United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S MILLER Solicitor Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB
For the Respondents	MR C BOURNE (Of Counsel) Instructed by: Messrs Digby Brown Solicitors Employment Unit The Savoy Tower 77 Renfrew Street Glasgow G2 3BZ


 


SUMMARY

The appellant local authority had carried out a best value service review of its culture and leisure provision, the result of which was that they determined on reorganisation of that provision in such a way that included the deletion of the claimant's existing jobs. They were offered alternative jobs, which were at a lower scale and commanded a lower salary. They declined to accept the offer made. They were dismissed. The tribunal were satisfied that the dismissals were for some other substantial reason but found that they were unfair. The respondents appealed. The Employment Appeal Tribunal held that the tribunal had erred in respect that they had not carried out a balancing exercise when considering whether or not the dismissals were fair; they had looked only at the disadvantages to the employees. Further they had, in reaching their conclusion that the dismissals were unfair, substituted their own view for that of the reasonable employer. The case was remitted to a freshly constituted tribunal to consider whether or not those dismissals for some other substantial reason were fair or not. Circumstances in which the tribunal Chairman's failure to answer a relevant question in response to a Burns/Barke order on the sift weighed with the Employment Appeal Tribunal when considering whether appropriate to remit to the same or a freshly constituted tribunal.

THE HONOURABLE LADY SMITH

Preliminaries

1. Thomas Deans, Derek Mulrine and Gary McClenaghan all worked for Glasgow City Council as centre supervisors within their cultural and leisure services department. They were dismissed. They lodged claims with the Employment Tribunal in which they alleged that they had been unfairly dismissed and sought re-engagement which failing compensation. The Employment Tribunal sitting at Glasgow, Chairman Mr R A MacKenzie, found that they were unfairly dismissed, awarded compensation to two of them and continued Mr Mulrine's claim for compensation to be fixed at a later hearing. We will refer to parties as claimants and respondents. The claimants were represented before the tribunal by Ms Gribbon, solicitor and before us by Mr Bourne of Counsel and the respondents were represented before the tribunal by Ms C Elliot, solicitor and before us by Mr Miller, solicitor.

Background

2. The factual history, as found by the tribunal, can be summarised as follows. By December 2002, the claimants had been employed by the respondents, a local authority, for 14 years, 14 years and 12 years respectively. They worked as centre supervisors in the respondents' cultural and leisure department. They earned the basic wage of employees on point 5 on the respondents' manual wage scale. They worked five hours overtime each week and earned, for their basic hours plus that overtime, £225 net per week.
3. The respondents carried out a best value service review which was published in November 2000 in a document called "Action Plan for Change". Put broadly, the document identified that services were not being delivered effectively across the city. The cost of non- contractual overtime was one of the issues that concerned the respondents as was the need to achieve greater flexibility in moving staff between venues. The existing staffing structure required to be changed. Many meetings took place between the respondents and the relevant unions. It was ultimately determined that 96 existing posts, including the post of centre supervisor, would be deleted and 131 new posts would be created. The centre supervisor posts were not to be matched in with any of the new posts and there was to be no "red circling" so as to enable the employees holding those posts to carry on at the same earnings level. Existing staff in deleted posts were invited to apply for the new jobs.
4. The claimants asked to be confirmed into one of the new posts which was titled "community facility officer". It was to be remunerated at point 22 on the relevant scale, at £16,217 per annum, significantly more than the claimants were earning at that time. That was, however, a post that carried greater responsibilities than the supervisor posts formerly held by the claimants. The respondents did not accede to their request. On or about 20 June 2002, the claimants were offered the posts of culture and leisure attendant in the new structure, a post which would command a salary of £11,729 per annum, significantly less than the claimants had been earning from their previous posts. The respondents' position was that the attendant's job would be broadly similar to the supervisor's jobs. The claimants did not accept that that was the case and declined the offers. On 13 December 2002, the respondents wrote to the claimants advising them that their employment was being terminated on grounds of redundancy. The respondents also offered to allow the claimants to work in the new posts for a four week trial period but they declined to do so. They were advised further that assistance would be given to them in sourcing and applying for positions and they would be given time off to attend interviews.
5. The claimants declined the offers of a trial period and their employment was, accordingly, terminated.

The Tribunal's Decisions and Reasoning

6. The claimants claimed that they had been unfairly dismissed and sought orders for re-engagement. The respondents admitted that the claimants had been dismissed but contended that they had been dismissed for "some other substantial reason of a kind such as to justify the dismissal of an employee" holding the positions which the claimants held (see: Employment Rights Act 1996 s.98(1)(b)) and that the dismissal for that reason was fair. The respondents had an alternative case that if the dismissals were for redundancy, they had carried out their consultation obligations by consulting, at some length it seems, with the relevant unions.
7. The tribunal found that the dismissals were not for reasons of redundancy but that they were:

"… satisfied that the respondents have demonstrated a potentially fair reason for the claimant's (sic) dismissal. The Action Plan for Change … demonstrated the respondents considered the delivery of services within community facilities could be delivered more effectively if reorganisation took place. The respondents in our view were genuine in that belief and the reason was substantial. The respondents have satisfied us that their reason falls within the terms of Section 98(1)(b) of the Act." (paragraph 110).

8. The tribunal acknowledged that they then required to consider whether or not dismissal for that reason was fair. Having quoted the relevant provisions of s.98(4) of the Employment Rights Act 1996, they continue, at paragraph 112:

"We were not satisfied that as part of the Best Value Service Review cultural and leisure services were under real pressure to carry out the reorganisation which they carried out. No evidence was led showing that other options had been explored or considered by the respondents before determining the claimants, holding the position of centre supervisors, should be dismissed. No consideration was given to an approach being made to the claimants to amend their terms and conditions of employment."

9. The tribunal then continue between paragraphs 113 to 129, to identify disadvantages to the claimants in the new arrangements and they voice various criticisms of the respondents. The essence of those criticisms seems to be that the respondents did not consider reducing the number of new attendant posts so that the claimants could continue to enjoy their existing contractual terms and conditions, that they did not consider seeking to agree an amendment to their existing contracts (the nature of the amendment envisaged is not specified by the tribunal) that they did not consider sharing overtime costs amongst all facilities (including those which did not give rise to them), that they had not given consideration to the losses that would be sustained by the claimant if they were transferred to the attendant posts, that they did not guarantee that the claimants would be given interviews for vacancies arising within the Council for which they had the necessary qualifications, that they did not consider "red circling" to protect the claimant's earnings, that they were unreasonable in offering the attendant posts to the claimants, that they considered that in offering those posts the respondents were simply trying to avoid the claimants making a claim against them, that they did not accept (as had been put forward by the respondents) that there were training and career progression difficulties within the old staffing structure, that the Action Plan for Change did not address the impact of restructuring on affected employees, and that the respondents unreasonably refused a request submitted through the claimants' union representative, for a stage 3 grievance meeting. As regards the reference to guaranteeing interviews to the claimants for jobs, there are no findings that there were any vacancies within the respondents' organisation for which the claimants had the necessary qualifications at the relevant time nor is there any assessment of what would have been the likelihood of the claimants being successful in securing any such job. Further, it is not suggested that the respondents should have refrained from dismissing the claimants in the event that they were not successful in securing any such job.
10. In connection with their discussion regarding the guaranteeing of interviews, the tribunal express the view that they would expect "a reasonable employer" to have done more to find alternative employment for an employee (paragraphs 116-117) and in connection with them offering attendant's posts to the claimants, they say that that offer was not "within the range of offers which a reasonable employer would make in all the circumstances." Paragraphs 120, 123, 124 and 126 of the judgment contain the following:

"… we would have expected the respondents to consult with the claimants."

"... the respondents have not persuaded us that in failing to consider 'red circling' or an approach to amend the terms and conditions of employment this was reasonable."

"The respondents did not, in our view, act reasonably in offering the claimants the post of culture and leisure attendant."

"We are of the view that the respondents cannot say that there are training and career difficulties for a post which is broadly similar to another post where there would be such difficulties."

11. Following their consideration of all the respects in which they considered the implementation of the Action Plan for Change to be to the disadvantage of the

claimants and of the criticisms which they had of the respondents, the tribunal conclude at paragraph 130:

"…. in all the circumstances that the claimants were unfairly dismissed by the respondents."

The Relevant Law

Section 98 of the Employment Rights Act 199 provides:

"(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) 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.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

12. It is relevant for the purposes of this appeal to refer to the well known explanation of the correct approach for an employment tribunal to adopt when answering the question that arises from Section 98(4) in Iceland Frozen Foods v Jones [1982] IRLR 439, namely that they must consider the reasonableness of the employers' conduct, not simply whether they would have considered the dismissal to be fair, that in judging the reasonableness of that conduct it must not substitute its decision as to what was the right course to adopt for that of the employer, that in many cases there is a band of reasonable responses within which one employer might reasonably take one view and another, quite reasonably, another and that, accordingly, the function of the tribunal is to decide whether in the particular circumstances of the case the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted.
13. In a case where an employee has been dismissed due to the effects of a business re-organisation, it is plain from the wording of the statutory provisions that a tribunal must first consider whether the employer has demonstrated that the dismissal was for what can properly be described as "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held". If it is satisfied that the employer has discharged the onus of demonstrating that the dismissal was for such a reason, then it must go on and consider whether or not the decision to dismiss the claimant employee was fair or not, a stage at which the onus is neutral.
14. Regarding the approach that a tribunal should adopt when considering the question of whether dismissal due to a business reorganisation is fair, we would refer to two authorities. The first is the case of Catamaran Cruisers Ltd v Williams [1994] IRLR 386, where employees had been dismissed when they refused new contracts that were offered as part of a reorganisation by their employers who were seeking to eliminate obsolete working practices. The new contracts were less favourable to the employees. The tribunal had found that the dismissals could not be fair where the new contracts being offered were less favourable than the old ones. Tudor Evans J, in the Employment Appeal Tribunal, issued a judgment allowing the employers' appeal and stressed the importance of recognising that a balancing act requires to be carried out by a tribunal in such circumstances, so as to take account of the interests of both the employer and the employee. He indicated, at paragraph 28, that, on a remit, the tribunal should:

" … consider the case without the restriction which it applied, namely that 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 under Section 57(3) of the Act 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.

(iii) An express finding should be made as to whether the Tribunal accept the evidence of Mr Vincent that the re-organisation was based, at any rate in part, on the question of safety and, if so, what effect it has on the questions arising under Section 57(3).

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

15. We also find assistance in his comments at paragraph 27 to the effect that it does not follow that if it is reasonable for an employee to refuse to accept a new contract offered in the course of a business re-organisation, then it is unreasonable for the employers to dismiss him when he does so. He referred, in support of that view, to what was said by Balcombe J, as he then was, in the case of Chubb Fire Security Ltd v Harper [1983] IRLR 311 at p.319:

"… It may be perfectly reasonable for an employee to decline to work extra overtime, having regard to his family commitments. Yet from the employment point of view, having regard to his business commitments, it may be perfectly reasonable to require an employee to work overtime."

Applying that approach to the facts of the present case, it means that even if the claimants were considered to have acted reasonably in refusing to accept the offers of attendant posts, it is not a necessary corollary of that, that the respondents acted unreasonably in dismissing them when they did so.

16. In the more recent case of Scott & Co v Andrew Richardson EATS/74/4, in a judgment of the Employment Appeal Tribunal presided over by the President, Burton J, reliance was placed on the judgment in Catamaran Cruisers. In Scott, the tribunal had fallen into error by conflating the two separate questions of whether the dismissal was for a sound business reason that could qualify as "some other substantial reason" for the purposes of Section 98(1)(b) and whether it was fair. That had led them to fail to find that the employee was dismissed for some other substantial reason and to carry out the balancing exercise referred to in Catamaran. At paragraph 25, in referring to what the tribunal should have done the President said:

"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 the question of reasonableness."

and at paragraph 29, in commenting on the tribunal's failings, he said:

"In any event, it did not, for the purpose of such alternative conclusions, 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."

17. Again, the importance of taking into account the benefits to the employer's business of the re-organisation which led to the employee's dismissal was stressed. Any business re-organisation that satisfies the "some other substantial reason" test is bound to involve benefit to the employer. The message that emerges loud and clear from both Catamaran Cruisers and Scott & Co is that that benefit ought not to be lost sight of when a tribunal is considering whether a dismissal on account of the re-organisation is fair or not. The fact of it is not spent just because it has been determined that the dismissal was for some other substantial reason. It needs to be recognised as being a potential counterweight to any disadvantage to the employee and the employer is entitled to have the balancing exercise carried out before any decision on fairness is reached.

Reference Back to the Tribunal

18. By order of this tribunal dated 24 May 2005, at sift stage, the Employment Tribunal were asked:

"In respect that they found that the respondents had demonstrated a potentially fair reason for the dismissals under reference to their plans for reorganisation, did they carry out a balancing exercise (see: Catamaran Cruisers Ltd v Williams 1994 IRLR 386; Grampian County Food Group Ltd v McInally EATS/0035/04; Scott & Co v Andrew Richardson EATS/0074/04)?"

In terms of the same order, their attention was drawn to the power under rule 34(5) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 to review its own decision. The tribunal's response to the above question was contained in answers dated 7 July 2005 as follows:

"the Tribunal did have regard to the case of Catamaran Cruisers Ltd v Williams 1994 IRLR 386 to which the Tribunal's attention was drawn by the respondents' agent."

No further explanation was given.

Submissions for Respondents in respect of their first two Grounds of Appeal

19. Mr Miller submitted that the tribunal had erred in law in respect that they had failed to carry out the balancing exercise that they should have carried out when considering whether the claimants' dismissals were fair or not: Catamaran Cruisers; Scott & Co. They had heard ample evidence regarding the reasons for the Action Plan for Change and the benefits that the respondents anticipated that it would bring about both in terms of improvements in the service provided to the public and reduction in costs. They had accepted that the respondents' objectives were to deliver services more effectively and that they genuinely believed that implementation of the Action Plan for Change would enable them to do that. They had concluded that the respondents had demonstrated a potentially fair reason for dismissal; that their reason satisfied the requirements of Section (1)(b) of the 1996 Act. What they had then done, though, was fail to analyse the facts appropriately for the purposes of the fairness test.
20. The tribunal had begun, Mr Miller submitted, by imposing an irrelevant requirement on the respondents, namely that of showing that they were under "real pressure" to carry out the re-organisation. They had then proceeded to discuss the question of fairness without making any reference at all to the benefits to the respondents of the Action Plan. They had set out their concerns for the employees but did not set out the advantages for the employer and carry out a weighing exercise. In so doing, they had failed to carry out the requisite balancing exercise and their decision on fairness was fatally flawed. They had erred in law.
21. Separately, on the discreet matter of whether or not the respondents should have guaranteed the claimants interviews in respect of any vacancies they had for jobs for which they had the requisite qualifications, Mr Miller was at pains to indicate that the respondents accepted that, as a matter of principle, a reasonable employer would have such a policy and that the respondents did not have one. However, in this case, there was no evidence at all as to there having been vacancies at the relevant time for which the claimants would have had the requisite qualifications. It was impossible to say, therefore, whether they would have remained in the respondents' employment.
22. The respondents' second ground of appeal concerned the question of whether or not the tribunal had substituted their own judgment for that of the reasonable employer. Mr Miller submitted that the tribunal had impermissibly sought to substitute itself for the respondents instead of considering whether they had reached conclusions which no employer acting reasonably could have reached. He made specific reference in support of that submission to the passages in paragraphs 120, 123, 124, and 126 to which we have already referred.
23. In respect of his first and second ground of appeal, Mr Miller sought a remit to a freshly constituted tribunal to take up the issues between the parties at the point at which the balancing exercise should have been but was not carried out.

Submissions for the Claimant in response to the Respondents' first two Grounds of Appeal

24. In respect of the respondents' first ground of appeal, Mr Bourne relied heavily on the fact that, at the time, the respondents had treated these dismissals as instances of redundancy. Whilst he accepted that the respondents' argument was an appropriate one where an employer tries to change an employee's terms and conditions but the employee will not agree, it was not appropriate in a redundancy situation.
25. He recognised that the tribunal had found that the respondents' had a sound business reason for seeking to effect the Action Plan and that the tribunal had found that that satisfied the requirements of Section 98(1)(b). He went on, however, to submit that having determined that, the tribunal did not need to analyse what that other substantial reason was. They did not need to do so because of the reasons why they found the dismissals to have been unfair. He also submitted that it was implicit that the tribunal had carried out the balancing act envisaged in the cases of Catamaran Cruisers and Scott & Co. He submitted further, under reference to the case of Eclipse Blinds Ltd v Gilham [1985] IRLR 133 that this was a matter of the weight of the evidence, which was for the tribunal.
26. Mr Bourne very fairly recognised that paragraph 112 of the judgment did not "sit happily" with the terms of paragraph 110. He submitted that if, however, the beginning of paragraph 112 was read in conjunction with what followed regarding the lack of evidence about what other options had been explored or considered before determining that the claimants should be dismissed such as seeking to amend their terms and conditions of employment, then it was not objectionable.
27. If there was to be a remit, it should, he submitted, be a remit to the same tribunal since the respondents' submission was that the tribunal had not finished the job that they had to do.
28. Regarding the respondents' second ground of appeal, Mr Bourne referred to the fact that the tribunal referred to the objective 'reasonable employer' in paragraphs 117 and 124 and submitted that that showed that they had the correct test in mind. There was no reason to suppose that they had ignored, he said, the direction that they had given themselves. The direction he had in mind was that the tribunal had, at paragraph 111, quoted the terms of Section 98(4) of the 1996 Act. He referred, in support of his submissions, to the case of Jones v Mid-Glamorgan County Council [1997] IRLR 685.

Discussion and Conclusions

29. We are satisfied that both of the respondents first and second grounds of appeal are well founded.
30. Turning to the first ground of appeal, as we have indicated in our discussion of the relevant law, it was incumbent on the tribunal, after having determined that the claimants were dismissed for some other substantial reason, to carry out the balancing exercise envisaged in the cases of Catamaran Cruisers and Scott & Co. We reject the claimants' argument that they did not require to do so because, at the time, the respondents thought they were dealing with a redundancy situation. The tribunal knew, by the time that they were considering the fairness issue, that they had decided that this was not a redundancy case; it was a case of dismissal, according to their determination, for some other substantial reason. They required, accordingly, at that stage, to analyse the details of what they were satisfied were the respondents' sound business reasons so as to identify what the advantages to the respondents in the Action Plan were and, as the President put it in the Scott & Co case, "inject" that analysis into a balancing act between those advantages on the one hand and the consequences for the claimants on the other hand. We are satisfied that the tribunal wholly failed to do so. The section of their judgment between their finding that the respondents had demonstrated a potentially fair reason and their concluding that the dismissals were unfair clearly does not read as though they did; there is no mention at all of the advantages to the respondents in the implementation of the Action Plan. Further, we cannot help but note that when asked quite specifically by this tribunal, at the sift stage, whether the balancing exercise had been carried out, the Chairman responded by avoiding giving an answer to that question, which is a matter of regret. We were entitled to expect him to do so. His having avoided answering it reinforces our conclusion that the correct approach was, for some reason, ignored, which is, we are satisfied, an error of law.
31. We would add that we were also persuaded that the terms of paragraph 12 were such as to indicate that the tribunal had begun their considerations of the fairness question by imposing too high a test. There is no authority for the proposition that it is unfair to dismiss an employee due to a business re-organisation that meets the requirements of Section 98(4) unless the employer was under "real pressure" to carry it out. Indeed, a consideration of that nature had been inherent in the approach of the tribunal in the Catamaran Cruisers which was then criticised by the Employment Appeal Tribunal. The tribunal appear, accordingly, to have misdirected themselves in that respect. Further, the tribunal's comment seems to indicate a view that there was not a sound business case for carrying out the Action Plan at that time, yet that is not something that was, by that stage, open to them to conclude since they had already decided that there was. We were not persuaded by Mr Bourne's argument that, read in context, the comments were unobjectionable. Indeed, it seem to us that the later part of paragraph 112 reinforces the view that the tribunal were in fact criticising the decision to go ahead with the Action Plan yet they had afforded it the accolade of being a potentially fair reason for dismissal in paragraph 110. In that regard, their approach does not make sense
32. In short, it seems that their whole consideration of the question of whether the dismissals were fair started off on the wrong foot and did so to the extent that the tribunal erred in law.
33. Turning to the second ground of appeal, whilst we note that on the two occasions to which Mr Bourne drew our attention, the tribunal have used the appropriate objective 'reasonable employer' language, their use of expressions such as "we would have expected" and "did not in our view act reasonably" is so marked as to indicate that the tribunal did not, for the most part, have the right test in mind when considering fairness. The sense of their indicating what their view was of how the respondents should have acted is, we consider, too great to do otherwise. Further, in the two paragraphs where the objective "reasonable employer" is borne in mind, it is in respect of the matter of the guaranteeing of interviews, a matter which appears to us to have been of doubtful assistance when resolving the issue of fairness, given the lack of evidence to which we have referred and the difficulty, even if there had been such evidence, for such an employer and for the tribunal in predicting what would have been the outcome of any such interview process. We are satisfied that the tribunal have erred in law in failing to have in mind the appropriate objective reasonable employer test when considering the issue of fairness.
34. It follows from our comments above regarding the interview question that, in the event that the dismissals were found to be unfair solely on the ground that the respondents had not guaranteed the claimants interviews for jobs within their organisation for which they had the qualifications, then the assessment of compensation would be a matter of valuing not the loss of employment simpliciter but the loss of a chance of employment.

The Respondents' Third Ground of Appeal

35. It was also submitted on behalf of the respondents that the tribunal had erred in not holding that the claimants had failed to mitigate their loss by accepting the offers of attendant posts. Had we had to deal with this ground of appeal, we would not have upheld it. We are satisfied that, on that matter, the tribunal did not err. However, we do not consider that it is necessary to deal specifically with this ground of appeal given the remit that we are to make. We did not understand Mr Miller to suggest otherwise.

The Claimants' Cross Appeal

36. The claimants' cross appeal concerns the tribunal's determination of the remedies to which they were found entitled. The question of remedy will, however, now require to be looked at afresh if it is established that the dismissals were unfair, in the light of whatever that unfairness consists of. Accordingly, whilst we should record that Mr Bourne diligently made detailed submissions in respect of the tribunal' s failure to order re-engagement on the ground that there was no evidence as to the nature of the job that the claimants sought to be the subject of the re-engagement, on their failure to order re-engagement of Mr Mulrine in respect that he had not been fit for work since 2003 and in respect of their failure to make an award for the loss of long notice, these claimants being employees who all qualified for the maximum statutory 12 week notice period prior to their dismissal, and that the cross appeal was resisted in its entirety on behalf of the respondents, it would be otiose for us to express a view in respect of it.

Remit

37. Mr Miller sought a remit to a freshly constituted tribunal. Mr Bourne submitted that, in the event of a remit, it should be to the same tribunal. He did so on the basis that the remit would be for them to finish a task as yet incomplete. We do not agree with that analysis. The remit that we intend to make is on account of the tribunal having done the job but having done it under error of law.
38. We take account of the guidance contained in the case of Sinclair Roche & Temperley & ors v Heard & Another [2004] IRLR 763 as to the factors to take into account when an issue arises as to whether a remit should be to the same or a fresh tribunal. We note that the factors suggested include passage of time in respect that a matter should not be sent back to the same tribunal if there is a real risk that it will have forgotten about the case. The tribunal hearing in this case, which lasted seventeen days, began in August 2003 and was concluded in December 2004. There must, by now, be a real risk that they will have forgotten about it. Another of the factors is that it would not normally be appropriate to send the case back where the first hearing was wholly flawed. As we have indicated, we take the view that the tribunal's decision on the critical matter of the fairness of the dismissals was wholly flawed. Further, another of the Sinclair factors is that the case should only be sent back if the Employment Appeal Tribunal has confidence that the tribunal would be prepared to look fully at further matters and thus be willing to come to a different conclusion. We do not consider that, given the Chairman's approach to dealing with the question put to him at the sift stage, to which we have already referred, we can have such confidence.
39. In all these circumstances, we do not consider that it would be appropriate to send the case back to the same tribunal and the remit which we order will be a remit to a freshly constituted one.

Disposal

40. We will pronounce an order upholding the respondents' first and second grounds of appeal and remitting the case to a freshly constituted tribunal to consider whether, in this case where the claimants were dismissed for some other substantial reason which satisfied the requirements of Section 98(1)(b) of the Employment Rights Act 1996, those dismissals were fair and if so, what remedies, if any, should be afforded to the claimants. The resolution of the question of whether or not the dismissals were fair is to be reached by carrying out the balancing exercise discussed and referred to by the President in the case of Scott & Co v Richardson EATS/0074/04.