Joseph Hoyle & Sons v A Ali & Ors & Anor [1997] UKEAT 103_96_1605

EAT

Joseph Hoyle & Sons v A Ali & Ors & Anor

[1997] UKEAT 103_96_1605 · 1997-04-17

For the 1st Respondents For the 2nd Respondents MR G P BAXTER (of Counsel) Messrs Wadesons Solicitors Southbank House Black Prince Road London SE1 7SJ and Mr Coutrney Hay Northern Complainant Aid Fund Checkpoint 45 Westgate Bradford

MR JUSTICE LINDSAY : We have before us an appeal by an employer, Joseph Hoyle & Sons Ltd, ["the Company"], against the decision of the Industrial Tribunal under the chairmanship of Mr John Prophet promulgated on the 13th December 1995. That decision was in an application made by nine weavers who had been employed by the Company. The unanimous decision of the Industrial Tribunal was that the applicants were all unfairly dismissed. The matter of remedy was stood-over.

There is here an unusually long delay between the dismissal on the 21st February 1992 and the hearing now before us. In part at least that is explained by reason of this being the second time that the matter has come to the Employment Appeal Tribunal. An Industrial Tribunal originally heard complaints in May 1993. At that time the weavers' complaints were coupled with complaints of racial discrimination. By a majority that Industrial Tribunal concluded that all the complaints should be dismissed. The matter was then taken to the Employment Appeal Tribunal. which decided on the 26th October 1994, so far only as the complaints of unfair dismissal were concerned, that the appeal should be allowed and that such complaints should be remitted to a differently constituted Tribunal for re-hearing. That re-hearing of the cases as to unfair dismissal only was spread over some 4 days from the 6th September to the 31st October 1995. It is from the decision on that re-hearing that the Company appeals.

The weavers who took their complaint to the Industrial Tribunal were nine of twelve weavers in the weaving department at the Company's mill in Huddersfield. Their work was crucial to production. Most had worked for the company for many years although some had breaks in their service. The Industrial Tribunal finds that it was not in dispute but that they were capable and hard-working employees. Moreover, their manager, Mr Mahoney, had worked with them for many years and the Industrial Tribunal found that the relationship between him and them was one of considerable trust and understanding.

Times, though, were difficult. The Industrial Tribunal held:-

"As virtually anyone in Yorkshire knows, the textile industry has had a tough time in recent years and in 1991 both the respondent company and the group of which it was part were not performing profitably. In this context it is not therefore surprising that some firm measures were needed from management to improve productivity and examining work practices. Mr Rice, who had been the production manager at another site at Manningham, was moved to the respondent company with a brief to effect the desired changes."

It needs to be borne in mind that the weavers are all Asians and some had only a relatively limited understanding of the English language.

The Industrial Tribunal found that Mr Rice, as general manager, had asked Mr Mahoney to make a study and that the study revealed that new machines which had been installed at considerable expense had reduced textile breakages in the weaving operation by some 30%. That reduction paved the way for a proposal that the number of looms operated by each weaver should be increased from 5 to 7. A document was prepared by management which was to be read out to each shift of weavers by their manager, Mr Mahoney, on the 11th December 1991. The Industrial Tribunal quotes from the material which was then read out to the weavers. It said that it was the company's intention to move to seven-loom weaving and that unfortunately that would result in three redundancies. The quotation by the Industrial Tribunal from the document read out continued:-

"I trust that the changes will be brought about reasonably amicably in which case we would be able to have discussions as to how the redundancies may be handled but detailed discussions are best left until a full-time Union official has had time to consult you and the company. Whilst wishing to leave reasonable time for your views to be heard and considered it will be our intention to introduce the new structure as soon as possible. The re-organisation will affect, in some way or another, all the jobs within the department and not just the weavers but those will be the subject of these and separate discussions and should not result in any redundancies."

With the reading-out of that document there began exchanges which we will need to return to in detail but which ultimately led to the dismissals (but with offers of fresh re-employment) on the 21st February 1992. Without the Industrial Tribunal in terms identifying the reason for the dismissals, it was satisfied that it was a reason within section 57 (1) (b) of the 1978 Act. The Industrial Tribunal holds:-

"We are satisfied that the reason for their dismissal falls under the heading of another substantial reason in section 57 of the Employment Protection Consolidation Act 1978"

That reference to "another substantial reason" can only have been intended to be a reference to the expression "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held" within section 57 (1) (b). On that basis the employer had fulfilled the requirements of section 57 (1) and so the Industrial Tribunal was then required, under section 57 (3), to turn its mind to a determination of the question whether the dismissal was fair or unfair, a question which section 57 (3) indicates is to depend on whether the employer acted reasonably or unreasonably in treating the reason shown as a sufficient reason for dismissing the employee. It is a question to be determined in accordance with equity and the substantial merits of the case. The Industrial Tribunal continued (with our emphasis):-

"The duty of this Tribunal is to ascertain whether in all the circumstances the employers acted reasonably or unreasonably in treating that as a sufficient reason for their dismissal."

Exactly what the "that" was had not been precisely identified. We shall need to return in more detail to the considerations of the Industrial Tribunal but the point that seems to have caused it to hold that the dismissals were unfair was that it saw there to have been a failure on the company's part sufficiently to discuss, consult and negotiate. Without, as yet, seeking to make the Industrial Tribunal's references fully comprehensible and merely, therefore, setting out its reasoning to indicate its views only in outline, we here refer to the Industrial Tribunal's paragraphs 25 and 26 which run as follows:-

"25. To move to such a drastic step as dismissing them, even if offers of further employment on the new terms is offered, should in our view not occur until the management can show that the processes of consultation and negotiation had reached an impasse which made such action reasonable. In the view of all the members of this Tribunal, that had certainly not occurred a mere 9 days after the statement was first made notwithstanding the initial stance of the weavers. Further attempts at negotiation could have been attempted. The attitude of the company throughout was to adopt a dominant role that the management would be making the changes and that any negotiation with the weavers would essentially be on the management's terms, thereby ignoring the requests by the weavers for a more flexible approach. This continued throughout the process notwithstanding the progress which was duly made. When some agreement was reached this was not properly documented as between the management and the weavers. To fall back at the very late stage on the dismissal letters and to insist at very short notice, a further demand to sign to the new terms was not the action of a reasonable employer. The final stages could, we are sure, readily have been resolved given a willingness to continue discussions, which the weavers attempted right up to the last minute, only to come up against an obdurate management.

26. The Tribunal is satisfied, unanimously, that all the applicants were unfairly dismissed."

That a failure to consult and negotiate can lead to a dismissal, even one for a substantial reason, being unfair cannot be denied but if an Industrial Tribunal is to give that as its reason for a dismissal being unfair it needs to be careful to show that the history which it describes as short on consultation and negotiation was indeed a fair account of the full history put in evidence before it. To describe, for example, there having been consultation only at points 1, 2 and 3 and to say that consultation of that nature was insufficient is no adequate conclusion in law if the evidence, not challenged or discounted, was that there was also consultation at points 3, 4 and 5. With that form of attack on the Tribunal's reasoning in mind we now need to revert in more detail to the history between the 11th December 1991, when the document we have described was read out shift-by-shift to the weavers, and the dismissals on the 21st February 1992.

The document read out on the 11th December 1991, after making the point that the company had invested £100,000 in new machinery and of its intention to move to seven-loom weaving, a change which it described as essential, continued, in a passage not cited by the Industrial Tribunal:-

"The Trades Unions have been informed and through them no doubt we shall hear of any comments you may have but I must stress that the essential point I am making that is to say the move to seven loom weaving is not only reasonable, but in terms of costs and productivity etc. essential. We would naturally hope to move to this new situation and deal with the result and redundancies by consultation and discussion ..."

Then a little later began the passage cited by the Industrial Tribunal as above, including that:-

"but detailed discussions are best left until the full-time Union official has had time to consult both with you and the company. Whilst wishing to leave reasonable time for your views to be heard and considered, it will be our intention to introduce the new structure as soon as possible."

In relation to this the Industrial Tribunal commented:-

"It is significant, we think that neither Mr Rice nor apparently Mr McGowan, the group personnel manager, who was also involved in this matter, thought of bringing in a Union official at that stage and this again seems to indicate some lack of attention in the mind of management to concerns which might reasonably emanate from the weavers themselves to proposed changes in working practices."

Whilst it might well be that the neither Mr Rice nor Mr McGowan had considered bringing a Union official into discussions before the proposal of the 11th December 1991 had been read out, it is quite plain from the passage we have read that from the outset the management had in mind that the Trade Unions would be informed, that there would be detailed discussions and that full-time Union officials would be given the opportunity to discuss matters both with the weavers themselves and with the company. It is true that no Union official was present at the reading-out on the 11th December 1991 but, given the plain intention they should be brought in thereafter, it seems hard to attribute any weight to a criticism of the Company based on the fact that they had not been there at the actual reading-out.

The Industrial Tribunal then held that Mr Rice had taken the view that any negotiation with the weavers "So far as he was concerned" would only be with the Union. If that is intended to be criticism of the Company it is difficult to see that there is foundation for it. Mr Rice was the general manager and such it was not unreasonable for him to have told the two weavers that their answers should be given not to him but to their own manager, Mr Mahoney, (with whom the weavers had, as we have mentioned, a relationship of considerable trust and understanding) and that as far as he was concerned negotiations would only be with the Union. There is no suggestion that his view was that so far as the company as a whole was concerned negotiation would only be with the Union, nor do the ensuing events suggest that to have been the case.

Continuing, apparently critically of Mr Rice and his decision that as far as he was concerned negotiation with the weavers would only be with the Union, the Industrial Tribunal goes on to say (with its emphasis):-

"In that respect there is no evidence of his having regard to a statement in the procedural agreement between the National Union of Dyers, Bleachers and Textile Workers and the respondent which says this:-

"It is agreed between the Union and the company that it is in their common interest to promote the efficiency of and productivity to the business in which they are engaged therefore when policies, plans and changes are proposed to improve the business these will be fully discussed with the Union representatives and members concerned (our emphasis) with particular emphasis to the company's rights as described in 7 management function""

However, there is nothing in that passage from the procedural agreement to suggest that a worker or any group of workers can insist upon discussion with a particular member of management. For Mr Rice to have indicated that he would negotiate only with the Union but in the context that the Company was not indicating an unwillingness also to negotiate with the weavers themselves, is, as it seems to us, of itself no breach of that passage from the procedural agreement. Moreover, if his personal failure to have had regard to the terms of a procedural agreement was to be relied on by the Industrial Tribunal, it would have been proper for the Industrial Tribunal to have looked not merely at the opening general heading of Agreement of the nature quoted above but also to have examined in detail how far the detailed procedure specified in such agreement had or had not been performed. No procedural agreement, as the two members sitting with me advise me, would ever be limited only to a general statement of the kind which the Industrial Tribunal quotes without its adding also detailed procedures for discussion with Union representatives and with members. For Mr Rice not personally to have had regard to the statement in the procedural agreement would have been of no substance as a complaint against the company if overall the provisions of the procedural agreement had been honoured by the company, whether the provisions had been in Mr Rice's mind or not. There is no finding what the detailed provisions of the procedural agreement were, nor that they were not performed, nor that the Union or the weavers complained at the time of any failure to perform them.

Moving on from the events of the 11th December, the Industrial Tribunal held:-

"The management having brought in the full-time Union official it was reported back to them that the weavers were not interested in agreeing to the proposal"

For the Industrial Tribunal to have held that the weavers "Were not interested in agreeing" it is a rather less emphatic way of putting the point than as it was understood at the time. Mr Rice's letter to the trade group organiser of the TGWU on the 19th December, referring to their meeting on the 16th December, says that "I was sorry to hear from you on Monday that your members amongst the production weavers have rejected out of hand the company's proposal for changes within that section". The letter continued that closure of the department loomed. The correspondence indicates that by or at that meeting of the 16th December the TGWU official had been given further details, beyond what was in the document read out on the 11th December, so that he could advise the weavers. In his letter of the 19th to the TGWU Mr Rice says:-

"We are quite prepared to discuss the full detail of our proposed changes but if you are saying there is no prospect of any meaningful discussion, we are left with little alternative but to commence the procedures necessary to implement these changes on the timetable which I gave you at our last meeting. We shall therefore be issuing letters to all the affected employees this week in order to fulfil the statutory requirements appropriate to the situation."

At the foot of his letter he writes:-

"I would obviously prefer to bring these changes about in an amicable, constructive way, and am available at any time if you wish to re-open discussions."

Although the Industrial Tribunal is critical of both the company as a whole and Mr Rice in particular in relation to an unwillingness to negotiate and consult, they make no mention of Mr Rice's offer in this letter of the 19th December to hold himself available to the TGWU if the Union wished to re-open discussions, nor does the Industrial Tribunal reflect on Mr Rice's apparent understanding that the case, the Company's proposals having been rejected out of hand by the weavers, was that it might already be that there was no prospect of any meaningful discussion.

On the 20th December the Company wrote to the weavers. This was the letter of dismissal of which, its being only 9 days after the document read out on the 11th December, the Industrial Tribunal was critical. It was, though, by no means an immediate dismissal; it indicated that the present employment would terminate but not until Friday 21st February 1992 and it offered a new contract, with seven-loom weaving, from Monday 24th February. The letter pointed out that further details, beyond those in the document read out on the 11th December, had been given to Mr Smith, their Union official, in order that he could advise the weavers. It indicated that the company had that day written to Mr Smith (in fact their letter to Mr Smith was of the day before) advising him that in the absence of any constructive comment or suggestion from either the Union or the weavers the Company had felt it necessary to initiate procedures required to bring about the changes which had been indicated on the 11th December. The letter continued:-

"Accordingly we must give you formal notice that your present Contract of Employment with the company will terminate on Friday the 21st February 1992 with a new contract to commence without break or loss of continuous employment, with effect from Monday the 24th February."

In that letter the Company spelled out the changes which were required including, of course, seven-loom weaving, and they added:-

"Should you have any queries and wish to raise these personally, Mr Mahoney will be more than happy to see you to discuss them."

And then the letter concluded with a plain warning:-

"I regret, however, that should you feel unable to accept this variation, your employment will cease on Friday the 21st February 1992."

In its criticism of the Company for want of consultation the Industrial Tribunal appears to have overlooked the reference Mr Rice stating that Mr Mahoney would be more than happy to discuss matters with the weavers.

The Industrial Tribunal, commenting on the terms of the new employment which the letter offered as from 24th February 1992, says:-

"We are bound to say that we have found these extremely confusing because although described as variations it has emerged in the evidence that many of the items mentioned actually involved no change to the existing conditions of employment."

Whilst there is no reason to doubt the Tribunal's confusion, there is no finding nor any suggestion in the contemporary correspondence that anyone relevant, namely, the weavers, the Union or the Company, were at all confused at the time by the letter of 20th December.

The Company negotiated not only with Mr Smith of the TGWU but also with another officer of that Union, Mr J. Rutherford, and it is apparent from the correspondence which was before the Industrial Tribunal that at some stage before the end of January 1992 there had been a discussion between the Company and the Union as to voluntary redundancy for some weavers as being a possible escape by way of negotiations out of the problems that threatened. The Union had asked the Company to consider requests for voluntary redundancies but this had resulted in all of the production weavers making a request for that redundancy. In the Company's view that would have led to a temporary closure that might well have become a permanent closure. The Company found that the situation was being aggravated by weavers operating what the company regarded as something close to an unofficial work-to-rule. There had, in the Company's view, been an enormous increase in absenteeism and a dramatic reduction in efficiency and productivity. That was the Company's view by the 17th January 1992 and the Company had understood that on the 20th January 1992 the Union was going to meet the weavers to advise them "Of the possible dangers of their actions, particularly whilst you [the Union official, Mr Rutherford] were striving to reach a settlement on their behalf.". In its narrative findings the Industrial Tribunal makes no mention whatsoever of the activity or inactivity of the weavers that led the Company to take the view that something akin to a work-to-rule was occurring, nor as to the increase in absenteeism and the reduction in efficiency and productivity it observed, nor of the manner in which the company had met the Union in order to see whether voluntary redundancy could be some form of solution. As to that last, it would seem to indicate a willingness to discuss matters and to be flexible; as to the earlier matters, they could not unreasonably conduce to a guarded response by the Company to the weavers' case. These were matters plainly relevant to consideration of whether there was adequate discussion, but the Industrial Tribunal is silent on them, nor does the Industrial Tribunal mention that a meeting between the Union and the weavers took place on the 20th January, as the contemporary correspondence suggests.

On the 30th January the Company's personnel manager, Mr McGowan, wrote to Mr Rutherford at the TGWU and, beyond topics already referred to by us, he made the comment:-

"Like yourself we always strive to resolve these situations by discussion and consultation but, given the response we have had to date from the weavers, to what we believe are reasonable and necessary changes, I see little prospect of such a solution on this occasion. The weavers' present conduct is, I know, contrary to your advice and their concerted attempt to bring about the redundancy of all their jobs is placing at risk the jobs of their colleagues. Given all this, it is hard for anyone to believe that the survival of this company is of any interest to them at all."

There is a later reference in Mr McGowan's letter to the Company's difficult trading situation. The Industrial Tribunal fails to make any mention of this letter. It shows that the Company's personnel manager was involved in negotiations with the weavers' Union, that alternative solutions - the voluntary redundancy plan - had been considered - but that, for the reasons it gave, the Company saw little prospect of a solution by way of discussion and consultation. If the Company was fairly to be criticised with respect to its failures as to discussion and consultation, the Industrial Tribunal should have given some consideration to how far, if at all, Mr McGowan's view that there was little prospect of such a solution being reached by such a route was one reasonable to be held at the time.

On the 29th January Mr Smith of the TGWU had asked another Mr Smith, Mr R.M. Smith, the managing director of the Company, for a meeting between the weavers and the managing director. The Union had received a request from the weavers for that meeting to be arranged. The managing director replied saying:-

"Though you say that their [ the weavers' ] request for a meeting is to allow the weavers to explain their position, I understand that, not only have they not availed themselves of an invitation to such a meeting with Mr Rice, but that you and your colleague, Mr Rutherford, have said that they are not interested in our reasons or explanations."

That, presumably, was a reference to the proposals of 11th December being rejected out of hand and to subsequent contacts between the Company and the Union. The Managing Director, too, referred to the weavers having made what was virtually a block request to leave the company provided they could receive redundancy pay and to a dramatic reduction in their productivity since the plans of the 11th December had been announced. The managing director concluded:-

"In all the circumstances I am unable to accept that the purpose of your proposed meeting is to allow for an exchange of views or feel that such a meeting would do anything to assist or resolve the present situation and must therefore decline."

The Industrial Tribunal mentions that the managing director declined to meet the weavers but they nowhere say that the managing director was unreasonable in his view that the meeting was unlikely to assist or resolve the situation as it then existed. Moreover, even though the managing director was declining, in this fashion and for those reasons, to meet the weavers, it is to be remembered that their manager Mr Mahoney and the personnel manager, Mr McGowan, were not found to be unavailable to the weavers.

On the 12th February the weavers wrote a short letter to Mr Rice. It said that they had considered the Company's position and regarded the proposed changes to their contracts as both substantial and unreasonable but they said that notwithstanding that and after long deliberations amongst all the weavers and the Union officials, they had decided to accept seven-looms weaving. However, that was only, as it seemed:-

"If the management undertakes to give the following guarantees ..."

This letter, as appears from the correspondence, was handed to the Company at a meeting between the Company and the Union on 12th February and, so far as one can judge from the contemporary correspondence, the Company's response was to agree by the next day, the 13th, "in principle" with the Union as to the weavers' terms as set out in the weavers' letter but adding that a formal answer would be given. The weavers' letter, as to the "guarantees" it demanded, was hardly expressed in a way such that upon their acceptance there would exist a clear and legally enforceable contract with an ascertainable content. For example, the eighth of guarantees asked for reads as follows:-

"In case of emergency maximum possible leave without pay granted to go to Pakistan without breaking the continuity off unemployment because we have not been offered any extra money for weaving extra two looms we strongly feel that it is the duty of management to oblige us with extra help on the grounds that our production bonus shared with tuners, knotters, greasy, perchers, weftman, etc. etc."

That the weavers expected the matter to require further attention was indicated by their letter which ended:-

"We will be grateful if you will kindly let our Union officials know about your answers to our request."

Moreover, it is plain from that that the weavers were content that discussions or negotiations should, at least for the time being, be pursued with the Union rather than necessarily with themselves or with both themselves and the Union.

On the 14th February the Company responded to the weavers' letter in the more formal way which it had earlier said that it would. The Company's letter points out that as far as had been possible it had responded immediately to the weavers' letter and that the Union officials, so far as the Company understood, had then conveyed the details of the Company's response immediately to the weavers who were still at work. Then the Company went point by point through the various "guarantees" which the weavers had asked for. It mentioned that at some points it had not been feasible to discuss a particular question directly with the weavers concerned because of the lack of any dialogue with them. The letter continued, by reference to the weavers' letter of the 12th February:-

"We have agreed in principle with your Union representatives that the new systems come into force on Monday the 24th February and are subject to a major review after 6 weeks but naturally the operation will be monitored closely throughout this period."

The Company also mentions the enormous drop in productivity and efficiency, as it saw it, that had taken place and said:-

"We have agreed to the trial period only on the understanding that such conduct ceases immediately and that we receive full cooperation in the weeks ahead."

Without our going separately into each of the responses to the separate guarantees sought in the weavers' letter, it can fairly be said that whilst the Company's response is not the equivalent, as could not be expected, of a simple acceptance of a straightforward offer such as, on its acceptance, would have led to a clear binding contract, the Company's response was, for all that, generally positive in relation to the weavers' requirements. There was nothing, in other words, in its more formal written response of the 14th February, that belied its reference to there having been an agreement "in principle" with the Union when the letter had been handed over and discussed on the 12th February. The Industrial Tribunal's findings in relation to the events of and shortly after the 12th February hardly convey the picture which the unfolding correspondence suggests. The Industrial Tribunal says:-

"On the 12th February a letter was received from the weavers indicating some proposals by which they felt they could agree to the proposed changes."

In fact, the letter of the 12th shows that if the management undertook to give the specified "guarantees" the weavers had decided to accept seven-loom weaving. The Industrial Tribunal continued:-

"When the respondent received that letter they arranged a meeting with the Union and Mr McGowan saw the Union officials. The Union official duly saw the weavers and some progress was made. Indeed it was thought by the Union official that a settlement of the dispute had been reached and the weavers had accepted that their concerns were being attended to and on that basis were prepared to accept seven loom working."

But it was not merely the Union official who had thought a settlement of the dispute had been reached; the Company's letter of the 14th February mentioned that there had been an agreement in principle with the Union representatives, as we have cited above. Indeed, later in the reasons the Industrial Tribunal itself indicated that Mr Rice, the general manager, had discovered "that what had been thought to be a concluded understanding" was still giving rise to difficulties, a passage which suggests, as does the correspondence, that the Company, too, even in the view of the Industrial Tribunal, had thought there had been a concluded understanding. This is a point of some importance as the later history of the matter shows that the Company later felt that the weavers were resiling from an arrangement which had been agreed in principle and that the weavers were reverting to what the company had regarded as an uncooperative form of working which threatened a closure of the weaving department itself. The Industrial Tribunal should have recognised in its narrative that it was not merely the Union but also the Company that took the view that a settlement of the dispute had been reached. An employer who finds his employees resiling from something agreed (even if only "in principle") may well be justified in making a sterner response to them than would otherwise be the case. Without its being clearly recited by the Industrial Tribunal in its reasons that the Company, too, thought there had been an agreement, the Company's later view that the weavers were resiling from an agreement was likely not to be as fully appreciated by the Industrial Tribunal as it should have been.

The Industrial Tribunal described the Company's letter of the 14th February as a curious one. They (shrinking here from a unequivocal finding there had been an agreement) say:-

"If, as appears to have emerged from the evidence, an agreement had been reached this letter does not specifically confirm that."

In fact the letter in terms mentions that the company had agreed "in principle" with the Union that the new system would come into force on Monday 24th February, would be subject to a major review after 6 weeks and would be carefully monitored throughout that period.

The Industrial Tribunal commenting further on this letter of the 14th February 1992 says:

"Furthermore, again oddly we feel, the letter did not indicate that the threat of dismissal which, of course, was still hanging over all the weavers by virtue of the earlier letter of the 20th December 1991, would consequently be withdrawn".

It is difficult to regard that omission as "odd"; the Company and the Union understood there to have been an agreement, at least "in principle", one part of which was that there was to be the six-week trial period to which the letter referred. But nothing had by then been heard from the weavers themselves; the restoration of productivity and efficiency levels which the Company had insisted upon had not had time to be tested and the six-weeks period agreed with the Union, if begun at all, had run at most two days. When regard is had to these matters, not challenged in any evidence referred to by the Industrial Tribunal, it was thus hardly "odd" that the letter of dismissal was not, at this stage, withdrawn.

On the 17th February 1992, as the Industrial Tribunal held, "The weavers let Mr Mahoney know that they were still unhappy about the final outcome of the negotiations. At this point the Tribunal feels that a misunderstanding may have arisen". Even had there been, in fact, a misunderstanding (as to which, again, the Industrial Tribunal shrink from a clear finding) the Industrial Tribunal held that the Company understood that the weavers were then making a further demand as to bonuses, something going beyond the "guarantees" sought in their letter of the 12th February and something beyond the agreement "in principle" with their Union. The Industrial Tribunal does not find that the Company could not reasonably have understood as it had, nor that it was at fault in doing so. It was at that point (at which, as earlier cited, "Mr Rice discovered that what had been thought to be a concluded understanding was still giving rise to difficulties") that he had reacted very sharply. A letter was written by the Company to each of the weavers on the 19th February. That the Company understood the weavers were now making fresh demands going beyond what had been agreed is clear from the opening paragraphs of the letters to each weaver which read:-

"We were surprised and disappointed that after all the effort put into reaching a solution by your full-time Union official, Union representative and ourselves and, having reached an agreement only last Thursday, the 13th February, we are now faced with more demands from the weavers before they are prepared to accept the new terms and conditions of employment due to commence next Monday, the 24th February, which were first notified to you over two months ago.

As disappointing this may be it becomes incredible that the latest demand is for the weavers to receive payment for the bonus earnings they have lost whilst carrying out what was a virtually unofficial industrial action. Indeed it was only the repeated requests of the Trade Union official not to do anything to inflame an already difficult situation that caused us to temporarily ignore these actions, despite the damage it was doing and the effect on other peoples jobs."

The letter continued:-

"Against this background we can see no justification for delaying even one more day in repeating, as advised in our letter of the 20th December 1991 that your present contract of employment ceases on Friday of this week, the 21st February."

The letter went on to refer to the offer of continuing employment on the new terms. Each weaver was asked to advise the Company of his acceptance or otherwise of the new contract offered from the 24th February by returning an enclosed slip to Mr Mahoney. A deadline was given - 3 p.m. on Thursday the 20th February. "We cannot leave the matter unresolved any longer" said the Company, adding that a failure to reply would be taken as rejection.

The Industrial Tribunal held that "Attempts were made to try to dealt with this matter but that having regard to the short time limit none of the reply slips was returned". There is no finding by the Industrial Tribunal that the weavers had sought to say that there had been a misunderstanding about the bonus position, nor that they were not, in fact, making a new demand going beyond what had been agreed in principle, nor that there had been no agreement in principle, nor that some last-minute consultation was sought, nor that the letter of 19th had not been received, nor even that the deadline imposed had been impossible or even difficult to comply with.

On the 20th February 1992 the Company, not having received acceptance slips, wrote to each weaver who had not accepted the new offer of employment indicating that in accordance with the letter of the 20th December 1991 his employment had ended on the 21st February 1992. The few weavers who, by reason of greater length of service, were entitled to greater notice than the nine weeks which the letter of the 20th December had given were offered additional weeks' pay in lieu of whatever further period of notice was appropriate.

The Industrial Tribunal then moved to a summary of the case. It says, critical of the want of negotiation on the Company's part:-

"The interests of employees who have to accept changes which are, or may reasonably be regarded by them, as detrimental to conditions or terms hitherto enjoyed must fully be taken into account."

That point would be stronger had the Industrial Tribunal held the new contract to be detrimental in that sense or to be capable of being reasonably so regarded; there is no such finding and the Industrial Tribunal itself, as we have cited earlier, had made the point that "Many of the items mentioned actually involve no change to the existing conditions of employment".

Then, as we cited earlier, the Industrial Tribunal held that dismissal "Should not in our view occur until the management can show that the processes of consultation and negotiation had reached an impasse which made such action reasonable". That may, perhaps, be taken to impose on the employer an onus of proof which the present legislation has deliberately rejected but, even if it does not, then, as the Industrial Tribunal had found, there were factors suggesting that no further time could be afforded for discussion. The Company was not performing profitably; firm measures were needed from management. The Company was in close contact with the Union throughout. The Company's decision on the 20th December 1991 to give nine weeks notice (coupled with an offer of fresh continuous employment) was served only after the weavers had rejected the Company's offer "out-of-hand", as the Company understood the position to have been. The weavers' manager, Mr Mahoney, was available to discuss any queries raised by the weavers. In our judgment, the position was not such that the Industrial Tribunal, had it had fair regard to all the facts before it, could have regarded the Company's sending out of the 9-week notices on the 20th December for prospective dismissal and re-employment to have been unreasonable.

Looking at the later position, after the 20th December 1991, the Industrial Tribunal says "Further attempts at negotiation should have been attempted". But they were; as we have described above, the Industrial Tribunal fails to mention the attempts to find a solution by way of voluntary redundancy, the availability of Mr Rice to meet the Union, the meetings with the Union, the correspondence between the personnel manager, Mr McGowan, and the Union and the fact that the weavers' letter of the 12th February invited the Company's response to be made to the Union. Nor does the Industrial Tribunal's reasoning fairly reflect that the subsequent agreement "in principle" was, as the Company understood the position, later resiled from by the weavers by way of their making what the Company understood to be a new and unjustified demand.

The Industrial Tribunal continues, with our emphasis, "When some agreement was reached this was not properly documented as between the management and the weavers ". But it will be remembered that the weavers had asked for the Company to make its response to the Union. There is no suggestion that the Company and the Union had failed adequately to understand the obligations under the agreement in principle. Moreover, there is no finding that the weavers, the Union or the Company expected or required "proper" documentation to be put in place, nor that the terms of the agreement in principle with the weavers' Union for the six-week trial period were unclear to the weavers who, of course, all had before them the weavers' letter of the 12th February and the Company's answer of the 14th February as at least some documentary underpinning of the agreement.

The Industrial Tribunal then goes on to criticise the Company for "falling back" on the dismissal letters of the 20th December. But there had been no "falling back" if, by that term, it is meant to suggest that the Company had at any stage indicated that the letter had been or was about to be withdrawn. "The final stages", says the Industrial Tribunal, with our emphasis, "Could, we are sure , readily have been resolved given a willingness to continue discussions ...", a plain indication, in our judgment, that the Industrial Tribunal was not here asking itself, as it should have done, what the position then was as it should have been seen to be by a reasonable employer and what such an employer's response should then have been but rather what was the Industrial Tribunal's own subjective assessment of and response to the situation. So it was that the Industrial Tribunal concluded that it was satisfied, unanimously, that all the applicants were unfairly dismissed.

In going over the narrative, as we have, we have at a number of stages made criticisms of the Industrial Tribunal's views; there are, as we have indicated, omissions of fact in the Industrial Tribunal's account of the events, many of them being omissions consisting of a failure to include what was being said and done as revealed in the contemporary correspondence which was put in full to the Industrial Tribunal and which was not challenged as being disingenuous or untrue, nor held by the Industrial Tribunal to be so. If, as here, an employer's processes are to be regarded by an Industrial Tribunal as inadequate (here, as to discussion, negotiation and consultation) and such, on that account, to render dismissals unreasonable, then it is self-evidently important, as we have said earlier, that fair regard is had by the Tribunal, and can be seen to have been had, to the totality of the evidence on the identified subject. It is not, of course, the business of the Employment Appeal Tribunal to see whether there is any fact which might have been relevant to a decision and which has been overlooked; to an extent the matter is one of degree. However, here the omissions are, in aggregate, in our judgment significant, as are also the instances of unjustified criticism of the Company which we have mentioned. It is impossible for us to resist the conclusion that the Industrial Tribunal here, inclined, for whatever reason, to find that the Company's response was unreasonable, has (though no doubt unconsciously) omitted many facts which point or might tend to point otherwise. The Industrial Tribunal has, we fear, ended up not fairly addressing and paying regard to all the relevant facts of the case as to discussion, consultation and negotiation but, at points, only such as would support or not disturb its preferred conclusion. It is thus that the Industrial Tribunal has committed an error of law which is an insidious form of the temptation upon an Industrial Tribunal to substitute its own view for that of the employer. In our judgment by reason of such error of law the decision of the Industrial Tribunal has to be set-aside.

Should there therefore be a remission to what would here be a third Industrial Tribunal? It may be said that for us not to order such a remission would be to deny the weavers a chance of a third Industrial Tribunal coming to a justified conclusion in their favour by some route other than the one which we have just set-aside, albeit doing so at the cost of burdening all parties with yet further costs and delays. However, having regard to the facts as disclosed not only to this Industrial Tribunal but also to the one which first heard the matter over some five days in May 1993, we do not see there to be any real prospect of success on the weavers' part before any Industrial Tribunal that has all such facts fairly in mind. For the weavers to be denied a negligible prospect of success is no hardship. The Industrial Tribunal of 1993 had dismissed the weavers' claims for unfair dismissal and when the Employment Appeal Tribunal (Mr Justice Pill and two Members) remitted the case for unfair dismissal it was not upon any basis that the facts as found by that first Tribunal had not been justified by the evidence before it but simply because, in the Employment Appeal Tribunal's view, there had not been a sufficient reference by that first Industrial Tribunal in its decision to the events of the 20th February. The Company was refused leave to appeal against that Employment Appeal Tribunal decision. The rather scant findings of the present Industrial Tribunal as to the events of 20th February have not, in the event, founded any persuasive arguments in the weavers' favour. We are encouraged by the decision of the Court of Session in Conlin -v- United Distillers

[1994] IRLR p.169

to recognise that there can be situations in which, upon its setting aside a decision of the Industrial Tribunal, an Employment Appeal Tribunal can properly, in an appropriate case, not remit but rather itself hold that a dismissal cannot have been outside the range of responses open to a reasonable employer in all the circumstances of the case. The case before us is, in our judgment, such a case. Put another way, in our view no Industrial Tribunal properly directing itself could, on the totality of the evidence, conclude that the dismissals were unfair. Accordingly we not only allow the appeal and set-aside the decision of the Industrial Tribunal as promulgated on the 13th December 1995 but we go further and hold that the weavers' claims fail.