Appeal No. UKEAT/0113/11/DA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
27 July 2011
Judgment handed down on 13 September 2011
Before
THE
HONOURABLE MR JUSTICE WILKIE
MR J MALLENDER
MR P SMITH
MRS
I SLADE & OTHERS APPELLANTS
TNT
(UK) LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
THE HONOURABLE MR JUSTICE WILKIE
1.
This is an appeal against a decision of
the Employment Tribunal sitting in Birmingham between the 27 September
– 1 October 2010 which, by a decision promulgated on the 23 December 2010,
dismissed the claims of each of the four Claimants; Mrs I Slade, Mr I Ball, Mr
M Webster and Mr D Brown, for unfair dismissal.
2.
The Tribunal, in its reasons, set out the background and the
circumstances. The 4 claims being heard were from a total of 183 claims for
alleged unfair dismissal. The 4 cases were test cases; Mrs Slade and Mr Ball
were loading bay operatives (LBOs) based respectively at Atherstone and Kingsbury.
Mr Brown was a traffic clerk based at Atherstone and Mr Webster was a shunter
driver based at Kingsbury. They were “non LBOs”.
3.
The Respondent employs some 10,000 people in the UK and in the Republic of Ireland, based at a total of 58 locations, including 2 “hubs” at
Atherstone and Kingsbury.
4.
At those 2 hubs were approximately 660 employees. 470 of them had been
contractually entitled to receive an “end of sort (EOS) bonus” which had been
introduced by the Respondent in 1983. That bonus scheme had been discontinued
for new starters in August 2005. Employees who started after that date were
entitled to an “attendance bonus” which had a lower value than the EOS. In
2009 the Respondent decided to discontinue EOS for those 470 employees still
entitled to receive it. They sought to negotiate its removal with the Trade
Union and, in due course, a final offer was made to those employees working in
grades which were represented by the Trade Union. The union conducted a ballot
of those employees on the offer and, by a narrow majority, they rejected it. It
was in response to that rejection that the Respondent gave formal notice of
termination of the contracts of service to each of those employees, coupled
with an offer of immediate re-engagement on the same terms as before but
excluding the EOS bonus.
5.
Each of those who had been thus dismissed accepted re-engagement on the
new terms but, under protest, and reserved their right to claim that their
dismissal had been unfair.
6.
The Respondent, through the good offices of ACAS, settled the
prospective unfair dismissal claims of all those employees save for 183, who
made the claims the subject of this litigation, by means of a payment which was
greater than the “buyout” payment which had been offered in negotiations with
the trade union and which had been the subject of the ballot. The 183 Claimants,
of which these 4 were test cases, pursued their claims for unfair dismissal to
the Tribunal.
7.
The Tribunal identified 4 issues as
follows:
i) Were the Respondent’s reasons for the dismissals
sufficient to amount to “some other substantial reason for the purposes of
section 98(1) of the 1996 Act”.
ii) If such reason was established were the
dismissals fair or unfair by reason of section 98(4) of the 1996 Act.
iii) Did the Respondent follow a fair procedure,
which included consideration of the extent of the consultations between the
Respondent and Claimants through their representatives or individually.
iv) Whether the positions in respect of
(i)-(iii) differed between those employed at Atherstone compared with Kingsbury
and those employed as loading bay operatives (LBO’s) as opposed to those
employed in other capacities (“non LBOs”).
8.
The Tribunal heard evidence from 14
witnesses and read 2 witness statements. They heard from 10 Claimants,
including the 4 test case Claimants, and a national official for the recognised
Trade Union. They found that all the witnesses were honest. They summarised
the position in paragraph 9 as follows:
“The bonus appeared to represent something in the order of 18%
of claimant salaries. Unsurprisingly a reduction of pay of this extent caused
considerable hardship. In some cases that hardship was mitigated by the
availability of additional overtime but not all the claimants were actually in
a position to make themselves available for overtime …”
9.
The Tribunal then set out its finding of
fact. The operation with which the Tribunal was concerned involved the
collection of goods from the customers’ premises for delivery to various destinations.
Those goods were delivered to local depots of which there were 56 nationwide. There,
loading bay operatives processed the goods for shipment to the onward
destinations. Following that process the goods were transmitted onward to
either of the hubs at Atherstone or Kingsbury where box trailers were unloaded
by other LBO’s and sorted out on to onward line haul vehicles. For the
efficient operation of the business it is essential for the sorting of loads at
the hub to be completed by certain deadlines. The payment of the EOS bonus had
been agreed in 1983 to incentivise the workers at the hubs to complete the sort
on time. However, by 2005, the Respondent was negotiating with the union to
discontinue the payment of the bonus and to replace it with an attendance bonus
which was less advantageous to employees. The outcome of those negotiations
was that new starters did not receive the EOS bonus but did receive the
attendance bonus, whereas existing employees retained their entitlement to the
EOS bonus. The Respondent agreed to “red circle” the bonus structure. Those
new arrangements came in to effect from 1 August 2005.
10.
Following pay negotiations in December 2006 the sum of £20.70 per week
of the EOS bonus was consolidated into the basic pay of the LBOs. That
consolidation did not extend to non LBOs who were entitled to receive the EOS
bonus, for example shunters and traffic clerks.
11.
During the final quarter of 2008 the Respondent’s business started to
feel acute financial pressure caused by the recession. The operating profit in
the year between 31 December 2007 and 2008 fell from £68.5M to £33.8M and in
the year to 31 December 2009 it fell to £11.9M. This created pressure on local
operating managers to reduce their costs. The long term viability of the
business was at risk if that decline could not be arrested. In response,
between 1 November and 31 December 2008 the Respondent made over 300
redundancies. There were other cost reduction initiatives including closures
of air hubs at Cardiff, Teesside and Liverpool, applying reductions to sub
contractor rates, zero pay increases for all employees and reductions in the
use of agency staff and temporary labour.
12.
At a management meeting on 20 January
2009 it was resolved that, as part of the cost cutting programme, the EOS bonus
scheme should be discontinued. The Tribunal found that the reasoning for this
was a combination of:
(a) A
belief that it would reduce costs.
(b) The payment of the bonus was divisive because an
increasing proportion of employees at the hubs did not receive it despite doing
the same work as those who did.
(c) The Respondent believed the effect of the bonus
was that the night workers at the hubs were being paid an overall rate which
was 26% above market rate for comparable work.
13.
Between 11 February and 7 May 2009 there
was a series of meetings between the Respondent and the union and other
representatives. Those negotiations included tentative proposals to replace
the bonus scheme but mainly centred on proposals to pay a lump sum to those
entitled to receive the bonus in return for their agreement to change their
terms and conditions. The proposals, as they developed, were the subject of
three work force ballots but ultimately no agreement was achieved.
14.
The Tribunal addressed one of the themes in the evidence - that the
Respondent had failed to listen or to consider proposals made by the employees’
representatives at various meetings. The Tribunal concluded that there was no
evidence to support that view and gave detailed reasons why they came to that
view.
15.
The Tribunal found that when it became clear that matters would not be
agreed by negotiation the Respondent made a “final offer” to the work force for
the payment of a lump sum in return for agreement to discontinue the bonus. On
12 May 2009 it wrote to the workforce setting out its point of view, making it
clear that if the final offer was not accepted in a forthcoming ballot, then
employees would be issued with contractual notice to terminate their contracts
of employment. In fact that final offer was revised and, on 22 May 2009, Mr
Harper of the Respondent wrote to all affected employees giving details of the
revised final offer making clear that if this could not be achieved by
agreement then termination of employees contracts would follow. This revised
final offer was also rejected.
16.
On 5 June 2009 those employees who were represented in those
negotiations and who, by the ballot, had rejected the final offer, received
contractual notice terminating their contract of employment. The notice period
varied depending on each employee’s length of service. They continued to be
paid the bonus throughout their contractual notice period. Each employee was
offered re-engagement on the expiry of their contractual notice on the existing
terms and conditions but excluding entitlement to the EOS bonus.
17.
On 8 June 2009 a number of employees lodged a collective grievance
against that termination, but all the affected employees accepted the offer of
re-engagement under protest and without prejudice to their right to bring a
claim of unfair dismissal in relation to the termination of their contract of
employment.
18.
Following intervention by ACAS, a majority of the affected employees
accepted terms of settlement for prospective unfair dismissal claims against
the Respondent and did not present claims for unfair dismissal. The Tribunal
was considering the claim of the 183 who did present such claims. The
grievance was referred to ACAS and was encompassed within the offer of settlement
which was accepted by the majority.
19.
At paragraph 30 the Tribunal made the
following finding:
“.. the removal of the bonus resulted in the loss of net income
of around 18%; undoubtedly a reduction of income on this scale has caused
difficulty and hardship, to some of the employees more than to others. Some
have been able to mitigate the consequences of the loss of bonus by increasing
their hours of work. Not all have been in a position to do that. Whilst we
accept the truth of the evidence given by the claimants with regard to
hardships we heard nothing that would be unexpected or which would not apply to
any worker in almost any situation suddenly faced with such a marked reduction
in net pay.”
20.
The Tribunal then set out the relevant
statutory provisions and referred to a number of the relevant cases as well as
to the provisions of the ACAS code. The Tribunal, at paragraph 34, set out its
approach. There is no criticism made of its statement of its approach. They
did so on the basis that they must: first, consider, and make a finding,
whether the reason for the dismissal was a substantial reason, the burden of
proof being on the Respondent. Second, if the reason for the dismissals was
for a sound business reason, or one which the Respondent reasonably believed
was a sound business reason, then it would be a substantial reason. It was not
necessary for the action to be the only available action to avert a business
disaster, but on the other hand a reason must not be trivial. Third, if the Respondent
satisfied the Tribunal as to the reason for the dismissal and that it was a
reason of substance, the Tribunal must consider whether the dismissal was fair
having regard to section 98(4). The Tribunal said of this,
“In this exercise our focus must be on the reasonableness of the
respondent’s conduct. This involves an exercise balancing the advantages to the
business of proceeding in the way that the respondent’s did compared with the
effects on the claimants.”
Finally they had to consider the
question of procedural fairness.
21.
The Tribunal then set out, in 9
subparagraphs at paragraph 35 the matters relied on by the Claimants in support
of their contentions that the dismissals were unfair and, at paragraph 36 – 38,
they summarised the Respondent’s submissions.
22.
They then set out their conclusions on the question of the reasons for
the dismissals. They found that the reason was a business restructuring,
namely a change of remuneration structure with a view to reduction of costs and
an increase in efficiency to combat falling revenues and an alarming fall in
operating profits. They found that the Respondent had not been successful in
all it set out to do in terms of cost reduction, but were satisfied they had an
honest and reasonable belief that taking the proposed steps would achieve those
aims. Those aims were legitimate and necessary and constituted a substantial
reason satisfying the provisions of section 98(1). That conclusion is not
challenged in this appeal.
23.
Under the heading Fairness they
said as follows:
“40. Having attempted as they did to secure the desired change
by negotiation and having failed after several months and many meetings it was,
in our judgment, a wholly reasonable response on the part of the respondents to
terminate the employee’s contracts and offer re-engagement. That is not to say
in our view the claimants were unreasonable in refusing to accept a proposal
which would result in a substantial reduction in their net pay. In our judgment
both parties acted reasonably in the circumstances but the focus of our
consideration must be the reasonableness of the respondent’s conduct.”
24.
They then considered consultation and
repeated their conclusion that there was no evidence to support the contention
that the proposals made by the employees’ representatives had been ignored and
gave their reasons. They then dealt briefly with the question of appeal.
25.
At paragraph 43 they dealt with what they
called the “Negotiations”. In particular they addressed an argument
which was relied on by the Claimants which they summarised as follows:
“The claimants’ submission … was that, as the respondent had
been in a position to offer a sum of money, in effect to buy the claimants out
of their entitlement to EOS bonus, then any fair dismissal resulting from the
failure of those negotiations would have had to have at least have included a
payment of that sum of money contemporaneous with the dismissal. The
respondent, on the other hand, sought to point to the fact that the majority of
the effected employees had ultimately accepted the sum of money they offered
(it must be emphasised that the monies had not been accepted in order to change
terms and conditions, no employee had accepted the change of terms and
conditions). A majority of employees, post dismissal, had accepted a sum of
money to compromise their potential claim to an employment tribunal for unfair
dismissal. Neither argument is, in our judgment, sound. A reasonable employer
is perfectly entitled, if he wishes, to change contractual terms and conditions
to make proposals as to how this may be done by agreement. The employees reject
those proposals as these employees did they have no legitimate expectation to
receive the offered benefit for their agreement when an agreement was not
forthcoming. So far as the respondent’s argument is concerned the fact that a
number of employees who may have had potential claims agreed to compromise
those claims in return for an offered sum of money does not in any way
undermine the validity of the remaining claims by employees who did not accept
the compromise.”
26.
Red Circling. They then considered the impact of the 2005 red
circling of the EOS bonus and concluded that it had no great relevance to the
issues they had to decide. At paragraph 45 they set out their understanding of
the legal position namely that red circling did not mean that the contractual
entitlement must exist for all time. What it meant was that it would continue
for as long as the contract of employment subsisted and constituted an
acknowledgment by the Respondent that any attempt to remove that entitlement
would be in breach of contract. But the Respondent’s acknowledged that if they
wished to remove the bonus against the wishes of the employees they would first
have to determine the contract and that is what they did.
27.
Finally they considered the position of
the non LBO’s in paragraph 47 and said as follows:
“The effect of re-engagement without the EOS bonus operated more
harshly on the non LBO’s than on the LBO’s because they had not had the benefit
of consolidation of part of the bonus into basic pay. One outcome of the
negotiations however was the basic pay of the non LBO’s would be the subject of
further consideration and we understand that that process is continuing. We
were not provided with any evidence as to why the non LBO’s had not
participated in the consolidation in the first place. Ultimately in our view
this factor did not render unfair dismissals which we have found otherwise to
be fair.”
28.
The Appeal. The Appellants contend that the Tribunal erred in
each of the following 3 ways:
i) Although they correctly identified that fairness
required them to undertake a balancing exercise in the event they did not apply
that test sufficiently or at all.
ii) In determining the issue of fairness the
Tribunal applied the wrong legal test in considering the reasonableness or
otherwise of the Respondent not mitigating the loss to the employees’ wages by
the payment of a lump sum at least equal to that it identified as affordable
during negotiations and which it did pay to employees who accepted settlement
agreements. The Tribunal erred by focussing on the much more limited basis of
what the Claimants “legitimate expectations” required.
(iii) The
ET gave no reasons at all for their conclusion that the dismissals of the non
LBO’s were fair, despite the disparately large impact on them by reason of the
non-consolidation into basic pay of part of their bonus.
29.
The Appellant reminded us of the numerous
cases which had been decided in this area prior to the ET’s decisions. They
pointed out that this was an unusual if not unique, case. The amount of the
pay cut was very substantial. The Claimants did not represent a very small
number of “refusniks” whereas the vast majority of employees had accepted the
change. Rather, the Respondent, having not succeeded in obtaining the
agreement of the workforce, sought to impose a change on the whole of the
relevant workforce which it must have known would impact very severely. The Appellant
placed some emphasis on the decision of the EAT in Garside & Laycock
Ltd v Booth UKEAT/0003/11/CEA, which post dated the Tribunal’s
decision and in which the Tribunal (Mr Justice Langstaff presiding) emphasised
the importance of the concept of equity in the 98(4) evaluation of fairness.
30.
In effect, the criticism made by the Appellants under this ground was
that paragraph 40 of the decision, which contains the totality of its
consideration on fairness, does no more than contain an assertion that each
side acted reasonably by its own lights, but that, as the focus had to be on
the reasonableness of the Respondent in adopting the course that it did, a
finding that the Respondent adopted a reasonable position was enough to
determine the issue of fairness against the Appellants. The Appellants contend
that in this way the Tribunal failed to engage with the evidence of hardship
and/or the various points made by the Claimants in their submissions to the
Tribunal.
31.
The Respondent says that this is a mis-reading of the decision.
Paragraph 40 of the Tribunal’s decision should be placed in context. It states
the reasoned conclusion of the Tribunal having made detailed findings of fact
both in respect of the reasons for the Respondent taking the course that it
did, the prospective benefits to the Respondent of so acting, and the adverse
impact upon the employees affected by that action. Accordingly, when they came
to the conclusion that the employer had acted reasonably it was implicit that
the Tribunal only did so having undertaken the balancing exercise which they
stated they were required to do and on the basis of the findings of fact on
benefit and impact which they had made. Further it was implicit that the
Tribunal found that the employer in taking the decision to dismiss was well aware
of the arguments put forward by the employees on the impact of the decision
upon them and the various other arguments which had been put forward in the
course of the negotiations.
32.
In our judgment the Respondent’s contention on this ground is correct. The
decision is a careful one in which the Tribunal examines the reasoning for the
need, as perceived by the Respondent, for getting rid of the EOS bonus, the way
in which the negotiations proceeded, the reasons given by the employees why
such an imposed change would be unreasonable and, ultimately, when the final
offer was rejected by the ballot, the course which the Respondent then followed
by imposing the change by terminating everyone’s contract of employment and
offering them immediate re-engagement on the new terms. The Tribunal was well
aware of the scale of the reduction in earnings which the removal of the bonus
involved and the hardship that would necessarily involve, though in some cases
less so than others. The Tribunal’s judgment that the Respondents had acted
reasonably in so acting was, in our judgment, informed by those findings and
applying them to the question which they had to determine. Their conclusions
on this issue are set out sufficiently at paragraph 40. Accordingly, in our
judgment this ground of appeal does not succeed.
33.
Ground 2. The issue raised under this ground focuses on the
concept of “equity”. It is said that it cannot have been equitable for the Respondent,
in conducting a balance between the benefit to them of the change and the
adverse effect on the workforce of being subjected to the change, for it to
withdraw the offer of a “buy-out” lump sum when offering re-employment upon
terminating their current employment in circumstances in which, having failed to
achieve agreement through the ballot, it sought to impose the change by
dismissal coupled with immediate re-engagement. The argument runs that if the Respondent
could afford to mitigate the impact of the change on its workforce when it made
the final offer, then it must be inequitable for it not to offer that same
mitigation when it proceeded, not by way of an agreement but by way of
imposition. In either case the balancing exercise must be the same namely
achieving the desired aim of removing the bonus in a way which adversely affects
the employees to the least degree which, by way of payments by way of
mitigation, the Respondent could reasonably afford.
34.
The Appellant argues that the Tribunal erred in law by focussing not on
the concept of “equity” but on the concept of “legitimate expectation”. The Appellant
conceded that, in legal terms, the employees did not have a legitimate
expectation that, having turned down the buyout sum offered for their agreement
to remove the bonus, that same sum would be on offer if the Respondent
proceeded to remove the bonus by dismissal and immediate re-engagement.
However, they contend, that is not the test. The test under section 98(4)
focuses on equity and, for the above reasons, it is said the Tribunal erred in
law by applying the wrong test. Had it applied the right test it would have
concluded that the dismissal was unfair because it was not coupled with the
mitigating lump sum buy-out figure in the terms of re-engagement which were
immediately offered.
35.
The Respondent seeks to argue that what is in issue is the fairness of
the dismissal not the terms upon which re-engagement were offered and,
therefore, the question whether the Respondent chose to offer, as part of its
terms of re-engagement, a lump sum buy-out is too remote for the Tribunal to
have considered. In our judgment that is an erroneous argument. The Tribunal
is obliged, in considering section 98(4), to focus on all the relevant
circumstances and it is plain that the decision to dismiss was explicitly and
intimately linked with the contemporaneous offer of re-engagement. Thus, the
terms upon which re-engagement were offered, in our judgment, must form part of
the ambit of enquiry by the Tribunal.
36.
What the Respondent says, in addition, however, is that the Respondent,
acting within the band of reasonableness, was entitled to take the view that a
sum which it had offered to secure an agreement, thereby removing the risks of
industrial action and/or litigation arising out of a dismissal, did not need to
be offered where, responding to the refusal of the work force to agree, it took
the course of dismissal coupled with an offer of re-engagement. That course
exposed it to the risks of industrial action and/or litigation which agreement
would have removed. It was, says the Respondent, within the band of
reasonableness for it to take the view that, as it had not received the benefit
which the lump sum buy out offered had sought to achieve, it was not required,
as an incident of reasonableness, to make that offer where it would not have
that benefit. In those circumstances it was reasonable for the Respondent to
elect not to make the offer of a lump sum payment where it was not receiving
any of the benefits for which that lump sum payment had initially been offered
in the course of the negotiation.
37.
The Respondent further argues that, were the law to require it to offer
the same lump sum payment, but for no benefit, as a requirement of acting
reasonably then it would have a significant and adverse effect on the ability
of employers to conduct sensible negotiations by making appropriate offers in
order to secure an agreement. The leverage of such offers being made to secure
agreements would be removed and such sensible offers would be less likely to
made.
38.
In our judgment the Tribunal focused on the correct question, which was
whether the employer acted reasonably, that is to say within the band of
reasonable responses. In so doing, it rejected the contention that the only
reasonable response for the Respondent would be to offer re-engagement on terms
which included the buy-out sum. We agree with the Respondent that the lump sum
had been offered in order to secure a benefit to the Respondent – agreement to
the changes it wished. When they were unable to proceed by agreement, there
was no obligation upon them as reasonable employer to include that lump sum in
the terms of re-engagement they were offering in the aftermath of dismissal
where they were not going to achieve any of the benefit of an agreement for
which the lump sum had been offered. They were entitled to take the view that
they would hold back that lump sum payment in order to remove the risks of
litigation by way of settlement, which was in fact what happened in the
majority of cases.
39.
In our judgment the large number of cases in this area point up the
wholly fact sensitive nature of this area of the law and the fact that there is
no “one size fits all formulation”. In our judgment the Tribunal applied
itself to the correct test and came to a conclusion which was open to it,
namely that what the Respondent did was within the bands of reasonable
responses to the situation in which it found itself. Accordingly, in our
judgment this ground of appeal does not succeed.
40.
Ground 3. Is a “reasons” ground: that is to say it is said by
the Appellant that the very brief treatment of the position of the non-LBO’s in
paragraph 47 does not begin to explain to the Appellants why they did not
succeed.
41.
Despite the contentions of the Respondents, that paragraph 47 is not to
be seen in isolation and that the entire decision must be viewed as informing
their conclusion, in our judgment the Appellants are correct in their criticism
of the reasons given by the Tribunal for this significant part of the case.
42.
It was apparent that the non-LBO’s were in a different position from the
LBO’s. This had to be the case because they were losing, on average, £20.70
from every £100 bonus payment, whereas LBO’s were not losing that sum because
the bonus payment to them did not include that £20.70. That sum was
consolidated in their basic rate of pay which was unaffected.
43.
There is nothing in the decision, other than a very brief statement that
loss to the employees was in the order of 18%, to reflect or explain what the
Tribunal found was the additional impact of this historical anomaly upon the
extent to which the non-LBO’s suffered greater loss than LBO’s with the loss of
the bonus. We are also puzzled as to what the Tribunal thought was the
significance of the fact that, in the course of the negotiations, there
appeared to have been some agreement that the issue of the non-LBO’s anomalous
position be addressed subsequently. We were told that there was a certain
amount of evidence about these issues. In particular, there was a dispute as
to whether the 2 Claimants who were non-LBO’s accepted the level of reduction
in their earnings being put forward by the Respondent and there is no finding
by the Tribunal in respect of that. Furthermore, there was evidence that,
after some 16 months of negotiations, only one of three groups of non-LBO’s had
had their anomaly addressed. The other 2 remained in dispute about it. In any
event it is not clear to us how the Tribunal thought that the availability of
this alternative avenue for ironing out the anomaly impacted on the decision
which had to be taken as of the time of dismissal.
44.
This was an important and quite complex issue and potentially legally
difficult. Unfortunately, the Tribunal has dealt with it so succinctly that it
is not clear to us, as it was not to the Appellants, precisely what was the
reasoning of the Tribunal in concluding that the dismissals of the non-LBO’s
was fair. It is very difficult for the Appellants to identify what, if any,
errors of law the Tribunal may have made in coming to that conclusion. Accordingly,
in our judgment the appeal on this ground must succeed to the extent that the
matter must be remitted to the Tribunal for it to amplify its reasoning in
respect of the claims of Mr Webster and Mr Brown, the non-LBO’s.
45.
Conclusion: In conclusion therefore, the appeals of all 4 Appellants
are dismissed in respect of grounds 1 and 2, but the appeals of Mr Webster and
Mr Brown in respect of ground 3 we order that the case be remitted to the same
Tribunal for it to amplify its reasoning in respect of that issue which
currently is contained exclusively in paragraph 47 of its reasons.
46.
It follows from this that the appeal in
respect of ground 3 must be stayed in order for the tribunal to provide its
amplified reasons. We order that it should do so within 42 days of this
order.
47.
In the event that the appellants wish to pursue the appeal in respect of
ground 3 in the light of the amplified reasoning they must give notice of
continuance within 28 days of receipt by them of the amplified reasons with
amended grounds of appeal. The respondent may respond to those amended grounds
within 28 days of the amended grounds being served. The matter must be listed
before the EAT (not necessarily the same composition) for a substantive hearing
of the outstanding grounds of appeal as soon thereafter as is convenient.
