United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS N ELLENBOGEN (of Counsel) Instructed by: Messrs Mayer Brown Rowe & Maw Solicitors 11 Pilgrim Street London EC4V 6RW
For the Respondent	MISS E BANTON (of Counsel) Instructed by: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF


 


THE HONOURABLE LORD JOHNSTON

1. This is an appeal at the instance of the employers against the findings of an Employment Tribunal in relation to the issue of remedy in a case which has a long history consequent upon the dismissal or retirement, whichever way one looks at it, of the employee from the employment of the Appellants. There was initially a hearing on the question of liability which resulted in the Tribunal making findings of both unfair dismissal and disability discrimination. Those findings were appealed to this Tribunal unsuccessfully. Thereafter a hearing took place before an Employment Tribunal on the question of remedy, which resulted in a Decision in the following terms:

"The unanimous decision of the Tribunal is that the Respondent shall pay to the Applicant the amounts set out in the Reasons below, in the total sum of £133,730.00"

Against that Decision an appeal is now taken to this Tribunal.

2. It is to be observed that before the Tribunal in relation to this appeal there were some 81 pages of submissions and argument placed before it. The hearing, we understand, was comparatively short against that background.
3. Before us, against the background, are the well known decisions of Meek -v- City of Birmingham District Council [1987] IRLR 250 and more recently Tran -v- Greenwich Vietnam Community [2002] IRLR 735. Ms Ellenbogen of Counsel argued on behalf of the Appellants the test enunciated in those cases to the effect that in simple terms parties had to know from the reasoning of the Tribunal why they had won or lost. The Employment Tribunal in this case had failed to satisfy those tests. She pointed to the fact that the way the Decision was set out in a series of headings consequent upon a narrative which did not really bear upon the matter, little or no explanation of the reasoning was given, bar a few references to why a particular conclusion had been reached in each particular head. She identified before us what we shall call "substantial issues" that were ventilated at the hearing, namely the issue as to whether or not the lack of consultation which founded the unfair dismissal claim would have in fact made any difference in the circumstances of the case. She referred to the fact that there was a real issue in the case relating to the health of the Respondent employee as to whether or not she would, quite apart from any employment problems, have actually worked for a full span and might not have been beset again by health problems which would have borne upon her ability to work. There was also an issue of contributory fault and furthermore there were substantial questions as to the level of award to be made for non-pecuniary losses. All these matters, she submitted, had been fully placed before the Tribunal and although decisions had been made, they had not been based or supported by adequate reasoning so as to enable the Meek test to be made at this stage.
4. Ms Banton appearing for the Respondent sought to argue that there was sufficient in the material within the confines of the Decision, if read against the background of the submissions and the particular points that were raised without going into them in any detail, to enable both parties to know why they won or lost, although she quite properly accepted that it was quite difficult for her to determine why she had lost on one or two of the points that she had put forward. She maintained that the issues that had been raised by her opposite number before us had been adequately dealt with by the Tribunal and the appeal should be refused.
5. We are entirely satisfied that the way the Tribunal has approached this matter is wholly inadequate when it comes to the issuing of reasons for the various heads of claim that they have allowed. They have more or less arrived at a conclusion and it is quite impossible to divine, if that is the right word, from it what particular aspects of the various arguments found favour with them. To that extent, therefore, we are in support of the position argued for by Counsel for the Appellants, and not totally at least implicit, if I may use that word, disagreed with by Ms Banton who for quite proper reasons, is finding herself in a very difficult position which is not of her making.
6. The question arises however as to what we should do in this context. There are, it seems to us, two lines down which we could go. We could allow the appeal and remit the matter to a freshly constituted Tribunal to reconsider the whole question of remedy, as was urged upon us by Counsel for the Appellants. However we could also go down the line, which has been brought forward by the Court of Appeal in the case of English -v- Emery Reimbold & Strick Ltd [2003] IRLR 710 where the Master of the Rolls, at paragraph 75 states as follows:

"If an application for permission to appeal on grounds of a lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing on notice to the respondent."

7. We recognise that that was a personal injury case and we also recognise that looking at the matter at the time of considering leave to appeal, but we do not consider that either of these distinctions are relevant in the present case. We also recognise that in Tran Lord Justice Sedley appeared to reject this approach in favour of a requirement that if there was to be further consideration, the appeal should first of all be allowed. We are not proposing to follow that line.
8. Ms Ellenbogen argued that if we followed this line and remitted it back to the same Tribunal for further clarification or additional reasoning, her position might be prejudiced in the context of a fair hearing because of the fact that there might be opportunity for re-argument or re-consideration contrary to her interests. We recognise that as a valid point, but when it is weighed against the appalling prejudice that would be suffered by the appellant employee if the matter had to be started again, we consider there is no justifiable reason at this stage for us not to follow the Reimbold route. If, after the exercise we are ordering has been completed, the Appellants still feel, or may feel, that they have been prejudiced by this exercise, we would reserve them the right to so argue if necessary at a further hearing before this Tribunal.
9. In these circumstances, it is the Order of this Tribunal that the appeal shall be adjourned in order for the matter to be remitted to the same Tribunal, in order that the Chairman may amplify, clarify and, indeed, give reasons each of the findings that she and her colleagues made in respect of each head of claim.
10. We would only add two points. It is unfortunate perhaps that the parties did not consider a review of the Decision in this case, because that might well have obviated the need for an appeal. Secondly, though it is probably an inappropriate comment, we would hope that once clarification has been given by the Employment Tribunal, or indeed additional reasons supporting the position, that this case might be brought to a halt by a sensible compromise. We shall so order.
11. A secondary question arises on the question of invalidity benefit and we would simply make an Order which was accepted by both parties that the matter of recoupment should be considered by the Secretary of State.