United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (of Counsel) Messrs George Davies & Evans Solicitors Castle Chambers Grosvenor Hill Cardigan SA43 1HX
For the Respondents	MR A DAVIES (of Counsel) Messrs Arnold Davies Vincent Evans 33 High Street Lampeter Ceredigion SA48 7BB


 


MR JUSTICE LINDSAY: We have before us an appeal by Michael Stephen Ramsey against a decision of the Industrial Tribunal under the chairmanship of Mr Geoffrey Davies at Carmarthen, a decision which was promulgated on 1 October 1996 and was in proceedings brought against Mr Ramsey by Mrs S.G. Hilditch.

The unanimous decision of the Tribunal on that hearing was that the Applicant, Mrs Hilditch, was unfairly dismissed from her employment. The Tribunal ordered that the Respondent was to pay her a basic award of £3.80 and a compensatory award of £6,482 odd making in all a total of £6,485.80 as compensation for that unfair dismissal.

It is, unfortunately, a case in which one, to have the full picture, needs to set out the procedural history and it begins on 5 May 1996 when Mrs Hilditch completed her application IT1 form claiming unfair dismissal from her employment by Michael Ramsey. Michael Ramsey is a Chartered Accountant, a sole practitioner in Newcastle Emlyn in Carmarthen. It looks as if Mrs Hilditch prepared her own IT1; it is in handwriting and it is not a work of legal art and what she said, in paragraph 12, under the heading "Please give details of your complaint" was this:

"I believe Mr Ramsey dismissed me from his employment, not for any legitimate reasons of redundancy, but with the sole intention of retaining compensation monies from a third party (either paid or anticipated) in order to clear his own personal debts, avoiding their fair and rightful distribution to myself and other employees."

That was the totality of the expression of complaint and it was met with an IT3 from Mr Ramsey. Again, it has all the indications of being self-prepared and he answered that Mrs Hilditch had not been dismissed otherwise than for redundancy. A little confusingly it says "Redundant, not dismissed" and the reference in Mrs Hilditch's IT1 to compensation was vigorously denied. In so far as any reason was given in relation to redundancy, Mr Ramsey's IT3 said this:

"Mrs Hilditch was made redundant and all other secretarial staff, the whole class of staff were made redundant. The reason was after many years of recession, our clients number had fallen dramatically from 750 to 490 clients; over that period staff had to be cut from 9 to 4. I also got divorced and my ex-wife had to be paid £15,000. She sent me a bankruptcy order. I was forced to take steps to protect my business from Bankruptcy."

And then his IT3 went on to deal with the compensation allegation that Mrs Hilditch had raised.

There is some reason to believe from later affidavits, which we will touch on later, that Mr Ramsey, on seeing the compensation monies from a 3rd party put as what Mrs Hilditch seemed to be relying upon, took the view that her case was nonsensical and one that he could deal with himself. Given that Mrs Hilditch had, indeed, said that the dismissal had been with the sole intention of Mr Ramsey retaining that compensation, one could see that he had some reason (we do not say full reason) to believe as he did.

On 3 September 1996 the claim came on for hearing before the Chairman and two members, as I have described. Both parties were "in person" only. There has been some later evidence as to how the proceedings were conducted.

The Respondents' case, so far as concerns evidence, was the case that was first heard. That is not an uncommon practice to be adopted but it is one that is slightly fraught with risk if the issues have not been clearly spelt out. Mr Ramsey, taking the view that the compensation point that Mrs Hilditch had urged was the only one to be urged, had brought along no witnesses with him. He was right, incidentally, to take the view that the compensation point did have no bearing on the ultimate outcome of the case because later on the Industrial Tribunal clearly so found and that finding could not be possibly doubted. But the Chairman on 3 March and the Industrial Tribunal as a whole, paid regard to the words that I have cited, that Mr Ramsey had dismissed Mrs Hilditch, according to her, "not for any legitimate reasons of redundancy".

The Chairman took the view that that put the whole propriety of Mrs Hilditch's selection for redundancy and the existence or not of a redundancy situation generally in issue and, it has to be remembered, that if redundancy had been denied in Mr Ramsey's IT3, it cannot, in our view, be said that the Chairman was wrong to see that the words "not for any legitimate reasons of redundancy" did indeed put the whole of redundancy and all its ramifications in issue. But the consequence of that was that Mr Ramsey soon found himself in difficulties. He should, perhaps, have asked for an adjournment.

There is no suggestion that the Chairman invited him to consider whether he needed one. His case, so far as concerns evidence, closed by the time of the short adjournment. At the short adjournment he phoned his Office Manager, Mrs Davies. Things, he realised, had gone beyond the issue of the simple compensation point that Mrs Hilditch had first raised and he wanted to have a witness to come to amplify and support his case. However, Mrs Davies was not then in when he telephoned, so he left a message.

After the short adjournment Mrs Hilditch herself gave evidence and Mrs Davies, it seems, arrived whilst she was giving evidence. At the end of Mrs Hilditch giving evidence Mrs Davies then went (I think) immediately into the witness box (such as it was) and gave her evidence. Then Mrs Russell, another secretary employed at the Ramsey office who had also been made redundant, gave evidence on behalf of Mrs Hilditch and that concluded the evidence. Then the Tribunal turned to submissions.

We have the Chairman's notes, as I shall later explain, and the Applicant's submissions, recorded by the Chairman were as follows:

"Respondent didn't fulfil proper route - alternative employment and didn't state in writing reasons for redundancy. Also Compensation monies."

So Mrs Hilditch, as complainant, had made no mention herself, at any rate in submissions to the Industrial Tribunal, of the existence or not of a "last in - first out" policy or of any criticism of Mr Ramsey's preference of keeping-on a Mrs Beer and a Mr Unett. She seems, in submissions at any rate, to have made no point about how far, if at all, she could be retrained for another job and hence might be capable of being kept on notwithstanding that the firm overall was shrinking. She made, in point of submission, no points as to her being capable of being retrained on the basis that Mrs Davies had, herself, been successfully retrained.

There were thus a whole number of points that later emerged as of significance that at any rate did not emerge in her submissions. That is not to say that the Industrial Tribunal must always and in all cases, even where parties are in person, listen only to the strict submissions. Plainly, a high degree of latitude is appropriate but, where latitude is to be given, it has to be borne in mind that there is another side to granting one side latitude and that is that one might be in danger of creating difficulties for the other side to whom the latitude comes as a surprise.

I should add that it was unfortunately apparent to all at the hearing that personal relations at the time between Mrs Hilditch and Mr Ramsey, were indeed very tense. The Chairman uses the word "tempestuous" speaking of Mr Ramsey's behaviour on the day. That was all on 3 September 1996. On 1 October, as I have mentioned, the Industrial Tribunal promulgated its written reasons. On 5 November 1996 Mr Ramsey signed his Notice of Appeal.

On 3 February 1997 the appeal came on before the EAT as an ex-parte preliminary hearing before Mr Justice Kirkwood, Mrs Sunderland and Mr Ron Todd. Having regard to what they were told they ordered full Chairman's notes of evidence and an amended Notice of Appeal, but they did not at that stage order the matter to go to a full hearing.

On 7 February 1997 amended grounds of appeal were received by the EAT. On 3 March the Chairman's notes of evidence were supplied and on 10 April, again in front of the EAT (this time Judge Levy QC, Mr Chadwick and Mr Jacques) the EAT allowed the matter to go to a full hearing but also directed evidence as to the conduct of the hearing on the day on 3 September 1996 and invited the Chairman's comments on the evidence produced by the parties on that subject.

On 2 May 1997 Mr Ramsey and Mrs Davies filed evidence as to the conduct of the matter and on 17 July (seemingly out of time, but no one takes any point as to that) Mrs Hilditch answered that evidence.

In his evidence given in that way Mr Ramsey said that he was shocked when he found that the Industrial Tribunal went into questions of redundancy and unfair dismissal. Had he realised that it would be going beyond the compensation issue he said he would have instructed Solicitors to represent him. Moreover, he swore that from the start of the proceedings he had felt badgered by the Chairman. He said that his case had been ignored. Indeed, even his handwriting, he said, had been ridiculed and he said there had been an unpleasant altercation with the Chairman which I turn to as a specific instance that he relied upon. He says this:

"When the Tribunal Chairman was questioning me about the photocopies claim he asked me what advice the Solicitor who was acting for me at the time had given me."

The photocopies claim is what I rather loosely called the compensation point.

Returning to his affidavit:

"I replied by saying 'My Solicitor told me' ... and at this point the Tribunal Chairman told me that I could not say this because this was hearsay. I said to the Tribunal Chairman that if he wanted me to answer his question I would have to tell him what my Solicitor had told me. He asked the same question again and I responded the same way and again I was told that [I think one has to correct what he has sworn to here] I could not tell him what my Solicitor had told him. I explained that unless he was prepared to listen to me I could not answer his question but he became apparently angry by my response and I felt that this typified the way in which the proceedings were conducted. I felt that the Tribunal were against me from the moment I walked into the Court room. I felt that I was continually badgered by the members of the Tribunal where the then Applicant was helped [that is a specific instance to which he refers]."

Mrs Davies in her affidavit also claims that she was constantly interrupted in the giving of her evidence. Mrs Hilditch in her evidence says that she detected no animosity at all between the Chairman and Mr Ramsey.

The Chairman in his comments notes that there was, indeed, considerable bad feeling between the parties. He indicates that Mr Ramsey was tempestuous in his attitude to Mrs Hilditch but, he said, that there was no badgering of Mr Ramsey and that, indeed, there was no ridicule heaped upon him as to his handwriting or at all.

So this appeal we have before us today is against a profoundly unhappy background. The parties are at severe personal loggerheads. They had been appearing "in person". The pleadings, to call them that, were totally unparticularised and, as it would seem, misunderstood on one side. There was a witness, Mrs Davies, who appeared at the very last minute and without prior consultation with the party intending to call her and there is an accusation on oath, but equally rebutted by the Chairman and by the Respondent on oath, of badgering of Mr Ramsey and Mrs Davies. It is, indeed, an unhappy background.

We are very conscious of the difficulties that are presented to an Industrial Tribunal when parties are "in person" and where the complaint and the response to the complaint have been as unspecific as was the case here. Equally, there is some justice in the view that if the expression "not for any legitimate reason of redundancy" is permitted to put in issue all aspects of redundancy (as, not improperly, the Industrial Tribunal took to be the case) then Mr Ramsey's answer "redundant, not dismissed" and "redundancy" must, in all fairness, be taken to counter all aspects of the Applicant's argument on all available grounds.

In other words, the Industrial Tribunal, having, as a matter of kindly guidance to the parties, taken on the task of enquiring into the legitimacy of a redundancy, had also to look into all relevant aspects of such a case, for and against, and hence they needed to look at all possible grounds why there should not have been a redundancy or should not have been an unfair selection for redundancy and should have looked at the quantification of the award, if there was a redundancy, as fully as the law required.

It might have been wiser of the Industrial Tribunal to send both sides away to formulate their cases more fully and to specify precisely the matters on which they were intending to rely but one can quite see how desirable it was to proceed there and then if that could be done without injustice.

Mr Thacker, who appears before us today for Mr Ramsey, has as his first point that so substantial were the differences between what had been alleged in the IT1 and what was actually heard in point of evidence that to all intents and purposes it amounted, in effect, to a very substantial amendment of the claim and, indeed, that so substantial an amendment when made to a claim, even in effect and informally, was so substantial that it should have provoked in the Chairman an invitation to Mr Ramsey that Mr Ramsey might well consider whether he needed an adjournment in order to respond to it.

I think we can take it from Mr Ramsey's evidence that had there been such a request or invitation by the Chairman it is highly likely that Mr Ramsey would indeed have sought an adjournment because, as I mentioned earlier, his oath was that if only he had known issues would go beyond the compensation point, he would have instructed a Solicitor all along.

We bear in mind this point of Mr Thacker's about the deemed, if you like, substantial amendment, but, before we take that further, we need to see just how it was that the Industrial Tribunal came to the conclusion at which it arrived.

In paragraph 4 of their Reasons, the Industrial Tribunal said:

"In evidence the respondent said that, as a result of and during the recession, by last February his client numbers had fallen from 750 to 490. Company audit work had been reduced because of new regulations, technological changes had taken place and the principle of self-assessment relative to the Inland Revenue, had come following a telephone call ..."

And then in paragraph 7, in greater length, the Industrial Tribunal said this:

"7 The respondent decided in January 1996 to make the applicant redundant which was implemented the following month, but he did not consult Mrs Hilditch before either making or implementing such decision. He maintained that the principle of 'last in - first out" could not apply to his office because of its small size. Mr Ramsey stated that he could see no purpose in speaking to the applicant about changing her duties and, if necessary, to re-train her to do the work of either Mrs Beer or Mr Unett. His reasons for taking that view were that the applicant did not have an aptitude for figures, he considered all options, he thought that Mrs Beer and Mr Unett were doing their jobs well and he wanted to maintain their employment with him. However, the respondent's office Manager, Mrs Adele Constance Davies gave evidence that she had commenced employment with the respondent in a secretarial capacity, without any previous accountancy training, and that, as she had done, it was possible for the applicant to change her work duties. She added that, in the past, numerous members of staff in the respondent's practice had changed from secretarial to accountancy work and when there had been accountancy vacancies, the practice had taken on secretarial persons to do that work. Nevertheless she did not enquire of the applicant whether she could do audit work to avoid being made redundant. Mrs Davies also stated that both Mrs Beer and Mr Unett had to be trained in accountancy work and it was a possibility to re-train the applicant but she [Mrs Davies] did not consider that the applicant had numeracy ability."

The fall-off in the work of the Respondent's firm was indeed supported by evidence. We have, as I have mentioned, the Chairman's notes and the evidence given was:

"Practice lost lot of work because Limited Companies don't need audits - lost one third of our business.

Before recession, 750 clients - now only 490.

Before recession, gaining 100 clients every year.

We kept too many staff too long.

Four years ago, Receptionist left, office manager took voluntary redundancy - another young member of staff wanted career change -

thereby staff number reduced from 9 to 6.

September 1994 - Companies did not require audits - rules changed -

Government said that small Companies did not require audits.

I was divorced at this time - my wife left me in July 1993.

I have had to pay her £30,000 out of my earnings.

I could not pay my VAT or tax on time."

Going on, the evidence was, according to the Chairman's notes and this is again Mr Ramsey's evidence:

"By February this year - self-assessment came in and we had to have new equipment - many of things done by secretaries could be done by the new computer.

Audit

Technological Changes

Client reduction

Self-Assessment

All came to a head in February and I had to make staff redundant (2 staff - Applicant and her witness).

I phoned them both before they received letter on following day.

Has been ongoing problem through recession and is still going on -

current client number is 490."

So in other words, what seemed, at any rate to be possibly regarded as a genuine business reason was given for the existence of a redundancy situation. If there was, therefore, a redundancy situation, was the selection for a redundancy unfair? Mrs Hilditch was a personal assistant and secretary. Both secretaries were made redundant. No secretaries remained.

I remind myself of the passage I have just quoted "Many of the things done by secretaries could be done by the new computer" and, a little later in his evidence in cross-examination Mr Ramsey had said, "We have very few letters typed now". There is no suggestion that Mr Ramsey was disbelieved on this point that there was a redundancy situation for that sort of reason and I remind myself of what is said in Harvey on Industrial Relations in Employment Law on that subject. I am looking at paragraph 1685:

"It is now well established that tribunals cannot substitute their own principles of selection for those of the employer. They can interfere only if the criteria adopted are such that no reasonable employer could have adopted them or applied them in the way in which the employer did."

And then there is authority given for that. A little later, at paragraph 1686:

"An important preliminary question is to determine the pool from which the selection will be made. This again is for the employer to determine."

And it continues:

"There is nothing novel about such principles."

So one has to proceed therefore, from a position in which there was a redundancy situation and in which the employer, on grounds that might be thought to be rational, had selected secretaries as those to be selected for redundancy and it was the whole pool of secretaries that were here made redundant. But the Industrial Tribunal took the view that there had been no adequate consultation. That is a very significant fact. It alone is sufficient to enable Mrs Hilditch to succeed.

The Industrial Tribunal also was critical of Mr Ramsey on the ground that he had not adopted a "last in - first out" policy (which, we should add, had it been applied, would have meant that Mrs Hilditch would not have been dismissed but rather either or both of Mrs Beer and Mr Unett).

Putting on the side for the moment (we will return to it) the point about no adequate consultation, it is worth looking briefly at the criticism on the ground that there was no "last in - first out" policy. It is best to look at this criticism in its full context, which appears in paragraph 10 of the Industrial Tribunal's Extended Reasons, which I will read in full:

"10 The tribunal finds that the applicant's dismissal was unfair having regard to the criteria in Section 57(3) of the Act because there was no consultation by the respondent with the applicant regarding a redundancy situation affecting her, no criteria were discussed and the respondent did not operate a "last in - first out" principle towards the applicant particularly as regards either Mrs Beer or Mr Unett coupled with an option of alternative work for Mrs Hilditch, to avoid making her redundant. In the tribunal's view, there was, at the very least, a reasonable prospect that the applicant could have successfully changed the nature of her work and duties had she been given an opportunity to do so."

The way that first sentence is couched, it is not entirely clear whether the various grounds mentioned were intended as cumulative support for the total conclusion that the dismissal was unfair or whether each is a separate free-standing ground, each being sufficient to uphold the conclusion. I think, on balance, one has to regard it as a series of conclusions, each separately intended to have sufficient weight to lead to the conclusion that the dismissal was unfair. It is not, though, unhappily, perhaps as clear as it should be. But it is worth looking briefly at the "last in - first out" point.

There is in law no requirement that an employer has to operate a "last in - first out" policy. Mr Ramsey had said, in his evidence, that he had no such policy in his practice and that it was not applicable to an office of the small size of his. One can see that there could be circumstances in which it would be self-destructive in a small office, if crucial staff had happened to be taken on late and ancillary staff had happened to be taken on early. If there was, indeed, a legal obligation on a "last in - first out" policy that would mean that, as redundancy threatened, the firm would have to dismiss the crucial staff, keep on the ancillaries and possibly thus destroy the business itself.

It is not here as if "last in - first out" was being disapplied among the pool of secretaries. I remind that both the secretaries, namely 100 per cent of the secretaries, were being dismissed. Accordingly, there is some ground to see that the reference to there being no operated "last in - first out" policy or principle was here wrong in law. Moreover, in the sentence that I have read from paragraph 10, "last in - first out" is not simply criticised in the abstract but criticised in the sense that it should have led to Mr Ramsey getting rid of Mrs Beer or Mr Unett and hence being in a position to retain Mrs Hilditch. As to that, Mr Ramsey could be expected to give a reasonable ground for doing as he did. That can be required. In fact, he had given evidence. He said, looking at the Chairman's notes, "Mrs Beer and Mr Unett - Accountancy Technicians had aptitude for figures and computers - Applicant was secretary but didn't have aptitude for figures". And in paragraph 7, which I have already read, he had said that he saw no purpose in speaking to Mrs Hilditch about changing her duties. He did not think that she had an aptitude for figures. Whether that was right or wrong might perhaps have been investigated but one cannot say that it did not provide a reasonable ground for preferring to keep on Mrs Beer and Mr Unett. Indeed, it has since transpired (I do not think it came out at the time) that Mrs Beer has an Honours degree in Mathematics for Business and a Masters degree in Computer Science and Mr Unett had a Higher National qualification in Computer Studies, whereas Mrs Hilditch, as was in evidence at the time, did not have an O Level in Mathematics.

It cannot be said that Mr Ramsey had given no evidence of his having a reasonable ground for preferring not to apply a "last in - first out" principle, thereby putting in jeopardy the retention of Mrs Beer or Mr Unett. Nor can it be said that his reasons were not actually mentioned to the Tribunal at the time, although they have undoubtedly been further amplified since.

So the Industrial Tribunal might (and we need say no more than might) have been wrong in law in being critical of the disapplication of "last in - first out" to Mrs Beer and Mr Unett. It is not for the Industrial Tribunal to supplant the reasonable grounds of an employer with its own preference. But, all along, one has to bear in mind that we are going to have to come back to the issue of there being inadequate consultation.

The paragraph 10 that I have already read from speaks of the possibility of retraining Mrs Hilditch so that she could be retrained not as a secretary but for other audit or accountancy work in the office. As to that, Mrs Davies' evidence, which the Industrial Tribunal according to the Chairman's letter found to be fair, constructive and objective, had been that she, as I have quoted already, did not consider that Mrs Hilditch had numeracy ability and, as I have quoted already, Mr Ramsey had indicated his belief that she did not have an aptitude for figures.

The Industrial Tribunal overcame that difficulty on the evidence by pointing to the fact that Mrs Davies herself, and some others, had begun life as secretaries but had changed over a period (including a period of training, no doubt) and had managed therefore to stay in employment.

There is some reason to doubt whether the evidence on that point was of any reliable strength. It cannot follow that because Mr A has been successfully retrained and has successfully switched to another branch, that therefore Mr B can equally be expected to adapt and change. One can only come to a view as to the likelihood of that upon an informed consideration of the personal characteristics of Mr A and the personal characteristics of Mr B and the availability of training.

The comparison that the Industrial Tribunal made with Mrs Davies on the basis that she, after all, had changed and had switched from secretarial work to the Office Manager work, was particularly inapt, although it is not clear quite how far that inaptness had come out at the time. It is true to say that Mrs Davies had begun as a secretary but she had, in fact, run her own public house and had dealt with her own VAT and Tax accounts and when she had switched to Mr Ramsey's office it was in the earliest days of his practice when he was on his own and hence could give time (and, indeed, I would have thought, had to give time) to the training of his only assistant.

The Tribunal held, as I have quoted, as follows: "In the Tribunal's view there was at the very least a reasonable prospect that the applicant could have successfully changed the nature of her work and duties had she been given an opportunity to do so."

That might be criticised on the basis that there the Industrial Tribunal was supplanting the employer's view, which cannot be described as unreasonable, with its own. There is, therefore, some risk that in its conclusion that the Applicant could have successfully changed the nature of her work and duties had she been given an opportunity to do so the Industrial Tribunal was simply taking a view, which was not the view of the employer in the circumstances and where the employer's view was not necessarily unreasonable, and that would be a wrong thing for the Tribunal to have done. It does seem that a criticism based on the fact that Mrs Davies or others had changed and therefore Mrs Hilditch could change is not logically very helpful, unless based on a full assessment of the particular circumstances of the comparators.

We now return to the point that there was no consultation by the Respondent with the Applicant regarding a redundancy situation affecting her. That had been contested before the Tribunal but, it was, of course, for the Industrial Tribunal to find the facts. They found the facts and there is, in our view, no error in that finding.

If each of the grounds mentioned in paragraph 10, as I have cited, is a separate ground, each thought itself to support the conclusion, then, of course, the position is there being no consultation, that that was enough to permit Mrs Hilditch to succeed. But that does lead to a difficulty. If, properly speaking, there having been errors of law in the other departments (so to speak), one is left with the position that the supportable finding is that there was no consultation by the Respondent and that that was what led to the dismissal being unfair, the Industrial Tribunal should have gone on to consider whether, even if everything had been fairly done, the result would have been the same, or might have been such that Mrs Hilditch would have stayed only a short while, or would have stayed but at some lower salary.

In other words, once one is relying on the "no consultation point" and particularly when one is relying on it on the basis that all other grounds were unsound, one is what is called Polkey territory and once one is in Polkey territory then the quantification of loss appropriate in each individual case takes a different course in its computation. I will not read paragraph 11, the last paragraph of the Industrial Tribunal's award, but there is no indication in it of either an application of the Polkey case or even a consideration that it might be applicable.

Mr Thacker has drawn our attention to Red Bank Manufacturing Co Ltd v Meadows [1992] IRLR 209, where at paragraphs 10 and 11 it says this:

"However, it seems to us that since the decision in Polkey [a decision of the EAT] it is necessary for a Tribunal when calculating the amount to be awarded for compensation to ask itself this two-stage question: If the proper procedure had been followed, and if consultation had taken place, would it have resulted in an offer of employment? This was the question to which the Tribunal did address themselves in the earlier hearing, and to which they gave the answer that it might have done so. What the Tribunal failed to do, and what in our view they should have done, was to go on to consider first what that employment would have been, and second what wage would have been paid in respect of it.

In considering the first of these questions, it would not have appeared to have been open to the Tribunal to conclude that the employment which might have been offered was the respondent's old job, since that had disappeared through redundancy."

That is, of course, directed to the particular situation in that case, but it does show that Polkey is such that it requires a two-stage calculation.

It can fairly be said that Mr Ramsey took no Polkey point. However, if, as here, the Industrial Tribunal had quite properly guided and allowed the parties in person to amplify their own particularised pleadings and to develop their cases under their guidance, then it does behove them to guide both sides into areas to their respective advantage.

The Industrial Tribunal cannot be expected to raise unusual doubts or subtle distinctions and it can, of course, choose to keep out of the ring altogether and simply leave the matter to the contending parties. But if the Industrial Tribunal does guide and assist, it cannot help one side with some relatively obvious points without helping the other side with other relatively obvious points, at any rate if they can be seen to be available.

Paragraph 11 does not contain any two-stage process and such comparison as it does make with wages is with Mrs Hilditch's existing wages rather than with what, it transpires, are the lower wages of Mrs Beer and Mr Unett, with whom comparison would have needed to be made if a two-stage comparison had been considered. To that extent the Industrial Tribunal erred in law. Its quantification seems not to have considered at all, still less to have considered and rejected, any likelihood that Mrs Hilditch, even if fairly treated, might not have been able to be kept-on, or if kept-on, might have only been kept on at a lower salary or after a period of training.

I have cited paragraph 10 in full. It will be noted that it did not say that if she had been retrained Mrs Hilditch would have been likely to have been re-employed or to have continued to be employed, either at her old job and salary or, indeed, at any other salary such as was paid to Mrs Beer or Mr Unett. It does not, in fact, say that she would have remained at all or been re-engaged at all.

Our response to the Polkey point therefore leads us to consider that there has to be a remission, but, given the very unhappy procedural background and without our finding the least fault with the Industrial Tribunal in its conduct of the hearing on 3 September, we conclude that the remission would have to be to a fresh Industrial Tribunal, given the circumstances, which we have described, as arose in relation to the hearing. But once one sends the matter to a fresh Tribunal, one has to ask how satisfactory would it be to remit only the Polkey consideration to a fresh Tribunal? An informed consideration of the Polkey point leads to a great many points being necessary to be investigated, in evidence, and fully to be considered.

The Tribunal hearing the Polkey point would have to take a view as to whether the practice of Mr Ramsey was, indeed, shrinking in staff terms and in other terms in the way that was indicated. What were the changes in the requirements for staff that were consequent both on the changing practice of auditors and the introduction of computers and word processors? They would have to consider how far Mrs Hilditch was already numerate and how that numeracy compared with the qualifications and experience of Mrs Beer and Mr Unett. They would have to consider whether, in practical terms, either of Mrs Beer or Mr Unett could have been dismissed and fairly, without substantial harm to the practice, and whether Mrs Hilditch, after some period of retraining, whether in the firm or out of the firm, could satisfactorily have replaced either of Mrs Beer and Mr Unett.

Many factors, in other words, would fall to be considered by the fresh Tribunal merely hearing the Polkey issues. If the case, therefore, is that a very large slice of the overall case has to be looked at in any event by the fresh Tribunal looking into the Polkey issues, is it not right that the whole of the case should be remitted afresh? That does, it seems to us, have substantial advantages.

It is unsatisfactory to remit to an Industrial Tribunal which has been critical of Mr Ramsey, on grounds which, at the lowest, are possibly errors in law and to expect him to have confidence in the fresh considerations of that Tribunal. We do not need to emphasise also that there has been, as it would seem, some degree of unease as between the Chairman and Mr Ramsey and without, for a moment,saying that we accept the evidence on the point, it has to be considered that to remit for the Polkey matter to be considered by a Tribunal that has already lost the confidence of one of the parties is unsatisfactory.

But beyond that, and reverting to Mr Thacker's first point about a deemed amendment having taken place, it cannot be said that no weight whatsoever should be given to Mr Thacker's point that here the facts in issue so substantially changed, that Mr Ramsey was unfairly surprised and should have been invited to consider an amendment. We would not wish to lay too much emphasis on that point. He is, after all, a Chartered Accountant. It is hard to credit that he did not realise that he, unprompted, could at least have asked for an adjournment, but there is some weight to be given to the consideration that the Industrial Tribunal itself should properly have invited him to consider whether he needed an amendment, given that the matters that were being brought out at the hearing of 3 September were so utterly unparticularised in the IT1 and in the IT3 which had been put before the court.

Having regard to these factors we think the better course is not to remit only the Polkey consideration, but, having regard to the factors that we have mentioned, to remit the whole case afresh to a fresh Tribunal.

The difficulties here stem largely from a not uncomplicated case being left to parties representing themselves in the further circumstance that they were at considerable personal loggerheads. It is important, as we see it, that second time around the parties should carefully consider quite what the facts are on which they intend to rely and what are the responses each intends to make to the case of the other.

It will be appropriate, in our view, for the Industrial Tribunal to which we remit the matter to consider carefully what directions need to be given for the parties to particularise their cases so that when it comes back a second time neither side is taken the least by surprise, each has his or her witnesses lined up and the case can proceed in a more orderly fashion than might have seemed to be the case on 3 September. But, simply limiting ourselves to our conclusion, we allow the appeal and remit the whole case to a fresh Tribunal.