Appeal No. EAT/136/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26 November 1993

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR R JACKSON

	MISS A MACKIE OBE

MR K C DOBSON	APPELLANT

BENDIX HEAVY VEHICLE SYSTEMS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S LENNARD
(OF COUNSEL)
Messrs Tilly Bailey & Irvine
Solicitors
York Chambers
York Road
Hartlepool
TS26 9DP

For the Respondents	MR P DARLOW
(OF COUNSEL)
Messrs Lyons Davidson
Solicitors
Bridge House
48-52 Baldwin Street
Bristol BS1 1QD

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal from the decision of the Industrial Tribunal held at Middlesbrough on 13 September 1991.  The decision of the Industrial Tribunal was that Mr Dobson, the Applicant, had been unfairly dismissed and he was awarded compensation of £375, being two week's salary.  Mr Dobson appeals against that decision.  There is also a cross-appeal by his former employers, Bendix Heavy Vehicle Systems Limited.

	It was common ground before the Tribunal, as it is here, that Mr Dobson's dismissal was based on redundancy.  The dispute before the Tribunal was whether his selection for redundancy was or was not unfair.

	This Tribunal has encountered an initial difficulty in disposing of the appeal.  That difficulty arises from the uncertainty about the findings of fact made by the Tribunal relevant to their decision that Mr Dobson was unfairly dismissed.  In brief, the uncertainty is whether the Industrial Tribunal found that Mr Dobson was unfairly dismissed by reason of one matter, that is lack of prior consultation, or whether he was unfairly dismissed by reason of two matters including absence of prior consultation as one of them.

	The cause of uncertainty becomes clear if we refer to the relevant paragraphs in the reserved decision of the Tribunal sent out to the parties on 13 January 1992.

	The first paragraph of that document is headed "Decision" and reads as follows:

"The majority decision of the Tribunal is that the applicant was unfairly dismissed in that he was made redundant without any prior consultations.  However had such consultations taken place, this would have prolonged the applicant's employment by no more than 2 weeks and accordingly his compensatory award is limited to 2 weeks salary namely £375.00.  No question of a basic award arises as the applicant has presumably received a Redundancy Payment."

Pausing there, two points may be noted about the framing of that decision.  First, it was stated to be a majority decision.  Secondly, the decision advances only one reason for it being found an unfair dismissal, that is redundancy without prior consultation. 

	There follow under the heading "Full Reasons" 21 paragraphs which set out the factual background to Mr Dobson's redundancy.  They set out the evidence given by a Mr Easton as to reasons for dismissing or choosing the applicant for redundancy.  They also set out the rival submissions made on behalf of Mr Dobson and Bendix.

	Paragraph 15 onwards deal with the conclusions of the Tribunal.  The crucial paragraphs are 18, 19 and 20.  As will be apparent on reading them, it is very difficult to square what they say with the statement of decision already read.  The paragraphs read:

18."Mr Newton [Mr Newton appeared on behalf of Mr Dobson at the hearing in the Industrial Tribunal] makes trenchant criticism of the Company's dealings with the applicant and there is merit in his suggestion that the Company relied unduly on subjective performance appraisals and above all wholly failed to attain the standard of procedure in respect of consultation and warning etc that might have been expected of an employer of the Company's size and resources.

19.For these reasons the Tribunal unanimously agree that the applicant was unfairly dismissed.  However the majority of the Tribunal consider that, after taking an all round view of all of the evidence in this case including the applicant's failure to obtain promotion after such long service, the warnings which he had received in recent years and his failure either to challenge or respond to these warnings, if the Company had followed the correct procedure by way of warning and consultation, the only result would have been a postponement of the applicant's dismissal until the end of such period of consultation which we put at 2 weeks.

20.The remaining member of the Tribunal dissents taking the view that, had the correct procedure been followed, the likelihood is that the applicant would not have been dismissed."

	At the opening of the appeal we indicated to Counsel for Mr Dobson and Bendix that we wished to hear argument first on the disputed question whether the reasons for which the Tribunal found unfair dismissal were confined to absence of prior consultation, as stated in the "decision" paragraph, or included another matter, the subjective performance appraisals referred to in paragraph 18.

	We heard well presented arguments on each side.  It was argued by Mr Lennard for Mr Dobson that it was clear, reading the Industrial Tribunal document as a whole, that the Tribunal was finding there was not just one reason for unfair dismissal - the prior consultation reason.  The "reasons" in paragraph 19 embraced the subjective performance appraisals referred to in paragraph 18.

	He relied strongly on the opening words of paragraph 19 which say:

"For these reasons the Tribunal unanimously agree that the applicant was unfairly dismissed."

	For the Respondents Mr Darlow recognised that, if that was a correct reading of the Tribunal's decision, then, subject to a point which he had on perversity in relation to subjective performance criteria, the matter would have to be remitted to the Tribunal.  Mr Darlow tried to argue, contrary to Mr Lennard, that the Tribunal's decision was clear in this way, that the only reason for finding that Mr Dobson was unfairly dismissed was absence of prior consultation, as stated in the second line of the "decision" paragrapgh.

	We have considered the rival arguments.  We are left uncertain as to what were the findings of fact by the Tribunal relevant to their overall conclusion that Mr Dobson was unfairly dismissed.  There is, as Mr Darlow conceded, in paragraph 18, an ambiguity as to what were being found as the relevant facts.  Mr Darlow argued that any ambiguity found in that paragraph was dispelled by reading it in the context of the opening words of the decision and in the ensuing paragraphs.  We are not convinced by that.  In our view, the only way in which this unsatisfactory situation about the facts can be resolved is by taking the matter back to the Industrial Tribunal for them to clarify.

	In order to avoid further delay and expense to the parties, we have decided that this should not be by way of a formal remitting of this matter back to the Tribunal.  What we propose to do, with the agreement of the parties, is that this Tribunal should send a letter to the Industrial Tribunal asking the Chairman to consult with the lay members who sat with him on this matter, and answer certain questions about the factual basis for the decision on unfair dismissal.  The form of those questions has been discussed between Mr Lennard and Mr Darlow and is agreed.  It is also agreed that the Tribunal will point out in the letter the reasons for this course being adopted.  This Tribunal will ask the Industrial Tribunal to give full, clear and careful answers to these questions.

	If the answers to the questions include a statement that Mr Dobson was, in the view of the Industrial Tribunal, unfairly dismissed for reasons which include subjective performance appraisals, then we shall ask for the Chairman to supply his notes of the evidence given by Mr Dobson and Mr Easton.  The reason for asking for those notes is that in his cross-appeal Mr Darlow wishes to raise the question of perversity.

	As we were initially sceptical about the prospects of the perversity argument ever getting off the ground, we asked both Counsel to address us on the point.  Without expressing any concluded opinion on it, and without encouraging the pursuit of the perversity point, we leave it open for further argument at an adjourned hearing, in the light of the answers to the questions asked in the letter and in the light of the Chairman's Notes.

	We will, of course, make it clear in the letter that the Chairman's Notes will not be required if their answers to the questions is that there was only one reason for the finding of unfair dismissal and that reason is not the subjective performance criteria.

	We should add that it is common ground between the parties that, if the answer is that only the prior consultation reason was relied upon, the appeal can proceed to full argument.  Subject to the perversity point, it is also common ground that, if the answers to the questions include reliance on the subjective performance appraisals, this matter would have to be remitted to the Industrial Tribunal.  On the perversity point I should spell out the position.

	If Mr Darlow succeeds on the perversity point, the appeal can continue to a final conclusion.  If he fails on the perversity point, the matter must be remitted to the Industrial Tribunal.  I may have spelt out at greater length than is usual what we propose to do.  It is an unusual situation.  It requires a full explanation to the parties, to the Industrial Tribunal and to ourselves if this matter comes back for further argument.

	The order on today's hearing is that the appeal be adjourned and that, at the request of the parties, it be re-listed for hearing when they have had an appropriate time to consider the answers of the Industrial Tribunal to the questions put in the proposed letter.  

Do you need any other matter by way of order?

The one thing I could ask for is in the event there is no other hearing before this Tribunal which is a possibility for a number of reasons, I could ask for legal aid taxation of my costs.

Yes.  I would say I am not going to sit and spell out again all the possible permutations of events but in the event that you are both agreed either that the appeal should be dismissed or that there should be an order of this Tribunal remitting the matter to the Industrial Tribunal I would urge both sides to arrange for that to be done without further hearing here.  If it is by consent we can simply make the order dismissint the appeal by consent without a hearing and if it is a matter of remitting it to the Tribunal we can do that by consent in the circumstances that I have described in my judgment.  To a legal aid taxation of the Appellant's costs I think all we want from you is your draft of the questions.  You need not hand that in immediately.  Can you hand it in before you go?

......That does not include either the request for the notes or the Tribunal's encouragement to give a clear answer.

We will add that in and you would both like copies of this letter sent to  you
Thankyou.
Do you want to be shown in draft the letter before it is sent so that you can comment on it.
Thank you no.
I think I have made it clear what it will contain.  If there is anything in the decision 
which raises any points you want to deal with before we arise.
No thank you.

Thank you no.