Appeal No. EAT/599/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 October 1994 
	Judgment delivered on 26 October 1994

	Before

	THE HONOURABLE MR JUSTICE PILL

	MR J H GALBRAITH CB

	MR S M SPRINGER MBE

MR AKBAR ALI AND OTHERS	APPELLANTS

JOSEPH HOYLE & SONS LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C HAY
	Community Worker
	Northern Complaints Aid Fund
	Checkpoint
	45 Westgate
	Bradford
	W Yorkshire	

For the Respondents	MR P NICHOLS
	(Solicitor)
	Dibb, Lyptie, Broomhead
	125 London Wall
	London
	EC2Y 5AE	

		RESERVED JUDGMENT

	MR AKBAR ALI AND OTHERS

	v

	JOSEPH HOYLE & SONS LIMITED

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	MR JUSTICE PILL:	This is an appeal against the decision of the Industrial Tribunal held at Leeds following a hearing lasting 5 days in May 1993.  By a majority, the Tribunal dismissed the claim of the Applicants under Section 1(1)(a) of the Race Relations Act 1976 and the claim of the Applicants that they had been dismissed unfairly.

	All nine Applicants were weavers and all were of Asian origin.  They were employed by the Respondents who are long established manufacturers of textiles based in Huddersfield.  All were described as capable and hard working employees.

	The Respondents were losing money and in December 1991 a reorganisation was contemplated which required changes to the weavers' contracts of employment.  On 20th December 1991, notice was given in writing to the nine weavers implementing the  changes and terminating their contracts of employment with effect from 21st February 1992.  They were offered re-engagement on the new terms without loss of continuity of employment.  There were discussions between the Respondents and the Appellants' Union and a agreement was reached between them. 

	On 17th February 1992, the weavers informed Mr Mahoney, the Weaving Manager, that they would not abide by the agreement reached between the Respondents and the Trade Union on 14th February.  Further demands were made by the weavers.  On 19th February 1992, Mr Mahoney gave a letter to each of them signed by Mr Rice the General Manager.  (It must be noted that one of the weavers, Mr Mohammed Sharif, was on the sick at the time and separate consideration of his case will be required).

	The letter included the following:-
	"we now urgently need to know whether you intend accepting the new Contract of Employment, to take effect from Monday next, 24th February.

	Will you therefore advise us of your acceptance or otherwise on the enclosed reply slip and return it in the envelope provided to the Weaving Manager, Mr Mahoney, as we cannot leave the matter unresolved any longer.

	We must receive your reply by 3.00pm on Thursday 20th February if the continuity of employment is to be guaranteed and I must also advise you that failure to reply will be taken as rejection".
The reply slip was addressed to Mr Rice and stated:-
	"Dear Sir

	I acknowledge receipt of your letter of 19th February confirming the offer of continuous employment to operate from Monday 24th February 1992 as detailed in your letters of 20th December 1991 and 12th February 1992.

	I accept the new terms and will report for work as usual on Monday next, 24th February.

	*I do not accept the new terms and understand my employment will end on Friday 21st February 1992.

	Signed ......................

	*Delete as appropriate".

	A narrative of events on 19th February and the immediately following days is set out twice in the Tribunal's decision, first at paragraphs 13 to 15 and then at paragraphs 26 to 32.  At paragraph 13 it is stated that by the deadline on 20th February none of the weavers had replied to the letter.  A further letter was sent on 20th February which stated
	"following our letter of 19th February we regret that, not having received a reply to that letter, we must conclude that you have decided not to accept our offer of employment and, as previously notified therefore, your employment will end at the end of the shift starting on Friday 21st February".  
It is noted in paragraph 15 that on 21st February 1992 approaches were made by some of the weavers to request a meeting but these requests were rejected because the deadline had passed.

	The narrative in the later paragraphs is more detailed.  Reference was made to a meeting in Mr Mahoney's office on 19th February and there was a dispute as to whether Mr Mahoney invited the weavers to meet Mr Rice.  The majority of the Tribunal found that Mr Aziz, the weaver's spokesman, and another weaver were given an opportunity to meet and consult with Mr Rice but that Mr Aziz turned the offer down.

	The Tribunal held that, at the time of the meeting, there was a misunderstanding as to what the weavers were demanding.
	"29.  There was therefore a misunderstanding, it was vital that consultation should take place, because with consultation this is the sort of issue that can be sorted out.  .........  There was therefore a duty on the Respondents to consult with the Applicants before dismissing them".

	After the deadline had past, approaches were made to Mr Mahoney and Mr Rice seeking a meeting but these requests were rejected because the deadline had passed.  The majority of the Tribunal decided that it was not unreasonable for Mr Rice to refuse to re-open the matter again after the deadline.

	Mr Courtney Hay of the Northern Complainant Aid Fund appears for the Appellants and appeared for them before the Industrial Tribunal.  Upon the claim for unfair dismissal, he submits that the Tribunal erred in law in concluding that the weavers were not dismissed unfairly.  His main and central submission was that the decision cannot be upheld because of the Tribunal's failure to make findings of fact upon vital issues.  He relies in particular on the absence of any reference in the Tribunal's decision to evidence of events which occurred shortly before the deadline on 20th February.

	According to the Chairman's notes of evidence, Mr Aziz gave evidence as follows:-
	"I read the letter (that is the letter of 19th February) and explained it to my mates.  We all sat down in the canteen and Mahoney came in and asked what we had decided - we said we will sign if you give us guarantees on the two items.  He said it was for Rice and he won't change his mind.  Mahoney left and we decided to seek professional help.  I went with two colleagues and took advice.  We had a discussion with Mr Balli and he advised us to go to the Racial Equality Council.  On advice we decided to sign under protest because the two problems were unresolved.  ........  This was Thursday morning 20 February.  I went to work that afternoon and told my colleagues what had happened on the morning shift and said we were all willing to sign under protest.  I with Salim at about 2.30pm went to see Mahoney to ask him to accept this.  We told Mahoney we were willing to sign under protest would he accept and he said no.  He said we were in no position to dictate terms.  I did not expect this response.  If Mahoney had allowed this all the weavers would have been willing to accept.  We decided to try again with Rice.  The weavers on the other shifts agreed.  I telephoned Mahoney at ten to seven the next morning at the mill and asked for a meeting with Rice over this matter.  He said it's too late.  I said it's never too late to settle.  He said he couldn't do anything.  He didn't say he would have a word with Rice.  I then rang Salim at home at about 10.30am and told him what Mahoney had told me.  He said he would try to speak to Rice for the last time.  At 1pm all the weavers gathered at the mill - we were expecting a meeting with Rice."
He went on to speak of receiving the letter of dismissal.

	Mr Mohammed Salim said in evidence:-
	"Thursday 20 February me and Aziz had a meeting with Mahoney - I agree with what he has said".
Mr Mahoney was cross-examined about the alleged meeting and denied that it had occurred.  There is no note of Mr Aziz and Mr Salim being cross-examined on this issue, but for present purposes, we accept from Mr Paul Nicholls, solicitor, who appeared for the employers that they were challenged on the point.

	Against a background of the Tribunal's finding that there was on 19th February a misunderstanding and it was vital that consultations should take place, we find it astonishing that there is no reference in the Tribunal's decision to the events of 20th February.  The Tribunal gave full consideration to the issue of fact as to what happened at the meeting on 19th February but no consideration is given to events between the meeting and the expiry of the deadline on the following day.  If Mr Aziz and Mr Salim were telling the truth, there was a last minute climb down by the weavers albeit "under protest".  They were willing to sign the document submitted to them albeit with the insertion of "under protest" after the words "I accept the new terms".  Of course there is room for argument and different findings of fact upon whether the meeting between Mr Aziz, Mr Salim and Mr Mahoney took place, as to the effect of the words "under protest", as to what, if the offer was made by the weavers, Mr Mahoney should reasonably have done and as to whether the offer to sign was genuine or a mere device.  However, we have no doubt as to the importance of those events and those issues for the resolution of the question whether the weavers were dismissed unfairly.

	Mr Nicholls submits that, the majority of the Tribunal having believed Mr Mahoney on other matters, they can safely be assumed to have accepted his evidence that the meeting did not take place.  He further submits that the finding of the majority at paragraph 32 that "there was the opportunity for the weavers to consult with Mr Rice themselves up until 3pm on Thursday 20th April (sic) 1992 but this opportunity was not taken" sufficiently deals with the issue.  In the context of this decision we can accept neither submission.  The issue of fact was quite separate from those considered by the Tribunal in their decision and, in context, read with paragraphs 29 and 30, the reference to the opportunity to consult clearly related to the opportunity found to have been given at the meeting of 19th February.  The approach and offer, if made, on 20th February was, in our view, an important new factor.

	In Meek v City of Birmingham District Council [1987] IRLR 250 Bingham LJ stated, at page 251 that:-
	"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draughtsmanship 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 conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted".

	We have come to the conclusion that the Tribunal's decision so fails to meet that standard that the case must be remitted on the issue of unfair dismissal.  We would not have remitted the case on the other grounds put forward by Mr Hay.  Having regard to our decision to remit, comment in detail would be unhelpful.  On the basis that nothing had occurred between the meeting on 19 February and the passing of the deadline on 20 February, we would not have held the finding of the majority that "it was not unreasonable for Mr Rice to refuse to open up the matter again after the deadline" as untenable.  Reference back would not have been merited on the ground that the notice period for several of the weavers had not expired at the time of their dismissal or on the ground that the weavers were not notified of any right of appeal or on the ground that no consideration was given to the later dismissal of another Asian or on the ground that the Tribunal have misinterpreted evidence as to what happened at the meeting on 11th December 1991 or on the ground that the Tribunal misconstrued the effect of offers of other meetings.

	However the Tribunal also erred in failing to address itself specifically to the case of Mr Sharif.  He had been away from work since 10th January 1992.  He accepted that Mr Mahoney had delivered the letter of 19th February to his home on the morning of 20th February but claimed that he made it clear that he did not understand the letter and wanted the help of his daughter who was not at home.  Mr Mahoney claimed that Mr Sharif fully understood the document.  Further, the Respondents rely upon Mr Sharif's evidence that "colleagues told me what was going on whilst I was off sick".  In our judgment Mr Sharif was entitled to have the different issues which arose in his case considered by the Tribunal in their reasoned decision.

	On the racial discrimination claim, Mr Hay relies upon the absence of Asian supervisors, the failure to comply with the CRE code of practice, the absence of discussion with other workers and the approach of the employers to the question of staggered breaks.  It is submitted that the findings of fact on this subject too are inadequate.

	In our judgment, the Tribunal have sufficiently considered this complaint and have expressed themselves sufficiently.  They stated that:-
	"We have considered all those points raised by Mr Courtney Hay but do not find that those primary facts raise an inference of discrimination".
They were entitled to reach the conclusion which, by a majority, they did.

	Further, the background is unhelpful to a finding of racial discrimination, as Mr Nicholls submits.  A reorganisation was in progress; when the posts were refilled it was mainly by Asians; complaints of racial discrimination were not put to Mr Mahoney or Mr Rice at the time and Mr Abdul Khaili, Racial Equality Officer for Kirkless, gave evidence that there was no question of discrimination at the time he was involved in February 1992.

	The appeal against the decision under the Race Relations Act 1976 is dismissed but the decision upon the claim for unfair dismissal cannot stand and will be remitted to a differently constituted Industrial Tribunal for re-hearing.