United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 255_95_2105

Appeal No. EAT/255/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 May 1996

HIS HONOUR JUDGE K BASSINGTHWAIGHTE

MR K M HACK JP

MRS E HART

---

MR C W FORRESTER          APPELLANT

INCHCAPE TESTING SERVICES (UK) LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR H FORREST

(Representative)

For the Respondents MR J CAVANAGH

(Of Counsel)

Messrs Jeffrey Green Russell

Solicitors

Apollo House

56 New Bond Street

London W1Y OSX


 


JUDGE BASSINGTHWAIGHTE: This Appellant submitted an Originating Application on 18 July 1994 complaining of his dismissal by the Respondent company, alleging that it was whether direct or constructive, unfair. His complaint came before an Industrial Tribunal sitting in London (North) on 27 January 1995. The Industrial Tribunal's decision which expressed itself to be in extended form, was promulgated to the parties on 15 February 1995, and rejected the Appellant's complaint of unfair dismissal.

The Appellant filed a Notice of Appeal against that decision on 21 March 1995, specifying alleged errors of law by the Tribunal which, by a Notice filed on 6 November 1995 the Respondent company indicated an intention to resist. The Appellant's representative forwarded an amended Notice of Appeal to this Tribunal on 29 April 1996.

The list of exhibits before the Industrial Tribunal reveals that each party produced bundles of documents. The extent of them is not revealed but the agreed bundle of documents before us contains fifty-four separate documents. We were advised that all of those documents were contained in the bundles before the Industrial Tribunal. The Chairman's Notes of Evidence run to eleven pages but included therein is reference to a written statement of the Appellant which was read to the Tribunal and which was before us. It runs to sixteen closely typed pages.

We make mention of those issues because the Industrial Tribunal's decision, which expresses itself to be an extended decision, is contained in paragraphs 2 and 3 of that document; it imparts information in a total of twenty-nine lines of typescript.

Mr Forrest for the Appellant has quite properly drawn our attention to the decided case of Meek v City of Birmingham District Council [1987] IRLR 250. In that case Lord Justice Bingham reviewed cases which dealt with an Industrial Tribunal's duty in recording decisions and referred, among others, to the case of UCATT v Brain, to which Mr Cavanagh has directed our attention during his argument. In that case at paragraph 8 Bingham LJ 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 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; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

There is further helpful reference during his Lordship's resumé of relevant case law to the case of Martin v Glynwedd Distribution Ltd [1983] IRLR 198, when he quoted from the judgment of Lord Donaldson as follows:

"The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory. So far as the questions of law are concerned the reason should show expressly why by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did and the way in which it does so is entirely a matter for the industrial tribunal."

Those quotations do no more than crystallize for us the force of Mr Cavanagh's submissions to us today, helpfully located in one case. We make reference to them because we recognise that we must consider whether in this Industrial Tribunal's decision, there is sufficient detail to enable an appellate court to know the basis upon which the decision was reached, both factually and legally and thus to know whether a point of law arises.

The decision does not follow a frequent pattern of recording findings of fact, of recording law in accordance with which the Tribunal had directed itself, and of recording how by application of that law to proven facts, the Tribunal reached its decision. By any standard, this Industrial Tribunal's decision is compact and concise. We do not necessarily fault the decision purely on that account, because there may well be cases to which such a form of decision is appropriate. In particular in cases where there is no substantial factual dispute, the need for lengthy decisions is not obvious but, even in those cases, a tribunal should make clear upon what evidence it has relied since where evidence is agreed or not disputed not all of that evidence may be relevant to the issues before the tribunal.

The Appellant's claim was in respect of unfair dismissal, in particular alleging unfair redundancy on a procedural basis. In any such case the Industrial Tribunal's duty is firstly to consider whether the Respondent has proved the reason for the dismissal and secondly (if satisfied that that reason has been proved and could potentially justify dismissal) to consider whether the resultant dismissal was fair or unfair. Those are of course the issues from Section 57 of the Employment Protection (Consolidation) Act 1978.

By the time that this case reached the Industrial Tribunal, there was apparently little challenge to the Respondent's claim that commercial reasons caused them to take reorganisation decisions, which resulted in the Appellant's dismissal. So much is confirmed, if confirmation is needed, by reference to the Appellant's Notice of Appeal, which nowhere challenges that finding. In those circumstances we can understand why the Industrial Tribunal dealt so briefly with that part of its decision in paragraph 2.

It was clear however, both from the Originating Application and from the evidence to the Industrial Tribunal that there were substantial challenges to the procedural fairness of the dismissal. Indeed virtually the whole of the Appellant's written statement which was read to the Tribunal, dealt with those challenges; they are also repeated in the Notice of Appeal before us which complains that the Industrial Tribunal's findings, so far as - it is alleged - they can be ascertained, are perverse, and which complains of alleged failures to consider relevant issues which were clearly raised in the evidence.

We pause to comment before going further, that the presentation to the parties of an extended form decision as brief as this one, invites challenges and perhaps facilitates them. Industrial Tribunals are always encouraged to make decisions as concisely as the circumstances allow, but they should never lose sight of the fact that the parties by reason of their decision, should know exactly why it was that they won or lost.

The apparently undisputed evidence in this case indicates that the Respondent, a substantial public company, had a redundancy policy; that it notified the Appellant (an employee of seventeen years standing) of dismissal without application of that policy and without consultation with him, and that it unsuccessfully discussed alternative employment with the Appellant only after its decision had been communicated to him. The mere presence of these issues would require any Industrial Tribunal to make a number of factual findings.

The Industrial Tribunal firstly does not refer to or make findings of fact about the redundancy policy itself or the Respondent's consideration or rejection of it. Secondly, they do not make findings of fact about what happened at the meeting when the Appellant was advised of the Respondent company's decision; they also do not find what the consequence of that meeting was in law or what was the effective date of termination of the Appellant's contract of employment. Thirdly, they do not identify upon what factual basis they found "that the Respondent went fully into the question of attempting to find the Appellant alternative employment" and finally, they do not identify upon what factual basis they found "that the Appellant unreasonably refused to accept a job offered in Russia".

While we bear in mind and are grateful to Mr Cavanagh's appropriate reference to the principle, underlined in reported cases, that we should not earnestly seek to find fault with an Industrial Tribunal's decision, nor assume that because something is not mentioned, it was not considered by this experienced Tribunal, we find that the issues to which we have made reference are important omissions in the Industrial Tribunal's decision, although this was a case where substantial parts of the evidence were not disputed. Even in such cases, the Appellant and the Respondent must be able to appreciate the factual basis for and reasoning which leads to, particular conclusions of an Industrial Tribunal. That is not discernible from this decision and causes us particular difficulty, because there is a challenge in law, in the particular circumstances of this case, to the propriety of the Industrial Tribunal's consideration at all of the search for alternative employment after communication to the Appellant of what is said to have been a "concluded decision" to dismiss.

Mr Cavanagh has striven valiantly to support the Industrial Tribunal's decision, but with commendable frankness had to concede that his task would have been made easier with more detail and that with particular regard to the Russian job offer, no thought processes of the Industrial Tribunal could be discerned. He also to some extent, when asked to submit to us what our order should now be if we found the decision flawed, undermined his argument, or perhaps accepted the inevitable, when he suggested that if the Industrial Tribunal was asked to amplify their reasons, some or all of the grounds of appeal might fall away.

It is therefore with considerable regret, noticing as we do that over two years has passed since Mr Forrester was dismissed, that we find the Industrial Tribunal's decision flawed, for the reasons which we have identified.

We must consider what order to make. We are grateful to Mr Cavanagh for his reference to the case of Yusuff v Aberplace Ltd [1984] ICR 850. The arguments in favour of remission to a freshly constituted tribunal for re-hearing and in favour of the Industrial Tribunal amplifying their decision are finely balanced. Having heard that cases can currently wait some time for a hearing in London, and recognising that the factual issues are largely undisputed, our decision is that the Industrial Tribunal be asked to provide amplification and clarification of their reasons for a finding of fair dismissal in general, and upon those issues to which we have referred in particular. We order accordingly.

Once those reasons have been provided - an we expect that to be done expeditiously - this appeal may be re-listed for hearing.