MS A KNOX v BIOTECHNOLOGY AND BIOLOGICAL SCIENCES RESEARCH COUNCIL (BBSRC) [2007] UKEAT 0066_06_0808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0066_06_0808Case No Appeal No. UKEATS/0066/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MS A KNOXAPPELLANTBIOTECHNOLOGY AND BIOLOGICAL SCIENCES RESEARCH COUNCIL (BBSRC)RESPONDENT
Before
Lady Smith Miss J Gaskell Miss A HibberdDate 8 August 2007
[1]APPEARANCES For the Appellant MR N J MCLEAN (Solicitor) Messrs Anderson Strathern Solicitors 1 Rutland Court Edinburgh EH3 8EY For the Respondent MR L ENTWISTLE (Solicitor) Messrs Wright Johnston & Mackenzie Solicitors 302 St Vincent Street Glasgow G2 5RZ SUMMARY Redundancy Chairman issued judgment dismissing Claimant's application for a statutory redundancy payment prior to last date for lodging written submissions. Brief reasons issued almost five months later. Parties at issue as to whether or not Claimant redundant, if so, whether or not she was dismissed by reason of redundancy and whether or not she refused an offer of suitable alternative employment. The Tribunal said that the Claimant was not redundant without addressing the relevant legal issues. Appeal upheld. The timing of issuing of the judgment was indicative of a failure by the Tribunal at the outset, to follow its judicial function. Further the Tribunal's reasons were not Meek compliant. In particular, they failed to identify the issues between the parties and to address those issues. They failed to make findings of fact relevant to those issues. The reference to the relevant statutory provisions was cursory and did not show any appreciation of their implications for the case and there was no attempt to explain how the relevant law and the facts of the case led to the result. Observations on the approach in law that ought to have been followed in the light of the redundancy issues in the case. THE HONOURABLE LADY SMITH Introduction This is an appeal by an employee, who we will refer to as the Claimant, against a judgment of the Employment Tribunal sitting at Edinburgh, Chairman Mr DJ Walker, dated 30 June 2006 and registered on 7 July 2006. It concerns a claim for a statutory redundancy payment where the Respondents did not accept that the Claimant, a scientific officer, had been made redundant and had instructed her to take up a new post which she declined to do. She was dismissed thereafter.[2]The parties were represented before the Tribunal by the same solicitors who appeared before us.[3]This the unanimous decision of all three members of this Tribunal. Background[4]For reasons which should become obvious, it is with some hesitation that we refer to the background facts of this case because we are aware that parties were at issue over a number of matters and despite the Tribunal's comment at the top of page 2 that it found "the following facts proved or agreed", we are not confident that what follows, for a page and half, can properly be regarded as findings of fact or indeed, findings of fact regarding all that required to be determined in this case.[5]What we can observe is that this case was about a dismissal which took place on 10 December 2003. The Claimant had been employed by the Respondents since May 1982. During the relevant period she was a level 7 animal technician working wholly in the field of animal nutrition. It seems clear that parties were in dispute as to the reason for her dismissal. She had been seconded informally to Roslin Nutrition Limited in 1997, that company then being a wholly owned subsidiary of the Respondents. In 2002, following a management buyout of Roslin Nutrition Limited, the Claimant was formally seconded to that company. Her contract of employment provided that at the end of her secondment she would return to a "comparable post". She returned to the Respondents at the end of her secondment, on 11 August 2003. Contrary to what seems to be indicated by the Tribunal's findings at paragraph 17, the Claimant did not then transfer to a post in connection with animal behaviour. Certainly, the Respondents could not offer her any work in the field of animal nutrition and they offered and directed her to accept a post in animal behaviour. She did not, however, accept, was suspended immediately and was dismissed thereafter. The Respondents' position was that there was no redundancy situation and that the Claimant was dismissed for misconduct in respect of her refusal to follow the instruction they considered they were contractually entitled to give that she should take up the animal behaviour post. The Claimant contended that she was dismissed by reason of redundancy, the Respondents' requirements to have employees carry out work in animal nutrition having ceased or diminished or being expected to cease or diminish. Her dismissal was wholly or mainly attributable, she claimed, to that. Her contention was that, in reality, the Respondents' offer of the animal behaviour post was an offer of alternative employment in the context of a redundancy and that in all the circumstances, particularly that her skills and experience lay in the field of animal nutrition, it was not a suitable alternative and she had not acted unreasonably in refusing it.[6]We can see from the content of the written submissions lodged that there was a substantial dispute between the parties, which had been reflected in the evidence, as to whether or not there was a redundancy. In particular, there was a hotly fought issue as to whether the Claimant's job prior to her return from secondment was characterised by its animal nutrition context or not. There was also a dispute as to whether or not the nature of work carried out by an employee whilst on secondment was relevant to the issue of determining whether or not an employers' requirements to have work of a particular kind carried out have diminished or ceased. Further, the Claimant did not accept that the post she was being offered was "comparable". Nor did she accept that the reason for her dismissal was anything other than that she was redundant. There is an indication that she drew support for that view not only from the decline in animal nutrition work but from evidence to the effect that another employee who was serving out her redundancy notice had that notice cancelled when the Claimant was dismissed and was redeployed into the post that the Claimant had refused to accept. The points in the evidence considered important by each party for its case are highlighted in those submissions as are the conflicts in the evidence where they occurred and legal arguments in support of each party's position are set out at some length. The Tribunal's Judgment[7]The judgment of 30 June followed a hearing at which evidence was led that extended over ten days in April 2005, December 2005 and April 2006. It was agreed that parties would lodge written submissions, exchange them and have an opportunity to comment on each other's submissions. By letter dated 16 June 2006, the Respondents' solicitor advised the Tribunal that he had received the Claimant's submissions but he had not yet had an opportunity to consider them. By letter dated 28 June 2006, he advised the Tribunal that he wished to answer parts of the Claimant's submissions and would be in a position to lodge his final submissions by the end of the week beginning 7 July 2006. The Tribunal's judgment was, accordingly, issued before all parties' written submissions had been lodged.[8]The judgment of 30 June 2006 was not accompanied by any written reasons. The full hearing of an appeal at the instance of the Claimant on the ground that the Tribunal had not provided reasons for its judgment, was fixed for the first week of December 2006. Reasons were issued and registered on 28 November 2006. Those reasons run to four pages. Amended grounds of appeal were lodged.[9]The heading to the reasons records some of the dates that the Tribunal sat but fails to record that it sat on 25, 26, 27 and 28 April 2005. The name of one member is given but it fails to record that at the first diet of hearing, the Chairman sat with two members, one of whom took no further part thereafter on account of an objection having been taken by the Respondents to his continued participation and parties having agreed that the hearing should continue before the Chairman with one member only. The reasons record a list of witnesses but it is not complete. They do not explain the nature or purpose of their evidence, state what of their evidence they accepted or rejected or the reasons for such acceptance or rejection. They do not explain how conflicts in the evidence were resolved. The reasons do not identify and articulate the Tribunal's resolution of the issues between parties.[10]The Tribunal records the history of the Claimant's employment with the Respondents in brief outline, noting that she actually worked at the Roslin Institute, that she began her employment with the Respondents there in 1982, that she had been promoted to the post of Scientific Officer in 1986, working on "Nutrition and Animal Foodstuffs" and that she had worked in that field since then and that she had been seconded to Roslin Nutrition, as we have noted. When it comes to the matter of the end of her secondment, they record that she was advised that she would "rejoin the Institute" on 11 August 2003, that she was sent the specification for the post "which was available to her" (paragraph 8) and then, at paragraph 9, they find:
"She thought she could not do the job but eventually changed her mind. She was concerned that the job was for six weeks only, and that it was a step back in her career progress. In her agreement with Roslin Institute … Roslin Institute undertook that at the end of her secondment she would return to a 'comparable post' within Roslin Institute. She did not think that the job which she was offered was comparable to her previous job. She said that Paul Hocking had said to her that the job was unsuitable. Mr Hocking in his evidence said that the reason he had said this was that the Claimant was obviously unwilling to take the job, and would therefore be an unsuitable candidate for it. The Tribunal accepted Mr Hocking's explanation."
[11]They then record that the Claimant was suspended on 14 August, that an investigation was carried out in the context of the institution of disciplinary proceedings which found that the instruction to the Claimant (about which no findings are made) was a reasonable instruction, that the Claimant appealed against that finding in the course of which she said that she was redundant, and that disciplinary hearings followed at the end of which the Claimant was dismissed, for misconduct, on 11 December 2003.[12]The remaining paragraphs of the Tribunal's judgment are as follows:
"15. The Claimant was, prior to her secondment, employed as a Level 7 Animal Technician. She dealt with Animal Nutrition. On her return the post which she was offered was in connection with Animal Behaviour. It was at the same grade and salary as her former job, and her job title was unchanged. 16. The law in relation to redundancy payments is contained in the Employment Rights Act 1996 SS 135 -146. 17. The Claimant was not dismissed when she was transferred back to the Institute. Her duties were transferred to a post in connection with Animal Behaviour. She said that she would not do this job, but ultimately agreed that she could. She complained that the job was short term, since funding for particular research would ultimately run out, and the research in question would cease. This applied to all members of research staff. The Claimant complained that her career progress would be adversely affected, but did not explain why this should be so. 18. The Claimant not being dismissed immediately after her transfer back, and being in a position to continue as a level 7 Animal Technician, she was not therefore redundant. The Tribunal is not convinced that it was reasonable for her not to take up the Animal Behaviour research job which was available to her. 19. The Claimant's submission argued that as she was dismissed because of what she argued was her redundancy, she was entitled to a redundancy payment. The Tribunal finds that the real reason for her dismissal was her refusal to follow an instruction from her employers which she was contractually obliged to obey. Even if she was redundant on her transfer (which the Tribunal does not believe was so) her dismissal was for an entirely different reason. 20. The Tribunal unanimously finds that the Claimant was not dismissed because she was redundant, and therefore dismisses the claim."
The Appeal The Claimant's Submissions[13]For the Claimant, Mr McLean advanced five principal submissions.[14]Firstly, the Tribunal had failed to fulfil its obligations to make findings of fact, set out and determine the relevant legal and factual issues and to provide adequate reasons. He referred to paragraph 30(1) and (6) of the rules set out in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 ("the 2004 Regulations"). The Tribunal had plainly failed to identify the important issues in the case: it did not record that the reason for the Claimant's dismissal was disputed, it did not sketch out the questions that required to be addressed to determine that dispute in the context of this case, it made no mention at all of the statutory presumption in favour of redundancy (section 163 of the Employment Rights Act 1996 ) and it made a wholly inadequate set of findings in fact in a case which had lasted ten days and included over 300 pages of documentary evidence.[15]Regarding the failure to make relevant findings on the evidence, Mr McLean referred, for example, to the Tribunal having made no findings about the details of the role that the Claimant had been carrying out at Roslin Nutrition, something which was important as her job had developed beyond the basic level at which an animal technician worked. A further example was that there had been evidence from witnesses led on behalf of the Claimant to the effect that work in the field of animal nutrition and work in the field of animal behaviour were "like chalk and cheese". The Respondents' witnesses had disagreed but what was an important issue for the case was left unresolved by the Tribunal which had confined itself to commenting that they accepted Dr Hocking's explanation as to why he had told the Claimant he thought that she was unsuitable for the animal behaviour job. Another example was that although the Claimant had explained why she felt that her career would be adversely affected if she accepted the animal behaviour job, the Tribunal had recorded that she had not given any explanation of that matter at all.[16]Further, the Tribunal had failed to set out an appropriate concise statement of the relevant law. None of the relevant provisions within the block of provisions referred to were identified and there had been no reference at all to s.163 of the 1996 Act. Thus, when it came to applying relevant findings in fact to the applicable law, the Tribunal could not comply with the obligation to do so on account of its earlier failures. They could not and did not consider their decision in the light of the relevant statutory framework and the guidance to be obtained from what was said by the House of Lords in the case of Murray and another v Foyle Meats Ltd [1999] IRLR 562 . Then when it came to the conclusion that the Tribunal did reach, namely that the Respondents had dismissed the Claimant for misconduct, it begged the question: misconduct on what basis? Why was the Claimant under an obligation to accept the animal behaviour post? The nature and extent of her contractual obligations had been disputed but the dispute was not resolved nor was any explanation given as to how and why the Tribunal considered that the Respondents were contractually entitled to act as they did. They had failed to spell out the "actual facts found which justified the conclusion" that the case did not fall within the redundancy provisions ( Elliot v University Computing Co [1977] ICR 147).[17]Secondly, separately, the Tribunal failed to provide reasons which were Meek ( Meek v City of Birmingham District Council [1987] IRLR 250 ) compliant. Mr McLean's submissions in support of this ground were, in large part, a reflection of his submissions in support of his first ground.[18]Thirdly, the Tribunal had mis-applied the law in determining that the Claimant had not been dismissed for redundancy. They had focused on the timing of dismissal rather than on the reason for it. They had focused on the contractual position when it was well established that the test for redundancy is not determined by the question of whether or not the employer was contractually entitled to dismiss ( Murray & Anr v Foyle Meats Ltd ). In connection with the task of determining whether a dismissal falls within section 139(1)(b), Mr McLean also referred to: Shawkat v Nottingham City Hospital NHS Trust (No 2) [2001] IRLR 555 ; Harvey - Div E ; Amos v Max Arc Ltd [1973] IRLR 285; Hall v Farrington Data Processing Ltd (1969) 4 ITR 230, Div Ct; European Chefs (Catering) Ltd v Currell (1970) 6 ITR 37; Pillinger v Manchester Area Health Authority [1979} IRLR 430 and O'Neill v Merseyside Plumbing Co Ltd [1973] ICR 96 (which he sought to distinguish on the ground that it was not in line with the Murray v Foyle Meats approach). The Tribunal had not, however, followed through the requisite task. They had failed to ask themselves the appropriate question under section 139(1)(b) of the 1996 Act. They had not even, when applying a contract test, as they seemed to have done, applied that properly as they had not examined the scope of the Respondents' contractual powers and it appeared that they may have imported into the contract a test of whether or not the Claimant's refusal was reasonable. They had ignored the statutory presumption in favour of redundancy.[19]Fourthly, the Tribunal's conclusion was perverse. Mr McLean hoped that his earlier grounds were sufficiently persuasive but if not, it was, he said plain that the decision was a perverse one. The Claimant had only ever worked in animal nutrition, there was clearly a diminution in the Respondents' requirement for animal nutrition work to be done, she was offered an alternative job in a different scientific area, the alternative job did not fit her qualifications and experience nor would it have furthered her career and another employee who also required a post to avoid redundancy was offered the animal behaviour post after the Claimant had refused it. That all demonstrated that the decision made was one which no reasonable Tribunal could have reached.[20]Fifthly, the Tribunal's judgment was, in any event, premature. In issuing their judgment before the written submission procedure had come to an end, the Tribunal failed to act judicially.[21]In all the circumstances, the judgment of the Tribunal ought, Mr McLean submitted to be set aside and the case remitted to a freshly constituted Tribunal for a rehearing. The Respondents' Submissions[22]Mr Entwistle sought to resist Mr McLean's criticisms of the Tribunal's judgment. It was possible to ascertain the reasons for their decision. A Tribunal only needed to set out those findings of fact which it considered relevant and that was what this Tribunal had done. The judgment did not require to be elaborate. It was clear. The facts leading up to the Claimant's secondment were set out, as were the facts leading up to her dismissal, they found there was a contract which obliged the Claimant to return to a comparable job, they clearly did not consider her dismissal to be related to any redundancy situation if one existed and they accordingly considered that the question of the existence or not of a redundancy situation was irrelevant. That was where the relevance of the contractual position came in. In any event, it was clear that the Tribunal did not consider that there was a redundancy situation. Their findings on that matter were consistent with current authority. It was implicit in what the Tribunal said that they did not consider that there was a reduction in the type of work which she was employed to do which was that of an animal technician.[23]Regarding the presumption in favour of redundancy, Mr Entwistle submitted that it only arose where an employer failed to show that there was a reason for dismissal which was not related to redundancy or where the matter was in some doubt. If the Tribunal had failed to set out where the onus lay that did not make their reasoning unsupportable.[24]Regarding the need to set out the issues between the parties, it was sufficient that the Tribunal had identified that the claim was for a statutory redundancy payment. He accepted that subsumed in that issue were questions as to whether there was a redundancy situation, whether the dismissal was attributable to redundancy, whether, if it was, an offer was made of suitable alternative employment and whether, in such event, there was an unreasonable refusal to accept such an offer. He said that he accepted that the question of whether there was a redundancy situation was a significant issue; the Respondents were not trying to hide that. However, the Tribunal's view which was simply that the Claimant did not want to do the job that was offered to her, was supportable and sufficient for successful resistance to the claim.[25]Against the above background, Mr Entwistle referred to various authorities in which the issue of whether or not a dismissal had been attributable to redundancy or not: Murray v Foyle Meats ; Harvey ; Johnson v Nottinghamshire Combined Police Authority [1973] 8 ITR 411; Loy v Abbey National Financial and Investment Services PLC [2006] SLT 761; O' Neill v Merseyside Plumbing Co Ltd ; Sahwkat v Nottingham City Hospitals NHS Trust ; Amos v Max Arc Ltd ; and Pillinger v Manchester AHA , all, it seemed, in an effort to demonstrate either that there was no need to examine whether the circumstances in which the Claimant's work would have changed from animal nutrition to animal behaviour were indicative of her dismissal being attributable to redundancy or by way of showing that it was not.[26]As regards the Claimant's entitlement, in Meek terms, to know why and how she had lost, he submitted, somewhat boldly, we thought, that it was plain to any Claimant that if they did not win then that meant that the arguments advanced on their behalf had not been accepted. That was enough.[27]Regarding prematurity, the Respondents did not take objection on this ground and it was they who were, potentially prejudiced by the approach taken. Such an error should not lead to the "audacious" step of a remit for a rehearing. It was possible that the Tribunal had decided that they did not need to hear anything further.[28]Mr Entwistle then moved to what he referred to as proportionality. The Claimant had outstanding a substantial contractual redundancy claim. The claim for a statutory redundancy payment was insignificant by comparison. There had already been a lengthy and expensive hearing. The Respondents had, at the start of the hearing before the Tribunal, offered to prorogate the contractual claim to the commercial roll of Glasgow Sheriff Court, an offer to which the Claimant had not acceded. In these circumstances, there should only be a remit if this decision was the worst that this Tribunal had ever seen. That would be a proportionate response. He referred to no authority in support of that proposition and we are aware of none which would support it. Relevant Law[29]The Claimant's application was for a statutory redundancy payment and it was made in circumstances where the Respondents did not accept that there was a redundancy situation or that her dismissal was attributable to a redundancy situation. In these circumstances, the following provisions of the Employment Rights Act 1996 required to be borne in mind when determining the issues between parties: "163(1) Any question arising under this Part as to –(a) the right of an employee to a redundancy payment …(b) … shall be referred to and determined by an employment Tribunal. (2) For the purposes of any such reference , an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy."; and "139(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to – (a) the fact that his employer has ceased or intends to cease – (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business – (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.".[30]The Tribunal also required to have regard to section 140 of the 1996 Act, which provides, in short, that an employee is not entitled to a redundancy payment where an employer is entitled to dismiss him without notice on grounds of misconduct and does so. The Respondents relied on section 140 in their submissions. Also, the Tribunal required to have regard to the provisions of section 141 which provide that there is no entitlement to a redundancy payment in circumstances where an employee unreasonably refuses an offer of suitable alternative employment, in circumstances which are defined by that section.[31]As to the relevant case law, given the issues between the parties, we would have expected the Tribunal at least to take account of what was said by their Lordships in the case of Murray v Foyle Meats . It was an important decision bearing directly on the issues of law which arise in the present case. Firstly, it made plain the importance of focusing on the words of the statute.

(b) , and said:

"My Lords, the language of para. (b) is in my view simplicity itself. It asks two questions of fact. The first is whether one or other of various states of economic affairs exists. In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second question is whether the applicant's dismissal was attributable, wholly or mainly, to that state of affairs. That is a question of causation. In the present case, the Tribunal found as a fact that the requirements of the business for employees to work in the slaughter hall had diminished. Secondly they found that that state of affairs had led to the appellants being dismissed. That, in my opinion, is the end of the matter."
[32]There then follows a passage in which Lord Irvine disposes of what had previously been known as the "contract" and "function" tests and towards the end of paragraph 9, he said:
"…both the contract test and the function test miss the point. The key word in the statute is 'attributable' and there is no reason in law why the dismissal of an employee should not be attributable to a diminution in the employer's needs for employees irrespective of the terms of his contract or the function which he performed. Of course the dismissal of an employee who could perfectly well have been redeployed or was doing work unaffected by the fall in demand may require some explanation to establish the necessary causal connection. But this is a question of fact, not law."
[33]Against a background of that view of the law, Lord Irvine commented that the Court of Appeal in Nelson v British Broadcasting Corporation [1997] IRLR 148 were wrong to have been persuaded that the reason for Mr Nelson's dismissal was not redundancy but his refusal to be directed to other work which was within the scope of his contract of employment; it was open to the tribunal to find that Mr Nelson had been dismissed because the BBC's requirements for work on Caribbean programmes had diminished whatever the terms of his contract and the Court of Appeal should have recognised that.[34]Lord Clyde was also critical of the "function" and "contract" tests and of the approach in Nelson and emphasised the primacy of the statutory provisions. At paragraph 17, under reference to the statutory provisions he said:
"It is not to the actual contractual arrangements which the employees have made that the paragraph directs attention but to the requirements of the business. The requirements of the business may call for a particular number of employees and for employees of particular skills and abilities. But the contractual provisions which the employer may make with the employees are not necessarily a requirement of the business: they are rather a means whereby the requirements of the business in respect of the workforce may be met. That is not to say that the provisions of the contracts of employment are necessarily irrelevant; in some circumstances they may be useful, for example in throwing light on the kinds of work carried out or the place of employment. But the contractual terms are not determinative of the application of the subsection."
[35]So, the task for the Tribunal was:a. Firstly, to assume that the Claimant was dismissed by reason of redundancy (section 163(2)) .b. Secondly, to consider whether on whatever findings of fact they were satisfied they could make, that part of the presumption that related to there having been a redundancy situation was displaced. To do so they needed to ask whether the state of economic affairs set out in section 139(1)(b) (the provision which was relied on by the Claimant) existed or not. That was a question of fact.c. If the requisite state of economic affairs did not exist, then a conclusion that the dismissal was not in fact by reason of redundancy would have had to follow.d. If, however, the requisite state of economic affairs did exist then thirdly, they required to consider whether, on whatever findings of fact they were satisfied they could make, that part of the presumption to the effect that the dismissal was by reason of redundancy was displaced. To do that they required to ask whether the dismissal was wholly or mainly attributable to the state of economic affairs identified under (b) above. That again was a question of fact.[36]Following on from the analysis and discussion in Murray v Foyle Meats , it seems plain to us that the fact that the sequence of events is:a. the emergence of a section 139(1) state of economic affairs;b. the identification by an employer of the fact that the employee's contract of employment covers posts beyond that which an employee currently holds;c. an employers' instruction to his employee to take up one of those other posts;d. a refusal by the employee to follow that instruction; ande. dismissal for misconduct in respect of the employee's failure to follow that instruction, does not necessarily mean that it follows that the dismissal should be found not to have been wholly or mainly attributable to the requisite economic state of affairs. It may be, depending on the whole facts and circumstances in an individual case, that a Tribunal considers that the driving force behind the instruction at (c) above was a redundancy situation and that notwithstanding the employee's refusal to follow his employers' instruction, the dismissal that follows at (e) can properly be seen as being at least mainly if not wholly due to the redundancy situation that has arisen. Questions would then of course arise as to whether the employee had unreasonably refused to accept an offer of suitable alternative employment but that would be looked at in the statutory context, by applying the provisions of section 140 of the 1996 Act. A Tribunal might also, in an individual case, consider that it should look to see whether the employer adopted the course of action that he did as a device to seek to bring himself within the provisions of section 140 so as to avoid making a redundancy payment. It is all, as the House of Lords made abundantly clear, a question of fact.[37]As to judgment writing, it needs to be remembered that there are two aspects to the guidance provided in the case of Meek v City of Birmingham District Council [ 1987] IRLR 251. The first seems to be reassuring: Tribunals are not to feel under pressure to produce judgments that are "an elaborate, formalistic product of refined legal draughtsmanship"[38]The second is the "other side of the story" though. They are not to take the Court of Appeal's desire not to impose on then an unduly onerous task as an excuse for any failure to give a fair, logical and clear explanation: "... but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusions which they do on those basic facts. The parties are entitled to be told why they have won or lost." (paragraph 8 per Bingham LJ)[39]That was an obligation that was incumbent on this Tribunal. It required also to bear in mind the provisions of rule 30(6) of the 2004 Rules, referred to in Thompson v British Gas Services Ltd [2006] UKEAT 0111/06 as a codification of the familiar Meek requirements, which include:
"(6) Written reasons for a Judgment shall include the following information: a. the issues which the Tribunal or Chairman has identified as being relevant to the claim; b. if some identified issues were not determined, what those issues were and why they were not determined; c. findings of fact relevant to the issues which have been determined; d. a concise statement of the applicable law; e. how the relevant findings of fact and applicable law have been applied in order to determine the issues;"
Discussion and Disposal[40]We are sorry to say that we have reached the view that this judgment and reasons fall far below the standard that parties are entitled to expect. Whether it is the result of a misreading of the Meek guidance as sanctioning a casual approach (which it does not) or of the Tribunal simply finding itself incapable, after a long, hotly contested case in which the evidence was heard in three separate sessions over two years, of reaching a logical and properly reasoned judgment, we cannot tell. The explanation could be either or neither but that is really of no moment. What matters is that the Tribunal have let both parties down. They have not issued a clear reasoned judgment determining the relevant issues. We are left in doubt as to whether they had in mind the relevant law. And they issued their judgment unjudicially in respect that they did so at a time that, to their knowledge, they did not have the full written submissions before them. As regards the last point, we do not consider that it matters that the judgment that was issued was in favour of the party which had indicated that they had further submissions that they wished to advance. No assumption could, without seeing those submissions, be made, as to the influence they may or may not have had on the final decision in the case and the possibility of the Claimant seeking to add to her submissions once they had been lodged (submissions were, we understand, being exchanged between parties) could not be ruled out.[41]We agree that the Tribunal's judgment is not Meek compliant. Nor does it accord with the requirements of rule 30(6) of the 2004 rules. In this case, the Tribunal needed to clearly identify, at the very least, that the parties were at issue as to whether or not there was a redundancy situation at all and also as to whether or not the Claimant's dismissal was attributable to it. They required to make specific findings in fact relevant to those issues and, in the course of doing so, resolve any conflicts in the evidence and explain their reasoning in that regard. For example, they required to recognise and record that the Claimant's position was that there was such a reduction in the Respondents' requirement for employees to carry out animal nutrition work that there was a redundancy situation whereas the Respondents' position was that there was no relevant reduction in "work of a particular kind" since the Claimant's work was as an animal technician and there was no reduction in their need for animal technicians. They required to resolve that issue. They do not begin to do so. They required to resolve the issue as to whether or not the Respondents were offering the Claimant a comparable post, for the purposes of the Respondents' section 140 argument. They required to make a concise statement of the relevant law. Paragraph 16 does not achieve that. It refers to a block of statutory provisions including some which were not relevant to the present case such as, for instance, section 143 which concerns what happens if there is a strike during the currency of an employee's period of notice. Further, worryingly, the Tribunal does not refer to the provisions of section 163(2) at all and we are left with the impression that the Tribunal may have forgotten that their starting point required to be the presumption in favour of redundancy provided for in that subsection.[42]Moving on, we observe that there is no acknowledgement of or reference to relevant authorities such as, for instance, the important case of Murray v Foyle Meats . There was extensive reference to the relevant law in the written submissions, particularly in those of the Claimant but, despite a passing reference to the Claimant's "submission", it is difficult to resist the impression that little or no account was taken of them.[43]Turning to what seems to the core of the Tribunal's reasoning, at paragraphs 18 and 19, it seems to lack logic and fails to address the relevant legal issues. Nowhere does it answer the question as to whether or not the requisite state of economic affairs for a redundancy situation under and in terms of section 139(1)(b) of the 1996 Act existed. There is a focus on the Claimant and the Claimant's work in what looks very much like the sort of "contract" approach that was criticised by their Lordships in Murray . They appear to be addressing the whole redundancy issues in the case and they say that the Claimant was not redundant for two reasons:(i) she was not dismissed immediately after her transfer back at the end of her secondment; and(ii) she was in a position to continue working as a level 7 Animal Technician. We cannot understand the first of these given that the Claimant never actually took up the new post and the instruction to do so occurred within a matter of days of her returning to the Institute: she returned on August 11 and was suspended for having refused to comply with the instruction by 14 August, both 2003. When that comment is read together with the comment at the end of paragraph 18, we are left with the impression that the Tribunal are considering only the fact that the Claimant was dismissed some four months after the end of her secondment and concluding that therefore the dismissal cannot have had anything to do with the ending of the work she was doing on secondment. They could not, in our view, properly reach that conclusion though without having regard to the full history which was that the dismissal followed a suspension which was imposed almost immediately on her return and explaining how and why notwithstanding that, the dismissal was not to be seen as being inextricably linked to the end of her secondment.[44]As regards the second matter, that is beside the point. It does not answer either of the two relevant questions identified by the Lord Chancellor in Murray .[45]The Tribunal then, having said that the Claimant was not redundant, adds a comment regarding the reasonableness of the offer of the animal behaviour post which sounds very much like a consideration of the tests set out in section 141 which only require to be considered in a case where it is established that there is a redundancy situation. The Tribunal seems to be confused.[46]The Tribunal thereafter, in what seems to be a "stand alone" assessment in paragraph 19, say that the Claimant is not entitled to a redundancy payment because the "real reason" she was dismissed was her failure to follow an instruction which she was "contractually obliged to obey". We are not sure whether that is meant to be a finding in relation to the Respondents' section 140 argument. If it is, it is one which they could not properly make without clearly and expressly dealing with and responding to the Claimant's argument that her entitlement was to a comparable post and that was not what she was being instructed to take up. Further, even if the post being offered was a comparable one and therefore one which fell within her contract, the Tribunal still required to consider whether, notwithstanding the contractual provisions, the dismissal was attributable wholly or mainly to redundancy, as the Lord Chancellor indicated that the Tribunal should have done in Mr Nelson's case. If they considered it was not, then they should have explained why.[47]We are, accordingly, in agreement with the Claimant's first, second, third and fifth grounds of appeal. We do not feel able to deal with the perversity ground when we are left in such doubt as to the findings of fact. It is, though, manifestly enough for the Claimant if any one of her grounds are upheld.[48]Sadly, we are left feeling very much as did the Employment Appeal Tribunal in the case of BMI Healthcare Ltd v Spaulding & Anr UKEAT/0551/06, where HHJ McMullen commented, at paragraph 12:
"The judgment could be utilised as an object lesson of what not do when writing reasons. Not only is it deficient in every requirement under rule 30 but it is devoid of the most elementary features of any case. On reading it, one feels as though one has entered halfway through a long judgment where all the necessary findings of fact have been made and an outline of the applicable law has been given."
[49]In that case, the Employment Appeal Tribunal had no hesitation in remitting the case to a freshly constituted Employment Tribunal, in accordance with the principles set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 and we, with a similar lack of hesitation and in accordance with the same principles, consider that we are bound to do so in this case.