Appeal No. EAT/175/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15 January 1993

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR J C RAMSAY

	MR R TODD

WALKER BROTHERS (GALVANISING) LTD	APPELLANTS

A KHAN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR JAMES CORBETT
(OF COUNSEL)
Messrs Wragge & Co
Solicitors
55 Colmore Row
Birmingham B3 2AS

For the Respondent	MR G HARRISON-HALL
(OF COUNSEL)
Messrs Reece, Davis, Wood, Wild & Co
Solicitors
20a Temple Street
Birmingham B2 5BQ

	JUDGE J HICKS QC:  This is a case with a long history, the Respondent to the appeal - the Applicant before the Industrial Tribunal, Mr Ali Khan - having been dismissed as long ago as 12 June 1987, and having made an application under what was then section 58 of the Employment Protection (Consolidation) Act 1978, by now repealed, concerning dismissals for membership of, or activities connected with, a trade union.  There was a hearing before an Industrial Tribunal and an appeal to this Appeal Tribunal; the matter was remitted, and was heard by a differently constituted Industrial Tribunal, who found the issue of unfair dismissal in favour of the Applicant, and that finding is not appealed against.  

	We are concerned with two quite specific questions in relation to the monetary awards made by the Industrial Tribunal on that re-hearing.  One concerns the special award which arises under the legislation in the case of a claim under section 58.  There is no dispute that the amount of that special award, £16,504.80, was the correct amount if the jurisdiction to make a special award arose, and if the Industrial Tribunal found no grounds for reducing it.

	The appeal is on the basis that the Industrial Tribunal erred in law in the way in which they reached the conclusion that that special award did fall to be made and, by implication, that there should be no reduction.  For the purposes of this appeal it is important to have in mind the words of the relevant section of the Employment Protection (Consolidation) Act 1978 which was in operation at the relevant time,  section 75A, and in particular sub-section 5(b) of that section, which read:
"(5)  Where the tribunal finds that the complainant has unreasonably-

		(a). . .   , or

(b)  refused an offer by the employer .......................... which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed;

the tribunal shall reduce or further reduce them amount of the special award to such extent as it considers just and equitable having regard to that finding."
	Immediately preceding that sub-section is subsection (4), dealing with the power to reduce an award because of the conduct of the complainant.  The way in which the Tribunal dealt with that matter in relation to Mr Ali Khan is as follows: they disposed of sub-section (4) by saying that they had made clear findings of fact that the applicant did not contribute to his dismissal, and then they moved on to sub-section (5).  In order to explain the way in which they dealt with that it is necessary to add that in addition to (5)(b), which I have read, sub-section (5)(a) concerns the unreasonable prevention by the complainant of compliance with an order for re-instatement.

	The way in which the Industrial Tribunal deals with it is by referring to sub-section (5) and saying:
".... which is either that we have made an order of reinstatement [that clearly refers to (5)(a)] and the Applicant has unreasonably refused that order or that he unreasonably refused an offer of reinstatement from the Respondent. [which clearly refers to (5)(b)]"
	Then they say, and this is a crucial sentence:
"Neither of those events have occurred so we cannot reduce the award further."
	The two events to which they must be referring are, first, the situation which will arise under (5)(a) of there having been an order for reinstatement, and it is common ground that they were right to say that that situation had not occurred.  The second of the events, therefore, which they must be referring to is the state of affairs dealt with in (5)(b) as summarised by them - "or that he has reasonably refused an offer of reinstatement ....".  In our view, the crucial question on this appeal is whether the Industrial Tribunal gave adequate reasons for that conclusion.

	It is apparent from the terms of (5)(b) that it may not bite for one or more of three reasons.  First of all, there may not have been an offer by the employer, or what offer there has been by the employer may not be one which, if accepted, would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed.  As to that, Mr Harrison-Hall points to features of the letter of offer made by the employers in this case which, he says, and we agree, might have entitled the Industrial Tribunal to find that that was not an offer within the sub-section.

	Secondly, there might be failure to comply with sub-section (5) because the employee did not refuse the offer.  It is common ground that that does not arise here because he did refuse.

	Thirdly, there may be failure to comply with sub-section (5) because his refusal was reasonable.

	What we have to consider is, since the Tribunal has not distinguished between those ways in which sub-section (5)(b) might not have bitten, whether they have adequately given their reasons.

	Mr Corbett suggests that by implication they have in the preceding paragraph of the Reasons, paragraph 48, treated as a reason the fact that the Applicant could not be reinstated as he was in prison.  He, I think, suggests that they were thereby coming to the conclusion that the factual impossibility of his taking up the post was treated by the Tribunal as a reasonable ground for refusal.  The truth of the matter is, and this goes to enforce rather than to go against what seems to us to be his main complaint about the Tribunal's decision, that one simply cannot tell whether that was the route by which they arrived at their decision, or whether the route they followed was the one suggested by Mr Harrison-Hall, namely that the offer itself did not comply because it would not have had the effect of reinstating the complainant in all respects as if he had not been dismissed, or whether they thought that both were the case, or whether they thought that there were other grounds on which the refusal was reasonable.  None of this can be deduced from the Tribunal's Reasons.

	The extent to which a Tribunal's Reasons must spell out the routes by which they have arrived at their conclusions have been dealt with in a number of authorities, but we were not taken to any of the authorities in the form of the original reports.  That was, no doubt, in part because they are so familiar, and Mr Corbett satisfied himself by referring us in his reply to section X of Harvey on Industrial Relations,  Volume 4, page 69B where there are two brief extracts from judgments of Sir John Donaldson.  

	The first is in the case of Alexander Machinery (Dudley) Ltd v Crabtree [1974] IRLR 56, where he said:
"The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact?"
	Secondly, as Donaldson LJ in the Court of Appeal, in the case of Union of Construction, Allied Trades and Technicians v Brain [1981] IRLR 224, [1981] ICR 542, CA, he said:
"Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or in law ... their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win."
	Applying the authorities, of which those are two very short extracts, the matter is not really one capable of any great elaboration.  I have recited the way in which the Tribunal dealt with it; we have asked ourselves whether that amounts to sufficient reasons in compliance with the Industrial Tribunal's statutory duty to give reasons and we have come to the conclusion that it does not.  It does seem to us that where the issue is whether the facts come within section 75A (5)(b) of the statute, then it must at least appear whether the failure to come within that sub-section arises because there was not an offer within the sub-section, and if so, briefly, why it did not comply with the sub-section, or because there was no refusal, or because any refusal was reasonable, or because of some combination of those grounds.  The Reasons here plainly do not satisfy that requirement. 

	For that reason we consider that the appeal must succeed.  Plainly, because of the grounds on which it succeeds, it is impossible for us to substitute any decision of our own, and the only course that we can take is to remit to the Industrial Tribunal so that they can deal with the matter on the basis of the views which we have expressed.

	Mr Corbett invites us to go further and to give a ruling on the point which he perceives as being at least a possible interpretation of the Industrial Tribunal's Reasons, namely the question whether a factual impossibility is of itself a reasonable ground for refusal.  We respond to that in this purely negative way: the issue before the Tribunal, when it reaches the stage of considering the reasonableness of a refusal, is precisely that:  "reasonableness".  It must take into account all factual matters which properly go to the reasonableness of the action.  It seems to us that the bare statement that the principal reason was factual impossibility cannot of itself solve that issue of reasonableness one way or the other.  It is perfectly possible to think of circumstances on either side of the line (and Mr Corbett put some of them to us) where factual impossibility on the one hand may seem plainly to give a reasonable ground for refusal, or on the other hand where it may seem plainly not to give a reasonable ground.  Therefore, in our view, it does not resolve the issue as a matter of law one way or the other;  it leaves the issue of reasonableness to the Tribunal, although the circumstance of factual impossibility and the way in which it has arisen will almost inevitably be part of the facts which the Tribunal must take into account in reaching their decision on reasonableness.

	There is a second attack on the decision of Industrial Tribunal, namely as to the compensatory award, which was made on the basis of 26 weeks' loss of earnings.  There is no attack on the arithmetic, but the criticism is that to award as much as 26 weeks was wrong in law in view of the Tribunal's own findings.  

	We can dispose of this matter very shortly, because the relevant finding which is said to be incompatible with the Tribunal's decision was this:
"51.	(c) .......... A man of his age and intelligence, either in Walsall or especially in South Bucks, we are sure could have found basic labouring work on a similar amount of money relatively quickly.

	(d)  We think that appropriate compensatory award in this case, because we feel that the Applicant has failed to mitigate by obtaining alternative work is 26 weeks ..."
	It seems to us that whether this extremely experienced Industrial Tribunal regarded 26 weeks as being within the ambit of what they themselves expressed in the previous sub-paragraph as "relatively quickly" is fairly and squarely a matter of fact for them and totally unappealable.  We dismiss the appeal so far as it relates to the compensatory award.