, in our view, misconceived. The mere fact that cases are cited to a tribunal does not mean that they are slavishly applied. In paragraph 21 the Industrial Tribunal are reciting the arguments on behalf of the employees. True it is that in paragraph 2, a general introductory paragraph, they say that they have been assisted by reference to reported cases which include Burchell and UCATT but they mention also cases particularly relied upon by the employers.

We are not persuaded that it was the suggested or any misapplication of these authorities that led the Industrial Tribunal to say as they did in paragraph 25 (and without reference to authority that "this management abdicated their responsibilities.

They failed to come down and find out for themselves, face to face, what was wrong."

Mr Sutcliffe, in developing his argument that this is a misdirection resulting from an erroneous application of the case of Burchell, submitted that the employees had no less then seven opportunities to state their case. These he categorised as follows. First, at 10.45 a.m. immediately after the decision Mr Baker, the shop steward, had access to Mr Rose but did not seek a meeting. He could have used the grievance procedure in the Staff Handbook; he could have invoked the avoidance of dispute procedure; he did none of these things. Second, there was an opportunity when Mr Hickson went around informing them of overtime that night; no-one said what they wanted - although what they wanted was a meeting with the boss or what that was required for. Thirdly, when Mr Hickson came back from having spoken to Mr Potter and gave them the verbal warning, by now matters were getting more serious but nothing was said. Fourthly, later in the day, the company put the warning in writing and again that afforded an opportunity, indeed, invited representations. Fifthly, in the canteen there was some discussion when Mr Hickson said that if they went they would be dismissing themselves and again, it is submitted that that was an opportunity. Sixthly, the company did not dismiss them there and then but on the following morning afforded them an interview with Mr Cook and the suggestion is that they could have been much more explicit about their desires then. In fact, it is submitted that not one of them said that what they wanted was a meeting with Mr Rose to discuss their concerns; they had the opportunity then to tell the truth about these matters. Lastly, it is said that on the appeal to Mr Rose (which, admittedly, occurred after the dismissal had taken effect but was an opportunity to have it revoked) they could have said something then.

Mr Sutcliffe also pointed out that when the applicants submitted their original applications they did not make clear what their case was and he suggests that they changed their ground when it came to the hearing before the tribunal. We have to say that despite the importance he attached to this suggested change of tack, we are not persuaded in the particular circumstances of this case that it has any real significance. Those are the seven occasions which Mr Sutcliffe relies on as opportunities for the employees to put their case to management.

Mr Langstaff sought, one by one, to refute these seven points. However, we do not consider that any useful purpose would be served by rehearsing his arguments in detail for, however one looks at the matter, there was undoubtedly the opportunity for the employees to be more forthcoming than they were in explaining the real cause of their actions and what it was they sought to achieve. Be that as it may, there are two broad comments to be made. The first, is that, as appears from paragraph 14 already quoted, the Industrial Tribunal found as a fact that Mr Hickson was asked more than once to arrange a meeting with Mr Rose, the boss, and refused; that, as appears from paragraph 17, they further find that after receiving the written warning Mr Lutkin again asked to see the management and was refused; and that at the meetings with Mr Cook, which were very brief and hardly conciliatory, they did make clear that it was the attitude of management that was the problem and that they objected to being dictated to and treated like children. (See paragraph 18).

The second broad comment is that, even allowing for the fact that the employees may as we have said, have been somewhat reticent in articulating their grievances and desires, there was ample evidence on which the Industrial Tribunal could properly have based their finding that the management should have come down for themselves to find out what was wrong, taken the initiative and set about finding out why these long serving, loyal men of good character were suddenly taking this stand.

(2) Mr Sutcliffe next turned to the second criticism voiced in the sentence "we are quite

satisfied that no reasonable employer would have dismissed in the manner, with the speed and for the

supposed reason that these respondents did dismiss all these applicants" - the question of speed.

He emphasises that this is a perishable product and that the management must have confidence that fish purchased will be promptly processed. Warnings were given and dismissal did not take place until 23 September. Again, he submitted that there was an error in law on the part of the Industrial Tribunal in concluding, for this and the other specified reasons, that no reasonable employers would have dismissed. He referred us to British Leyland UK Ltd v Swift [1981] IRLR 91, for the familiar principle summarised adequately in the headnote:

" The correct test is was it reasonable of the employer to dismiss the employee? If no reasonable employer would have dismissed him, then the dismissal is unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal is fair. There is a band of reasonableness within which one employer might reasonably dismiss the employee whilst another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. If it was reasonable to dismiss, the dismissal must be upheld as fair even though some other employers might not have dismissed."

Here, Mr Sutcliffe submits, the conduct of the employees was not outside or even near the edge of the band of reasonable responses, it was plainly within it.

In support of this argument - despite discouragement from us - he cited three authorities which, he said, were instances where dismissals had been found to be fair on facts less adverse to employees than the facts of the instant case. The cases were, W & J Wass Ltd v Binns [1982] ICR 486, Horrigan v Lewisham London Borough Council [1978] ICR 15 - where a finding by an Industrial Tribunal that dismissal was fair was upheld even though, and contrary to their conclusion, this Court found that the employee was not under a contractual obligation to comply with the order to work overtime - and Martin v Solus Schall [1979] IRLR 7.

In deference to Mr Sutcliffe's arguments we have considered these cases but we have to say that we have not found it helpful to do so. It is very seldom that a decision on an issue of this sort based on the particular facts of one case is of assistance in resolving the issue in another case and Courts rightly discourage the citation of authorities in such circumstances.

Mr Sutcliffe laid stress on those factors in the present case which, he submitted, should have weighed with the Industrial Tribunal and led them to find that the employers acted reasonably and the dismissals were fair. Those factors were:

(1) that there was here a contractual obligation;

(2)there was nothing that distinguished the request to work overtime on 22 September from other such requests;

(3)the perishable nature of the product;

(4)the fact that although the Staff Handbook lists among examples of serious misconduct which could lead to instant dismissal, "Refusal to carry out reasonable instructions from management", the men received two warnings;

(5)the fact that they did have an opportunity to explain their actions and, he contends, gave no real explanation; and

(6)the fact that everyone refused overtime so there was no prospect of getting that evening's fish processed.

Mr Langstaff, in response to these arguments, began with some general observations on this branch of the law reminding us that section 57 contains very broad wording and that the Industrial Tribunal - an Industrial jury bringing to bear their own knowledge and experience and with the advantage of having heard the witnesses - have reached a clear conclusion on the issue of "fairness" or "unfairness". In that context he referred us to paragraphs 34 and 35 in the Judgment of Donaldson LJ, Master of the Rolls, in British Telecommunications PLC v Sheridan [1990] IRLR 27. Mr Langstaff invited us to stand back and look at the case and submitted that it was a case in which, not only was the Industrial Tribunal's decision not demonstrably wrong, it was plainly and unarguably right. He mentioned fifteen factors on which he relied for this proposition.

(1) The dismissal here was for a refusal to work one hour's overtime.

(2)That was on one occasion only - and he contrasted some of the cases cited where there was a determined and consistent refusal - moreover, he said, it had ceased.

(3)There was no demonstrated need for that overtime to be worked on that occasion, there was no positive proof that stocks would actually perish.

(4)The action was by "men of good character".

(5)Their loyalty to the employers was not in doubt - only two months earlier they had accepted what was in effect a reduction in pay as a result of the variation of the terms as to guaranteed overtime, which was significant for people earning modest wages.

(6)They were all, by and large, men of long service.

(7)There had been four changes of overtime practice in the period immediately preceding the dismissals which was a very short period of time.

(8)They had been given an assurance by Mr Alanson that overtime was voluntary and not compulsory.

(9)There had been a change understood to be from reasonable overtime to a compulsory system.

(10)This is in a context of a slack period of trading which, by inference, needs less overtime so they would naturally have fears as to the future.

(11)There must have been, in the events of 22 September, considerable uncertainty as to the consequences of refusal. By that, Mr Langstaff made it clear, he meant to refer to the fact that originally Mr Hickson did not tell the men that refusal would lead to dismissal, merely that it would be logged so that they did not understand that their attitude put them at risk of immediate dismissal. True, they were told in the memorandum that that was the position but by then attitudes had hardened, they had been told to put their things away and they had a very short time to consider that important document.

(12)They believed that overtime was optional.

(13)The employers were in breach of their own grievance procedure. A point blank refusal, by the first member of management in the chain to allow them to take their grievance procedure higher, constituted a breach - as the tribunal in paragraph 14 inferentially found.

(14)There had been a change in the employers' practice, whatever the contract might be, the employers were, therefore, in breach of their agreement with the union and he referred to page 24 in bundle R1.

(15)He invited us to take into account the provisions of paragraph 52 of the 1972 Code of Practice, in which he referred us but which, again, we do not pause to cite.

He submitted, that if one put all those matters together one got close to a position where it would be possible to say that a decision that the dismissal had been fair would have been perverse.

We need not refer to all Mr Langstaff's submissions on the specific matters relied on by Mr Sutcliffe, some of whose arguments we have already given our reasons for rejecting. Nor, as we have indicated earlier, do we think that it is useful to rehearse what he had to say in answer to Mr Sutcliffe's suggestion that the employees had seven opportunities to explain their concerns.

Essentially, Mr Langstaff's argument was:

(1)that the Industrial Tribunal had not misdirected themselves;

(2)that, bearing in mind his 15 points, this was plainly a case in which it was at least open to them to conclude that the employees had been unfairly dismissed;

(3)that so far from its being illegitimate for them to conclude that this was so, they were properly performing their function as an industrial jury and it was well within their entitlement to do so.

None of the three grounds mentioned by the Master of the Rolls in Sheridan's case, on which this Court can interfere with their decision, has, he submitted, been made out.

We have given the most careful consideration to all Mr Sutcliffe's submissions, so attractively and forcefully made, but we are satisfied that no grounds exist for interfering with the Industrial Tribunal's primary decision. It is, of course, rightly emphasised that Industrial Tribunals must not substitute their own views for those of an employer and must bring to the task, which section 57 requires them to perform, the objective approach which that section requires and which is exemplified by the band of reasonable responses concept.

However, the Industrial Tribunal are charged with deciding the questions to which section 57 gives rise and plainly must, on occasions, reach the conclusion that applying the broad approach which sub-section 3 requires, a dismissal was unfair. In this case they have done so and we consider that they did not misdirect themselves, that there plainly was evidence on which they could base that conclusion and that their decision was certainly not perverse (a decision at which no reasonable tribunal properly directing itself could have arrived). The main ground of appeal is not established.

Mr Sutcliffe's secondary ground of appeal was based on what he submitted was the tribunal's misdirection in relation to contribution. He rightly points out that they deal with this matter in a manner which, we accept, is to say the least laconic. In a single sentence at the end of the final paragraph of their reasons they say:

"We reject any notion of contribution to dismissal."

Mr Sutcliffe draws our attention to the relevant provisions of the Act in relation to the basic award, section 73(7B), and in relation to the compensatory award section 74(6). In the first the material words are:

"Where the tribunal considers that any conduct of the complainant before the dismissal........ was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extend, the tribunal shall reduce that accordingly."

As to the compensatory award, the words are:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

Mr Sutcliffe identifies what he says are two errors on the part of the tribunal. First, he says that they gave no reasons for their decision; and secondly, he argues that it is plainly obvious that the 18 employees in effect brought dismissal on themselves. There is, therefore, a direct co-relation between their actions and the dismissal and that the present is really a case for a "nil" award.

In support of the first contention - absence of reasons - Mr Sutcliffe refers to Rule 9 of the Industrial Tribunals (Rules of Procedure) Regulations 1985 and in particular to sub-rules (2) and (3), these provide:

"(2) The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman.

(3) The tribunal shall give reasons, which may be in full or in summary form, for its decision."

Here, in a decision for which they gave, or purported to give, full reasons they have, he argues given no reasons for this conclusion.

He then referred us to Pirelli General Cable Works Ltd v Murray [1979] IRLR 190, placing reliance on paragraph 16 where Bristow J, giving the Judgment said:

"Moreover, the Tribunal decided that compensation payable would be reduced by 10% on account of Mr Murray's contributory fault. But they do not explain why 10% or spell out what was his contributory fault, so that neither party is in a position to evaluate the propriety of their decision and decide whether they have reached it according to law. Both parties have challenged it on this appeal as wrong. Both accept that the bald statement in which the matter is dealt with in paragraph 18 amounts to an error of law in itself because neither can see what it was that was the fault for which 10% reduction was made."

His second submission is that the decision, embodied in what he described as "that bold eight word sentence", is perverse. Obviously, he argues, the individuals in this case dismissed themselves by refusing overtime even when the likely consequences were explained to them and compounding their action by not giving a proper explanation of why they were doing what they were doing.

In this connection he referred us to Allders International Ltd v Parkins [1981] IRLR 68, where in a case where a finding of unfair dismissal was upheld, this Court decided that the Industrial Tribunal had erred in reducing the compensatory award by only 50% on grounds of contributory fault. It was there pointed out that in cases of contribution it is questions of the employees' conduct alone that are relevant to the question whether the loss resulting from the dismissal should be reduced by reason of some contributory fault; unlike the position on the issue of "fair" or "unfair" dismissal where questions relating to the employers' conduct as well as the employees' conduct are relevant. In that case this Court acceded to the submission that the whole of the loss was attributable to the employees' own fault. It is to be observed, however, that that was a case of misappropriation of money from the till and the employers' fault was in delaying too long in confronting the employee with what she had done. As we have already said, we do not find it helpful to be referred to decisions on wholly different facts.

Mr Sutcliffe contends that the present is a case where the criticisms that are levelled at the employers by the tribunal's finding are procedural only. He asks us to accede to these submissions and either remit to the tribunal for them to make a finding of the amount of contribution or alternatively, as he has satisfied us that we have power to do, ourselves to make it.

The appellants' second point in relation to contribution relies on the case of Polkey v A E Dayton Services Ltd [1988] ICR 142. Bridge LJ there points out that there will be cases in which the tribunal can conclude that a procedural failure rendering the dismissal unfair does not call for an award of compensation because the result would have been the same even had proper procedures been followed. He goes on to say that:

"....... as Browne-Wilkinson J. put in Sillifant's case, at p.96:

"There is no need for an "all or nothing" decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."

Accordingly, Mr Sutcliffe argues, it was incumbent upon the tribunal here to consider first, whether they were satisfied that even if the employers had done that which they considered they should have done it would have made no difference. In that event, they should have awarded nothing, at any rate, by way of compensation. If, however, they felt that there was a doubt as to whether it would have made a difference it was open to them to make a percentage reduction to reflect that chance. Such a reduction, he argued, could be made additionally to any reduction for contributory fault and this proposition is, we accept, established by the decision in Rao v Civil Aviation Authority [1992] IRLR 203.

Mr Sutcliffe made similar criticisms of the Industrial Tribunal in this regard to those which he had advanced under the head of "contributory fault" - but even more forcefully. The tribunal were addressed on these matters but did not even consider them or refer to them in their decision. They must, he submits, even if not satisfied that it was established to the degree of probability necessary that it would have made no difference, have concluded that there was a real chance that it would have made no difference and made a very substantial percentage reduction on top of anything that they had taken off for contributory fault. They erred in not giving proper consideration to those principles and in not giving any reasons for rejecting the submissions that had been made.

Mr Langstaff, in response, begins by contesting the proposition that the tribunal's finding rested on procedural grounds only. True, he said, their reasoning concentrates on procedural failings but it is not a decision based on procedural grounds. It is implicit in paragraph 25 that if the employers had, after the discussions there envisaged, nevertheless dismissed that would have been an unfair dismissal. The sense of their reasoning is that had there only been proper investigation and consultation the dismissals would not have taken place because any reasonable employer, knowing the full facts, simply would not have dismissed. He relies particular on the passage beginning with the words: "In our judgement these respondents did not act

reasonably when dealing with these men against the background of circumstances.".

The implication is that had the manner been different and the speed been less precipitate and the refusal to work and their reasons for it been more fully investigated, as they should have been, - there would have been no dismissal. Note in this connection, the reference to the advice tendered by the lay-members of the tribunal that the respondents simply did not act as a reasonable employer acting reasonably and that no reasonable employer faced with the circumstances that existed, would have dismissed these men with such a small amount of investigation when the circumstances plainly required that an enquiring mind be put to the problem.

Accordingly, Mr Langstaff contends, it was open to the tribunal to take the view that the conduct of the employees did not contribute to their dismissal.

Turning to the criticism based on "absence of reasons", Mr Langstaff submits that the tribunal have set out sufficient facts in their decision from which it can be shown that they were entitled to reach this conclusion. He accepts that it must be possible to deduce that reasoning but in a case where they have concluded that there was no contribution and have set out the facts, as they have here, very carefully and thoroughly, the implication is that they are saying that in the circumstances, having regard to the facts they have found, their judgment is that the case is not one for contribution. The Pirelli case is not in point, he suggests, because it is plain that in that case there was no sensible way in which it could be deduced why the reduction had been made and why in that percentage.

Moreover, Mr Langstaff points out, two of the cases on which Mr Sutcliffe relied in this context are mentioned by the Industrial Tribunal in paragraph 2 of their decision and it is plain that they had those cases in mind from the outset.

As to the point on Polkey, Mr Langstaff accepts that if the decision in the present case were on technical, procedural grounds it would be incumbent on the tribunal to consider the question: would it have made any difference? He relies on his submission rehearsed earlier that this was not really a procedural decision. He points out that as appears from page 47C of the Chairman's note, when Mr Sutcliffe sought to rely on Polkey Mrs Cleave, representing the employees, had made it clear that she contended that case did not apply: and suggests that the inference is that the Tribunal acceded to Mrs Cleave's submission, which was consistent with Mr Langstaff's own contention.

We have carefully considered all these submissions and we have to say that the way in which the tribunal dealt - in a mere 8 words - with the question of contribution was less than satisfactory. However, we are entirely satisfied that Mr Langstaff is correct when he contends that the decision that the dismissal was unfair in this case was plainly not based on procedural considerations only. We are convinced that the proper construction of paragraph 25 of their reasons is that advanced by Mr Langstaff. We infer that this is the explanation of the failure of the tribunal to refer to the "would it have made any difference" argument.

As to the appellants' contention that there should have been a finding of contribution, we address first the second submission to the effect that not to make such a finding was perverse. We unhesitatingly reject it. The tribunal were, in our judgement, entitled to conclude - as plainly they did - that the steps which should have been taken by the employers would probably have led to a resolution of the problem. It is certainly not the law that in every case where the dismissal is based on conscious breach of contract by the employee there must be a finding of contribution. It was open to the tribunal to conclude, in all the circumstances as they found them to be, that it was not just and equitable to reduce the awards.

As to the paucity of reasons, we have voiced our criticisms. However, this is not in our judgement a case which calls for the intervention of this court on that score, since we are persuaded that Mr Langstaff is correct in inviting us to infer what the tribunal were doing in uttering that brief sentence, was in effect to say that in all the circumstances and in the light of the facts found by them, they had concluded that the present was not a case in which it was appropriate to make any deduction for contributory fault.

It follows that these two challenges to the quantum of the award also fail and the appeals must be dismissed.