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BAILII case number: [1993] UKEAT 654_91_1312

Appeal No. EAT/654/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th December 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

MR K M HACK

Ms D WARWICK

FIRSTEEL LTD APPELLANT

D SHERWIN & ORS RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Elizabeth Slade QC

Engineering Employers Federation

Broadway House

Tothill Street

LONDON SW1H

For the Respondents Mr G Millar

(of Counsel)

Russell Jones & Walker

Swinton House

Grays Inn Road

LONDON WC1X 8DH

Second draft 21.1.94

MR JUSTICE MUMMERY (PRESIDENT) This is an appeal by Firsteel Ltd against the decision of the Industrial Tribunal held at Birmingham over a period of 4¹/₂ days between 2nd and 6th September 1991. The unanimous decision of the Tribunal was that each of the four Applicants had been unfairly dismissed by their employer, Firsteel Ltd. The Tribunal ordered that the determination of compensation should be adjourned to a date to be fixed. Copies of the Full Reasons for the reserved decision were sent to the parties on 7th October 1991. On 14th November 1991, Firsteel gave notice of appeal on seven grounds. None of the grounds relates to any express misdirection or misapplication of law. Firsteel's case on this appeal is broadly that no reasonable tribunal could have come to the conclusion that these dismissals were unfair. In her opening submissions Miss Slade QC, who presented the case for Firsteel with exemplary clarity and accuracy, did not shrink from arguing the difficult case that this decision was perverse. There were several strands in her perversity argument: that the Tribunal identified and acted on points which were never put in issue by the parties or the Tribunal during the hearing; that there was no evidence on which a reasonable Tribunal could have made findings about the unreasonableness of Firsteel's conduct: that there was no explanation as to why certain points identified by the Tribunal rendered the dismissals unfair; that, on an overall view of the case, no reasonable tribunal could have regarded the dismissals as unfair; and that the finding of unfair dismissal was inconsistent with other findings of the Tribunal. The detailed submissions on each of these points will be dealt with later in this decision.

The Facts

Firsteel, a manufacturer of cold rolled steel strip, ran into financial problems at the beginning of 1991 when it was hit by the recession and by the loss of a major customer to overseas competition. After considering and rejecting short-time working, Firsteel's management decided to select for redundancy dismissal on the basis of a points assessment for each worker. The lowest scorers on each machine were to go. Firsteel's object was to retain lead hand skills within the business, so that there would be a reservoir of skills to deploy in the event of an upturn in business.

On 18th February Mr Vurlan, the Managing Director of Firsteel, wrote to the Iron and Steel Trades Confederation informing them of the necessity for a reduction of 35 employees in the workforce. After the redundancy announcement consultation meetings began. Between 18th February and 15th March there were nine consultation meetings between representatives of management and union representatives. At the meetings there were discussions about the merits of short-time working, of leaving unaffected areas out and of selection assessment criteria. The Union argued for last in/first out (LIFO) across the entire production department and claimed at a meeting on 8th March 1991 that any method of selection, other than volunteers and LIFO, would break a procedure agreed in 1981.

By the last consultation meeting on 15th March the criteria for selection had been refined to the extent that the Union and its members knew the four categories of assessment and what points out of one hundred had been allocated to each category; but they did not know how the points within categories were to be allocated because Firsteel did not make available to the Union a copy of the assessment form or of the assessment form instruction sheet which defined the categories, the maximum points for each category and the allocation of points within each category. The instruction sheet was not disclosed until discovery in these proceedings.

Over the weekend of 16th and 17th March the process of assessment was undertaken. Those engaged in the process prepared themselves for the task by discussing the merits of individuals with their supervisors and requiring supervisors to update training records which, along with shift records, were used to make the assessments. The training records were based on the supervisor's assessment of an individual's competence to operate a particular machine. The records showed what skills individuals had acquired as a result of having had the opportunity to operate and to work alongside the operator of a particular machine. Those opportunities depended upon a variety of factors, including length of service, individual ambition and the exigencies of Firsteel's business.

On Monday 18th March, Firsteel produced a provisional redundancy list which was considered by Mr Vurlan. At the same time a copy of the assessment form, but not a copy of the assessment form instruction sheet, was faxed to Mr Leahy, a divisional organiser. The provisional redundancy list included the names of the Applicants, Mr Sherwin, Mr Walker and Mr Devey. They each signed a letter dated 18th March addressed to the Works Manager confirming their dissatisfaction with the whole basis of selection. The reasons for dissatisfaction stated in that letter were:

"(a) It is contrary to the customary method of selection for redundancy

(b) At no time have I been given an opportunity to make representations prior to management's decision to select me for redundancy

(c) Management have not made me aware of the method or basis for selection prior to the decision."

For those reasons they requested all relevant information arising from their selection for redundancy. They also confirmed that they wished to appeal against the decision to select them for redundancy and that they be represented at such appeals by the Trade Union representative.

Individual consultations were held on Tuesday 19th March. Mr Leahy asked for a copy of the assessment form instruction sheet used in making the assessments, because he wanted to see how the points had been broken down. That sheet was not provided. Instead, each individual was told what points he had scored and, in those cases where there were specific requests, how points had been allocated to the various sub-categories.

There was no complaint that the assessments of Mr Sherwin, Mr Walker and Mr Devey were inaccurate. They were consulted. Their remarks were recorded on individual consultation forms.

On Wednesday 20th March there was an important meeting held at 9 a.m. The Union representative asserted that it was unfair to dismiss employees with two or more years' service and to retain those with less. At further meetings those with less than two years' service were identified. The management team considered the high scoring anomalies which the assessment had thrown up in the light of Firsteel's overall objective and the new vacancies. Management also decided to invite all those on the provisional redundancy list to indicate whether they would accept a lower paid position.

On Thursday 21st March, Mr Sherwin, Mr Walker and Mr Devey were dismissed with immediate effect. The Union's Divisional Officer wrote to Mr Vurlan on the same day stating that Firsteel was in breach of procedure by instituting the dismissals prior to appeals being heard, and contrary to assurances previously given. The appeals were heard in Mr Vurlan's office on 26th March and each of the Applicants was informed by Mr Vurlan on 17th April that the dismissals were confirmed.

The Decision

After reference to the provisions of S.57(3) of the Employment Protection (Consolidation) Act 1978 and to two authorities cited by counsel for the Applicants, the Tribunal stated in paragraph 19 of its Decision:

"In looking at the circumstances in this case we have judged the respondent's actions by asking ourselves whether a reasonable employer would have acted in that way. We have also tried to judge the respondent's actions stage by stage whilst trying to avoid turning our deliberations into a sort of points assessment of the respondent's case."

In the next three paragraphs the Tribunal set out its crucial conclusions on the question of unfair dismissal. In paragraph 20 it stated those respects in which it found that Firsteel had acted reasonably. In paragraph 21 it stated those respects in which it found that Firsteel had acted unreasonably, and paragraph 22 it stated:

"We find that not only did the respondent act unreasonably in those matters but that no reasonable employer would have acted as the respondent did in them. Consequences of our findings are that all four applicants were dismissed for redundancy ... but that their dismissals were unfair taking an overall view of the respondent's shortcomings."

That paragraph must be read in the context of the two preceding paragraphs in which the Tribunal was answering the question it asked itself in paragraph 19, namely "whether a reasonable employer would have acted in that way".

In view of the detailed submissions made on the appeal it is necessary to quote paragraphs 20 and 21 in full.

"20. Accordingly we find that the respondent acted reasonably:

(i)in choosing as its objective the retention of lead hand skills;

(ii)in the manner in which it consulted the applicants' union up to 15 March 1991;

(iii)in choosing the units of selection;

(iv)in the method of assessment and the choice of categories and

(v)in the application of the method of assessment to all four individual applicants.

21 We find that the respondent acted unreasonably:

(i)in failing to disclose the assessment form instruction sheet to the applicants' union officials before the assessments were carried out;

(ii)as a consequence of (i) in failing to consult further on or after 15 March 1991 with the union on the criteria (within category 1) of "points for practice of basic skill" and "points for rate of production and degree of supervision required";

(iii)generally in acting too quickly to effect dismissals;

(iv)and particularly in dismissing the applicants on 21 March before hearing their appeals, thereby diminishing the prospects of any appeals being successful;"

It is unnecessary to quote a sub-paragraph (v) which related only to another Applicant, Mr Mills, whose case is no longer relevant, since Firsteel do not appeal against the decision that he was unfairly dismissed.

As to the remaining paragraphs of the Decision, they were mainly concerned with matters affecting the assessment of compensation, namely whether the unfairness in the individual cases would have made any difference to the decision to dismiss, whether the Applicants had failed to mitigate their loss and how long each of the Applicants was likely to be unemployed. It was agreed on the hearing of this appeal that the issue of unfair dismissal should be argued before the question of compensation.

On the question of unfair dismissal, it is important to make clear that there were several issues before the Industrial Tribunal which are no longer issues on this appeal.

The 1981 Agreement Point

In the application to the Industrial Tribunal presented on 23rd March 1991 the case for the Applicants was based exclusively on a claim that in 1981 Firsteel had made an agreement with the Union that selection for redundancy would be made on the basis of LIFO and that no variation to that agreement had ever been made. There were other employees at Firsteel who had less service than the Applicants and who were not dismissed. The Applicants complained that they had been selected for redundancy in breach of the 1981 agreement and therefore in breach of an agreed procedure or customary arrangement. In its Notice of Appearance Firsteel denied making in 1981 any agreement with the Iron and Steel Trade Confederation regarding selection for redundancy. The Industrial Tribunal disposed of this point in one paragraph, stating that it was satisfied that the documents produced were evidence only of what happened in consultation in 1981 and not of an agreed procedure designed to govern future redundancies. The Tribunal held that there was no reason to imply, from the way the parties conducted themselves in 1981, an agreed procedure for future redundancies and it held that there was no evidence of a customary arrangement.

As that was the only point raised by the application and Notice of Appearance, there was some argument before the Industrial Tribunal about the extent to which the Applicants could raise points on the unfairness of the method of selection and the manner in which the procedure was operated. The Applicants were permitted to pursue those points. The Tribunal had evidence from nine witnesses and on documents contained in a bundle of 420 pages. As appears from paragraph 6 of the decision the case argued by the Applicants was "(i)The method of selection was unfair because:

(a) the Respondent left areas of the Production Department unaffected

(b) selected on the basis of a points assessment applied machine by machine and not across the board

(c) unfairly weighted the points in the four categories of assessment.

(ii)[Not material to this appeal]

(iii)operated the redundancy selection procedure unfairly."

The Industrial Tribunal found in favour of Firsteel on the complaint that the method of selection was unfair. The reasons for finding that Firsteel had acted reasonably have already been set out in the quotation from paragraph 20 of the Decision. There is no cross-appeal by the Applicants against that finding or against the finding that no agreement was made in 1981 governing future redundancies.

The appeal only concerns the Industrial Tribunal's acceptance of the Applicants' argument that the redundancy selection procedure had been operated unfairly. The reasons for that conclusion are set out in the quotation from paragraph 21 of the Decision.

Firsteel's submissions

Some may be surprised that such a straightforward set of facts should have generated 4¹/₂ days of evidence and argument at the Industrial Tribunal and a further 2 days of detailed argument before this Tribunal on what is claimed to be a question of law. In a word, Firsteel's case is one of "perversity", a very difficult ground on which to succeed on appeal.

Miss Slade QC has, on behalf of Firsteel, displayed impressive skill in the presentation to this Tribunal of arguments which run to 22 pages in outline and by reference to passages in 60 pages of the Chairman's Notes. The skill with which Firsteel's appeal has been presented should not cloud the crucial question: Was the decision that the Respondents were unfairly dismissed one which no reasonable Tribunal, properly directing itself to the law and the evidence, would have reached? In the view of the majority of this Tribunal Firsteel has not demonstrated that this decision was perverse.

The important points made by Miss Slade on behalf of Firsteel can be summarised as follows -

A. The "haste point".

At paragraphs 21 (iii) and (iv) of its Decision, the Tribunal found that Firsteel had acted unreasonably in two related respects: first, in acting too quickly "to effect dismissals", and, secondly, in particular, in dismissing the Applicants before their appeals were heard, thereby diminishing the prospects of any appeal being successful. This part of the decision is attacked on three grounds:

(1) The natural justice ground Miss Slade argued that the Industrial Tribunal acted unfairly and in breach of the rules of natural justice in relying on these matters. The Respondents had not complained of these particular matters in their notices of application or at the hearing or in the skeleton argument submitted by the Applicants' counsel to the Industrial Tribunal. The notes of evidence do not indicate that the point was ever put to Firsteel's witnesses. It was unfair of the Tribunal and contrary to natural justice to make a decision on these two grounds, because a party should not have a case decided against him on a ground on which he has not had an opportunity to be heard (Murphy v. Epsom College [1983] ICR 715 at 723E). A Tribunal should also give the party, against whom it raises a point, the opportunity to deal with it, if the point has not been mentioned by one of the parties or is a point to which a party has attached little or no weight (Neale v. Hereford and Worcester County Council [1986] ICR 471 at 486 E-F).

(2) No evidence ground The conclusions stated by the Tribunal in these two paragraphs were also criticised as being unsupported by any findings or evidence. Miss Slade developed this argument by detailed reference to a 130 page bundle of documents and to the 60 or so pages of Chairman's Notes.

(3) Lack of explanation ground It is argued that the Industrial Tribunal failed to explain why these two criticisms of haste made the dismissals unfair. The criticisms are not self-evident points. No reasons are given for them. In particular, it was pointed out that, in the usual course of events, appeals are heard after dismissals occur.

B. The non-disclosure point

The Industrial Tribunal concluded at paragraphs 21 (i) and (ii) that Firsteel had acted unreasonably in failing to disclose the assessment form instruction sheet to the Applicants' Union officials before the assessments were carried out and, in consequence, failing to consult further on or after 15th March with the Union on two particular criteria, "points for practice of basic skill" (Category 1) and "points for rate of production and degree of supervision required".

These conclusions are criticised on two grounds -

(1) Circumstances ground Miss Slade argued that these conclusions were reached by the Tribunal without it having fully considered all the circumstances of the case, especially the findings in the previous paragraph 20, all favourable to Firsteel. The Tribunal failed to weigh the points of criticism against the findings that Firsteel had acted reasonably in the respects set out in paragraph 20. In that paragraph the Tribunal had found that Firsteel had acted reasonably on the relevant substantive matters. The matters of criticism in paragraph 21 were procedural. The Tribunal was not bound to hold that a dismissal was rendered unfair by reason of a procedural failure of the employer. Such a failure is one of the factors to be weighed by the Tribunal in considering whether or not a dismissal was unfair within the meaning of S.57(3) of the 1978 Act. The weight to be attached to a procedural failure depends on the circumstances known to the employer at the time of the dismissal (Polkey v. A E Dayton Services Ltd [1988] ICR 142 at 156C).

(2) Perversity ground It was argued that no reasonable tribunal would have regarded these criticisms as sufficiently serious, even when taken together with the criticisms in paragraph 21 (iii) and (iv), to render the dismissals unfair. In paragraph 20 the Tribunal had found that Firsteel had acted reasonably in the method of assessment and the choice of categories and in the application in the method of assessment to all the individual applicants. There were nine consultation meetings with the Union. A copy of the assessment form (though not the instruction sheet) was sent to the Union representative. A consultation aide memoir was also disclosed. The Union's position was that selection should be by LIFO. The criticisms at paragraph 21(ii) related to matters which accounted only for a score of 16 points out of a total of 100.

Miss Slade argued that if this ground succeeded the Tribunal should proceed to substitute a finding that the Applicants were not unfairly dismissed.

As regards the other grounds, Miss Slade argued that the Industrial Tribunal had relied on an "overall" view of Firsteel's shortcomings. It followed that an error in relation to any one of the findings rendered the decision erroneous and the matter would have to be remitted to the Industrial Tribunal.

The Applicants' submissions

On behalf of the Applicants Mr Millar argued that there was no error of law on the part of the Tribunal and that the findings in paragraph 21, against which Firsteel appeal, were unappealable findings of fact or conclusions of fact and degree. As to the grounds of appeal the submissions were as follows -

(1) There was no breach of the rules of natural justice or unfairness in the conduct of the hearing. There is no rule of law which precludes an Industrial Tribunal from particularising its decision under S.57(3) in a way not expressly put in terms to the losing party. The issue before the Industrial Tribunal was whether the selection for redundancy was fair or unfair within the meaning of S.57(3). Firsteel was heard at length on that issue. The point about the haste with which the dismissals were effected was sufficiently put in issue at the hearing and the point in paragraph 21 (iv) that the appeals were heard after dismissal was simply an example of Firsteel's haste effecting the dismissals.

(2) The Tribunal's findings were supported by evidence. It was important to bear in mind that the attack on paragraph 21 (iii) and (iv) was not an attack on findings of fact. The decision on haste was a matter of judgment reached by applying the law to the facts found.There was ample material to support the Tribunal's judgment that the dismissals were effected too quickly with the result that, among other things, that the dismissals took place before the appeals were heard. That made it less likely that Firsteel would reconsider its selection for redundancy in the light of the result of the appeals. Mr Millar made detailed reference to the consultation process which led up to the dismissals. He concentrated on the six days immediately before the dismissals. He reminded this Tribunal that, at the consultation meeting on 15th March, the criteria for selection for dismissal were arrived at by Firsteel. The criticism of the Industrial Tribunal was directed at the speed with which those criteria were applied through the use of a points system over the next six days. The initial selection process was carried out over the weekend of 16th and 17th March, mainly on the Saturday. A provisional redundancy list was produced on Monday 18th March. It was considered by the Managing Director, Mr Vurlan. Individual consultations were held on Tuesday 19th March. On Wednesday 20th March the selection was changed because of the Union's point concerning those with less than two years' service and because of other "anomalies which the assessment had thrown up". There was the case of the selection of Mr Mills, who was not in the provisional redundancy list. It was observed that Firsteel were not appealing against the Industrial Tribunal's decision in his favour.

Firsteel decided on 20th March (before lunch) to ask those selected whether they would accept lower paid jobs. This was contained in a letter of request which had to be returned by 4.30 on the same day. On Thursday 21st March the dismissals took place. In effecting the dismissals the instruction sheet was never disclosed by Firsteel. It should have been disclosed to everyone. If it had been disclosed, the Union might have objected to it. The result of it not being disclosed was that points weightings were not discussed with the Union.

In all these circumstances the Tribunal was entitled to come to the conclusion that Firsteel acted too hastily.

(3) When paragraphs 20, 21 and 22 of the Decision are read together it is clear that the Industrial Tribunal did address itself to all the circumstances of the case, including those points favourable to Firsteel, before reaching its conclusion of unfair dismissal.

(4) The Industrial Tribunal's reasoning was clear. It did not contain any misdirection of law and was based on material on which a reasonable Tribunal could conclude that the dismissals were unfair. It was not necessary for the Tribunal to explain in more detail than it did why it considered that these matters rendered the decision unfair. The essence of the Tribunal's decision was that the Union officials representing the Applicants were blind-folded as to the points system used. The officials were not given the instructions sheet, even though they had asked for it. They wanted to see how the points had been broken down, but never had the chance to do so. It was unfair not to allow the Union an opportunity to put across its views on this aspect. Failure to disclose the instructions sheet was unreasonable. Towards the end of the consultation process there was haste, particularly in effecting dismissals only one day after problems had been thrown up in the assessment process. The fact that re-engagements might be necessary, if the redundancy list was varied, militated against the upholding of any of the Applicants' appeals.

For all these reasons the appeal ought to be dismissed.

Conclusions

The majority agree that this appeal should be dismissed. The main obstacle in the way of allowing it is difficulty in identifying any error of law in the Tribunal's decision. It cannot be emphasised too strongly or too often that an appeal to this Tribunal lies only "on a question of law arising from any decision of, or arising in any proceedings before, an Industrial Tribunal": S.136(1) of the 1978 Act. It is for the Industrial Tribunal to hear the complaint, to find the facts and to apply the law to the facts so found. There is no appeal from such a decision on a question of fact.

In general, the distinction between questions of law and questions of fact does not present any practical difficulty. On the one hand, a decision on the interpretation of a statute, the construction of a document and the proper application of the law to the facts can give rise to a point of law capable of resolution on an appeal by legal argument involving reference to legislative instruments, precedents, principles, logic and reason. On the other hand, questions of fact are matters proved by, or properly inferred from oral, documentary and real evidence in the course of an inquiry into what happened, who did what, when, where and to whom. In this area of law, the facts found by the Tribunal also include what is currently regarded by the Industrial Tribunal as fair industrial practice on relevant matters. There is, however, a grey area of demarcation between fact and law which sometimes gives rise to problems on appeal to this Tribunal. Some appeals are doomed to fail because it is impossible to detect any question of law in the grounds of appeal or in the arguments advanced in support of them at the hearing. In such cases the losing litigant is asking for a rehearing of the merits of his case by the Appeal Tribunal in the hope that he will win on appeal a case which he has lost on the facts at first instance. Complaints of this kind rarely raise questions of law, even where the Appeal Tribunal forms the view that, on the evidential material before the Industrial Tribunal, it would have reached a different conclusion.

There are some cases in which it is difficult to decide whether the appeal is on a question of law or a question of fact. Factual conclusions of the Industrial Tribunal must be based on evidence, just as the legal conclusions must be the result of a proper direction of law, in formulation and application. It is regarded as a question of law whether there was any evidence to support the conclusion of fact, or whether the conclusion of fact was contrary to undisputed or agreed facts or whether inferences made from findings of primary facts are possible inferences. These questions can be part of an overall submission by the appellant that the conclusion of the Industrial Tribunal on any particular point or on the overall result was one which no reasonable tribunal, acting judicially and with a proper appreciation of the facts and the law, would have reached, ie a perverse decision.

It is unnecessary to refer in detail to the judgments in a long line of well-known cases which describe in different language the circumstances in which this Tribunal will categorise such a matter as raising a question of law. We were referred to the following cases: Dobie v.Burns International Security Services (UK) Ltd [1984] ICR 812; Neale v. Hereford and Worcester County Council [1986] ICR 471 at 483; Piggott Bros & Co Ltd v. Jackson [1989] ICR 85; Williams v. Compare Maxim Ltd [1982] ICR 156 at 160; and, most recently, East Yorkshire Health Authority v. Matadeen [1992] IRLR 336 at 341 and 342. We were also referred to Meek v. City of Birmingham DC [1987] IRLR 250 at 251. It is possible to state the essential effect of those decisions quite briefly.

(1) It will be "rare" or "exceptional" for an appeal to succeed on the grounds of perversity. It is a heavy burden to discharge. Nearly all tribunals act as one would expect reasonable tribunals would act, ie on a proper appreciation of the evidence, as well as the law.

(2) Whenever an appeal is based, as this one is, on the perversity ground, the Employment Appeal Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on the ground that the EAT disagrees with the Industrial Tribunal as to the justice of the result or the merits of the case or the interpretation of the facts.

(3) This Tribunal should only interfere with the Industrial Tribunal's decision on this ground where the conclusion of the Tribunal, on the evidence before it, is "irrational", "offends reason", "is certainly wrong", "is very clearly wrong" or "must be wrong", or is "plainly wrong", or is "perverse", or is "not a permissible option", or is "fundamentally wrong", or is "outrageous", or "makes absolutely no sense", or "flies in the face of properly informed logic".

Some practitioners and commentators find it confusing that there are so many different ways of describing the circumstances in which this Tribunal may interfere on the perversity ground. In our view, it is in fact useful for an Appeal Tribunal to have this variety of phraseology in mind when viewing the decision of the Industrial Tribunal both in detail and in the round. There is no virtue in adopting verbal precision and uniformity of language in these matters provided the idea to which this language gives expression is reasonably clear, and what is clear to people of wide experience and practical wisdom is that there are many factual situations arising in the field of industrial relations in which different conclusions may be reached, all within the realm of reasonableness. Thee may be no one right answer. The consequence is that it is impossible, even undesirable, to aim for uniformity.

(4) This Tribunal is reminded by those authorities that is it not an appropriate or fruitful exercise to subject the language of the decisions of Industrial Tribunals to "meticulous criticism" or "detailed analysis" or to trawl through them with a "fine tooth comb" "as if they were a statute or a deed". What matters is the substance of the Industrial Tribunal's decision, looked at "broadly and fairly" to see if reasons are sufficiently expressed to inform the parties as to why they have won or lost a case and to enable their advisers to identify any error of law that may have occurred in reaching the conclusion. The decisions of Industrial Tribunals do not have to be comprehensive or detailed; all that is required is that they should be clear as to the facts found, the law applied and the conclusion reached.

There is nothing new in these four points. They re-state in a summary form what has been said many times by the House of Lords, the Court of Appeal or this Tribunal. We think it useful to remind parties and their advisers of this position, particularly as this case is a paradigm of a skilful attempt to characterise as a question of law what is essentially a dissatisfaction with factual conclusions and judgments.

Applying the law stated above, the majority of this Tribunal accepts the submissions of the Applicants. We emphasise that this does not necessarily mean that the majority of the Tribunal would have reached the same decision as the Industrial Tribunal. It means that the conclusions reached by the Industrial Tribunal were arrived at without any error of law on its part. It was a decision which a reasonable Tribunal could have arrived at on the material before it. A reasonable Tribunal could have taken the view that there was unfairness on Firsteel's part in effecting the dismissals too quickly after the process of points assessment had begun, without there having been prior disclosure to the Union of the instruction sheet. There is really no more to be said than that.

There is, however, a minority view that no reasonable Tribunal would have reached the conclusion of unfair dismissal. In the view of the minority the matters disclosed to the Union representative were sufficient. A reasonable employer would have concluded that there was nothing to be gained in spending further time on consultation. There was no undue haste in effecting the dismissals after the system of assessment of points had begun and there was nothing unusual or unfair in dismissing the individuals before their appeals were heard.

In the view of the majority, however, this appeal should be dismissed.