United Kingdom Employment Appeal Tribunal

APPEARANCES

 

FOR MS S BARKER & 15 OTHERS	MISS TESS GILL (of Counsel) Instructed By: Ms C Tailby Messrs Pattinson & Brewer Solicitors Transport House Victoria Street Bristol BS1 6AY
FOR THE HOME OFFICE	MISS JENNIFER EADY (of Counsel) Instructed By: Ms L Nicol The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


JUDGE J R REID QC:

1. These are the reasons in an extended form for the decisions which we gave on 7 August 2002 in these appeals. At that time we gave our decision for setting aside the decisions of the Employment Tribunal sitting at Croydon promulgated on 29 May and 11 July 2001 in a fairly summary form. We said we would provide our reasons in fuller form if requested to do so and this we now do. It followed from the decision to set aside those decisions that a further decision promulgated on 23 October 2001 on a review hearing could not itself stand.
2. The proceedings are proceedings under the Equal Pay Act 1970 by which, to put it very briefly, Ms Barker and other administrators, the Applicants, in the Prison Service seek to enhance their pay by comparing the worth of the work they do with the work of prison officers and governors. In the light of the decision we have reached, the less we say about the facts, the better, since the whole of the issues between the parties will have to be reconsidered by a fresh Tribunal.
3. The hearings which led to the decisions which we have set aside had been at Croydon on 2, 3, 4, 8, 9, 11, 12, 15, 16, 17, 18 May and 7, 26, and 27 June 2000 in respect of the decision of 29 May 2001. There were then four days (25, 26, 27 and 29 June 2001) when the members of the Tribunal met together in the absence of the parties before promulgating the second decision on 11 July. 2001. There was a further hearing at Stratford on 10 October 2001 of an application by the Applicants for review of certain matters arising from the second decision. This resulted in the decision promulgated on 23 October.
4. Both the Applicants and the Home Office appealed against decisions of 29 May and 11 July 2001.
5. When the appeals were called on it was at once apparent that the first question that arose was as to what was the "Decision" of the Tribunal: was it the first or the second "Decision"? A document headed "Decision" and giving "Extended Reasons" had been signed off by the Chairman, sent to the parties and entered into the register on 29 May 2001. There was then a second "Decision" also signed off by the Chairman, and sent to the parties and entered into the register on 11 July 2001. The parties were at odds as to the status of each of these documents. The Applicants contended that both (or alternatively the second) of the documents constituted the Decision. The Home Office contended that the first alone was the Decision and the second was of no effect because the Tribunal was functus officio when it purported to give its second Decision. With the consent of the parties we decided to resolve the question of the status of the second Decisions and whether it was "safe" before going on to consider the other more technical points arising on the contents of the decision. When we told the parties that we regarded the second Decision as being a nullity and, further, that it was unsafe, they both accepted that effectively the same considerations applied to the safety of the first Decision as applied to the second Decision and that we should rule the first Decision unsafe without hearing further argument.
6. The relevant facts for the purpose of these two issues were as follows: At the conclusion of the hearing on 7 June 2000, the Tribunal reserved its decision. There was no suggestion that there would be any undue delay or that there would be more than one "Decision". There then followed significant delays for a variety of reasons before the first Decision was sent out to the parties under cover of a letter from the Tribunal. The Tribunal seems subsequently to have had some doubts as to whether the covering letter was in fact sent and a follow up letter making the same points was sent later. The letter begins, "The Decision of the Tribunal is enclosed by way of promulgation". There were then apologies for the delay and the letter goes on:

"As indicated in a letter sent to you earlier this year, Mr Lamb [the Chairman] was committed to submitting a draft to the lay members for their consideration. There has been such consultation as promised, and the lay members have agreed the conclusions which are set out in the Extended Reasons. However, Mr Lamb accepts responsibility for the detail of the Decision."

3 Having regard to the long delay which has taken place, and the fact that the Tribunal has not reconvened to consider the detailed decision as promulgated, Mr Lamb appreciates that the possibility inevitably exists that in a case which is as complex and substantial as this set of cases, it is always possible that points may be overlooked and errors may occur. He considers that it would be less than realistic to fail to confront that possibility. He therefore wishes you to know that in the event that either party takes the view that such errors have occurred, it is open to you to have them corrected either by way of Certificate of Correction or by way of application for review, relying upon the ground of the interests of justice. In the event that such a course becomes appropriate, Mr Lamb would seek to reconvene the original Tribunal at the earliest possible date, to resolve such difficulties. He fully appreciates that given the history the parties may have some scepticism of the value of this offer. He seeks to assure you that it is entirely genuine and well intended to make up for the delay and inconvenience which has been suffered and to address the consequences of the delay.

4 The parties will see the terms of the Decision have been left open for discussion with you, to identify the precise terms in which the appropriate declarations should be made. According to the recollection and notes of the Chairman, this was not a matter which was touched on by the parties and Mr Lamb understands such an approach to be consistent with that sometimes adopted in the courts."

The Chairman was, of course, entirely correct in this understanding. It is a common feature for a judge to deliver a judgment and then to adjourn the matter, having either directed Counsel to prepare a minute of Order or simply for argument as to the terms of the Order which should be made on his findings. No "Certificate of Correction" was ever issued and no application for review of this first Decision was ever made.

7. The next step after that was the follow up letter of 11 June from the Tribunal (sent because the Tribunal was unable to say whether or not it had in fact sent the covering letter to the parties). It contained a suggestion the parties should make any representations they wished as to the form of the relief. Each of the parties replied to this suggestion. The Home Office took the view that it was for the Tribunal to make its declarations on the basis of those reasons given and accordingly did not make any representations as to the terms of the declarations. On behalf of the Applicants, Pattinson Brewer wrote enclosing "Representations on the declarations to be granted". Their representations included the following submissions:

"Although the Tribunal was charged with making findings as to the terms of the Equality Clause to which each Applicant was entitled, it failed to do so. Paragraphs 91 to 98 of the submissions of the Applicant set out the issues between the parties which the Tribunal was asked to resolve and the findings which the Tribunal was requested to make to enable the parties to calculate the appropriate rates of pay. There were no findings on these matters to enable the parties to be able to make submissions as to the appropriate terms.

More than a year has now elapsed since the evidence on these complex matters was called. The Tribunal's determination on these matters is of the greatest importance, given the number of applications. No explanation has been given as to why the Tribunal failed to reach findings on these matters but the Applicants would have little confidence in any determination made now given the lapse of time. In these circumstances, in the Applicant's submission there is no option but to remit these matters to the Tribunal currently charged with these matters and recall the evidence in due course."

8. The members of the Tribunal then met together on 25, 26, 27 and 28 June, though without asking for or receiving any input from the parties save for the Applicants' representations as to the form of the declarations, and produced the second "Decision" on 11 July. In the meantime appeals had been lodged by each side against the first Decision. The Applicants' appeal is dated 6 July and was received in the Employment Appeal Tribunal on 9 July. The Home Office appeal was dated 9 July and was received the same day. By the second "Decision" (promulgated on 11 July 2001) the Employment Tribunal made its declarations. The extended reasons attached to the second decision included the following observation:

"The sending to the parties of a document which set out the reasoning of the Tribunal on the matters of fact addressed in that document did not of itself constitute a decision, properly speaking. As the Applicant's representative rightly states in the representations of 19 June 2001, a number of findings which the Tribunal had been requested to make were omitted from that document. Without those findings, the representations as to the details of the decision cannot be considered. Specifically, findings as to the terms of the equality clause to which each successful Applicant was entitled were missing. Without those findings, it is not possible to calculate the appropriate remedy.

At the request of the parties the Tribunal reconvened on 25 June 2001 to consider the decision, and inevitably had to consider the missing findings. Whilst giving the fullest respect to the reservations expressed by the Applicant's representative about the expression of those findings now, the Tribunal considers it more important to set out those findings so as to complete the task of hearing this group of cases."

There is no evidence of such a "request" having been made by the parties, and that it appears that this meeting apparently then went on for a further three days.

9. After the second Decision was received on 13 August further Notices of Appeal were served by both sides. The second Decision contained some comparatively minor differences from the first, and some reordering, but it also contained a tranche of entirely new findings at paragraphs 135 to 166. It was common ground that the first Decision failed to make a number of relevant findings: this was part of the Home Office's appeal to the EAT. The Home Office took the view that the Tribunal had given its decision subject only to the statement of the terms of the declarations and it was not open to the Tribunal make further findings when determining the form of declarations, least of all without giving the Home Office the opportunity to be heard on the issue. The Tribunal had invited the parties to make representations as to the terms of the declarations, not as to matters upon which it had failed to make relevant findings of fact. Following the second Decision, and despite objections from the Home Office, a review hearing was held on the application of the Applicants to deal with a number of points arising out of the second Decision.
10. The Home Office's contentions were to the effect that Tribunal effectively sought to "recall" its first Decision to tidy up certain parts of the reasoning and to insert new findings and/or reasons where earlier there were none. This is, it was submitted, was particularly relevant as regards the Tribunal's consideration of the Home Office's "genuine material factor" defence under s 1(3) of the Equal Pay Act. It submitted that there is in general no power to recall a judicial decision once it has been perfected: see Re Barrell Enterprises [1973] 1 WLR 19 at 24 and once a decision on a particular issue has been duly perfected, the powers of the court or tribunal to have been exhausted in relation to that particular aspect of the proceedings, subject only to very limited exceptions in the interests of justice. Whilst the Tribunal could properly keep open the question of the precise terms of the declarations should be made on the basis of its findings, the extended reasons set out the decisions it had made (as expressly stated in the first decision) and it had no power of addition or amendment. Accordingly it was submitted the second Decision was a nullity.
11. The Home Office further submitted that even if the first decision had not been perfected by means of its registration, the power of recall is very limited: see Hanks v Ace High Productions Ltd [1979] ICR 1155. There, Phillips J said:

"It is that class of case, where the error or omission is obvious and comes to light soon after the hearing and before the order is drawn up, which is suitable to be dealt with in this way, rather than by way of review. Putting the matter negatively, it would obviously be wrong to make use of the power, in effect to re-hear the case, or merely to hear further argument on matters of fact with the possibility of changing the mind of the tribunal on the facts, when already a clear decision has been reached upon them. It is intended for the simple error which can be put right and matters of that sort. In other words, in summary, the power exists. It should be used carefully, sparingly and not as a matter of course."

In Hanks, the example Phillips J gave was:

"Where the chairman has forgotten about the basic award and realises it as the parties are leaving the hearing."

Other examples cited to us were Spring Grove Services Group plc v Hickinbottom [1990] ICR 111, Lamont v Fry's Metals Ltd [1985] ICR 566, Arthur Guinness Son & Co (Great Britain) Ltd v Green [1989] IRLR 288, and Gutzmore v J Wardley (Holdings) Ltd [1993] ICR 581.

12. In any event, the Home Office submitted, where the decision of an Employment Tribunal has been registered (and, thereby, perfected), the power of recall to be limited to the following three circumstances: (1) clerical mistakes and errors arising from an accidental slip or omission in the documents containing the decision or reasons, which may be corrected at any time by the chairman by certificate under rule 12(8); (2) where a decision has been reviewed under r 13, the chairman may revoke or vary that decision, again by certificate (rule 13(7)); and (3) the decision may be altered by order of a superior court on appeal (see rule 12(9)(b)). In such cases, the Secretary of the Tribunal must make the necessary alterations to the Register, and must send a copy of the amended entry to the parties and to any other persons entitled to receive them. What the Tribunal purported to do in this case was to make good a substantive failing in its original decision, i.e. to make findings and provide reasons where it had failed to do so before. There is no power, it was said, for a Tribunal to "reconsider" matters by way of some other informal procedure: see Reuben v London Borough of Brent [2000] ICR 102. In that case the EAT held that a tribunal would lack jurisdiction to deal with an informal remission by the EAT, as it would be functus once the decision had been registered. If the reasons are unclear or it is uncertain whether the tribunal dealt with a particular point, the only course open to the EAT (if it considers it appropriate) is to allow the appeal and formally remit the case to the tribunal to consider such matters as it may direct. Such a procedure would re-invest the tribunal with power to deal with the matter, and its further decision and reasons would be registered and capable of being appealed. On the other hand, further reasons, given informally, would have no legal status. Effectively what this Tribunal sought to do, it was submitted, was to make good failings in its original decision without having been re-invested with the power to do so, either by an appellate court or by an application for review by either party.
13. On behalf of the Applicants it was submitted that by regulation 2(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 (which were the relevant regulations at the time of the Decisions) it is provided that "Decision" in relation to a Tribunal includes a declaration, an order (including an order striking out any Originating Application or Notice of Appearance made under rule 4(7) or 13(2)), a recommendation or an award of the Tribunal, and a determination under rule 6. Schedule 1, rule 10 of the Regulations does not define what amounts to a Decision. Rule 10(3) provides that the Tribunal shall give reasons for its Decision.
14. The first Decision provided under the heading "Decision":

"The unanimous decision of the Tribunal is that its conclusions are as set out in the Extended Reasons."

The first Decision set out "Conclusions" at various different points:

(i) Paragraphs 38 to 45. Those paragraphs do not set out a decision, but the final paragraph under paragraph 45 states that the Tribunal's "Conclusion" is that the Home Office's "argument about the male HEOs is accepted."

(ii) Paragraphs 68-73 in respect of the "material factor defence". Those paragraphs provided the Tribunal's conclusion in respect of various matters raised under this heading but do not reach a decision.

(iii) Paragraphs 155-157 in respect of what were described as "the Phase 2 cases (Groups 2 and 3)". The Tribunal held

"155 We have concluded that the law as we have set it out in the relevant authorities does not allow us to carry out the role which the Applicants contend we should fulfil. Those governed by Phase 2 have not been rated as equivalent under a job evaluation study."

Further the Tribunal stated at para 156:

"It is therefore proper to conclude that the whole approach required in the Group 3 cases is not a proper basis for the Tribunal to proceed in this jurisdiction."

15. The Applicants submitted that the Tribunal did not identify which Applicants had succeeded and which had failed. This, it was submitted prevented the conclusions from amounting to a Decision. It was therefore submitted that the Tribunal had failed to reach a Decision. It was required by rule 10(3) to provide reasons for its Decision. Instead it had set out various findings and conclusions drawn from those findings under the heading "Extended Reasons" and under the heading "Decision" had merely referred to those conclusions. In so doing it had not determined whether or not any of the named Applicants has succeeded in their claim. It was submitted that a Decision on a claim must state in terms whether or not Applicants identified by name or otherwise specifically identified have succeeded or failed.
16. In support of the proposition that the first Decision was not a decision the Applicants pointed to the covering letter which informed the parties that the Chairman invited either party if they took the view that points were overlooked or errors had occurred to have them corrected either by way of Certificate of Correction or by way of application for review, relying upon the ground of the interests of justice, and further stated that:

"The terms of the Decision have been left open for discussion with you, to identify the precise terms in which the appropriate declaration should be made."

17. The Applicants also relied on paragraph 6 of the second Decision in which the Tribunal said:

"The Applicant's representative has made representations in which it is stated that "although the findings of the Tribunal of 29 May 2001 were entitled 'decision' there was no decision. It is only when the Tribunal issue what was called a "further decision" that any decision on the claims before it will have been reached. In these circumstances the submission of the Applicants is that time for the appeal should run from that date". The Tribunal agrees with that reasoning. The sending to the parties of a document which set out the reasoning of the Tribunal on the matters in fact addressed in that document did not of itself constitute a decision, properly speaking."

The Applicants submitted that in its second Decision the Tribunal varied the Extended Reasons in a number of respects and made findings on those matters which were omitted from its first Decision.

18. In summary, the Applicants submitted, the first Decision was not a Decision as it failed to reach a determination on the Applicants' claims. So the Tribunal continued to have jurisdiction to promulgate the second Decision and vary its Extended Reasons. The Tribunal had invited representations from the parties and The Home Office declined to accept that invitation. There was nothing in the Extended Reasons which could not have been contained in the reasons of the first Decision. Had the reasons in the first Decision contained the additional matters in the reasons of the second Decision the Home Office would have no ground of complaint. It would not meet the overriding objective to set aside the second decision on this basis and subject the parties to a further delay and expense.
19. The second of the points we had to determine at the outset of the appeal was whether, even if the second Decision was a valid decision it could be regarded as safe. It is convenient to deal with the arguments on this point at this stage.
20. The Home Office submitted that Art 6(1) of the European Convention on Human Rights specifically guarantees that civil proceedings are to be heard and determined within a reasonable time, the purpose of this provision being to protect "all parties to court proceedings ... against excessive procedural delays" and to underline "the importance of rendering justice without delays which might jeopardise its effectiveness and credibility". In domestic law the issue of judicial delay had been considered before the coming into force of the Human Rights Act 1998 in Goose v Wilson Sandford & Co and another when the Court of Appeal pointed out that a judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser's confidence in the correctness of the decision when it is eventually delivered. In that case, the delay in question was of some 20 months, part of which was due to a period of serious ill-health on the part of the trial Judge. Given this delay, the Court of Appeal did not feel that many of the findings of fact on the evidence (albeit recorded in daily transcripts during the trial) could be upheld as "safe". We were also referred to two other occasions when the Court of Appeal had censured judges for delay in delivering reserved judgments: Rolled Steel Ltd v British Steel Corporation [1986] Ch 246, in which there was a delay in giving judgment of nearly eight months after the conclusion of the trial, and Bishopsgate Investment Management Ltd v Maxwell [1993] BCC 120, which concerned a five month delay in giving judgment after trial.
21. The Home Office submitted that in the present case the delay between the conclusion of the 12-day hearing and the promulgation of the first decision was of approximately one year. There was a delay of over 11 months between the consideration of the case in chambers by the Tribunal and the issuing of the first decision. The period of delay between the hearing and the promulgation of the second decision was some 13 months, although there had been a further four-day meeting of the Tribunal in chambers before the promulgation of the second Decision.
22. In the Home Office's submission the delay was unprecedented delay and the unattractive outcome was that the matter should be remitted for rehearing before a different Tribunal. It was appropriate because:

(1) The case was very significant for both sides. The Applicants are seeking to rely on these claims as "lead cases" in large-scale equal pay proceedings involving over a thousand claimants.

(2) The delay in this case plainly caused the Tribunal to become confused as to the matters it had to determine. This was illustrated by an apparent confusion in the first decision in relation to those cases falling within what was described as Phase 1 of the Pay and Grading Review.

(3) A number of the Tribunal's conclusions in relation to the Respondent's "genuine material factor" defence seemed to pay scant regard to the evidence and/or seem to add to the evidence before the Tribunal,

e.g: a) By referring to "women ... lacking the industrial power of the prison officers" (para 68), the Tribunal had apparently ignored its own statement of the position (para 67) that "In 1994, legislation was introduced to prevent prison officer and governors taking industrial action".

b) By its broad statement that "... the differences between the two groups reflect gender differences, in particular in respect of working hours" (para 69), apparently without any consideration of the justification for the working hours requirements made of Prison Officers and Governors.

(4) The statement of its findings of fact gave rise to even greater concern. The Home Office referred to a number of examples.

23. The Applicants submitted that when the two decisions were looked at in their entirety there was nothing to show that they were unsafe. Mere delay in giving a decision, undesirable though it might be, was not a reason to set the decision aside. The real complaint that the Home Office had was that the Tribunal had preferred the evidence of the Applicants to that called on behalf of the Home Office. The Tribunal had made it clear when allowing the application for review of the second Decision that it was not merely relying on its recollection. It had said:

"The Tribunal does not rely upon its recollection of the evidence, it relies upon its notes taken by the three members of the Tribunal. The Tribunal felt able to make the additional findings which became the subject of the decision promulgated earlier this year and therefore does not consider the continuation of that process is now unsafe. It is not inherently unsafe to embark on such an exercise."

This demonstrated that the Tribunal could properly have reached its decision despite the lapse of time.

24. As to the first question, whether the first document which was promulgated was a Decision or not, we reject the submission that a Decision or a claim must state in terms whether or not the Applicants identified by name or otherwise specifically identified have succeeded or failed. There are many occasions when it will be necessary for a Decision to take the form of a declaration. There may be a finding as to whether a person has been unfairly dismissed or not, but then a remedy hearing which may result in there being no compensation payable whatsoever for one reason or another. In complicated cases such as the present where the proceedings are intended to be used to set precedents, it may well be that the only sensible way to determine the proceedings will be by a number of declarations.
25. In any event what the Tribunal did in this case by its first decision was to make a considerable number of findings. It promulgated its conclusions as a decision and adjourned the appropriate terms of the declarations to be set out in a further decision after representations by the parties as to their terms. It will be noted that the Tribunal purported to make a decision and then refers to the declarations to be made as being intended to be set out "in a further decision". This it was perfectly entitled to do. The decision that was made was entered in the register and promulgated as a decision. In our judgment the Tribunal itself was entirely right in its original letter when it talked of promulgating the Decision. The Decision was promulgated. It was signed by the Chairman. It was duly entered on the Register and it took effect as a Decision. It may not have been expressed in the most usual of terms, but that was inevitable given the complexity of the matters in issue. What the Tribunal did was present the parties with what it had decided so that the parties could then proceed to debate the precise form of relief which was to be given on the basis of those findings. That is why the parties were invited only to make representations as to the form of the declarations. It is noticeable that the Chairman, in the letter which went out with the Decision, while accepting there might be matters which required correction or whatever in the Decision, suggested that that should be done either by a Certificate ie under the Slip Rule or on an application for review. Those suggestions were relevant only if there had been a Decision.
26. It would have been possible for the tribunal to proceed by publishing to the parties a draft decision and inviting comment on it as nowadays sometimes occurs in the High Court. This was, however, not the course adopted.
27. Once there has been a decision which had been promulgated and duly entered on the register, the Tribunal is not in a position to recall it, nor was it in a position to bolster it by adding further material to it. Reuben v London Borough of Brent [2000] ICR 102, shows that to be the case, even if the additional reasons are given on the invitation of the Employment Appeal Tribunal. Once a tribunal has made its decision and it has been registered, it is functus officio and the decision can only altered or added to in a manner approved by law. This is by certificate (in effect a "slip rule"), following a review, or under the direction of a superior court following an appeal.
28. This is not a case in which there was a possibility of the Decision being amended in some way was done in the case of Hanks v Ace High Productions Ltd [1979] ICR 1155. The power there held to exist must be done exercised before the decision has been promulgated and entered in the Register. In any event it should be used only, as the Employment Appeal Tribunal put it, "carefully, sparingly and not as a matter of course". The example given in the course of the judgment makes it clear that it is intended to be used only in simple and obvious cases.
29. In our view there was no basis in this case on which the Tribunal could issue its second decision. Still less was it appropriate for it to do so without inviting the parties to comment on the proposed course of action and giving them the chance to make submissions about what was proposed. The second Decision was therefore outside the Tribunal's powers and of no effect. Given that there was no jurisdiction for the Tribunal to issue its Second Decision, it would not be possible for this Tribunal to validate that Decision, even if it was desirable (as the Applicants suggested it would be) under the "overriding objective".
30. Even if we had taken the view that the second Decision was within the powers of the Tribunal we would have considered it was unsafe. This is a view we formed by reference to domestic law, rather than by reference to Article 6. When the Tribunal wrote:

"The Tribunal does not rely upon its recollection of the evidence, it relies upon its notes taken by the three members of the Tribunal. The Tribunal felt able to make the additional findings which became the subject of the decision promulgated earlier this year and therefore does not consider the continuation of that process is now unsafe. It is not inherently unsafe to embark on such an exercise"

it was rejecting the submission being made by Ms Gill on behalf of the Applicants as to the unsafeness of it making further findings of fact at that stage. It was demonstrating that it was relying on the notes taken during the hearing by the Tribunal members. That, after so lengthy a delay, is not in our judgment satisfactory. Here there had been a delay well in excess of that heavily criticised in Bishopsgate Investments v Maxwell [1993] BCC 120 and, for that matter, in Rolled Steel v British Steel Corporation [1986] Ch. 246. The delay, even making due allowance for the difficulties of a Tribunal with lay members who were necessarily not full-timers, dealing with a case so time consuming and of such complexity as the present, was unacceptable. Whilst delay of itself is not a sufficient reason for setting a decision aside, in this case the delay coupled with the criticisms made of the content of the second Decision would in our view have made it unsafe if it were an other wise valid decision.

31. The danger in any case of this sort is that the Tribunal will have forgotten the impression created by witnesses. In this case the members did not, as in the Goose case, have the advantage of a daily transcript. They had merely the manuscript notes made at the time. The Court of Appeal in that case said:

"We do not lose sight of the fact the judge had transcripts of the evidence as well as very extensive written submissions from counsel, but the very fact of a huge delay in itself weakened the judge's advantage, that is the advantage of seeing the witnesses and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this land that case was comparatively uncomplex compared with the present case] it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence and when he has come to study the evidence, both oral and written and submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling them."

32. There is in this case at least a suggestion that they had put out of their minds some substantial parts of the evidence. The examples given on behalf of the Home Office where the Tribunal appeared not to be entirely on top of the facts were compelling, and were not effectively answered on behalf of the Applicants. They were:

a) Having reiterated the Respondent's summary of its arguments in relation to why it would be appropriate to consider the general position of Prison Officers and Governors rather than merely a particular snapshot of individual comparators selected by the Applicants (see paras 145 and 146 of the second Decision), the Tribunal entirely failed to express its conclusions on the evidence relied on by the Respondent or to make any clear finding on its contentions in this regard. Instead, the Tribunal appeared to rely almost entirely upon the report produced by the Applicants' expert, Mr. Beddoes without any real consideration of contrary evidence.

b) The reference to the comparator Fitzgerald (para 148) underlined the point. The recitation of the evidence in relation to this comparator was entirely consistent with the Respondent's argument that Prison Officers will normally work shifts, alternate weekends, nights, public holidays etc. It was, however, apparently relied on as "an excellent example of the need to look at specific cases" to show a contrary case.

c) The Tribunal suggested that "It is less satisfactory to rely upon either broad generalizations across the service, or anecdotal evidence which is necessarily random in nature depending upon whether Applicants who gave evidence before the Tribunal happen to know people who worked in prison establishments" (para 148). This did not deal with the rather more comprehensive evidence of the Home Office witness Mr Brooks (with 20 years operational experience in six prison establishments, including organizing shift rotas in four of those establishments). It also failed to deal with the evidence that the vast majority of prison officers in prison establishments (17,137 out of 18,933) are employed on discipline duties, which will involve the working arrangements relied on by the Home Office, or the citation relied on from the Woolf Report.

33. These specific criticisms are levelled at the second Decision. However the parties indicated that in the light of our view of the second Decision, they both regarded the first Decision as susceptible to similar criticisms. There was in addition the problem with the decision that it did not deal on any view with all the issues of fact which the parties required to be dealt with. In those circumstances we took the view that the first Decision also should be set aside and the matter remitted for rehearing before a new Tribunal.