United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MANUS EGAN (Of Counsel) Instructed by: Messrs Bishop & Sowell Solicitors 46 Bedford Square London WC1B 3DP
For the Respondent	MR MICHAEL McDONOUGH (Representative) Instructed by: Messrs McDonough & Associates Jubilee Business Centre Exeter Road London NW2 3UF

SUMMARY

The Employment Tribunal made an important factual finding as to the process by which the employees were dismissed, the finding being on a matter which was not put to the employer during the hearing and on which they had no opportunity to lead evidence. Did those circumstances entitle the employer to have the employees' unfair dismissal applications remitted to the employment tribunal for re-hearing?


 


THE HONOURABLE MR JUSTICE RIMER

1. This is an appeal by The Polyglobe Group Limited ("Polyglobe") against the judgment of an employment tribunal sitting at London South on 29 and 30 September and 1 October 2004. The tribunal delivered their decision orally on 1 October and their written judgment and reasons were promulgated on 13 October. The tribunal was chaired by Mrs Frances Spencer, sitting with Mr J. Kettrick and Mr D.J. Dennehy.
2. Polyglobe was the respondent before the tribunal. The applicants were three of its former employees, Mr Dipak Vadher, Mr Mohammed Huda and Mr Rohan Hassen, whom Polyglobe had dismissed on the ground of redundancy. Their claims were for unfair dismissal and the tribunal's decision was (i) that each claimant was unfairly dismissed; (ii) that Mr Vadher's dismissal also amounted to discrimination contrary to section 5(1) of the Disability Discrimination Act 1995 ("the DDA"), and (iii) that Mr Huda's compensatory award should be reduced by 10% to reflect the possibility that he might have been dismissed anyway.
3. The sole ground of the appeal is that it is said that, in finding the dismissals to have been substantively unfair, the tribunal relied to a material extent on a finding of fact they made in relation to a particular matter in respect of which Polyglobe was given no opportunity either to call evidence or to make submissions. The appeal is, therefore, based on the case that the tribunal arrived at their decision by an unfair process. Polyglobe asks for the decision to be set aside and for the claims to be remitted for rehearing to a differently constituted tribunal. Mr Manus Egan represented Polyglobe both before the tribunal and before us. Ms M. Moloney, a solicitor, represented the claimants before the tribunal, but before us they have been represented by Mr Michael McDonough, the principal of a firm of employment law consultants.

The decision of the employment tribunal

4. Polyglobe offers and arranges hotel and conference bookings for clients. Mr Amarasinghe was its finance director, Mr Hindocha its financial controller and Mr Kingsnorth and Mr Virdee its managing directors.
5. Mr Huda commenced work for Polyglobe in July 1998 and by June 2003 was a finance systems analyst in the finance department. He was the only Polyglobe employee with that job title and role. Mr Hassen commenced work with Polyglobe in May 1999 and by June 2003 was one of five accounts managers in its corporate team. Mr Vadher commenced working for Polyglobe in July 2001 and by June 2003 was one of three team leaders in its finance department. Each team leader was responsible for three or four members of staff and looked after sales and purchase ledgers and credit control.
6. Following 11 September 2001, Polyglobe suffered a reduction in turnover and profit. It held a board meeting on 3 June 2003 at which it resolved it would need to make redundancies straight away. The tribunal accepted that it had a genuine need to make such redundancies.
7. Following that meeting, Polyglobe asked its staff working at its Grosvenor Gardens office (who included Mr Hassen, but not Mr Vadher or Mr Huda, who worked at Monk Street) to attend a meeting on 17 June. Mr Hassen attended the meeting at which it was announced that Polyglobe was facing a potential redundancy situation. No like announcement was made to the Monk Street staff. On the following day, 18 June, Mr Hassen asked Mr Amarasinghe for a few days off work so as to deal with a family crisis. His request was granted and he was away until 24 June.
8. On 19 June, Mr Vadher and Mr Huda were each called into separate meetings with Mr Amarasinghe and Mr Hindocha. In each case, Mr Amarasinghe told them that they were dismissed as from 20 June by way of redundancy. They were handed pre-typed letters dated 19 June confirming their dismissal and setting out the payments they would receive. They were given a month's pay in lieu of notice. The tribunal rejected Polyglobe's evidence that Mr Amarasinghe attempted to go through various selection criteria to explain why they had been selected for redundancy or that either Mr Amarashinghe or Mr Hindocha made any attempt to inform them that there were vacancies as reservations clerks at Polyglobe's retail outlet at Gatwick. Nine other employees were also made redundant as from 20 June.
9. When Mr Hassen returned to work on 24 June he was called to a meeting with Mr Amarasinghe and Mr Virdee. He too was told he was redundant with effect from that day and was also handed a pre-prepared letter. The tribunal found that there was no discussion with him of the method by which he had been selected for redundancy. They rejected Polyglobe's evidence that it offered him the opportunity to consider a job as a retail reservations clerk at Gatwick or that the possibility of other jobs was discussed. They accepted Mr Hassen's evidence that, had he been offered the Gatwick job, he would have taken it.
10. In paragraph 11 of their reasons, the tribunal explained that Polyglobe gave evidence as to the selection process for the redundancies. The explanation was that Mr Vadher had been put into a pool of three team leaders and assessed against a number of criteria, including "suitability for remaining work", "performance" etc and was scored for each of them. He had scored less than the two other team leaders. Mr Hassen was put into a pool of five account managers and scored against the same criteria other than "performance", which was not scored in his case. He also scored less than the others in his pool. As for Mr Huda, Polyglobe began to score him against his line manager, Mr Babikov, but the scoring was abandoned when it became obvious that Mr Babikov's scores would be higher. Having so explained Polyglobe's evidence as to the selection process, the tribunal said:

"12. The Tribunal has no hesitation in rejecting this evidence. We note that the scores were not shown either to Mr Vadher or to Mr Hassen in their meetings on 19 and 24 June respectively, that the basis for selection was not explained to them and the Claimants did not have sight of the scores until they were disclosed in the course of this litigation. The Respondent's evidence as to how and when the scores were arrived at was unconvincing. We conclude that the Respondent simply decided who was to be made redundant and have now produced the scores after the event in an attempt to justify themselves."

We draw attention to the finding in the last sentence, which is at the heart of Polyglobe's complaint on this appeal.

11. The tribunal then turned to Mr Vadher's additional claim of discrimination under the DDA. He suffered from a disability affecting his vocal chords. Polyglobe was fully aware of this, just as they were aware that he had had time off for an operation in the past and was likely to have time off in the future. Their case was, however, that his disability had no bearing on his selection for redundancy. They said they gave him the same score for "communication skills" as they did to the two other candidates in his pool. They did, however, give him a lower score for "attendance" because of the time off he had had because of his disability. The difference in scores on this basis was not, however, by itself enough to tip the balance against him. The tribunal then said this:

"15. As we made clear above, the Tribunal does not accept the Respondent's evidence as to the scoring and selection methods that they adopted. Their evidence on this and other matters did not fill this Tribunal with confidence. As we have said we find that the Respondent simply decided who would be made redundant and dismissed them accordingly. We have received no satisfactory explanation as to why it was Mr Vadher (and not the other 2 team leaders) who was selected for redundancy."

We draw attention to the first and third sentences of that quotation, which refer to the same finding that is the subject of this appeal.

12. Turning to the submissions, the tribunal recorded Mr Egan's concession that the dismissals were procedurally unfair, because there had been no prior consultation. His argument was, however, that either no compensatory award was justified, since it was clear that the claimants would have been made redundant anyway even if a proper consultation process had been followed; or that two weeks' wages should be the maximum award, because a proper process of consultation would have required no more time than that. He submitted that Mr Vadher had not been dismissed for disability.
13. The tribunal then directed themselves as to the law relating to unfair dismissal for redundancy, referring to sections 139 and 98 of the Employment Rights Act 1996; to sections 119, 123 and 124, relating to compensation for unfair dismissal; to section 5(1) of the DDA and to the principle that it is open to a tribunal to infer disability discrimination if no satisfactory explanation is given for the dismissal of a disabled employee. The tribunal then expressed their conclusion on the unfair dismissal claims, opening by saying:

"28. As was, quite properly, conceded by Mr Egan these dismissals were unfair for failure to consult. However in the Tribunal's view the dismissals were also unfair for failure to apply any proper objective selection process. The Respondent's answer to the Tribunal in relation to how they had arrived at the various scores and what the various headings of the criteria actually meant were unconvincing. This, coupled with their failure to explain the procedure to the Claimants at any stage prior to litigation having been commenced, led us to conclude that the scores were put in place after the event to justify conclusions arrived at without the benefit of any objective selection method. This was fundamental unfairness."

14. Again, in the penultimate sentence of that paragraph the tribunal repeated the finding at the heart of this appeal. They proceeded to hold that Polyglobe had given an unsatisfactory and unconvincing explanation as to why Mr Vadher had been selected for redundancy and inferred that it was because of his disability. They also dealt, in principle (but not as to quantum) with the question of compensation to which the claimants were entitled, Mr Vadher's falling to be assessed under the DDA. We summarised their conclusions on this at the beginning of this judgment but, in light of the arguments presented to us, we should elaborate their reasoning a little.
15. Polyglobe's case was that, had there been proper prior consultation, each of the claimants would have been dismissed anyway. In Mr Hassen's case (he being one of five account managers), the tribunal concluded that it was impossible to speculate as to the likely outcome had there been such consultation. They accepted that there was a genuine redundancy so that some employees had to go, but said that Mr Hassen may have persuaded Polyglobe to open up the selection pool for further consideration, to adopt a different method of selection or to offer him a job as a reservations clerk. In his case, therefore, they did not consider it appropriate to make any deduction to reflect the chance that he might have been dismissed anyway: they could not sensibly reconstruct the "world which might have been."
16. The tribunal regarded Mr Huda as in a different class. They accepted his evidence that he would have done any other job available at Ployglobe, even one at a lower salary, but regarded his position as more precarious than Mr Hassen's, since he was the only employee performing his particular role at Polyglobe. In those circumstances, they considered it fair to reduce his compensation by 10% to reflect the possibility that he would have been dismissed anyway.
17. As for Mr Vadher, the tribunal said that:

"35. The employers having given an unsatisfactory and unconvincing explanation for Mr Vadher's selection for redundancy, this Tribunal had no hesitation in drawing an inference at [sic] the reason that the Claimant was selected for redundancy related to his disability."

The appeal to this appeal tribunal

18. We outlined in paragraph 3 above the essence of Polyglobe's ground of appeal. The critical findings made by the tribunal relevant to it are those in paragraphs 12, 15 and 28 of their reasons, which we have quoted. They are to the effect that Polyglobe produced the scores after the event in order to justify conclusions it had already arrived at without the benefit of any objective selection method. It is said by Polyglobe that the making of that finding, and the tribunal's reliance upon it for their conclusion that the dismissals were substantively unfair, were themselves unfair. That is because the point was not part of the claimants' pleaded case, it was not put to the Polyglobe witnesses in cross-examination, no questions on it were put to those witnesses by the tribunal and it formed no part of the claimants' submissions. In those circumstances it is a point that Polyglobe had no need to meet and never sought to meet. Yet when the tribunal gave their decision, Polyglobe discovered that it had formed a central plank in the finding that the dismissals were substantively unfair.
19. Having regard to the nature of Polyglobe's ground of appeal, this tribunal, by an order dated 23 December 2004, required Polyglobe to produce an affidavit detailing the matters relied upon, the order also giving the claimants the opportunity to answer that affidavit and indicating that the chairman and members of the tribunal would also be invited to comment upon it.
20. That order was complied with by the production of the affidavit dated 3 February 2005 of Matthew Briggs, Polyglobe's solicitor, who attended the whole of the hearing before the tribunal. He pointed out that it was only when the tribunal gave their oral decision on 1 October, in advance of the handing down of their written judgment of 13 October, that it emerged that the tribunal's finding on the scoring point was central to their overall judgment that Polyglobe had unfairly dismissed the claimants on substantive grounds. The point had not previously featured in the originating applications or in any questions put in cross-examination to the Polyglobe witnesses or put to them by the tribunal. Nor had the tribunal mentioned the point during the hearing. Mr Briggs explained that, because the point was never raised, Polyglobe was at no stage required, or presented with the opportunity, to adduce evidence on it, or even to make submissions directed at countering it. The essence of his evidence is that the point was simply not an issue at the hearing, and so was not foreseen as having to be met by Polyglobe. It then turned out to be a critical matter, since it was the foundation of the finding that the dismissals were substantively unfair and, in Mr Vadher's case, that his dismissal amounted to disability discrimination. Mr Briggs pointed out that had Polyglobe been given the opportunity to deal in evidence with such an important point, the tribunal may well have come to a different decision. He said that Polyglobe could even have considered waiving legal professional privilege in relation to it. He complained that the manner in which the tribunal dealt with the point was unfair.
21. No affidavit in answer has been served on behalf of the claimants, which we take to be a tacit acceptance of the accuracy of Mr Briggs's account of the role (or lack of role) played by the point at the hearing. We do, however, have the benefit of a response to Polyglobe's notice of appeal from the chairman, with which the members are in agreement. The chairman said that her notes did not record that it was specifically put to Polyglobe's witnesses that the scores were put in place after the event and the tribunal accepts "that this was probably not put in those terms." She went on to say that:

"However many questions were put as to how, when and why the selection procedure was arrived at and applied. This should have suggested to the Respondent that the authenticity of the selection procedure was in question and that we were seeking to establish whether the scores had been genuinely applied to those in the pool for selection."

22. We understand from that paragraph that it was the tribunal who posed these questions and who were doing the "seeking" there mentioned. We also understand the chairman's comments to amount to an acceptance that at no point did anyone – either the tribunal or Ms Moloney – put it to any witness that the scores had been fabricated after the event.
23. The chairman said further that Polyglobe's evidence was inconsistent as to when the criteria were applied to the claimants. The tribunal had noted that Polyglobe had not produced the scores either at the June 2003 meetings or in subsequent correspondence with Mr Vadher. They had accepted the claimants' evidence that the first time they saw the selection criteria was in Polyglobe's notice of appearance and that the first time they saw the scores was during disclosure. They said that the other people in the redundancy pools were also unaware that the selection exercise was being carried out. The tribunal said that:

"All this suggested that the Respondent had decided early on in the exercise that it was the Claimants who would be made redundant and that the selection procedure now before us was to justify the decisions already made."

They said that Mr Amarasinghe was asked in cross-examination when the selection criteria were drawn up, to which he gave a vague answer that it was some time between 3 and 19 June 2003 and after receiving legal advice. They said the case involved a stark conflict of evidence and that the tribunal had no hesitation in preferring the claimants' evidence, having concluded that the Polyglobe witnesses had been untruthful about a significant number of matters. The Polyglobe evidence about the selection criteria and the allocation of scores was unconvincing and cast serious doubt on the overall credibility of the exercise. No one could tell on what date the selection and scoring were done. The tribunal said that it may be that Polyglobe could have called evidence as to the legal advice it had received, but the issue would then have been whether it had followed that advice.

24. We need not refer further to the tribunal's response. The overall thrust of it is that they were unconvinced by the Polyglobe evidence in relation to the adoption of the selection criteria and the scoring of the various candidates and did not accept it. But it also appears clear that they accept that it was not put by anyone to the Polyglobe witnesses that the scores had been created after the event, meaning after the dismissals. We approach the issue raised by this appeal on that basis.
25. On that basis, Mr Egan, for Polyglobe, submitted that it is fundamentally unfair for an employment tribunal to rely on matters in coming to their decision which have not been previously mentioned and without the party against whom the point is raised having the opportunity to deal with it. In The County Council of Hereford and Worcester v. Neale [1986] IRLR 168, Ralph Gibson LJ said:

"54. … It is however necessary to add that it would be unwise and potentially unfair for a tribunal to rely upon matters which occur to members of the tribunal after the hearing and which have not been mentioned or treated as relevant without the party, against whom the point is raised, being given the opportunity to deal with it unless the tribunal could be entirely sure that the point is so clear that the party could not make any useful comment in explanation…."

26. We have no difficulty in recognising that as a statement of general principle going to the fundamental fairness of the manner in which a hearing is conducted: it is an application of the general principle traditionally known in Latin as "audi alteram partem" (hear the other side). It is simply, and obviously, contrary to ordinary principles of natural justice to make a finding against a party without that party first being given the opportunity to deal with and meet the point. Mr Egan referred us to certain other authorities in the employment law field where the principle has been recognised and applied: Slaughter v. C. Brewer & Sons [1990] IRLR 426 (paragraphs 27 to 35); British Gas Services Ltd v. McCaull [2001] IRLR 60 (paragraphs 27 to 31); and Market Force (UK) Ltd v. Hunt [2002] IRLR 863 (paragraph 12). Mr Egan submitted that the tribunal offended that principle in this case and so deprived Polyglobe of a fair hearing. The unfairness of the tribunal's procedure was particularly acute since it involved the making by the tribunal of a crucial finding that Polyglobe had dishonestly fabricated part of the evidence it was relying upon. The way the matter can and must now be put right is for us to remit the claims for rehearing by a differently constituted tribunal.
27. For the claimants, Mr McDonough said, correctly, that the tribunal did not find that the selection criteria were put in place after the dismissals but only that the scores were. He said that Polyglobe appeared to accept in its IT3s that none of the claimants asked why he had been selected or to see his scores; and the tribunal also rejected Polyglobe's evidence that the selection criteria were explained to the claimants at the dismissal meetings. He referred us to an exchange of correspondence between solicitors recording their agreement as to certain matters relevant to the course of events at the hearing, namely (i) that Mr Kingsnorth and Mr Amarasinghe gave evidence both in cross-examination and in answer to the tribunal that they had taken legal advice on the redundancy process, including legal advice, (ii) that Mr Egan objected to questions being put about that advice, and (iii) that the tribunal put numerous questions to the Polyglobe witnesses as to whether parts of the selection criteria were objective or subjective. Mr McDonough said that any evidence that might have been given as to the legal advice could at most have gone to the formation of the criteria (as to the timing of which the tribunal made no adverse finding), but not to the scoring. He said that, if it is now being suggested that a disclosure of Polyglobe's legal advice could or might have made a difference to the finding about the scores, then that advice should be disclosed now so that we can see if there is anything in the suggestion.
28. Mr McDonough did not challenge that which appears to be clear, namely that the point about the timing of the scoring process was not expressly raised by anyone, let alone put to Polyglobe's witnesses. But he said that even if the tribunal's subsequent finding on this matter reflected a breach of the principles of natural justice, it did not follow that this automatically entitled Polyglobe to have its appeal allowed and the claims remitted for a rehearing. He said we ought only to adopt that course if there is a real possibility that a rehearing could lead to a different result.
29. As to that, Mr McDonough submitted that, even if the timing of the scoring process were left out of account, there was still ample material justifying the tribunal's conclusions that the dismissals were unfair, that there was no basis for any Polkey reduction in compensation and that an act of disability discrimination had occurred. He said that, as to the first point, Mr Egan had conceded that the dismissals were procedurally unfair, because there had been no consultation. He referred us to the requisite criteria of proper consultation as reiterated in paragraph 20 of the Court of Session's judgment in King and others v. Eaton Ltd [1996] IRLR 199 (drawing on Glidewell LJ's judgment in R v. British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and others [1994] IRLR 72, at 75):

"Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(c) adequate time in which to respond;

(d) conscientious consideration by an authority of a response to consultation.

Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its view on those subjects, with the consultation thereafter considering those views properly and genuinely."

30. Mr McDonough said there was no question of there having been any consultation satisfying these criteria so that there was no question that the dismissals were unfair. He said that, if the claims were to be remitted to an employment tribunal for a rehearing on the question of whether, had a fair procedure been gone through, the claimants would have been dismissed anyway, the answer could only be the same as that which the tribunal had already arrived at. This is because, he said, Polyglobe would not be entitled to lead evidence to the effect that, even if there had been proper consultation, the selection procedure would anyway have resulted in the dismissals. For that proposition he referred us to King and others v. Eaton Ltd (No. 2) [1998] IRLR 686. That was a decision of the Court of Session upholding a decision of the Employment Appeal Tribunal that the employment tribunal had, on a remission to it of the matter on the question of remedy, been entitled in its discretion to refuse to permit the leading of such evidence. Therefore, said Mr McDonough, a remission to an employment tribunal for a rehearing on liability and (in particular) as to whether there should be any Polkey reduction in the quantum of compensation would inevitably result in the same answer as that at which the tribunal have already arrived.
31. As for the tribunal's finding that Mr Vadher had been the victim of disability discrimination, Mr McDonough said the tribunal were amply justified in finding that he was. There was no consultation with him; they did not accept Polyglobe's evidence that Mr Vadher had rejected alternative available employment as a reservations clerk; and the failure to offer him such alternative work fully justified the inference drawn by the tribunal that he had been discriminated against on the grounds of his disability.
32. We agree with Mr McDonough that if the remission of the claimants' application to a freshly constituted tribunal for rehearing will inevitably lead to the making of the same decisions as those already made, then in principle it would wrong for the claims to be so remitted. Even if the employment tribunal made a serious error in their handling of the case, it cannot be a proper exercise of this tribunal's jurisdiction to send a case back for a rehearing if it can be predicted with confidence that the rehearing will produce the same result. If in the present case it can be so predicted, we do not consider that it can or should make any difference that the tribunal also made the unfair finding which founded this appeal. A failure to remit the claims will mean that Polyglobe remains fixed with that very serious adverse finding and will be likely to feel a strong sense of injustice that it has had no opportunity to put the record straight. But we agree with Mr McDonough that it would not be a proper exercise of our appellate jurisdiction to remit the claims for a rehearing, with wholly predictable outcomes, merely to enable Polyglobe to seek to remove the slur cast upon it by this (on this hypothesis, irrelevant) adverse finding.
33. The critical question is, however, whether Mr McDonough is correct in his submission that the outcome of a rehearing of the three claims will inevitably be the same. As to that, we have concluded that, whilst we certainly cannot be confident that the outcome will be different, nor can we be confident that it will inevitably be the same. First, we do not regard Eaton (No 2) as authority for the proposition that, as a matter of principle, an employer can never lead evidence directed to the question as to whether, had a proper consultation process taken place, the employee would have been dismissed anyway. In that case the Court of Session was merely deciding that the employment tribunal's decision to exclude such evidence in the particular case before it was one properly within its discretion. Second, the circumstances of this case are anyway materially different. The evidence that Polyglobe adduced before the tribunal included evidence directed to the Polkey point and so the tribunal has already had all that evidence. If the matter were to be remitted for a rehearing before a fresh tribunal, in principle we cannot see why Polyglobe should not be at liberty to adduce the same evidence again and we do not consider that we should approach the question before us on the basis that the new tribunal hearing the matter would be disposed to exclude any of that evidence. Third, Mr McDonough's point that the conceded unfairness of the dismissals meant that it was in practice impossible for the tribunal to embark upon a consideration of whether any Polkey reduction was appropriate is not easy to square with the fact that, at least in the case of Mr Huda, the tribunal concluded that a 10% reduction was appropriate. Fourth, however, we recognise that the tribunal gave apparently cogent reasons why no reduction could or should properly be made in Mr Hassen's case, and Mr McDonough is entitled to say that it is at least improbable that any different conclusion would be arrived at after a rehearing. Fifth, what material is there to justify a view that a freshly constituted tribunal would arrive at a different decision in Mr Vadher's case?
34. Mr McDonough's able and cogent submissions have caused us some anxiety as to the proper disposition of this appeal. Ultimately, however, we have come to the conclusion that we must allow the appeal. The stark point underlying the tribunal's decision is that in arriving at it the tribunal made a finding of dishonesty against Polyglobe and its directors, being one which was made in circumstances of manifest unfairness. It went to the heart of the questions before the tribunal, since it was to the effect that Polyglobe had fabricated the scores in order to justify dismissal decisions it had already made. The Polyglobe case was, however, that it was the scores which led to those decisions. The tribunal's finding on this must inevitably have coloured their approach to Polyglobe's case. If we assume (a) that the tribunal had given Polyglobe the opportunity of dealing with this issue and (b) that Polyglobe had been able to satisfy the tribunal that the scoring process was genuine and pre-dated the dismissal decisions, then it appears to us likely that the tribunal would, or at least might, have assessed the case in different light. In short, the tribunal placed apparent reliance on a crucial finding arrived at in a manner which was contrary to basic principles of natural justice. Once it is accepted, as we do, that that finding either did play, or might have played, a material part in their overall decision making, then in our view it inevitably follows that the decision must be set aside and the matter remitted for a rehearing. Unless it is, Polyglobe is left the victim of a tribunal process in which justice has neither been done nor seen to be done.
35. We therefore allow the appeal, set aside the decisions in paragraphs (i), (ii) and (iii) of the tribunal's judgment and remit the claimants' applications for a rehearing before a freshly constituted tribunal.