Appeal No. EAT/531/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 March 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MRS M L BOYLE

	MR J C RAMSAY

LAMBERT SMITH HAMPTON GROUP LIMITED	APPELLANTS

MR N BAGGE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J CAVANAGH
(Of Counsel)
Bates Wells & Braithwaite
61 Charterhouse Street
London
EC1M   6HA

For the Respondent	MR S REYNOLDS
(Of Counsel)
Leuty & Co
5 Milbanke Court
Milbanke Way
Bracknell
Berkshire
RG12  1RP

	MR JUSTICE BUCKLEY:   This matter comes to us by way of appeal from a decision of the Tribunal sitting at North London in May 1993 the reasons are dated June 1993.  The point at issue is Mr Bagge's entitlement to a bonus pro-rated for the year in which he left the employment.  The Tribunal found or drew the conclusion that he was entitled and the employer appeals.

	One of the grounds of the appeal is that these reasons simply do not set out enough by way of findings of fact or reasons to enable this Tribunal to say whether the Industrial Tribunal went wrong in law or adopted the right legal approach.  That submission is one with which we agree we have in the end been spared in a sense from making that decision off our own bat, although we would have done, because the parties or Counsel on their behalf
Mr Cavanagh and Mr Reynolds recognized as the argument proceeded the inevitable, that is that that was the way we were going.  It is very unfortunate but that is the view we have come to.  I am not going to start reciting them but if one looks at the reasons just to illustrate this in paragraphs 6 and 7 the reasons recite that the Tribunal heard evidence from Messrs Walls and Petty but neither of those paragraphs makes any findings of fact on that evidence, they do not even say whether they accepted the evidence of those witnesses, whether they thought they were honest.  They are completely void as to any findings.  After a brief reference then to Counsel's submissions a bold conclusion is stated.  No reasons for that conclusion are given at all.  Various basis could have been put forward for the conclusion of an apportionment, whether it was the apportionment act to which they were referred, whether it was an implied term, whether it was the construction of the memo which contained the bonus scheme which is page 34 of our bundle.  We simply do not know.  Since we have no indication therefore from the reasons as to how or why the Tribunal arrived at their conclusion we cannot begin to judge whether they have gone wrong in law and if so, how.

	The other issue is the construction of the memo itself and whilst we did not complete the argument and have not therefore reached a final conclusion, it was certainly looking as though that memo was a very difficult one to construe, simply by looking at the document.  At the very least I think any judge or Tribunal called upon to construe that memo as a contractual document would have needed to cast around in the surrounding circumstances for assistance.  That means considering the evidence of those surrounding circumstances that was given.  We have already said there are no findings of fact on that and therefore the exercise of construing that memo would have been impossible really for this Tribunal without usurping the function of the Industrial Tribunal itself.  For those very short reasons which we tabled during argument and with which Counsel I think sympathized, we have come to the conclusion, very regrettably, that this matter must go back to be re-heard by another Tribunal.  If that does happen perhaps at least today's arguments will not be wasted and the matter can be conducted with maximum assistance to the new Tribunal.  We express the hope that the parties will in fact find a solution acceptable to both of them on a pragmatic basis, that may avoid that necessity.  The sum at stake is relatively small, costs of going back are by no means insignificant and from where we sit at least it is by no means a foregone conclusion which way this matter would finally go and if those are not the appropriate ingredients for a compromise, it is difficult to see any.  But it is a matter for the parties we can do no more than wish them well and hope that they can compromise their differences.