Appeal No. EAT/372/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25th October 1994
	Judgment delivered 19 May 1995

	Before

	HIS HONOUR JUDGE J BULL QC

	MRS M L BOYLE

	MISS J W COLLERSON

MRS P BOND	APPELLANTS
Ms S RYALLS

MR M R DRURY	RESPONDENTS
MISS M BRADLEY

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	Ms FENELLA MORRIS
(of Counsel)
UNISON Legal department
Mr T Wishart
Glen House, High Street
Banstead, Surrey
SM7 2LM

For the Respondents	MR JOHN STOBART
(of Counsel)
Mr S Smith
Messrs Fraser Brown
84 Friar Lane
NOTTINGHAM NG1 6ED

HIS HONOUR JUDGE BULL QC               By Originating Applications both dated 14th September 1992 the Appellants, Mrs Bond and Ms Ryalls, in answer to the question in Box 1 "Say what type of complaints you want the Tribunal to decide", wrote in the words "Unfair Dismissal", "Redundancy".  Their case was heard by an Industrial Tribunal sitting at Nottingham on 16th March 1993, and the decision sent to the parties on 30th March 1993 was recorded in these terms:
		"The unanimous decision of the Tribunal is that neither applicant was unfairly dismissed."
It is from that decision that these Appellants launch this appeal.

	The Respondents own a Residential Home at which both Appellants had worked for some time as matron and assistant matron.  The Industrial Tribunal found that the Respondents were having difficulty in filling the Home and decided to expand their operation in order to include the provision of nursing services.  Neither Appellant had the qualifications necessary to fill the roles of matron and deputy matron, and they were offered employment as state Enroled Nurses.  The Tribunal found that neither of the Applicants accepted the new roles unequivocally, although ample notice had been given.  The Tribunal took the view, which they were entitled so to do, that the Applicants could not "sit on the fence" indefinitely, particularly in the nursing profession.

	The Industrial Tribunal set out its conclusion in the final two paragraphs of its Reasons:
		"10.   We do not know whether the respondent dismissed the applicants or whether the applicants terminated their own employments.  It does not really make any difference.  If the applicants terminated their own employments, they did so through no fundamental breach of contract of the respondent and were not therefore constructively dismissed.  If they were dismissed by the respondent, then the respondent was perfectly entitled to do so because they had refused to carry out the agreed terms and conditions of employment and in those circumstances the dismissal would have been for conduct, and it would be perfectly fair and reasonable.

		 11.   In either event the applicants were not unfairly dismissed and they are entitled to no remedy."

	There can be no doubt, and we so find, that neither of the Applicants accepted their new roles unequivocally.  The note of representation makes it clear that the Industrial Tribunal did not have the assistance of either counsel or solicitor on either side and we have no means of knowing how matters were argued before them.  It is however inescapable that the Appellants were pursuing their claims for redundancy, and that the Tribunal did not determine those claims either by upholding or dismissing them.  There are, in the reasons, no express findings under Part VI of the Employment Protection (Consolidation) Act 1978, as amended.

	Further complaint is made that the Tribunal failed to make any finding as to whether the Appellants were dismissed or whether they terminated their own employment.  Understanding as we do, the view of the Tribunal that the resolution of this question did not really make any difference, we would draw attention to the judgment of May LJ in Morris  v. London Iron and Steel Co Ltd [1987] ICR 855 at 864B
		"... Judges and tribunals of fact should make findings of fact in relation to matters before them if they can.  In most cases, although in some cases it may be difficult, they can do just that.  Having made them, the tribunal is entitled to draw inferences from the findings of primary fact where appropriate.  In the exceptional case, however, a judge conscientiously seeking to decide the matter before him may be forced to say "I just do not know:" indeed to say anything else might be in breach of his judicial duty. ..."

	This is an appeal from an Industrial Tribunal under the Chairmanship of a highly experienced Regional Chairman and if we were able to read enough between the lines of this Tribunal's express decision we would be very reluctant to send the case back, but for the reasons which we have set out, we feel obliged so to do.  We therefore remit the case for a complete re-hearing.