Cornwall & Ors v Eclipse (UK) Ltd [1996] UKEAT 1294_95_2902

EAT
Cornwall & Ors v Eclipse (UK) Ltd
[1996] UKEAT 1294_95_2902 · 1996-02-29

JUDGE BUTTER Q.C. :

This is an appeal by the applicants before the Industrial Tribunal in respect of a decision made by the tribunal sitting at Ashford on 6th November 1995.The unanimous decision of the tribunal was that the terms and conditions of the employment of all the applicants, included a term that the basic working week as on 31st March 1994 was "39 hours" and that this was one of the terms and conditions of their employment transferred to the respondents.It appears there had been a number of disputed matters between the parties. But as a result of extensive negotiations, substantial agreement had been reached between them prior to the commencement of the hearing before the Industrial Tribunal. The one matter which remained to be determined, concerned whether the basic working week of the material time was "39 hours" or "37 hours".In their extended reasons, which were sent out to the parties on 23rd November 1995, the tribunal dealt briefly with some of the evidence which had been given. They say in paragraph 4 of their reasons:
"Mr Brown argued that that agreement was an instruction to Personnel Officers of Local Authorities that a harmonisation programme was to be completed by certain dates."
It is said that the word "argued" is inappropriate, and that he gave evidence directly from his own knowledge. Be that as it may, it was, we are told, agreed that there had been a specific target date.The respondents below called no evidence, but put in a number of documents.The tribunal concluded in paragraph 8 that:
"the evidence was overwhelming that, at the date of transfer, the Applicants were working a 39-hour week.
That, however, does not advance the matter further one way or the other. They go on to say:
"We accept Mrs Cook's submissions [ Mrs Cook appearing on behalf of the respondents below ] that there was no evidence that Hastings Borough Council had ever agreed to harmonise their day workers' working week to a 37-hour week. The pay award of 1990/91 set a target for local implementation, and, had it not been for the appearance of compulsory competitive tendering, we do not doubt that the unions would have pressed the issue of harmonisation, but this seem to have been a matter which was overtaken by events before it had been resolved between the union and the borough council."
It is a matter of surprise to this tribunal today to learn that the crucial document, as we see it, or more accurately a document which could be crucial, was not placed before the tribunal and Counsel for the appellants is not able to offer an explanation as to why that is.At first sight, paragraph 8 contains findings of fact which were open to the tribunal to make and which would not in the ordinary way be the subject of a successful appeal. We have reached the conclusion in the light of the arguments presented to us, however, that in order to determine the terms of a contract of employment of those employees who were to be transferred, the Industrial Tribunal needed to make a finding of fact as to what would be the terms and conditions of employment in the event that a reduction in hours had not been implemented by 1st April 1994. On remission to the Industrial Tribunal, that tribunal would be free to consider additional evidence, including the potentially important document to which I have already referred. We are told that the harmonisation "Working Time - A Framework Agreement" is in fact available in this court, but the question is, what evidence the tribunal below needed to consider. In fairness that tribunal did have to decide as best it could on the evidence before it but in the result we do reach conclusion that they have failed to make a specific and important finding. We are also told that there are in any event matters which the tribunal below will have consider other than in relation to this appeal.In the result we are unanimously of the view, that the decision below is, with respect to that tribunal flawed, and that there is an error of law of the sort which entitles this tribunal today to interfere.We recognise that the tribunal below may have been placed in difficulties by reason of the failure of the parties to place before it all the necessary evidence.In these circumstances, and for these reasons, it is our view that the appropriate course is for the matter to be remitted to the Industrial Tribunal, that is to say, the same Industrial Tribunal.