United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D O'Carroll, Advocate Instructed by- Law at Work 151 St Vincent Street GLASGOW G2 5NJ
For the Respondent	Ms P Keys, Solicitor Of- Messrs McGrigors Solicitors Pacific House 70 Wellington Street GLASGOW G2 6SB

SUMMARY
UNFAIR DISMISSAL

REASON FOR DISMISSAL

The Tribunal erred in its approach to substantial other reason (contrary to Hollister, Banerjee, Harper and Gilham) by expressing its own view as to the commercial decision leading to the business re-organisation requiring alteration to the terms and conditions of the Applicant's employment, rather than addressing the employer's reasons. It consequently found the decision unfair due to lack of a statutory reason, and prevented proper consideration (in the alternative) of reasonableness. Conclusion that dismissal was for a substantial other reason substituted, and the issue as to fair dismissal remitted, and to a different Tribunal.


 


THE HONOURABLE MR JUSTICE BURTON (P):

1. This has been the hearing of an appeal against the unanimous decision of the Employment Tribunal at Glasgow, after a hearing on 8 June 2004, in a judgment that was handed down on 30 June 2004. The decision of the Employment Tribunal was that the Applicant, who had been employed by the Appellant, Scott & Co, as a Messenger-at-Arms and then as a Sheriff Officer, from 3 February 1992 until 16 December 2003, was unfairly dismissed.
2. The background to the dismissal, was that the Appellant, which carries out debt recovery services, employing over 250 people in offices throughout Scotland, had made a decision to change its system of working for Sheriff Officers and Messengers-at-Arms to shift work, in order to increase the amount of evening working contained in the ordinary contract of employment of those employees. This, it seems, resulted from the change in Scottish legislation to alter the recovery of civil debts from a concentration on poinding, that is, recovery by Sheriff Officers taking repossession of the chattels and property in satisfaction of debts, which can normally be done during the day, over to attachment, preceded by interviews and enquiries so as to see how best, and on what basis, a debt can be secured, and, thus, recovered.
3. The proposed changes involved, as would be obvious, change to the contract of employment of the relevant employees, of which, at the material time, there were 35. Of those 35, all save three agreed to the change. The Applicant was one of the three. The second of the three was a Mr Caulfield, who had very special personal circumstances justifying his challenge to the change of his own personal contract, and which led to special arrangements being made for him, and the third was a Mr Williamson, who, eventually, and prior to the hearing of this unfair dismissal application at the Tribunal, agreed to the change of his contract, but not until after this Applicant had been dismissed.
4. The evidence of this appears in the Tribunal's decision as follows. At paragraph 14, the Tribunal records that the Appellant wrote to the Applicant on 5 May 2003, referring in that letter to a memorandum dated 3 April 2003, which had been sent to all Sheriff Officers and their Witnesses. The latter is a term of art to refer to someone who accompanies a Sheriff Officer on the exercise of his duties. That memorandum, which was sent by a Mr McLaughlin, recorded as follows:-

"One of the core elements of our debt recovery and associated services is the effectiveness of all those involved in the recovery cycle, including Sheriff Officers and Witnesses. It had in recent months become increasingly apparent to us that restricting household visits to daytime hours was reducing the ability of the Sheriff Officer and Witness to be effective, both in obtaining the relevant personal and financial information and in negotiating settlement proposals. To overcome this, and to meet the requirements both of our business and those of our clients, the decision was taken to introduce a shift working system which incorporated evening hours."

The Tribunal continues that the Appellant wrote to the Applicant to confirm his specific objections to the acceptance of the revised contract of employment, and the Applicant did not respond to that letter.

5. In paragraph 15, the Tribunal records that a meeting was held between the Applicant, a Mrs Glass and a Mr Bruce on 15 July 2003. The Minutes of that meeting were referred to by the Tribunal and are before us, and they include the following passage:-

"Joy Glass outlined to Mr Richardson the commercial reasons behind the proposal to introduce the shift working system. This had nothing to do with overtime or any desire to cut costs, but was principally a result of the requirement to provide the service demanded by clients and to ensure that the firm retained its position as a leading provider of debt recovery and associated services. In achieving these objectives, it was essential that the Sheriff Officers played a more effective role in the debt recovery process and this inevitably required them to come face to face with debtors – something which had proven difficult during daytime hours. Andrew Richardson accepted all of this, particularly the requirement to speak face to face with debtors, which he believed was an essential part of the Sheriff Officer's job.

However, he did not accept that he should be required to alter his working hours to accommodate this requirement. In his view, the Officers' working day should remain as it is, with overtime payments being made for the additional evening hours required.

According to Andrew Richardson, he currently works approximately one week in eight as a duty week, for which he receives overtime payments. As he sees it, the introduction of the shift system will deny him the opportunity to earn these overtime payments. It was explained to him that hours worked outwith the 37.5 hours per week would still attract overtime."

6. The Tribunal then records what happened thereafter. There was some further correspondence between the parties, and then the Applicant wrote a letter dated 24 September 2003 which concluded as follows:-

"The ball is firmly in your court. I have held my position for 7 months now; have given a huge amount of thought to the matter and been in receipt of specialist legal advice. The Company must now decide either to accept, along with the rest of my contract, this last strand or to unfairly dismiss me.

I await your decision."

7. At paragraph 19, it is recorded that the Appellant wrote to the Applicant on 30 September 2003 a letter reiterating that the overall number of hours worked by Sheriff Officers per week did not alter and would remain at 37½. One week out of four the Applicant would work from 11.30am to 8pm on a Monday to Thursday. Other weeks he would work normally. It was the Appellant's position that working that pattern would allow the Appellant to plan the work more effectively and at a lower cost. While giving the Applicant his notice of termination it encouraged him to reconsider his position, and indicated its preparedness to re-engage him on the new terms and conditions.

7. The Tribunal records, at paragraph 26 and 27, the following:-

26. 26.                 "The change proposed by the respondents to move to shift working would not have been a temporary change. The respondents' position was that they wanted to obtain flexibility, although they might be willing to change the hours of the shifts. The proposed change was only a "pilot scheme" in the sense of the hours of the shifts being imposed. It was not a "pilot scheme" in relation to the imposition of the shift system as such.

27. 27.                 Before the proposed change in the contract there had been work available for Sheriff Officers and witnesses both in the morning and in the evenings. After the change there was still work in the mornings and in the evenings, albeit that work was being done on a shift system. To have worked the shift system, as proposed, would have meant a loss in earnings to the applicant. That was because there would be no payment of overtime for the evening working. Other Officers on shift work would carry out the work which the applicant might in the past have done in the evening for which the applicant would in the past have received overtime pay."

and at paragraph 59 as follows:

"59. In this case we have found that there had always been the need for evening work to be carried out and that no evidence had been led by the respondents of any altered requirements by their customers or clients. Mrs Glass stated that the proposed change was to meet client demands but no evidence of what those demands might be or how they may have changed was led."

8. In a letter sent by the Chairman to the Employment Appeal Tribunal, dated 29 November 2004, in response to a request from the Employment Appeal Tribunal effectively made by reference to paragraph 7 of the Employment Appeal Tribunal Practice Direction, in lieu of the obtaining of Chairman's Notes, the Chairman responded as follows:-

"In paragraph 59 the Tribunal specifically mentioned that Mrs Glass had stated that the proposed change was to meet client's demands. In her evidence in chief Mrs Glass stated that overtime was worked on an "as required basis" and did not necessarily coincide with the volume of instructions. She stated that the firm was not in control of overtime as it depended on the nature of the instruction. In cross examination she referred to changing client requirements and gave evidence that the firm's clients were principally public sector clients and the firm was requiring to provide more of a debt counselling service to those clients and required better information about people's circumstances. The firm was to provide detailed reports for the public sector clients.

She also referred to legislative changes which restricted the enforcement of decrees on domestic households and that negotiations and voluntary arrangements reached with debtors were more common. She explained that poindings had been replaced by attachments and then gave evidence of the special warrant required for dealing with domestic debt. She explained there was a need for reports on the circumstances of the debtor so a decision could be taken as to what to do. She also gave evidence about a statutory debt arrangement scheme which was about to be introduced.

Paragraph 59 was not meant to be interpreted to the effect that Mrs Glass had given no such evidence. That paragraph has to be read in conjunction with paragraph 58 when reference was made to the case of Banerjee. The only evidence which the Tribunal heard about any required changes came from Mrs Glass and no documentary evidence was [led] or oral evidence from any other person."

9. Those therefore were either the findings of fact by the Tribunal, material to this appeal, or, in the case of the Chairman's letter, his supplementation of what appears in the judgment in response to the EAT's request,
10. The case for the Appellant was that the decision to introduce the shift system in replacement for the existing system, which resulted in the need for the change in the terms and conditions of employment of the 35 Sheriffs, was, because the Applicant did not agree with that course, a substantial other reason for his dismissal. This falls to be considered within s98(1) of the Employment Rights Act 1996. S98(1) reads as follows:-

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) (a)    the reason (or, if more than one, the principal reason) for the dismissal,

and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."

11. There is a limited number of helpful authorities on the issue of what can amount to a substantial other reason for the purposes of s98(1)(b), and we have been helpfully provided with all of them by the advocates appearing before us on this appeal, Mr O'Carroll, of Counsel, who did not appear below, for the Appellant, and Ms Keys, the Applicant's solicitor, who did appear below.
12. Mr O'Carroll's starting point is to refer to the well-known decision in Moon v Homeworthy Furniture (Northern) Limited [1976] IRLR 298, which is a redundancy case, but which he says, is relevant by way of analogy because, of course, a management decision may lead to a redundancy, or it may, as here, fortunately, lead not to a redundancy, because none of the 35 employees were intended to lose their jobs, but to changes in the terms and conditions of employment. It was held by the Employment Appeal Tribunal in Moon, and has many times been supported and followed since, that, in hearing a complaint of unfair dismissal arising out of redundancy, an Employment Tribunal can investigate the origin of the redundancy situation, including questions such as unfair selection or lack of notice, but it has no jurisdiction to investigate the reasons for creating the redundancies. It is against that background that the significant authorities on substantial other reason, namely, where the dismissal has arisen from business decisions by the Respondent, falls to be considered.
13. The first such decision in terms of the point of time, was the judgment of Arnold J in Hollister v National Farmers' Union [1978] ICR 713. In that decision he said as follows, at 722 F:-

"We, for our part, do not think that in order to qualify as a reorganisation involving a state of things which amounts to "some other substantial reason" it is necessary to show that the occasion for it is an alternative to total disaster. We think it is sufficient if the occasion for it is a sound business reason; and by that we mean not a reason which we think is sound, but a reason which management thinks on reasonable grounds is sound."

That passage was specifically approved by Lord Denning MR in the Court of Appeal in Hollister v National Farmers' Union [1979] IRLR 542 at 551.

14. The next significant decision to which we were referred is that in Banerjee v City & East London Area Health Authority [1979] IRLR 147, a decision of the Employment Appeal Tribunal, as it happens again given by Arnold J. In that case, he said at 18:-

"18. The question is, was it a substantial reason? This is, as we think, to a very large extent a matter for the employer."

And then he said at 19 as follows:-

19. If an employer comes along and says 'We have evolved such-and-such a policy' and either 'we regard it as a matter of importance' or 'the advantages which are to be discerned from this policy are so-and-so,' subject to there being any effective cross-examination, it seems to us that it must inevitably follow that that evaluation by the employer of the policy as a matter of importance, a matter in which substantial advantage is discerned, if it is properly the subject matter of another reason, can be seen to be the subject of a substantial other reason."

15. The decision there is that, on the particular facts of that case, the Employment Appeal Tribunal concluded that there had not been evidence to support the existence of such a policy. No doubt what he refers to there is that effective cross-examination had destroyed the reason put forward by the employer. But that does not take away from the fact that, unless it is concluded by the Tribunal that the employer did not in fact have such a policy, which seemed to the employer to be a sound commercial reason, on the face of Banerjee it must, inevitably, follow that that evaluation by the employer that there was some substantial advantage to be discerned was not challengeable simply because the Tribunal itself might reach a different conclusion.
16. That is made further clear in the Employment Appeal Tribunal's decision in Harper v National Coal Board [1980] IRLR 260, in a judgment given by Lord McDonald, at paragraph 8, where he said as follows:-

"It was argued before us that it was not sufficient to bring a case within this category simply to show that the employer for reasons of his own regarded the reason as a substantial one. There must, it was said, be facts which indicated that the employer was entitled to regard the reason as being substantial. We were referred in this connection to Hollister v the National Farmers' Union [1979] IRLR 238. This again may be correct but within certain limits. Obviously an employer cannot claim that a reason for dismissal is substantial if it is a whimsical or capricious reason which no person of ordinary sense would entertain. But if the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and he genuinely believed it to be fair this would bring the case within the category of another substantial reason. Where the belief is one which is genuinely held, and particularly is one which most employers would be expected to adopt, it may be a substantial reason even where modern sophisticated opinion can be adduced to suggest that it has no scientific foundation (Saunders v Scottish National Camps Association Ltd [1980] IRLR 174)."

Finally, in Kent County Council v Gilham [1985] IRLR 18, a decision of the Court of Appeal, Griffiths LJ said this, at paragraph 18:-

"It is quite impossible to argue that such a reason could not be a substantial reason for dismissing a dinner lady. The hurdle over which the employer had to jump at this stage of an enquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the enquiry moves on to s57(3) [the equivalent to what is now at s98(4)], and the question of reasonableness."

17. The principle that the test is whether the reason for which the dismissal took place could be a substantial other reason is further emphasised in Dobie v Burns International Security Services (UK) Limited [1984] IRLR 329, per Sir John Donaldson MR, at paragraphs 7 to 9.
18. It is clear to us that this Tribunal did not approach its decision in accordance with those guiding principles, and, consequently, erred in law. The relevant paragraphs are as follows:-

"58. It is however not enough for an employer seeking to [rely] upon the need to implement a re-organisation as constituting a substantial reason simply to state that, and he must demonstrate that it has discernible advantages."

That, we conclude is the first area in which this Tribunal starts to diverge from the principles to which we have referred. Of course what he in fact has to demonstrate is that he concluded that it had discernible advantages. The Tribunal continued:-

"We considered the case of Banerjee v. City & East London Area Health Authority (supra) in which a dismissal was held to be unfair as no evidence had been led to discharge the onus on the employers under what was then paragraph 6(1)(b) of Schedule 1 of the Trade Union and Labour Relations Act 1974 (now contained in Section 98 of the 1996 Act). In that case it was held that it was not enough simply to say "This is our policy, this is the recommendation which we have received from a body appointed to advise us and that is that"."

In conclusion thereafter the Tribunal considering the facts of the case was set out at paragraph 64:-

"64. It therefore is our view that the principal reason for making the change in the terms and conditions of Officers and witnesses such as the applicant was to make the business more profitable by in effect cutting down the amount of overtime which would have to be paid for. It did not appear to us that the imposition of the shift system was of such discernible advantage to the respondents that, to quote Lord Denning in Hollister (supra), "the only reasonable thing to do was to terminate the employee's contract unless he would agree to the new arrangement". We therefore concluded that the respondents had failed to show that the reason for dismissal was some other substantial reason and accordingly they had failed to show the reason for the dismissal in terms of Section 97(1) of the 1996 Act. The dismissal is accordingly unfair."

It is quite apparent that what the Tribunal has applied is a test whether the reason put forward by the employer and/or the reason which it concluded was the principal reason for making the change, was one which appeared "to us", that is, to the Tribunal, to be a sound good business reason for the re-organisation, or to be of discernible advantage: not to speak of an apparently even higher burden, which it seems to have thereby imposed on the Appellant, namely, such discernible advantage i.e. some kind of overwhelming advantage such as to mitigate the consequences to the Applicant.

19. What the Tribunal has plainly done, as Mr O'Carroll submits, is conflate the questions of whether there was a substantial other reason, a sound business reason which seemed good to the employer, with the question as to whether it was a fair dismissal in the circumstances. What the Tribunal did, in those circumstances, was exactly that which it is advised not to do in the authorities to which I have referred, namely, in a situation in which the reason is something very considerably more than trivial or unworthy or whimsical, gone on to conclude that the dismissal is "deemed unfair without the need to look further into its merits", see Gilham at paragraph 18, as above. That was an impermissible approach.
20. We must therefore consider what the effect is of the Tribunal's own finding of fact, without, in any way seeking as an appellate tribunal to challenge them. The Tribunal plainly concluded, on its own findings of fact, what the reason was for making the change. It did so on the basis that it assessed the evidence of the Appellant in such a way as not to accept all the evidence that it had given and, in particular, it did not accept the assertion by Mrs Glass, as set out in paragraph 61, that "the changes had nothing to do with paying for overtime and that that was not a consideration".
21. The conclusion by the Tribunal was set out in paragraph 62 and the first sentence of paragraph 64 as follows:-

"62. It appeared to us from the evidence which was led that the real motive in changing the hours to a shift pattern was to ensure that work done in the evening would be done at normal rates of pay and not at overtime rates. Under the proposed new system the applicant would only be paid overtime once he had worked his full shift. …

64. It therefore is our view that the principal reason for making the change … was to make the business more profitable by in effect cutting down the amount of overtime which would have to be paid for."

22. That may well not be an assessment of the position which the Appellant accepts, and it certainly seems to ignore a good deal of the evidence, but the fact is that, even on that conclusion by the Tribunal, there was a commercial reason for the carrying out of this re-organisation, and we find it impossible to conclude that if the Tribunal had asked itself the right question, it would have found that that commercial reason either was one which the employer did not have - indeed, it has found the contrary, as we have just indicated - or was one that was whimsical, unworthy or trivial.
23. In those circumstances, it is plain that the Tribunal was bound to find, contrary to its conclusion in paragraph 64, that the Appellant had shown that the reason for dismissal was some other substantial reason. The further conclusion at the end of paragraph 64 that the dismissal was unfair is, consequently, wrong in law.
24. Having concluded that there was a substantial other reason for dismissal, i.e., that the dismissal was on the ground of a substantial other reason, the Tribunal would then, having articulated what the reason was, in all its detail for the purposes of proceeding to consider the second stage, have turned to consider the question of reasonableness.
25. Ms Keys, for the Applicant, while finding it difficult to resist the conclusion that the Tribunal had erred in law in the respects to which we have pointed, nevertheless submitted that the Tribunal's decision could be upheld upon the basis of its alternative conclusion, set out in paragraph 65 and following, that, in any event, the dismissal was not fair. That conclusion is commenced in paragraph 65, very shortly, as follows:-

"65. If however, we were wrong about that, it would be necessary for us to consider whether, if the respondents had shown that the reason for dismissal was some other substantial reason, it was reasonable to dismiss the applicant in terms of Section 98(4) of the 1996 Act"

26. In considering that question, which, in our judgment, ought to have been the only question which this Tribunal had to resolve on the basis that the Tribunal ought to have found without great difficulty that the dismissal had been for a substantial other reason, there are authorities which assist in carrying out what is plainly, a balancing process. In Catamaran Cruisers Limited v Williams [1994] IRLR 386 at paragraph 28, there is set out in the judgment of Tudor Evans J certain non-exclusive matters which might fall to be considered in such a balancing act:-

(i). The Tribunal should consider the case without the restriction which it applied, namely, unless the business reasons were so pressing that it is vital for the survival of the business that the terms be accepted, it is not unreasonable for an employee to refuse the terms.

(ii) The Tribunal should not limit their approach to the questions to be answered … by looking at the matters solely from the point of view of the advantage or disadvantage of the new contract from the point of view of the employee. It is necessary to consider and take into account the benefit to the appellants in imposing the changes in the new contract. …

(iv) An express finding should be made as to whether the dismissal was reasonable in the light of the fact that many employees accepted it. …

(v) Finally, the Tribunal should consider whether the dismissal was reasonable in the light of any evidence that the trade union recommended the change."

27. We have been directed to a recent decision of Lord Johnston, in the Employment Appeal Tribunal, in Grampian Country Food Group Limited v McInally EATS/0035/04 (unreported), in which, he again pointed out, in relation to Catamaran subparagraph (iv), that it must be a relevant factor in assessing the reasonableness of the dismissal, that it was necessary to prevent one man continuing to work on under the old system which could have led to discontent among the employees, and disrupt industrial harmony.
28. It is apparent in our judgment, that by virtue of the finding by the Tribunal on the first limb, in which, in effect, it rejected the arguments for the Appellant that there was any sound commercial reason for the organization, inappropriately, and applying the wrong test, as we have concluded, when it came to consider what is suggested to be an alternative basis, it had disabled itself from carrying out the Catamaran balancing act. In any event, it did not, for the purpose of such alternative conclusion, reach conclusions as to what the sound business reasons were, and as to their merits, and as to the advantages to be gained to the Respondent, in order to inject that important question into the balancing act.
29. We are satisfied that it is not possible to conclude that there has in law been a correct balancing act carried out in those circumstances; and that after the incorrect approach in law to the first test, fatally infected and flawed, the very briefly approached fallback argument on reasonableness was not, and, indeed, in the circumstances could not have been, adequately carried out by this Tribunal.
30. We do, however, ask ourselves, and are invited by Ms Keys to ask ourselves, the question, having concluded that the appeal must be allowed to the extent of quashing the decision, what would be the position if this were remitted back, either to the same, or another Tribunal, and Ms Keys submits to us that, in fact, any reasonable Tribunal on exercising that balancing act, would be bound to find that the dismissal was unfair. If, of course, that is right, then we would not remit and would uphold the decision of this Tribunal, albeit on a different basis.
31. The basis upon which Ms Keys makes that submission is by reference to the Tribunal's findings as to alleged disparity between the treatment of the Applicant and of Mr Williamson, who was the other employee, to whom we referred at the beginning of this judgment, as having not been dismissed, but, in the end, accepted the terms. The Tribunal says as follows in its judgment relating to the question of all the other employees, including Mr Williamson:-

"66. We are aware that all the other Sheriff Officers, with the exception of Mr Caulfield, and witnesses, with the exception of Mr Williamson, eventually accepted and signed the contract. That in itself would not make the dismissal of the applicant fair, although it is a factor to be taken into consideration."

"67. We have found that Mr Williamson, who was a witness, was in the same position as the applicant so far as the imposition of the new terms was concerned. Mr Williamson refused to sign the new contract and to work under the new terms. However, Mr Williamson was not dismissed and he was not threatened with dismissal. He instituted a formal grievance but that was not upheld. Having dealt with the grievance the respondents then took no further action against Mr Williamson. He was allowed to work 8.30 – 5.00 and occasionally worked overtime under his existing terms and condition until he agreed to accept the new ones offered. He was allowed to work in the office and to work for other Sheriff Officers following the applicant's departure upon termination of his employment."

32. Then, in paragraph 68, the Tribunal refers to the case Hadjioannou v Coral Casinos Limited [1981] IRLR 352 and then continued:-

"having considered the advice of the EAT in Hadjioannou we consider that Mr Williamson and the applicant were in truly parallel circumstances in this case. Both were carrying out similar duties, both had an existing similar contract and both were offered new contracts. Both refused to accept the new contract but the applicant was dismissed whereas Mr Williamson was allowed to remain. He signed the contract shortly before the Tribunal Hearing many months after the applicant had left. In the period up to the dismissal of the applicant Mr Williamson and the applicant were in parallel circumstances but were treated differently."

33. The Tribunal does not say in that passage that it regarded the view that it had reached as to the difference in treatment of Mr Williamson and the Applicant so seriously that that alone would have rendered the dismissal unfair; and, indeed, it would have been surprising if it had done so - that is, it was plainly only one of the factors to be considered in the balancing act. It considered other matters, although, not as we have indicated, for the reasons that we have discussed, the benefits and advantages of the change to the system and of the commercial reason which it had, in fact, rejected.
34. One of the matters which it considered in paragraph 71 of its decision, was as follows:-

"71. The proposed change would have cost the applicant something in the region of £3,000 per annum. We considered that that was a disadvantage to the applicant."

In his Notice of Appeal and skeleton argument, Mr O'Carroll pointed out that that was plainly a flawed and inaccurate conclusion, and one based on no evidence before the Tribunal. Ms Keys was not able to support the conclusion of the Tribunal in this regard. The apparent reasoning lying behind that finding was that there was evidence from the Applicant that he had earned that much less in overtime since the introduction of the new scheme. But of course that does not mean that the proposed change to his terms of employment cost him anything at all. This resulted from the change to the 32 fellow employees' terms, which meant that he was thereby earning less overtime. Even if the Appellant had permitted him to continue in the same limbo as he had been since March 2003 under the old scheme, he would still not have earned that overtime because the result of the change of the shifts came to his fellow employees, was what had caused the loss, or, at any rate, considerable reduction in overtime, and that would have continued.

35. That flawed conclusion must obviously come out of any balancing act to be looked at again by a fresh Tribunal, and must form part of our consideration now, as we ask ourselves, what would occur on a remission. It is only, as we have indicated, if we were satisfied that, on a remission, the same or another Tribunal would be bound to come to the same conclusion on the Williamson factor alone, that we would not remit. We are unable to reach that conclusion. It is plain to us that the only possible course here is for all the evidence to be looked at again, at the Employment Tribunal, and a fresh conclusion entirely untrammelled by previous conclusions by this Tribunal, be arrived at, as to whether this dismissal, which was for another substantial reason, was fair within section 98(4).
36. That leaves the only question as to whether the remission should be to the same, or a different Tribunal. The position of Ms Keys was neutral, although she said that she would prefer it to be back in the same Tribunal, particularly if time might be saved.
37. This is a case where the Tribunal hearing at first instance only took one day, and it would be unlikely that a remitted hearing would take more than one day. Mr O'Carroll has taken us to the six concepts or principles discussed as underlying a decision of this kind, in Sinclair Roche & Temperley v Heard [2004] IRLR 760. He submitted that the question of proportionality was neutralised here, unlike the facts of Sinclair Roche, in that this hearing had only taken, and would only be likely to take, a day. He accepted that the second category, namely, the passage of time, did not apply here, nor the third, in that there is no allegation here of bias or partiality. But so far as the fourth, fifth and sixth factors are concerned, he submitted that they were overwhelmingly in favour of remitting to an alternative Tribunal. This is not a case, as was Sinclair Roche, where the Employment Appeal Tribunal has come to the conclusion that, effectively, the Tribunal below was only halfway through what should have been its determination, and would now need to consider other matters which it had not considered in order to reach a decision. This is a case, in which, on the face of it, the Tribunal has considered all matters, but because of the flaw in its approach had not done so in accordance with law.
38. We are satisfied that this is not a case in which it would be appropriate to send the matter back to the same Tribunal, and that in the more usual course of remitting the matter to a different Tribunal should be followed in the interest of justice.
39. In those circumstances, this appeal is allowed and the case is remitted to a differently constituted Tribunal.
40. We would not end without saying that we do urgently request both parties to consider that this is a dispute which can, and should, be resolved by conciliation. It is never an attractive course for a dispute which has been gone through by one Tribunal, to have to be effectively restarted, as this will be, in front of a different Tribunal, at inevitable cost to both sides; and we propose to make this a case in which we include in the Order a requirement that both sides notify the Employment Appeal Tribunal in writing within 21 days whether they are prepared to agree that this matter goes to ACAS for conciliation. We cannot compel the parties to go to ACAS but we earnestly recommend them to do so, and we at least require a confirmation in writing as to whether they are prepared to do so.