FIFE COUNCIL v (1) COLIN MCCREDIE (2) LAWRENCE KEMP [2002] UKEAT 0028_02_1212
[1]APPEARANCES For the Appellants Mr I Sharpe, Advocate Of- Fife Council Legal Services Department Fife House North Street GLENROTHES KY7 5LT For the Respondents Mr D Stevenson, Solicitor Of- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT LORD JOHNSTON: This appeal is taken at the instance of the employer and arises out of local government re-organisation in 1996. Notwithstanding the terms of certain legislation, it was represented to us and it emerges from the findings of the Tribunal, that both the respondents were re-engaged by the new local authority, the present appellant, but at salaries lower than they had enjoyed in the previous employment. The Tribunal have concluded that this amounted to unlawful deduction of wages.[2]The problem that immediately manifested itself at the hearing before us, was that the judgment of the Tribunal totally fails to address the two main issues which were clearly before the Tribunal. As far as the employer was concerned the issue was whether or not, by their actings, the employees had acquiesced in the variation of the contractual terms leading to a lower salary. As far as the employees are concerned, the issue is whether or not, in fact, the trade union that represented them continued to protest their objection to the lower salary scales. Resolution of both these issues will determine the matter one way or the other.[3]It is immediately apparent that we cannot settle the issue but even more apparent that the judgment of the Tribunal is fatally flawed inasmuch that it has properly failed to identify and address the issues that were focussed before it.[4]In these circumstances, as both parties were agreed to this course of action, we will allow the appeal, quash the decision of the Tribunal and remit the matter back to a freshly constituted Tribunal to rehear the matter de novo .