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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lombard North Central Plc v Leach & Anor [1994] UKEAT 534_92_2607 (26 July 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/534_92_2607.html
Cite as: [1994] UKEAT 534_92_2607
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At the Tribunal
Judgment delivered on 7 October 1994
Before
HIS HONOUR JUDGE J HULL QC
MR A C BLYGHTON
MR J A SCOULLER
(2) MR M RANDERSON
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR PETER WALLINGTON
(OF COUNSEL)
Messrs Wilde Sapte
Queensbridge House
60 Upper Thames Street
London EC4V 3BD
For the Respondents MR ANDREW HOGARTH
(OF COUNSEL)
Messrs Irwin Mitchell
St Peters House
Hartshead
Sheffield
S1 2EL
JUDGE HULL QC: The applicants were "new business representatives" employed by the Appellants, Lombard North Central Plc ("Lombard"), in Yorkshire. Mr Leach, now aged 38, began work in 1980; Mr Randerson, now aged 34, began in 1985. Their employment ended on 2 July 1991. They complained that they had been unfairly dismissed. By a decision dated 8 June 1992 the Industrial Tribunal (Mr Myers and two Industrial Members, sitting at Hull) upheld their complaint. Lombard now appeal to us.
Mr Wallington, who appeared before the Industrial Tribunal and before us, settled a notice of appeal in which the grounds of appeal extended over six pages, and he expanded most of these in a Skeleton Argument of twenty-two pages. In addition we were referred to his written submissions to the Industrial Tribunal (p.80 onwards in the EAT bundle) containing thirty-seven pages of exposition and argument, and the written submissions of Mr Hogarth, who appeared for the Applicants before the Industrial Tribunal and before us (p.12 onwards in the EAT bundle), which extended to eighteen pages. Not all the submissions contained in these documents were pursued before us.
The Industrial Tribunal heard evidence for two days; the Chairman's notes are at pages 62-78 of the bundle. They found that each of the Applicants had throughout his employment worked on various aspects of selling finance out of Lombard's Scarborough office (p.31, paragraph 5). At paragraph 8 of their decision the Industrial Tribunal said:
"The plain finding that we must make from the very start and we think it is a finding that is overwhelmingly supported by evidence, is that Mr Leach and Mr Randerson worked from the Scarborough office which was their base. That office was where they went to most if not every morning of the week; where they worked at their papers: attended to their calculations of finance rates and the like: where they used the telephones to customers: where they prepared the financial packages for approval by their superiors. We are quite satisfied, and have no doubt in our minds, that both men were based, operated from, and were located, in common sense as well as law, at the Scarborough office of the respondents. At all material times Gerald Smith was the branch manager at Scarborough office.
There were three sales representatives working in the Scarborough office, Mr Leach, Mr Randerson and Mr Simms. There was a back up administrative staff of the order of 5 female employees and an administration manager. Although each applicant had his own particular areas to worry about and to service, the daily visit to the office to do work, do administration, to liaise with senior managers and the like, was an established pattern of work. Both applicants would visit clients premises and would return to the office at the end of the day to finalise their mail; see that it was available for posting or for individual and personal delivery by them to the client, and so, at the end of the day, they were back in the Scarborough office, still working from it, using its services, still having access to all the accounts and all the necessary records that were based in the Scarborough office and to which they needed frequent and ready access to do their work. The applicants, we find, were not provided with anything remotely like modern technology, in the sense that they had no private and personal computer available to them, there was no portable telephone provided so that they could be in constant touch if they were out on the road seeing clients. The applicants both had a direct, daily and fundamental need to go to the office, to use all its services, and this they did in the pattern above described. We have no doubt that these two applicants worked "in this place", the Scarborough office..."
With regard to Mr Leach, the Industrial Tribunal said at paragraph 6:
"Mr Leach's contract of employment is Document A109, [p.121 of the EAT bundle] and it is right (and not disputed) that it is not said at any stage in that document that the applicant would work other than from Scarborough. Nor was it ever suggested that the respondents had the right to move him to work elsewhere other than with his full and complete consent."
At paragraph 14 of their decision they said:
"As we have indicated above the applicant Mr Leach is a Scarborough man, with a wife teaching in Scarborough and children at Scarborough schools, who went into the Scarborough office every day for at least half of each working day."
With regard to Mr Randerson, the Industrial Tribunal said at paragraph 7:
"Mr Randerson was born and bred just outside Scarborough, at a place called Hunmanby and he remains in that area. He cares for his parents who are both in poor health and in need of much support. Mr Randerson joined the respondent's employ after having answered a job advertisement in 1985. The main terms and conditions of employment are as set out in Document A 140 [p.128 onwards of EAT bundle]. It has been his position from the very start, clearly stated and never questioned, that he was not mobile; he was not willing to work other than at Scarborough office."
Lombard devised an important plan for re-organising their business throughout Britain; this was publicised in a document "The New National Centre Network" dated January 1991 (pages 146 onwards of EAT bundle). The plan included the closing of the Scarborough office and the transfer of the business done there to a "centre" at Hessle, near Hull, about 45 miles from Scarborough.
The Industrial Tribunal made the following findings about the way in which the proposed changes were handled:
"9. There came a stage in late 1990, certainly by no later than the earlier part of 1991, when it is plain that the respondents determined that their branch network needed to be updated or changed to meet what they saw as the needs of the future, and so it was under the codename Operation Paris, major changes in the structure of the respondents business came about. Whatever the rumours may have been about changes by about 11 January 1991 details of the new branch network became available, or leaked out and one of the casualties, if that is the proper word for it, of the new strategy was the closure of the Scarborough office...
10. The respondents decided to re-structure in the sense that there were to be "business centres" and the nearest one to Scarborough was to be Hull. Hull is of the order of 45 miles from Scarborough and this was to be the new office or "business centre" from which, it was foreshadowed, Mr Leach would work. As far as Mr Randerson is concerned, because of his more close association with motor trade and caravan sales, he was to be associated with a "Motor business centre" which was to be sited in a suburb of Hull called Hessle. Hessle is of similar distance from Scarborough.
11. The administrative staff at Scarborough, including the managing of the Scarborough office, were all treated as being redundant in due course of time when the office in Scarborough closed. There is no doubt that they were all counselled and possible other employment spoken about, but it is not disputed nor indeed can it be, that the manager at Scarborough was made redundant and paid the appropriate package and that all other staff, apart from the sales staff, were similarly treated to financial packages. The applicants and Mr Simms were not so treated because the edict from on high, at Managing Director or Chief Executive level, was that no member of the sales business representative staff was to be declared redundant.
12. There was much uncertainty, we find, in the immediate weeks after Operation Paris was confirmed as featuring the closure of the Scarborough office. It may well be that Mr Smith, the local manager at Scarborough, did speak to Mr Leach about Document A30 and particularly Paragraph 4 thereof, but it was plain that Mr Smith was not able to give Mr Leach a clear, or any explanation, of what that document and that particular paragraph meant in practice. Nor indeed did the respondents supply to either applicant details of what was to happen to them in the sense of practical everyday details to do with the change from Scarborough to Hull or the Hessle centre. This lack of detail was affecting the two applicants. The respondents throughout have either kept their detailed decisions to themselves, or did not know or had not worked out in any sufficient manner the practical ramifications of the changes consequent upon the Scarborough office closing. The lack of clear thinking and open communication is exhibited clearly by a meeting in Hull on 4 March 1991 which Mr Leach had with Mr Rufford, the Hull business centre manager designate. Any facts revealed, were unclear and unsatisfactory. Mr Rufford had no clear and certain plans as to what the future would bring by way of revealing operating details, save and accept that Mr Leach would certainly be required to be in Hull two or three times of the week. As to how the round trip of 90 miles from Scarborough to Hull to Scarborough was to be fitted in to the work pattern was never fully explored nor explained to the applicants. Provision of modern technology was certainly not a commitment, nor even foreshadowed by the respondents. Whether they knew about mobile telephones, lap top computers, and the like, we are still uncertain. We presume they do but they communicated nothing of it to the applicants.
13. Mr Leach, in particular, certainly made his concerns known to Mr Rufford and he aired in detail with Mr Smith, his immediate superior at Scarborough, the concerns he had for the future and as to how the job was going to work out in practice. No letters of clear intent for future operations were ever provided or circulated, and we are quite certain in our minds that the respondents were really hoping that the applicants would simply acquiesce with their proposals, and would, as it were "go quietly" into the new regime."
We have already read paragraph 14 concerning Mr Leach. Regarding Mr Randerson the Industrial Tribunal said:
"15. Mr Randerson's position has always been plain to the respondents. He has never at any stage indicated an ability to be mobile, in the sense of moving his home elsewhere. His work in Scarborough was both to do with motor vehicle finance and caravan finance, and he did industrial and personal finance to a minor degree. But when he joined he did so only to work in Scarborough and nowhere else, and he never, at any stage, ever indicated a willingness or an ability to be based otherwise. Mr Randerson, we find, from the very start showed to Mr Smith his manager that he was unhappy about the proposed move to the motor centre at Hessle near Hull, and, the proposal of the respondents that his business be more focused towards the motor trade was one that also concerned him. Travel to Hull would certainly be once or twice a week at the very least, he never had an ability, let alone any desire, to provide in his own home office space for the respondents whilst he was not attending the business motor centre at Hessle."
In paragraph 16 of their decision the Industrial Tribunal said:
"...Mr Harvey, the area director, came over to see Mr Randerson on 19 April to talk about the situation. No progress was made: nothing was answered: no sufficient resolution of the problem ever came about and, thereafter, we find Mr Randerson is right when he says that although he had visited the Hessle motor centre, he was "frozen out", in the sense that he was not called to meetings held there because they (be it Mr Hargreaves or others) realised that he would not, willingly, fit in or attend..."
In paragraph 17 of their decision the Industrial Tribunal say of the Applicants:
"They were both treated to a lack of candour by the respondents and we think this was because the respondents had not thought this whole matter through."
In paragraph 18 the Industrial Tribunal record that Mr Smith (the manager) and the Applicants agreed to accept job offers from the Scarborough Building Society; this was in June 1991. Then they referred to the evidence of Mr Sharples, a representative of the Applicants' Staff Association:
"We accept as true the evidence of Mr Sharples, who was an impressive witness, that the stance of the respondents in relation to the move from Scarborough to Hull or to Hessle was to "wait and see and let it evolve". We find as a fact that that is what the respondents were doing and in these circumstances, it seems to us, that it was a wholly inappropriate response from a supposedly reasonable employer..."
Then the Industrial Tribunal made findings as follows:
"8. ...We have no doubt that these two applicants worked "in this place", the Scarborough office, and that the respondents did cease, or intended to cease, to carry out business in that place where these two applicants were employed. We are satisfied that Section 81(2)(a) of the Employment Protection (Consolidation) Act 1978 does apply. We have no doubt that it is right to say that the place where they worked was the Scarborough office. In due course of time that office was closed because the respondents determined to cease using it or indicated an intention to cease to carry on business at the very place where these applicants were employed."
At the end of paragraph 22 they say:
"...We have no doubt that faced with these significant changes and overlaid with this very considerable area of imprecision and cloud, that the applicants were wholly justified and not being unreasonable when they refused employment based in Hull or Hessle. We take the view that on the whole of the facts and we do so unanimously, that these applicants were not unreasonable in what they did."
At paragraph 23 they say:
"Certainly, we find, there were going to be significant changes but the practical application of those changes in the day to day operation of "the job" was never fully and finally settled. The applicants, we are satisfied, were entitled to wait as long as possible before they acted and to use the complaints machinery and the staff association to protest and keep protesting that they simply did not know and could not know what it was that was being offered to them. There was going to be change and until they knew what the changes were they were entitled, we find, to remain in work and continue doing their work until such time as they could patently wait no longer. We make no criticism against the applicants for waiting and protesting for the details, which in fact never came their way; until sufficient detail of change was produced it would not be right to say, that the applicants can be criticised for wanting to find out the final details so that they could consider them, evaluate them, and then act. We are satisfied that the respondents did in fact cease to require these two employees to work at the place where they were carrying on business in Scarborough and at which the two applicants were so employed. The respondents by their imprecisions in our judgement, did justify the applicants in delaying as long as possible before acting and then, when they realised that they were getting nowhere, and could get nowhere, they terminated their employment because they were entitled to terminate it because of the respondents' conduct. No reasonable employer when acting reasonably acts as this employer did. We have no doubts in our minds that they were properly justified in so acting and like Mr Hogg in the Dover College case, the contracts under which they were employed were plainly going to be terminated and were terminated. The fundamental changes were foreshadowed (as best as could be known) with this lack of precision involved in this case; we wholly support the submissions of Mr Hogarth, that these applicants have shown that they were dismissed, and were unfairly dismissed."
These were emphatic findings of fact, reached after what appears to have been a most patient and careful enquiry, and with the assistance of experienced Counsel for each of the parties for which the Industrial Tribunal themselves express their gratitude. Nonetheless Mr Wallington has submitted that the decision was fatally flawed in various respects. He made the following submissions.
First, Mr Wallington said that the Tribunal had never addressed their minds properly to the question whether the Applicants were dismissed at all.
On the basis of a constructive dismissal, that would involve the Tribunal in finding what term of the contract of employment was broken; that it was a breach of a repudiatory character; that the Applicants had resigned because of those breaches; and that they had not affirmed their contracts after the breaches.
Mr Wallington said that these and other questions were simply not addressed by the Industrial Tribunal at all. If it were alleged that Lombard were guilty of a repudiatory breach of contract with regard to the Applicants' place of employment, then it had to be shown what that term was. Since the contracts were silent on the place of employment, it would be necessary to find out what term was to be implied; for some implication had to be made. He referred us to Courtaulds Northern Spinning Ltd v Sibson [1988] ICR 451, in the Court of Appeal. Slade LJ, with whom Glidewell and Russell L.JJ agreed, said at page 459B:
"In my judgment, the crucial point which falls to be determined on this appeal is whether the industrial tribunal correctly directed themselves in law in stating what they regarded as the implied terms of the employee's contract of employment. There is, I think, no doubt that this question of implied terms was one of law. As Lord Denning M.R. put it in O'Brien v Associated Fire Alarms Ltd [1968] 1 W.L.R. 1916, 1923:
"I have always understood that the question whether a term is to be implied in a contract is a question of law for the court and not a question of fact. The primary facts, of course, and the surrounding circumstances have to be found by the tribunal of fact. But, that having done, the implication of a term is an implication of law..."
In Jones v Associated Tunnelling Co. Ltd. [1981] IRLR 477, the appeal tribunal. in a judgment delivered by Browne-Wilkinson J., gave what I respectfully regard as valuable guidance on the question of implying "mobility" terms in contracts of employment. He said, at p.480:
"The starting point must be that a contract of employment cannot simply be silent on the place of work: if there is no express term, there must be either some rule of law that in all contracts of employment the employer is (or alternatively is not) entitled to transfer the employee from his original place of work or some term regulating the matter must be implied into each contract. We know of no rule of law laying down the position in relation to all contracts of employment, nor do we think it either desirable or possible to lay down a single rule. It is impossible to conceive of any fixed rule which will be equally appropriate to the case of, say, an employee of a touring repertory theatre and the librarian of the British Museum. Therefore, the position must be regulated by the express or implied agreement of the parties in each case. In order to give the contract business efficacy, it is necessary to imply some term into each contract of employment.
"The term to be implied must depend on the circumstances of each case. The authorities show that it may be relevant to consider the nature of the employer's business, whether or not the employee has in fact been moved during the employment, what the employee was told when he was employed, and whether there is any provision made to cover the employee's expenses when working away from daily reach of his home. These are only examples; all the circumstances of each case have to be considered..."
The Court of Appeal continued at page 460C-D to cite from the judgment of Browne-Wilkinson J.:
"In the case of contracts of employment containing no mobility clause, the position is quite different. As we have sought to show, it is essential to imply some term into the contract in order to give the contract business efficacy: there must be some term laying down the place of work. In such a case, it seems to us that there is no alternative but for the tribunal or court to imply a term which the parties, if reasonable, would probably have agreed if they had directed their minds to the problem...."
At page 461D-E the Court of Appeal cited with approval an observation by Stephenson L.J. in Mears v Safecar Security Ltd [1982] I.C.R. 626, 648 that the court:
"can and should consider all the facts and circumstances of the relationship between the employer and the employee concerned, including the way in which they had worked the particular contract of employment since it was made, in order to imply and determine the missing term which ought to have been particularised by the employer and so to complete the contract."
At page 462C Slade LJ continued:
"If reasonable, the parties would, in my judgment, have been likely to agree the term which Browne-Wilkinson J. in the Jones case [1981] IRLR 477, 480, described as the "lowest common denominator," namely a power in the employer to direct the employee to work at any place within reasonable daily reach of Mr Jones's home - and I would add for any reason. I cannot see how the employee could reasonably have objected to a term giving the contract this limited degree of flexibility when he entered the employment...
In my judgment there was no need or justification for the industrial tribunal to import into the implied term a requirement that the employer's request to the employee to work at another place must itself be "reasonable" - still less that a request could only be reasonable if made "for genuine operational reasons"."
Mr Wallington submitted that the necessary implied term must be determined by looking at the circumstances at the time of the making of the contract. He was, however, constrained to admit that circumstances arising during the contract, and the way in which the contract was operated, could be looked at in accordance with the dicta which we have cited.
We have come to the conclusion that Mr Wallington's submissions, although impeccable as a matter of law, do not show that the Industrial Tribunal were guilty of any error whatever in their approach to the case. It is manifestly clear that the Tribunal held that the Applicant's place of work was Scarborough and that Lombard's proposal was that they should transfer to another place of work in Hull, 45 miles away. It is also clear that the Tribunal found that this demand by Lombard was an anticipatory breach which was aggravated by a lack of candour on the part of Lombard and a refusal to spell out what was meant by the move. These appear to us to be findings of fact and law which are unassailable. It might well be otherwise if Lombard had proposed, for example, to move their office two miles to the other side of Scarborough; the Industrial Tribunal would then undoubtedly have had to consider whether the implied term regarding place of work entitled Lombard to make such a move and, on the facts of the present case, would almost certainly have answered that question in the affirmative. Such a hypothetical case does not in our view advance the argument in the present case in any way.
Mr Wallington also referred to the case of R H McCulloch Ltd v Moore [1968] 1QB 360, DC. In that case the employee was a semi-skilled worker employed by a firm of civil engineers on contract work for the South Eastern Gas Board. Work in Sussex terminated; the employee was offered work elsewhere. The divisional court held that the place where the employee was employed for the purposes of section 1(2)(a) of the Redundancy Payments Act 1965 was Sussex. Of course the facts of that case were very different and there appears to have been no evidence whatever that the employee had any fixed base or office to go to; he was simply involved in various projects of pipe laying and so on. Lord Parker, CJ, with whom Lord Justice Diplock and Mr Justice Ashworth agreed, said:
"It seems to me "in the place where the employee is employed" is condescending to the particular, not necessarily one building rather than another but to a defined area".
Accordingly, section 1 of the Act of 1965 (now section 81(2)(a) of the Employment Protection (Consolidation) Act 1978) may refer to a particular building or to a limited area or to a large area; it is entirely a question of fact for the Industrial Tribunal.
This Industrial Tribunal did in our view find that the Applicant's place of work was the Scarborough office. Mr Wallington complains that they treated that matter as one of concession, whereas he had in fact argued the contrary, as he did before us; but in truth it is perfectly obvious that there was no effective dispute. Mr Harvey, the Regional Director of Lombard for the North of England and Scotland gave evidence (page 74):
"As for transfer of employees, employees did change branches with and by consent. The respondents did not have or believe that they had the right to move employees from branch to branch without consent."
Mr Roberts, the Northern Personnel Manager, said at page 75:
"Normal requirement is to "live on the patch". Managers will generally live within 15 miles of the office."
Mr Wallington further submitted that the Industrial Tribunal should have found that each of the Applicants had affirmed his contract of employment, with knowledge of the anticipatory breach, and so could no longer rely upon it. It appears to us, however, that this submission is conclusively met by the Tribunal's finding of fact that the Applicants were being treated with lack of candour, that the practical application of the proposed changes was never fully and finally settled; that the Applicants were entitled to wait as long as possible before they acted and to use the complaints machinery and the staff association to protest and keep protesting though they simply did not know and could not know what it was that was being offered to them. The Industrial Tribunal further found that until they knew what the changes were going to be they were entitled to remain in work and continue doing their work until such time as they could patently wait no longer. There was no criticism to be made against them for waiting and protesting for the details, which in fact never came their way; until sufficient detail of change was produced it would not be right to say that the Applicants could be criticised for wanting to find out the final details so that they could consider them, evaluate them, and then act.
In our view these findings of fact are conclusive. The Applicants could not, by continuing in employment, be taken to affirm their contracts notwithstanding an anticipatory breach when they did not know the full details and extent of that breach.
Mr Wallington made a further point when he said that they must have been taken to have affirmed their contracts by continuing to work for two or three weeks after accepting (albeit on conditional terms) job offers from the Scarborough Building Society; but it seems to us that that is a complete non sequitur. So far from demonstrating an affirmation of the contract of employment, the acceptance of jobs beginning in July demonstrated an intention by the Applicants to accept Lombard's breaches as terminating the contracts. It may well be that perfect frankness would have dictated that they should immediately inform Lombard that they were proposing to accept other employment; but that is not the point, and any possible reflection on the Applicants' integrity is met by the fact that they themselves were being treated not only unreasonably but with a lack of candour by Lombard.
Mr Wallington submitted that it was necessary for the Applicants to show that they resigned because of the anticipatory breaches of contract. This appears to us to be a point of no merit whatever, and indeed Mr Wallington did not persist with it. If there is an available breach of contract, then the wronged party is entitled to rely on it and his motives in doing so are immaterial. In addition, the only possible reason for the Applicants to resign and seek different employment, so far as the evidence went, was the breach of contract by Lombard.
Mr Wallington also submitted that there was confusion of thought, particularly in paragraph 23 of the decision, with regard to the question whether this was indeed a constructive dismissal or a straightforward dismissal, ie a termination by Lombard under section 55(2)(a) of the Employment Protection (Consolidation) Act 1978. The Tribunal referred in paragraph 23 to Hogg v Dover College [1990] ICR 39 and Mr Wallington referred us to that decision. As we said, however, in the course of argument, it appeared to us that the decision of the Employment Appeal Tribunal in that case, presided over by Mr Justice Garland, was no more than a decision that on the natural reading of the letter written to the employee the employers were terminating his contract. The employers put forward the alternative submission that they were doing no more than proposing or insisting on a variation. On that basis, Mr Wallington did not wish to proceed further with his submission about the correctness of the decision, and we think that the true view is that the Industrial Tribunal in the present case well understood that they were dealing with a case of constructive dismissal and if they considered the question of a termination under section 55(2)(a) then that was only by way of alternative. They rehearsed at length the behaviour of Lombard which they held to be repudiatory, that is to say as constituting an anticipatory breach of contract, and they held expressly that the Applicants resigned (paragraph 20), that the Applicants were entitled to remain in work until the last moment and were justified in delaying as long as possible before acting, and that they terminated their employment because they were entitled to terminate it because of Lombard's conduct. All these findings are consistent only with a conclusion that the Applicants were constructively dismissed. It was unnecessary for them to refer to the case of Hogg v Dover College or to say "the contracts under which they were employed were plainly going to be terminated and were terminated". That may show a momentary confusion of thought, but on the other hand it may be that the Industrial Tribunal were merely adverting to the alternative basis of decision in the Hogg case, namely that there was a constructive dismissal there too. It appears to us that the natural reading of the phrase used by the Industrial Tribunal:
"The contracts under which they were employed were plainly going to be terminated and were terminated"
is, in the light of what had been said before, a reference to the forthcoming actual (as opposed to anticipatory) breach of contract and to the Applicants' conduct in resigning a few days before the closure of the Scarborough branch on 5 July 1991. Whatever the true construction of those phrases, and even if there was a moment of confusion in the minds of the Tribunal, we do not think it in any way invalidates their exceedingly clear and methodical approach to their task and the conclusions which they reached before.
Then Mr Wallington moved to his second main ground of appeal. Putting it shortly, this was that the Industrial Tribunal failed to give its reasons sufficiently. Mr Wallington cited Meek v City of Birmingham District Council [1987] IRLR 250, at page 251. That was a case in the Court of Appeal and Bingham LJ, with whom the Master of the Rolls and Ralph Gibson LJ agreed, cited from other authorities on what was required of a Tribunal when it gives its written reasons. In paragraph 8 he said:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises..."
The learned Judge proceeded to cite from other judgments which abundantly supported the proposition.
In our view, which we hope is supported by the lengthy passages which we have cited from the decision of this Industrial Tribunal, there was a full compliance with what was said by the Court of Appeal in Meek v City of Birmingham District Council and the authorities cited therein. We all asked ourselves the question whether, when we first read this decision to ourselves, it appeared to be perfectly plain, based on findings of fact and reasoning which we understood, and without any self-evident error of law. We answered this in the affirmative. We then asked ourselves the second question whether, after being addressed with great courtesy and persistence by Mr Wallington for about three hours, our initial opinion was in any way affected. The answer to that was in the negative. We think that many of the criticisms made by Mr Wallington were based on close analysis of particular sentences or phrases and subjected this decision to a scrutiny so critical that few if any decisions of an Industrial Tribunal would be likely to survive it; indeed some of the points taken seem to us to be positively inconsistent with a common sense approach to the decision. Thus (to take only one example) Mr Wallington suggested that the Tribunal might be saying that the conduct of Lombard in closing their Scarborough office, in seeking to persuade the Applicants to use their homes as offices, and in failing to provide up to date computer equipment, might well amount to repudiatory breaches. We do not think that these submissions can possibly be supported.
There is now no dispute that if, as the Industrial Tribunal found, the Applicants were dismissed, they were unfairly dismissed; accordingly the appeal must be dismissed.
We would all wish to express some disquiet about the weight of analysis and argument which the parties brought to bear on this relatively simple case. As we have observed above, there were nearly 80 pages of written submissions as Skeleton Arguments with our papers, intended to assist the Industrial Tribunal and ourselves. We think that the large number of points taken and the sheer length of the submissions may well be responsible for some of the infelicities in the written decision of the Tribunal itself. We note that in Duffy v Yeomans and Partners Ltd, a decision of the Court of Appeal reported in The Times on July 26, 1994, Lord Justice Balcombe observed there was a grave danger that the law of redundancy was becoming over-sophisticated, and that there was an attempt to lay down as rules of law matters which were no more than factors which an Industrial Tribunal should take into account in reaching its decision on whether the employer had acted reasonably in the circumstances of the particular case. Although the Court was there dealing with a quite different point on the law of redundancy, we respectfully agree with what was said by Lord Justice Balcombe and we deplore any tendency to apply formalistic tests to the decisions of Industrial Tribunals who are themselves endeavouring to apply the provisions of the Employment Protection (Consolidation) Act in a common-sense way to the events of every- day working life. The very numerous decisions of the Employment Appeal Tribunal (we understand that it was intended to cite more than 20 authorities to us in the present case) are for the most part intended to provide guidance to Industrial Tribunals in carrying out their task, not as laying down new and important principles of law. Such new and important principles are in general to be found in the statute and the decisions are usually summarised, perfectly adequately, in the text books. For our part, we should welcome rather less citation of authority and so, we think, would many Industrial Tribunals including the Industrial Tribunal in the present case.