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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> O'Hora v Tulip International (UK) Bacon Division Ltd [1996] UKEAT 381_95_1501 (15 January 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/381_95_1501.html
Cite as: [1996] UKEAT 381_95_1501
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At the Tribunal
Judgment delivered on 4 October 1996
HIS HONOUR JUDGE J ALTMAN
MRS R CHAPMAN
MR D A C LAMBERT
JUDGMENT
Revised
APPEARANCES
For the Appellant MR J EVAN JONES
(of Counsel)
Messrs Metcalfe
Copeman & Pettefar
Solicitors
Cage Lane
Thetford
Norfolk
IP24 2DT
For the Respondents MR W HANSEN
(of Counsel)
Stuart Showell
Solicitor
Legal Protection Group
Marshall's Court
Marshall's Road
Sutton
Surrey
SM1 4DU
JUDGE J ALTMAN: The Applicant before the Industrial Tribunal, sitting at Bury St Edmunds on 12 December 1994, appeals from their decision dismissing her complaint of unfair dismissal. Summary Reasons were given by the Tribunal at the time of the hearing and were promulgated on 24 January 1995. Subsequently the Extended Reasons which form the basis of this appeal were promulgated on 15 February 1995. The curiosity in this particular case in relation to that procedure as adopted by the Tribunal is the almost identical content of the two sets of reasons. I refer to this aspect of the matter at the end of the judgment, in relation to the difference in general terms, between the form of Extended Reasons and that of Summary Reasons.
Before the Industrial Tribunal the Applicant withdrew her original complaint of sexual discrimination once she and her representatives saw the documents and understood what the Respondents were saying. She proceeded with her complaint that she was unfairly dismissed on 29 June 1994.
THE FACTS
The facts as found by the Industrial Tribunal show the Applicant had served the Respondents for many years as a traffic controller. However, the haulage operation on behalf of the Respondents as a whole was contracted out to a firm called Taylor Barnard.
The management of the haulage operation was centred in one office where the Applicant and another employee of the Respondents worked alongside the transport manager employed by Taylor Barnard. The decision of the Tribunal is silent as to who was responsible for the office itself, but the parties agree, and we therefore incorporate the statement, that it was the Respondents' office.
Two events took place in close proximity. First, the transport operation carried out by Taylor Barnard for and with the help of the Respondents came, at the end of 1993 and in early 1994, under the scrutiny of the Department of Transport. Secondly, the Applicant had maternity leave. As to the first, the Inspector of the Ministry of Transport came to the conclusion that the legal restrictions on drivers' rest periods and hours were being broken, and he recorded that some drivers blamed the Applicant for putting them under pressure. The inspector required greater compliance with the statutory requirements and for there to be greater control by Taylor Barnard of their own drivers. He was able to support his requirements because he had the available sanction of blocking renewal of the operators' licence and of prosecution.
The Tribunal found that Taylor Barnard believed both that the person in overall charge of the transport operation had to have a "Certificate of Professional Competence" and that they were obliged to provide that person. The Tribunal further found that when it came to the Applicant's maternity leave the Respondents proceeded to take advantage of Taylor Barnard's offer, which had been to assume responsibility for this function as a means of covering for the Applicant's maternity absence. The Tribunal made no finding one way or the other as to whether this was temporary for the maternity period or permanent, but the implications of the decision are that it was permanent. It appears that the Tribunal considered that this transfer of responsibility effectively marked the end of the Applicant's job with the Respondents. It was not a matter of which she was informed at the time. By the time the arrangement was put into place the Applicant's maternity leave was taking place, it having begun on 4 March 1994. During her absence her assistant in the office, Mr Thompson, had remained in post. But in the words of the Chairman of the Industrial Tribunal;
"7. By the time the applicant gave notice ... of her intention to return to work her job of transport manager had gone. It was being done ... by ... Taylor Barnard's, employee."
There then followed what seems to us to have been a rather unusual process. Although the Applicant's job was unique, in the sense that she filled a post which was dissimilar from that of anyone else, and that when the initial choice was made for transferring her responsibilities to Taylor Barnard there was no other choice, and although the Industrial Tribunal found that with that transfer the Applicant's job had gone, nonetheless, on receipt from the Applicant of the Notice of Intent to return to work, the Respondents looked at the work, of a mainly clerical nature, which remained in the department and embarked upon a form of redundancy selection.
The Industrial Tribunal found that the Respondents then treated the Applicant and her assistant as a "pool" from which to select for redundancy and that the Respondents then went through a selection process on established criteria, namely length of service, age and absence record, which resulted in the selection for redundancy of the Applicant in place of the other contender, Mr Thompson. This process was discussed with the Applicant at two meetings. There being no reasonable alternative work for her, the Respondents then dismissed the Applicant purportedly for redundancy.
THE ARGUMENTS ON APPEAL
The Industrial Tribunal concluded its decision with the words:
"11 We find that ... [the Respondents] consultation process was fairly carried out and the deferment was slightly to the applicant's advantage financially. In the end therefore we find that the reason for the applicant's dismissal is redundancy and that that reason was fair."
The Notice of Appeal alleged that the Industrial Tribunal "erred in law" on the evidence in finding that there was a redundancy situation, that the reason for dismissal was redundancy, that there was a fair selection of the Applicant for redundancy, and in failing to find, on the evidence, that the Respondents purporting to follow a redundancy procedure was a "disingenuous and sham exercise with the sole purpose of dressing up the (Applicant's) dismissal". Further, the notice alleges that the findings of the Industrial Tribunal were against the weight of evidence or were findings that the Tribunal, properly directing itself, could not reasonably have found to be the case, or were "perverse".
The Respondents resist the appeal and support the Industrial Tribunal's decision, while adding the alternative argument that even if the Tribunal erred in finding the reason for dismissal to have been redundancy, they did so only to the extent that the reason amounted to some other substantial reason which was an admissible reason of a kind such as to justify the dismissal, and with the result that the dismissal was in any event fair.
The factual issues as canvassed before the Industrial Tribunal seem mainly to have been concerned with the reason for the dismissal under the provisions of section 57 of the Employment Protection (Consolidation) Act 1978, particularly the requirement that it is for the employer to show what was the reason for the dismissal and that it was an admissible reason. The Applicant argued, so it appears, before the Tribunal that the real reason for the dismissal was the Respondents' resolve to terminate her services so as to appease the inspector of the Ministry of Transport. Before us and no doubt before the Industrial Tribunal Mr Jones, on behalf of the Applicant, used colourful phrases drawn from the animal kingdom to describe what happened, for example that the Respondents "threw her to the wolves" and used her as a "scapegoat". The Applicant argued that when, after deciding to dismiss the Applicant, the Respondents transferred her duties to Taylor Barnard, this transfer did not give rise to a redundancy situation and if it did, that this was not the reason or the principal reason for the dismissal.
The Respondents argued that there was a genuine redundancy situation and that that was the reason for dismissal. They further argued that even if the redundancy situation came about because, in exercising their commercial judgement, the Respondents decided to transfer the Applicant's work to an outside contractor, and even if in so doing their motives were commercially based to use the Applicant as "a scapegoat", that simply constituted the background to the redundancy situation and was not a competing reason for the dismissal.
In his Skeleton Argument, Counsel for the Applicant helpfully summarised his grounds of appeal as being that first, the Tribunal misconstrued or misapplied the definition of redundancy contained in the Act and/or secondly, the findings and decision of the Tribunal were such that no reasonable Tribunal, properly directing itself upon the evidence, could have reached the decision that it did.
When this Tribunal adjourned the hearing in order to reserve its judgment and in discussions between the members of our panel his dual arguments were considered, this raised in our minds a closely related but arguably separate issue which had not been specifically addressed in argument before us as a separate issue. This related to the way in which the Industrial Tribunal approached the issue of the reason for dismissal. In spite of the stage of the proceedings that had been reached this seemed so inextricably connected with the matters we were discussing that we thought it right to go no further until we had acquainted the parties with this matter and given them an opportunity to make any representations they wished.
As a result of a letter to this effect followed by a reconvened hearing the Applicant was given leave to amend the grounds for appeal to add a further ground 7 as follows.
"In determining the nature of and reason for the Appellant's dismissal the tribunal in law erred
(a) in considering on that point the evidence in relation to the question of redundancy in isolation and/or
(b) in failing to consider and balance against the evidence on the question of redundancy the competing evidence for the Appellant that her dismissal by the Respondent was not for redundancy but an unfair dismissal disguised as a redundancy, the unfairness motivated by the Respondents' wish to deflect the Ministry of Transport's investigation and to dismiss her as `a scapegoat' and/or
(c) if the tribunal did in fact consider the Appellant's competing evidence for unfair dismissal, in failing to state in its decision the facts, matters, grounds and/or reasoning upon which it relied in rejecting that evidence and contention."
Our reasons for allowing this amendment have been set out in a separate interlocutory judgment.
In support of the argument that the Tribunal misconstrued or misapplied the definition of redundancy, Mr Jones submits that because the work was being done by employees from the same office the mere fact that the identity of the employer changed from being that of the Respondents to that of Taylor Barnard, did not create a redundancy situation. He contends that the word "employees" in section 81 of the Employment Protection (Consolidation) Act 1978 is not confined to the same employer. We disagree. Except in certain circumstances which do not apply here, redundancy relates to the employment with the particular employer. That is, of course, one of the reasons for the making of the Transfer of Undertaking Regulations. Mr Hansen, on behalf of the Respondents, has drawn our attention to the relevant authorities including Bromby & Hoare Ltd v Evans [1972] ICR 113 and 117 B and Scarth v Economic Forestry Ltd [1973] ICR 322.
In support of the second submission, that the finding that the reason for dismissal was redundancy was a perverse finding, Mr Jones contends that the reason for dismissal was the alleged pressure by the Applicant on the drivers to act unlawfully and her lack of a Certificate of Professional Competence coupled with the Respondents' desire to appease the MOT Inspector. He also contends that the redundancy selection procedure which later followed was a sham device to conceal that reason and to create an appearance of redundancy. Mr Jones says, in effect, that having decided upon the dismissal, the fact that the Respondents then dealt with the matter by transfer of the Applicant's work to an employee of Taylor Barnard was purely fortuitous and that while that in itself may have created a redundancy situation, it followed upon the decision to dismiss and was not a reason for it. Mr Jones concludes that in these circumstances the procedure which followed on from all this and which sought to select the Applicant or Mr Thompson for the remaining clerical work, was simply a pretence and a device constructed when the Applicant gave notice of intent to return to work. Mr Jones said that this was the essence of the case before the Tribunal and that in failing to accept the evidence in support of it the Tribunal came to a perverse decision.
On behalf of the Respondents Mr Hansen submits that there was evidence of a redundancy situation and in these circumstances it was appropriate for the Tribunal to conclude that the reasoning of the employers that led to that situation was not a matter which should have concerned the Industrial Tribunal. He submits that that should be read into their decision. He emphasises that the decision whether or not to declare redundancy is an employer's commercial decision and not a matter for the judgment of an Industrial Tribunal. Thus, he argues, section 81(3) of the Act defines the ceasing of work for redundancy as "cease (ing) ... from whatsoever cause". Mr Hansen submits that the Industrial Tribunal approached the matter correctly by relying on the transfer of the Applicant's job to Taylor Barnard as the creation of a redundancy situation so that when the Applicant gave notice of intent to return to work there was a redundancy situation which the Respondents dealt with in a reasonable, if predictable, way with full consultation. He says the Tribunal were correct not to analyse the reasons for that decision but to conclude that it was a matter for the employer. In any event, he argues, that even if the transfer of the work to Taylor Barnard was not, strictly, a redundancy situation, it amounted to "some other substantial reason", so as to be admissible for the purposes of the Act.
These were issues of fact. The law can envisage either possibility. An employer may decide to dismiss an employee and, having done so, find a way for the work to be carried on without that employee being replaced. In that situation the reason for dismissal precedes the redundancy and the redundancy situation is simply the consequence of the decision to dismiss and not the reason for it. Equally an employer, confronted with a commercial problem or pressure from a third party, may decide to create a redundancy by sub-contracting work formerly done by an employee and this will give rise to a redundancy. In that situation redundancy is the reason for dismissal and the events leading up to it are merely the commercial explanation which is a matter, if honestly pursued, for the employer and not the Tribunal. Both arguments being available in law, and being canvassed in relation to the facts of this case, was it perverse for the Tribunal to conclude that the reason for dismissal was redundancy? To establish that in the context of this case the Appellant must show that there was not evidence to justify the Tribunal's conclusion that the reason for dismissal was redundancy. Was there such evidence? Exceptionally we have considered the Chairman's notes of evidence. We are greatly indebted to him for the very full notes and for undertaking the not inconsiderable burden of providing them for this appeal. We have considered the general body of those notes.
In following through this exercise we have considered the wording of a confidential memorandum dated 19 May 1994 of a meeting between the Respondents, Taylor Barnard, and the MOT Inspector. It seems to us that that document, in itself, was open to competing interpretation. The Respondents also produced to the Tribunal a record of a meeting between the Applicant and their managers on 28 June 1994 which was a redundancy consultation interview and it included the following question and answer:
"Q. Who is going to do the work which I was doing?
A. A Taylor Barnard employee who must have CPC qualifications".
We have also considered the notes of the oral evidence given by the witnesses. In particular we have considered the evidence of Mr Ward and Mr Reeves on behalf of the Respondents about the decision to terminate the Applicant's employment, about when the decision was made, and about the reasoning behind that decision. We considered that evidence in relation to the issue as to whether the reason for dismissal was, on the one hand, a decision to terminate the Applicant's employment so as to appease the MOT Inspector, or whether, on the other, what happened was the creation, for commercial reasons, of a redundancy situation by transferring the Applicant's work to Taylor Barnard, even if, of course, those commercial reasons included the need to appease the inspector. As the final order to be made on this appeal is for remission and re-hearing it is not helpful for us to single out particular passages of the evidence that were elicited orally both in chief and in cross-examination. On the other hand it would be undesirable for us to put a gloss on the actual words used as recorded in those notes or to paraphrase them in any way. However to justify our conclusion it is necessary to assert that on our reading of those notes it is established quite clearly that both issues were canvassed and there was evidence from the witnesses which could be interpreted to support the propositions of either the Applicant or the Respondents. There was evidence, therefore, which required a judgment as to which was to be preferred in relation to the issue as to the reason for dismissal. It is clear to us that there was evidence before the Tribunal from which each side could draw support for his or her submission. Indeed, it has not been seriously contended by Mr Hansen on behalf of the Respondents, that there was not a good deal of evidence which required the judgment of the Industrial Tribunal as to whether the allegations put forward by the Applicant were correct or not. Furthermore, it is clear from our reading of the evidence that there was substantial material about the exercise of redundancy selection that was carried out after the Applicant's maternity leave which was consistent, depending upon the way it was interpreted, with the arguments of each party.
We find that arguments in support of both sides were capable of being put forward on the evidence before the Tribunal, and that there were issues of fact to be determined. In these circumstances it cannot be said that the Industrial Tribunal erred in law in failing to find affirmatively in favour of the Applicant's contentions on the facts. We reject that submission. To approach the issue of "perversity" in this case in any other way would lead to our substituting our view of the facts for that of the Industrial Tribunal. There was clearly evidence before the Tribunal upon which an Industrial Tribunal, properly directing itself in law, could come to the conclusion that the reason for dismissal was redundancy.
However that leaves the third general argument on the appeal as to whether, in this case, the Tribunal did properly direct itself in law when looking at the issue of the reason for dismissal in relation to the competing issues of fact that had been raised before them. Although there was evidence before the Tribunal upon which they could come to a view which supported either the Applicant or the Respondents the third submission of the Appellants remains for consideration. Mr Jones argues that the Tribunal did not consider the "scapegoat" evidence and the issues surrounding it in relation to the question whether the Respondents had shown the reason for dismissal at all or that if they did, the decision fails to disclose any of the facts, matters and reasoning which could be seen to demonstrate that they had considered, and rejected, the Appellant's competing evidence of the reason for dismissal. Mr Hansen concedes that the Tribunal did not expressly deal with these issues in relation to analysing the reason for dismissal in their decision, but he argues that it is implicit in the decision that they did so consider it and reject it. Furthermore, he argues that in any event these matters do not constitute such a point of law as gives this Tribunal jurisdiction to interfere on these grounds. In order to consider these arguments we have examined the decision of the Industrial Tribunal and in relation to their finding that the reason for dismissal was redundancy. We have asked ourselves whether it is implicit in their decision that they rejected the Applicant's stance or not. Mr Jones has urged, by reference to passages in the decision, that the only inference that can be drawn is that not only did the Tribunal fail to weigh up the competing arguments but, further, he urges that the only proper conclusion from the general thread of the decision is that the Tribunal ignored the Applicant's contentions in this connection or treated them as irrelevant.
The only means the Employment Appeal Tribunal has of assessing these arguments is to consider the decision of the Industrial Tribunal. In this particular case that decision is very succinct and follows, apart from a few words, the exact wording of the Summary Reasons. Nonetheless, even here, we recognise the importance of looking for the general thrust of the decision, and to look in general broad terms at the way in which the specific questions are dealt with.
In our approach we bear in mind the well established principle that the purpose of the decision given by the Industrial Tribunal was to explain to the parties, generally as lay people, the thinking behind the decision reached by the Tribunal and its essential decisions on the main points of statutory law that applied in this particular case to the facts which the Tribunal had found. It is well enshrined in earlier decisions of the courts that this Tribunal will not look with pedantic care at the way in which the Industrial Tribunal expresses itself word by word, or phrase by phrase with a care that would normally be confined to an examination by an Appeal Court of a judgment at first instance in the High Court. Industrial Tribunal decisions are not to be picked over with a fine tooth-comb, providing argument for lawyers, and we readily accept and confirm that principle. We accept Mr Hansen's submissions in that respect. Indeed, very often the express findings within a decision will enable a reader, such as the Employment Appeal Tribunal members, to conclude that the Industrial Tribunal must have rejected those arguments which are not referred to expressly in the decision but are contrary to its general findings. Nonetheless, of course, we must read the decision and consider its reasons whilst bearing in mind that much is to be implied in such a document which is consistent with the findings and reasoning of the decision itself.
The following points are made on behalf of the Appellant:
(1) The very fact that these major issues of evidence were not referred to in the decision tends to support the Applicant, so we are urged, in his proposition that the only real inference is that they were being ignored or treated as irrelevant by the Tribunal. Mr Hansen has suggested that we should read the decision as implying consideration of these issues. However on examining the decision it does seem that in so far as there is any express reference to the issues of the MOT inspection which the Applicant had raised, such reference is consistent rather with these issues being treated as irrelevant to any consideration of the reason for dismissal than with their being taken into account. Although it is a small point, we note the wording of the only reference in the decision to the reason for dismissal. It is in the final sentence:
"11 ... In the end therefore we find that the reason for the applicant's dismissal is redundancy ... "
Although we would not treat the use of a particular word as having great weight, otherwise we would be far too "nit-picking" in our approach, but the use of "therefore" and the general context of the sentence does tend to support Mr Jones' argument that the Applicant's case was treated as irrelevant and cannot be implied.
(2) When considering the MOT Inspector's allegations that the drivers blamed the Applicant, the Tribunal pointed out that there was no evidence to suggest that the Applicant was guilty of any offence; "that is not relevant to this case". However Mr Jones submits that these allegations do have relevance and would have related to any examination which the Tribunal carried out as to whether this was part of the reason for dismissal. We agree that it seems to have been an important ingredient in assisting the Tribunal to determine if that indeed was material before the Respondents, whether or not they had it in mind at the time of the dismissal, with what result, and if, having it so in mind, they acted reasonably on the conclusion they came to, and the consequences to which they were driven. Furthermore, in paragraph 5 of the decision the question of the Certificate of Professional Competence was referred to. Here again the Tribunal clearly confine their consideration of this aspect of the case to its being relevant only to explain the attitude of Taylor Barnard and, subsequently, by the time of the redundancy selection procedure about the clerical work, they describe it then as "no longer relevant". Again, had the Tribunal been considering the competing claims of the parties on the issues to which we have referred, the question of a Certificate of Professional Competence would have been relevant to any evaluation of the reason for dismissal and whether the Respondents were reasonable in so treating it. Mr Hansen submits but that by saying "no longer relevant" it can be inferred that in other areas the Tribunal may have treated it as relevant. However, that must be read, it seems to us, in the light of the earlier reference to such a certificate and that narrow context to which it was confined as set out above.
(3) Although it is not altogether clear, the Tribunal appear to have approached the case as if there were almost two areas for consideration of redundancy. The first seems to have arisen when the Applicant's management functions were transferred to Taylor Barnard:
"Her job of transport manager had gone ... what ceased or diminished here was the management function previously carried out by the applicant."
But the Tribunal also refer to a second sort of redundancy in paragraph 9:
"9 What was left for the respondents was simply a clerical job: they correctly identified the pool of people for that job as being the applicant and her assistant Mr Thompson..."
The Tribunal then concentrates on the selection procedures and consultation and criteria in relation to the second sort of redundancy, but the reason that we find the position not wholly clear is that they subsequently go on to consider a complaint by the Applicant that the information was not imparted at an earlier stage. They say:
"10 ... We ask ourselves `When is the right time to tell a pregnant woman that her job will no longer be there?' ... We do not criticise the respondents for deferring the point at which they broke the news to the applicant."
The reason we do not fully understand this is that earlier the Tribunal had set itself the task of analysing a redundancy selection procedure which took place after all this. The issue of consultation in relation to the transfer of the management functions in what I have described as the earlier redundancy episode was not, in itself, an issue before the Tribunal, and is not an issue before us. But the very fact that the Tribunal concentrated, in relation to specifying criteria, and consultation, and the selection procedure, on the later episode of redundancy does seem to us to support the arguments of Mr Jones that they were not considering the competing issues in relation to that earlier part, issues which lay at the heart of the case, even though the Industrial Tribunal have clearly described that earlier part as the effective termination of the Applicant's employment. Had the Tribunal been considering those issues raised by the Applicant in relation to that period we cannot think but that they would have been driven to focus on that earlier part in the same way as they so carefully analysed the later episode of redundancy.
(4) In relation to the later selection process, that is the one in relation to the clerical work which remained when the Applicant gave notice of return to work after her pregnancy, the Tribunal treated this simply to the conventional tests which they describe as "identifying the pool". But Mr Jones has argued that it was the Applicant's case that this was a sham exercise designed by the employers to cover their tracks in relation to the first series of actions which led to the termination of the Applicant's management role. Here again it is pointed out that the Tribunal not only make no reference to the competing arguments of the parties, but their approach is to subject the Respondents' actions to conventional questions as if such an issue had never been raised or treated as relevant. As we understand it, it was not argued before the Industrial Tribunal by the Applicant that the way in which the Respondents handled the remaining clerical work fell short of the conventional way that a reasonable employer would deal with a genuine redundancy, but rather that this later exercise, far from being a genuine exercise, was in fact a contrived sham to conceal the fact that they had earlier decided to use the Applicant as a means of appeasing the MOT Inspector and had then dressed it up as a redundancy dismissal later on to make it look a fair dismissal. It seems to us there is much force in the argument that where, as here, the Tribunal make no reference to the competing arguments of the parties but, almost on the contrary, simply subject the Respondents' actions to conventional questions, the only reasonable inference is that the Industrial Tribunal, when considering the way in which the Respondents identified and treated the remaining clerical work, did not consider what their judgment was as to whether this was a sham or genuine exercise. This does seem to us to support Mr Jones' argument that the Industrial Tribunal never in fact went on to consider whether the later selection process was freestanding and genuine or in fact related to the first as its cover up. The only inference from that, it seems to us, can be that they were not applying the issues raised by the Applicant in this case as to the reason for dismissal.
(5) The Respondents' dealings with the MOT Inspector are indeed referred to in paragraph 6 of the decision:
"6 ... Given the pressure from the Department of Transport Inspectorate it was extremely convenient for the respondents to find that Taylor Barnard were willing, even anxious, to provide the cover.
So although these matters were referred to, this was only to explain the background to the transfer of work to Taylor Barnard. On the face of it the Tribunal do not seem to have been relating it to the issue of the reason for dismissal.
(6) The Tribunal's Reasons begin with the words:
"1 The applicant complains she was unfairly selected for redundancy ... ."
This was not the complaint. Although these words are often used loosely the complaint was one of unfair dismissal in which the main claim was that the reason for dismissal was not redundancy, and the Applicant's complaint was not confined to the fairness or unfairness of the selection procedure. On the face of it this does lend some support to the Applicant's argument that the Tribunal were not focusing on the competing issues which had been raised in evidence before them, although it would be over-pedantic to draw too conclusive an inference from these words alone.
We have considered the submissions of the Appellant and we have considered the argument of Mr Hansen that we should imply into the decision the rejection of the Applicant's arguments as to the true reason for dismissal. However, it does seem to us that, taking a broad view of the decision, the whole thread of that decision is only consistent with the Tribunal's having disregarded the issues raised before them when considering the reason for dismissal. Indeed, a true reading of the decision does seem to lead to the conclusion that the Industrial Tribunal, having found that there was a redundancy situation, went on to assume that that was the reason for dismissal without examining the competing issues before them. The existence of a redundancy situation was not on the facts in dispute so far as the transfer of work to Taylor Barnard was concerned, subject only to the first ground of appeal referred to in this judgment. However that begged the whole question as to whether or not that redundancy situation was the reason for dismissal. The Industrial Tribunal seemed to have treated this case as a simple redundancy case in which, once there was a redundancy situation, all they had to consider was whether the Respondents had approached the selection in a procedurally fair way. With the greatest respect we disagree with this approach. It seems to us that there were some intricate issues of fact which did need adjudication on the question of whether the reason was to appease the MOT Inspector or was for redundancy, and this included considering whether the former was simply the commercial condition precedent to a dismissal for redundancy or rather the reason for the dismissal itself. This did require the Tribunal to look at the thinking and attitude of the witnesses and to judge them.
Unfortunately, it does seem to us that the Tribunal fell into the trap of a circular argument by in effect accepting as their starting point that there was a redundancy and concluding that that must therefore be the reason for dismissal so that anything else was not relevant. It does seem to us, in the end, that is the only way to read the decision. Of course in most cases of redundancy the fact of a redundancy situation and the reason for dismissal being for redundancy are one and the same. But this particular case was one in which the whole argument centred upon the proposition that they were not one and the same. There may be a redundancy situation but that does not necessarily mean that dismissal is for redundancy, and that was the proposition that lay at the very heart of this case. With great respect, the Industrial Tribunal in its decision appear, by jumping from the existence of a redundancy situation to saying, in effect, that that therefore meant that redundancy was the reason for dismissal, to have by-passed the issues before them as to the actual reason for dismissal. We have concluded that the matters raised above and in particular the view of the Tribunal that the evidence of the pressure being put on drivers and the lack of CPC qualification were irrelevant, demonstrate to us that the Tribunal did not consider and address the issues as to the reason for dismissal, beyond finding a redundancy situation which had never been disputed.
It then remained for the Tribunal, therefore, as probably the most important exercise on the issues before them, to evaluate the competing claims of the parties in this connection and to come to a conclusion as to whether or not the true reason was, as the Applicant contended, or whether the Applicant's argument simply gave rise to the proposition that these matters even if valid were just part and parcel of the commercial background to what was a genuine redundancy situation that followed from it. Had the Tribunal looked at it in this way they would surely have had to examine the employers' thinking at the time, the extent to which it was fair for them to adopt the conclusions of the MOT Inspector the extent to which they themselves should have investigated the Inspector's complaints, and discussed them with him, whether they did in fact adopt them, whether the employers were genuine in their approach or contrived in their approach to the Applicant and whether the later selection procedure for clerical assistant was a genuine exercise or a device, once the Applicant had notified her return to work, intended to give a veneer of respectability to a decision to dismiss the Applicant for a reason which was not admissible within the Act. It remained, it seems to us, for the Tribunal to look at issues of good faith, and fair dealing in order to test the credibility of the Respondents' witnesses.
It seems to us that none of this is hinted at in the decision and we are driven to conclude, looking at the decision as it stands and seeing what can reasonably be implied into it, that the Tribunal did not address this aspect of the case. The Tribunal misapplied the redundancy situation, which existed, to the issues by treating it as necessarily being the determining factor rather than evaluating it along with the other evidence. Thereby they gave the redundancy situation a status in law which it did not merit. At no stage did the Tribunal indicate the two stage process which the law dictates was required in this case by the issues raised. The first required a decision as to whether or not there was a redundancy situation. Only then would the second stage arise of deciding whether, in accordance with the words of the statute, the Respondents had shown that the reason for dismissal related to redundancy. That second process was one which the Tribunal do not appear to have undertaken. And, whilst on its own as we have said we do not place undue emphasis on a single word, the Tribunal ended with the words "in the end therefore we find that the reason for the Applicant's dismissal is redundancy ...".
These arguments are not affected by the amended response of the Respondents. Whether the transfer of work to Taylor Barnard is described as giving rise to dismissal for redundancy or some other substantial reason does not affect the principles set out in this judgment.
Accordingly we disagree with Mr Hansen's submission that the proper approach is to find that it was implied in the reasons of the Tribunal that they rejected the Applicant's arguments. We also reject the submission, very forcefully put on behalf of the Respondents, that these matters do not raise a point of law which should merit the interference of the Tribunal. Mr Hansen has helpfully referred to the summary of the law in Harvey's Industrial Relations Law and Practice. Section 57 of the Employment Protection (Consolidation) Act 1978, provides:
(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -
(a) what was the reason ... for the dismissal ...
(2) ... the reference to a reason falling within this subsection is a reference to a reason which ...
(c) was that the employee was redundant ..."
We have found that, in our judgment, the Industrial Tribunal erred in failing to find whether the Respondents had shown that the reason for dismissal on the evidence was redundancy. This appears to have come about because the Industrial Tribunal, having identified the existence of a redundancy situation, regarded that as obviating the need to consider the above issue on the evidence before them. This clearly is an error of law relating to a material misdirection on the central issue before the Industrial Tribunal and accordingly this appeal must be allowed.
In any event, we would have been driven to conclude that the Industrial Tribunal did not show how it had viewed the Appellant's competing evidence in relation to unfair dismissal in the way alleged in ground 7(c) of the Amended Notice of Appeal.
However before departing from this case we wish to record first of all our indebtedness to the Chairman for the way in which the evidence was recorded throughout the proceedings and our considerable sympathy with the Industrial Tribunal itself. We, at this stage, have been privileged to be able to stand back and cast a bird's eye view over all the evidence as recorded in the decision, and indeed the notes, some time ago. This has made our task comparatively simple. We do understand, however, that this Industrial Tribunal was presented with a case which changed as it went along, starting with an allegation of sex discrimination, and which required adjournments for the parties to take stock of the changing evidence as it came out, and we anticipate that matters were explored in perhaps not so clear cut a way as they were before this Tribunal.
EXTENDED AND SUMMARY REASONS
Finally we return to the way in which the Tribunal set out its Summary Reasons and followed them with Extended Reasons which were almost word for word the same. In William Hill Organisation Ltd v Gavas [1990] IRLR 488, Lord Donaldson, Master of the Rolls, said in relation to that case:
"... The Reasons were headed `Summary Reasons'. It is the practice for industrial tribunals to give Summary Reasons and then, if asked, to amplify them as Full reasons. It may be convenient to say that ... we are gradually getting into the position - in fact I think we have got into the position - in which Summary Reasons have grown and grown until they are scarcely distinguishable from Full Reasons.
If I might say so parenthetically I think the time has now come when the Employment Appeal Tribunal should consider whether guidance could not be given to chairmen of industrial tribunals to get back to first principles, which is that, where the matter is simple and is perhaps unlikely to be appealed, all that the applicant or the respondent needs is what, in essence, was the reason for the decision. Perhaps they did not believe one side's witnesses. Perhaps they thought that the dismissal was fair in the light of what happened in the applicant's record. Why not just say that? Full Reasons may well involve much greater elaboration both as to the facts and the law. They should in fact be an entirely different animal. As I say, as Mr Ellis put it and it certainly accords with my experience, if you are just to look at most tribunals' Reasons nowadays, you simply could not tell whether they were Full or Summary Reasons. You would have to look at the heading to see which it was. That cannot be right."
This Tribunal does not, in fact, share the experience of the Master of the Rolls as to the prevalence of the expansion in length of Summary Reasons and we would observe that in our experience the distinction between those reasons and Extended Reasons is generally meticulously adhered to. Summary Reasons are repeatedly seen to be a succinct and concise statement of the findings of the Tribunal wholly different from the careful document to be described as Extended Reasons. However it may be that that is not always the case, and the decision of the Industrial Tribunal before us is perhaps an illustration of that. Accordingly it seemed appropriate to set out our understanding not of what these decisions should be, but of what we understand the general practice to be. However it is of the utmost importance that this Tribunal does not try to constrain the way in which reasons are formulated and does not try to provide any sort of formula or set pattern. That would be contrary to the interests of justice, it would lead to a rubber-stamping form of approach to decision making and giving, and would be an invasion of the need to preserve for Industrial Tribunals the discretion to formulate the reasons in the way they find most appropriate and most fitting to their own practice and to the particular application before them.
This Judgment does not affect a common and efficient practice amongst Chairmen of giving and recording Extended Reasons orally at the conclusion of the hearing and then following this up with the written decision in summary form.
There are, indeed, practical reasons for maintaining the distinction between Summary and Extended Reasons. For instance this applies particularly in appeals. Where time has expired for a party to request Extended Reasons it is quite common for the Employment Appeal Tribunal to be asked to entertain an appeal on the basis of rather full Summary Reasons. The Employment Appeal Tribunal is then faced with the argument that the Summary Reasons can stand as Extended Reasons and when admitted, following the proper application of rule 37 of the Employment Appeal Tribunal Rules 1993, this can often lead to the hearing of an appeal on a hybrid document, not really Summary Reasons, though so-called, and not really having the detailed findings of fact in what is generally recognised as the format of Extended Reasons. This leads, of course, to a "second-best" means of considering the decision of a Tribunal on appeal.
Over the years there has been much debate as to the nature and status of the decision of an Industrial Tribunal. It has been suggested that it is akin to a case stated, or that it should be viewed in the same way as a judgment in a court would be viewed. However over the years the Extended Reasons have developed a nature and identity of their own most suited to the unique jurisdiction of which they form part. On the other hand, Summary Reasons, of themselves, do not have any particular jurisprudential definition or character. Rather their introduction was for the purpose of saving the cost of production of Full Reasons and the time of the Chairman in having to check every decision. It is true that they are "different animals" and, likewise, it is difficult to provide comprehensive definitions of the two types of decision. Recognising the limitations of generalisations, not least in this context, we would provide a general definition of the difference by saying that, essentially, Summary Reasons will set out the conclusions of the Tribunal; Extended Reasons will also include the material which shows the means by which the Industrial Tribunal reached those conclusions.
How is this difference manifested in practice? Many cases have considered the form and content of Extended Reasons. Our purpose is to avoid adding yet another formula. However, so as to point the difference between that and Summary Reasons, we set out a synthesis of what is our understanding of the general conclusions of decided cases as to the content of Extended Reasons. They will usually exclude recitals of evidence, but will include four elements; first, the findings of material facts (which may include, if appropriate, a very brief analysis of a disputed area of evidence), secondly a statement of the issues raised by the parties (usually factual issues, but on occasion an issue on a point of law), thirdly a statement of the legal provisions which apply and fourthly, a conclusion in which the Tribunal demonstrates how it applies those principles to its findings of fact and analysis of the issues.
Summary Reasons, on the other hand, generally include little more than the conclusion. What does that amount to in practice? Each case before an Industrial Tribunal contains a number of elements which require decision. For instance, in unfair dismissal, (a) was there a dismissal? (usually conceded), (b) what was the reason for dismissal? (c) was it an admissible reason? (d) were the Respondents reasonable in dismissing for that reason? (e) what, if they were not, is the remedy with what, if any, deduction for contribution? And, generally, Summary Reasons contain no more than one or two sentences in which the Industrial Tribunal has applied the facts of the particular case to each such element.
To illustrate the above we take a simple example. We do this, not as any sort of model for this would be to inhibit the often superior way in which learned Chairmen of Industrial Tribunals express themselves, but purely to assist ourselves in the task of illustrating what we understand to be the basic difference between Summary and Extended Reasons. In a case, for instance, of dismissal for alleged misconduct the application of a single sentence finding to the elements which are set out above may lead to something like:
"(a) - The Applicant was dismissed on [date].
(b) - He was dismissed for misconduct, being responsible for removal of stock and for passing confidential information to a competitor.
(c) - This related to his conduct and dismissal was for an admissible reason.
(d) - The Respondents were not reasonable in treating that as the reason for dismissal because though they conducted an otherwise full investigation they never gave the employee the chance to put his side.
(e) - The Applicant contributed to his dismissal by 30 per cent by failing to come to work on the day of the investigation when, if he had, he may have been interviewed. Further the compensatory award has been reduced to nil because, having heard the explanation, we are sure it would have made no difference to the final result."
The approach we have outlined does seem to us to preserve the important distinction between Summary and Extended Reasons. The Summary Reasons are there, essentially, to form a record of the decision of the Tribunal and the Extended Reasons are there to demonstrate to the parties, and to any other interested party such as an appellate body, the way in which the Tribunal reached that decision. Because they occupy such different positions in the overall structure of the way in which Industrial Tribunals operate, therefore, it seems to us important to preserve the distinction between, on the one hand, a simple statement of conclusions, and on the other a description of the elements which add up to the way by which those conclusions are reached.
The order of the Employment Appeal Tribunal is that this appeal be allowed and that the original application be remitted for re-hearing before a differently constituted Tribunal.