Appeal No.	 EAT/247/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 July 1999
Judgment delivered on 11 October 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MISS D WHITTINGHAM
MR N D WILLIS

MISS B G LARDIER	APPELLANT

BRITISH GAS RESEARCH & TECHNOLOGY PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR P WALLINGTON
(of Counsel)
Solicitor
British Gas Research &
Technology Plc
100 Thames Valley Park Drive
Reading
Berks RG6 1PT	

	MR JUSTICE CHARLES:	This is an appeal by Miss Lardier against part of a decision of an Employment Tribunal sitting at London (North) the Extended Reasons for which were sent to the parties on 9 December 1997.

1	The decision was that the Applicant’s claims are not made out and they are dismissed.

2	The claims with which we are concerned are her claims for unfair dismissal and breach of contract in connection with the Respondent company’s redeployment policy and grading appeal procedure.

3	The Respondent is described as British Gas Research & Technology Plc.  It was explained to us by Counsel for the Respondent, and we accept, that there is no such corporate body and that British Gas Research & Technology is a name used to describe a part of, or a division within, British Gas Plc.  Quite properly no point was taken as to the identity of the Respondent who should be British Gas Plc.  This appears from Miss Lardier’s contract of employment.

4	The limitation of the points with which we are concerned on this appeal flows from the decision of this Tribunal on the preliminary hearing when we (through the President, Mr Blyghton and Mrs Matthias) restricted the grounds upon which the appeal could proceed on the basis that the other aspects of the appeal brought by Miss Lardier were not reasonably arguable.

5	At page 1 of the judgment of this Tribunal on that preliminary hearing which was heard on 20 November 1998 the President said this:

“The main point in the appeal, as it seems to us, which we do think to be arguable, is the way the Industrial Tribunal have not dealt with Miss Lardier’s claim that her employers were in breach of contract in relation to the grading appeal procedure and the consequences that that had on her opportunities for redeployment in a redundancy situation.  The two are inextricably interlinked as it seems to us.
Essentially, her case on the grading appeal procedure is that there was until 1994 a third stage to the appeal on a grading issue.  The employers removed that stage.  She says that that was a breach of contract by them in doing so and, in any event, bearing in mind that she had attempted to invoke that stage of the appeal procedure it was wrong for the employers to have approached the question of redeployment in the way that they did simply looking at Grade G2 posts when what she had been attempting to do was to obtain what she perceived to be a fairer and proper grading namely a Grade 3 post.  In those circumstances, she would wish to say that there was both a breach of contract and an unfairness in the way in which the employers dealt with her redeployment opportunities.
In paragraph 7 of their decision the Industrial Tribunal take a position about the grading appeal and we refer also to what they said at paragraph 5, typescript page 4, of the Industrial Tribunal’s decision.  She says, and we see the force of it, that the Industrial Tribunal really may have misunderstood the significance of the grading appeal issue which applied both to the breach of contract claim and also to her unfair dismissal claim. We regard those points as arguable.”

6	As appears from that citation particular reference is made to both paragraphs 7 and 5 of the Extended Reasons of the Employment Tribunal.

7	We would add that in addition to the points identified in that citation other issues relating to the appeal procedure were also raised by Miss Lardier, namely (a) whether it was carried out bona fide and properly, and (b) delay.  As we understand the decision of this Tribunal on the preliminary hearing those issues are also before us.  In any event we have proceeded, without objection, on the basis that those issues are also before us in respect of the grading appeals, the redeployment process and thus in respect of Miss Lardier’s breach of contract claims and their “knock-on” effect on her claim for unfair dismissal.

8	We now turn to the Extended Reasons of the Employment Tribunal.  They contain the following passages:

“1	The Applicant in this case Ms Brigitte Lardier claims in an amended application presented on 26 June 1996 and in respect of which leave to amend was given on 15 July 1996 that her employers British Gas and Technology Plc have unfairly dismissed her, have committed breaches of contract in respect of their redeployment policy and grading appeal procedure, have committed action against her short of dismissal and have discriminated against her on the grounds of her sex.  ...”

9	The Employment Tribunal then go on in the Extended Reasons to find that the reason for the dismissal was redundancy (as asserted by the Respondent company).

10	They continue in paragraphs 4, 5, 6 and 7 of the Extended Reasons as follows:

“4	We now go on to consider other matters.  The Respondents did not put forward that the offer of redeployment at Loughborough was a suitable offer of alternative employment.  Their position was that those employees who wished to transfer to Loughborough could do so with the assistance of a relocation package but they did not defend the case on the basis that they had made a suitable offer of alternative employment to the Applicant.  It is clear we so find that employment at Loughborough could not be regarded as a suitable offer of alternative employment.  It would be far too great a distance from anyone who lived in London to travel each day even if the Respondents had been prepared to assist by paying fares and we record that transfer of employment at Loughborough was to be on an entirely voluntary basis assisted by redeployment package.
5	This being the position we then have to examine what efforts were made to find the Applicant alternative employment within the Respondents organisation.  There was clearly in this case, a duty on the Respondents to consider this point if as it appeared the Applicant did not want to take advantage of the voluntary redundancy scheme.  We must enter into an examination of whether we can say that the efforts made by the Respondents to find the Applicant alternative employment were reasonable in the circumstances.  We deal in the first place with the question of the Applicant’s regrading.  A lot of the problems here stemmed from the fact that the Applicant thought she ought to have been graded G3 whereas she had in fact been regraded G2.  This is a matter into which the Tribunal cannot enquire.  The Applicant was regraded in accordance with the Respondent’s policy and was regraded at G2.  She was then allowed to pursue an appeal against that regrading through the Respondent’s procedures and her appeal was ultimately rejected.  It is not the province of the Tribunal to enquire into the question of the regrading.  This is a matter for the Respondents.  The Applicant was entitled to and did challenge the grading which had been awarded to her and the Tribunal must accept that in the question of alternative employment the Applicant had to go forward for vacancies at the grade G2.  In so far as the Respondents did on any occasion refuse to consider her for a G3 vacancy we find that it was quite proper of them to do so having regard to the Applicant’s grade G2.  Other problems which were mentioned by Mr Lynch in his statement were that the Applicant was either unable or unwilling to do audio typing, had medical problems which restricted her mobility and the locations where she could work together with her refusal to be flexible within the limits of those medical problems.  We were satisfied from the evidence which we heard and which we do not propose to repeat in detail in this decision but which we examined carefully that the Respondents did make reasonable efforts to try to find the Applicant alternative employment.  We further accept from the evidence and so find that their efforts to do so were frustrated by the Applicant’s difficult attitudes towards alternative employment and medical problems which made it difficult for her to travel.  We should mention in passing that our view was that having regard to the Applicant’s medical problems that some of the vacancies which the Respondents put forward as suitable were in our view posts which involved too much travelling for them to be suitable alternative employment for the Applicant.  This does not in our view detract from the overall position namely that within the limitations which were occasioned by the Applicant’s medical condition the Respondents did we find take reasonable steps to try to find her alternative employment and that they did before dismissing the Applicant with a redundancy payment and pension carry out all matters which it was proper for them to carry out in an attempt to find for the Applicant suitable alternative employment.  Consequently we find that the Applicant’s claim that she was unfairly dismissed by the Respondents cannot be sustained and fails.
6	We deal with the remainder of the Applicant’s claims.  She says in relation to her second claim breach of contract in respect of the redeployment policy that the Respondents are in breach of their handbook on GSSO review in relation to security of employment.  We have examined this section and we cannot find in it any contractual obligation by the Respondents that there will be no compulsory redundancies.  One section deals with security of employment but this is qualified by the provision that the Respondents will take all possible steps to provide security of employment.  We find that the only obligation which is imposed upon the Respondents by this booklet is to take reasonable steps to try to obtain alternative employment for displaced employees and that this is the totality of the obligation which they take upon themselves.  They have not taken upon themselves any obligation never to pursue a policy of compulsory redundancies.  Consequently we cannot find that there is any breach of contract.
7	As to the question of the breach of contract in grading appeal procedures this is as we said earlier in the decision not a matter which the Tribunal can explore.  Tribunals are not set up to make enquiries into the proper procedures of employers but must accept them as the way in which the employer chooses to go about his business.  The fact that the Applicant was regraded G2 is no concern of the Tribunal and we cannot consider any claim for breach of contract in respect of this.”

11	It is clear from paragraph 5 of the Extended Reasons that an issue relating to the consideration of whether the dismissal was fair was the efforts made by the Respondent company in the light of, and having regard to, Miss Lardier’s regrading and her appeals against that.  

12	Miss Lardier says, and said, that she should have been graded G3 and not G2.  

13	The Extended Reasons are very short on dates.

14	We set out below some important dates with comments.  They are as follows:

1 September 1991	The Respondent company’s restructuring of grades came into effect.  The result was that Miss Lardier’s grade was changed from S4 to G2.  The restructuring reduced the number of clerical technical and senior officer grade employees from 11 to 6.  Following a regrading a new job description for Miss Lardier (and others) was produced.

February 1992 	Miss Lardier says that she indicated that she wanted to appeal against the grade G2 that she had been given.  The Respondent company accept that she made such an indication.  They however assert that thereafter she accepted a payment on the basis that she was graded G2 and cannot complain about that grading.  That assertion of the Respondent company is naturally, and correctly, subject to their acceptance that she had a right to appeal against that grading.  As we understand it the Respondent company were always aware that Miss Lardier was keen to and intended to exercise that right of appeal.  The Respondent company have consistently denied that her job was incorrectly graded and assert that she was correctly moved across from her old S grade to the equivalent (although wider) G grade.  As we have said, Ms Lardier has consistently asserted that she should have been graded higher, namely as G3.

	The process of rewriting job descriptions, regrading 40,000 GSSO jobs and hearing appeals was lengthy, complex and required considerable effort by management and the employee representatives alike.  In Research and Technology alone there were 150 appeals lodged out of a total staff of 1,600.  The Respondent company maintain that as a result, all appeals, including Miss Lardier’s, took a long time to bring to a conclusion and the time taken to determine Miss Lardier’s appeal was not unusual.  However properly before us it was accepted by Counsel for the Respondent company that there were considerable delays in dealing with Miss Lardier’s appeal.

17 December 1992	The Respondent company assert that Miss Lardier purported to lodge an appeal against her grading on this date.  As already mentioned Miss Lardier says that she indicated that she wished to appeal much earlier, namely in February 1992.

	During the hearing before us we were referred to a letter dated 17 December 1992 from Miss Lardier to the Respondent company enclosing documents.  In that letter she says that she definitely needs a copy of the evaluation rationale in order to proceed with her appeal and asks that she be provided with a copy.  The pro forma appeal document included with that letter has two boxes to indicate the nature of the appeal.  The first box states as follows:
“I am appealing against the content of the job description applicable to me.  (I understand that any significant changes to the job description will result in it being evaluated as a new job.  Should there be no significant changes to the job description, I understand that I am not precluded from appealing against the grade at a later date).”

The second box is in the following terms:
“I am appealing against the evaluated grade of my job.  I am satisfied that my job description properly describes my job.  I understand that the decision of a review panel is binding”.

	Miss Lardier identified on the form that it was the second type of appeal that she wished to pursue.  

	We pause to comment that no such appeal ever took place.

1993	Prior to 1993, the Respondent’s Research and Technology Division was located at a number of separate sites in the UK.  These sites included the Engineering Research Station, Killingworth, Northumberland; the Midlands Research Station, Sollihull, West Midlands; the London Research Station, Fulham, London; Watson House Research Station, Fulham, London, where Miss Lardier previously worked.  In 1991 the Respondent company decided to reorganise the Research and Technology by concentrating all research and technology activity on one centrally located Greenfield site.  Initially, the chosen site was Stoneleigh, Warwickshire, but planning permission was refused by the local authority.  Eventually a new Research and Technology building to be known as the Gas Research Centre was constructed on a site at Loughborough, Leicestershire, and was completed and ready for occupation from 30 June 1993.  Consequently the other Research and Technology sites were all destined to close and this has now happened.  The site where Miss Lardier used to work in Fulham ceased to be an operational site on 30 June 1993 and her substantive post effectively disappeared on that date.  She was however retained at that address as a redeployee of the Respondent company in its redeployment centre which was based there.

	It can be seen that this process overlapped to some extent in time with the regrading, albeit that they are separate processes.

21 March 1994	Prior to 21 March 1994, the Respondent company’s UK Gas Business was organised into 12 Regions based on geographic areas in the UK and a national headquarters.  Research and Technology comprised part of the headquarter’s function along with the national transmission system, the Respondent company’s overall policy and strategy function and bulk gas purchasing and supply to the Regions.  On 21 March 1994, the Regions were abolished and replaced with national business units which concentrated on specialist areas of the UK Gas Business.  The strategic and policy function for the whole of the Respondent company’s business was undertaken by the Corporate Centre based in London and central services for the UK Gas Business provided by Support Services - a temporary business unit - located at various sites throughout the UK.  The Respondent company had announced its intention to reduce the number of its employees by 25,000 as a result of this reorganisation.

	This reorganisation again overlapped in time with the other two processes of reorganisation referred to above.  

	This reorganisation is relevant to the arguments concerning the Stage III appeal which we refer to below because the Respondent company allege that it had the consequence that the Regional Joint Council for Gas Staffs and Senior Officers ceased to exist and therefore the body to hear the Stage III appeal ceased to exist.

	However at this stage we pause to record that in respect of this assertion by the Respondent company the statement of a Mr Kenneth Joseph Lynch, who was the Human Resources Operations Manager for British Gas Research and Technology, who had been with the company for 7 years in 1997 when he made his statement and whose role was to formulate and implement the employee relations and personnel policies and processes within British Gas Research and Technology, says this:

“The final level of appeal for such cases was the Regional Joint Council for Gas Staffs and Senior Officers.  As part of the restructuring of British Gas, which had included the abolition of the former British Gas Regions on March 1994, this forum was in the process of being dismantled in 1995 and did not hear any grading cases before its dissolution on 31 December 1995.”

23 September 1994	Miss Lardier’s Stage I appeal was heard and rejected.  

	This was not an appeal against the evaluated grade of her job which, as we have pointed out, was the appeal that Miss Lardier indicated she wished to bring.  It was an appeal against the content of her job description.  As we understand it this appeal was heard because the Respondent company took the approach that it was necessary to deal with the content of the job descriptions of its employees before going on to deal with appeals against the evaluated grade of the job.  Miss Lardier (and the gentleman who assisted her on the appeal who was also present at the hearing before us) took part in and understood the Stage I and Stage II appeals to be appeals against the content of Miss Lardier’s job description.  The fact that this was the subject matter of the appeals appears from the letters sent by the Respondent company indicating that Miss Lardier’s appeals had failed.  

	We pause at this stage to note that this Stage I appeal took place 3 years after the regrading, 31 months after Miss Lardier says she indicated that she wanted to appeal, 22 months after the Respondent company say she lodged her appeal (which is contained in the form we have referred to enclosed with her letter dated 17 December 1992) and 15 months after Miss Lardier’s substantive post at Fulham in Research and Technology effectively disappeared.

	So throughout those periods there was an existing dispute over grading between Miss Lardier and her employer, the Respondent company.  Further, as appears from the form she lodged, Miss Lardier’s primary contention was not as to the content of her job description, but against the evaluated grade of her job.  In short, she says, she should have been graded G3 and not G2.

14 November 1994	Miss Lardier gave notice that she wanted to have a Stage II appeal.  This was a Stage II appeal against the decision at Stage I concerning the content of her job description. 

16 December 1994	The Stage II appeal was heard.

20 January 1995	Miss Lardier was told by a letter of this date that her Stage II appeal had failed.

7 February 1995	Miss Lardier gave notice that she wished a Stage III appeal to be heard.  In their Grounds of Resistance signed by the Head of the Respondent company’s Legal Services, it is asserted as follows:

“On 7 February 1995, the Applicant gave notice of her wish for her case to be reviewed.  However, with the abolition of the Regions on 21 March 1994, the relevant forum capable of carrying out the review had been dissolved, namely, the Regional Joint Council Secretaries and Machinery and the matter was not pursued any further.”

	But we know from Mr Lynch’s statement that the Regional Joint Council continued until December 1995.

	In any event it is apparent and indeed the Respondent company assert that there were a great number of appeals against grading, many of which were started before the abolition of the Regions in March 1994 and thus before any change in the final tier of the appeal process.  

31 March 1996	Miss Lardier was dismissed.  In paragraph 43 of his statement Mr Lynch makes the following comment:

“From the closure of Watson House Research Station in 1993 until 31 March 1996, when her employment was terminated the Company continued Miss Lardier’s employment with the principal purpose of her securing alternative employment within British Gas.  Whilst attending the Redeployment Centre in Bishop’s House, she did carry out some administrative duties.  With the closure of Bishop’s House at the end of 1995, Miss Lardier was able to use the facilities of a Redeployment Centre in Vincent Street, Westminster.  There was, however, no compulsion for her to attend this Centre and she was free to manage her own time in directing her efforts to secure employment.”

	We comment that Watson House Research Station was the site at which Miss Lardier was employed in Fulham.  

The Breach of Contract Claims

15	In respect of the regrading and appeal procedures these are that in carrying them out the Respondent company acted in breach of the implied term of trust and confidence.  The claim has three main elements, namely:

(a)	The appeal process was not carried out properly or in good faith,

(b)	delay, 

(c)	no Stage III appeal was held.

As we understand it, Miss Lardier had a further breach of contract claim in respect of  the redeployment policy of the Respondent company. We shall return to this later in this judgment when we deal with the claims that Miss Lardier can pursue following remission to an Employment Tribunal (see paragraph 43).  Like this Tribunal at the preliminary hearing we shall concentrate on the breach of contract claims relating to the regrading and appeal procedures and we refer to these as the “breach of contract claims”.

16	As to limb (a) of the “breach of contract claims”  Miss Lardier’s case is substantially that the appeal process was not carried out properly because the real substance of her complaint and appeal which related to the evaluated grade of her job was never dealt with.

17	The claims concerning breach of contract also have a “knock-on” effect in respect of the question whether the dismissal was unfair because they affect the issue whether the Respondent employer acted reasonably or unreasonably in their attempt to find alternative employment for Miss Lardier.

18	The fact that the “breach of contract claims” had this “knock-on” effect and was an issue before the Employment Tribunal appears, for example, from paragraph 5 of the Extended Reasons.  Indeed, in our judgment it is obvious and common-sense that this is the case and this also appears from the passage we have cited from the judgment of this Tribunal at the preliminary hearing.  Thus we do not understand why, in its answer to the appeal the Respondent company indicated that it was not clear about this.  However, the appeal was conducted before us on the basis that the “breach of contract claims” had this “knock-on” effect.

19	It is also clear from paragraph 5 of the Extended Reasons that the Employment Tribunal considered the efforts made, and the steps taken by, the Respondent company concerning alternative employment on the basis that she was a G2 employee.  This is apparent from the following two sentences contained in paragraph 5 of the Extended Reasons:

“The Applicant was entitled to and did challenge the grading which had been awarded to her and the Tribunal must accept that in the question of alternative employment the Applicant had to go forward for vacancies at the grade G2.  In so far as the Respondents did on any occasion refuse to consider her for a G3 vacancy we find that it was quite proper of them to do so having regard to the Applicant’s grade G2”.

20	It seems to us that these two sentences indicate that the Employment Tribunal have failed to grasp the point being made by Miss Lardier to the effect that if the employers had not acted in breach of contract, her appeal as to her grading would have been heard and finally determined at an early stage of the redeployment process.  If she had been successful on the appeal the efforts to find her alternative employment would have been on the basis that she was graded G3.  If she had been unsuccessful points may still have arisen as to the conduct of the appeals and their result and their “knock-on” effect on the attempts made to find her alternative employment, but as the appeals were never completed the circumstances never arose in which these points were “live ones”. However the Respondent company did invite us to consider whether Miss Lardier could ever have been successful on her appeal and the effect of a conclusion that she could, or would, not have been.  We return to these points later.

21	In their skeleton argument on this appeal the Respondent company admit that there were time limits for the appeal process.  During the course of the hearing before us it was accepted that, throughout the hearing before the Employment Tribunal the Respondent company had maintained, through Counsel, that there were no relevant time limits.  This was a mistake.  In her closing written submissions Miss Lardier included a document showing that there were time limits in respect of an appeal against the content of the job description.  Additionally, there are documents which were in the bundle of documents before the Employment Tribunal which show that there were time limits in respect of an appeal against the evaluated grade for a job.  We were referred by Counsel for the Respondent company to a passage in a document headed “Procedure for Resolving Differences over the Content of Job Descriptions” which is in the following terms:

“The time limit stated in this procedure may be varied by agreement between the joint secretaries.  It is recognised that the volume of work following the initial assimilation exercise may significantly extend the time limit but joint efforts will be made to minimise delays.”

22	Counsel however did not refer to or rely on any such agreement between the joint secretaries and wisely did not seek to persuade us that this provision could have justified the delays which took place in this case.  In mitigation he pointed out, as no doubt was the case, that having regard to the very considerable reorganisations that were taking place there was a great deal of work to be done, some of which involved the hearing of appeals and this contributed to the delays that took place.  However, in our judgment correctly, he accepted that there were considerable delays in this case.  For the purposes of these proceedings it must be remembered that what is of importance is the delay so far as Miss Lardier was concerned and its effect on the efforts that were made to find her alternative work and thus its effect on the fairness of her dismissal.

23	As we have mentioned earlier the Stage I and Stage II appeals that did take place were directed at the content of Miss Lardier’s job description rather than her contention that she should have been graded G3 not G2.  There is a real difference between the nature of the two appeals or issues, albeit that there is some overlap between them.  This is particularly so because on the issue as to whether or not she should have been graded G3 or G2 a number of elements of judgment would, or might arise, as to which decision-makers may reasonably differ in respect of cases which fall near the borderline.

The Position of the Respondent Company

24	In its Answer to this appeal which was settled by Counsel, who appeared before us today (and appeared for the Respondent company before the Employment Tribunal), the Respondent company assert in paragraphs 14 to 17 as follows:

“14	The Respondent accepts that the Tribunal had a limited jurisdiction to determine whether the conduct of the Stage I and Stage II grading appeals involved a breach of contract, and separately whether the discontinuance of the Stage II (sic) procedure constituted such a breach.  The Respondent’s submissions to the Tribunal acknowledge such jurisdiction.
15	It is accepted that the Tribunal has failed to make proper findings or give sufficient reasons for rejecting these aspects of the Appellant’s case.  It is to be inferred that the Tribunal concluded that the Appellant’s claims were not made out, and the Respondent submits that this was a correct and inevitable conclusion.  The Respondent relies on the following further points:
(a)	any delay in the holding of the appeals which were in fact held is immaterial unless they were not properly conducted and determined, since the outcome was the confirmation of the Appellant’s existing grading;
(b)	there was clear evidence before the Tribunal (particularly that of Mr Johnstone) that the appeals were conducted in a proper manner, and there was no evidence that those conducting either appeal acted otherwise than in good faith;
(c)	the only contractual obligations of the Respondent were to provide appeal hearings, to ensure that they were conducted in accordance with such procedures as were laid down in the appeal procedure, and to conduct them in good faith;
(d)	in the premises the conclusion that there was no material breach of the Appellant’s contract in the timing and conduct of the Stage I and II appeals was or would be the only conclusion properly open to a Tribunal;
(e)	the appeal procedure (which was a collective agreement) was subject to a term necessarily implied to give it business efficacy and/or to give effect to the mutual assumed intention of the parties to that agreement, that the existence and use of the Stage III appeal process through Regional Joint Councils did not restrict the right of the Respondent to restructure its organisation by abolishing regions (as it did in March 1994) with the consequence that Regional Joint Councils no longer existed as the forum for Stage III appeals and that in those circumstances Stage III would no longer apply (without prejudice to the parties’ freedom to agree an alternative forum, but this did not occur).
16	The foregoing points were part of the Respondent’s submissions to the Tribunal.  Had the Tribunal addressed them fully in its Reasons it would inevitably have found, alternatively should if properly directing itself have found that these conclusions were correct and the Applicant’s claim of breach of contract failed.
17	According if (which is not conceded) there was an error of law in the Tribunal’s findings on breach of contract, the Appeal Tribunal ought not to remit the case for further consideration since the decision was plainly correct.  Further,
(a)	any remission if ordered, should be to the same tribunal since it has heard and read the extensive evidence and any error of law is in a failure to determine all points not a wrong determination of fact or law;  ...”

25	Counsel for the Respondent company put in a helpful skeleton argument which develops those points.

26	Notwithstanding the acceptance at the beginning of paragraph 15 of the Answer put in by the Respondent company to the effect that the Extended Reasons have not dealt properly with Miss Lardier’s “breach of contract claims” and thus their “knock-on” effect, in that skeleton, and orally, Counsel for the Respondent company sought to persuade us that on a fair and benevolent reading of them they have.  In advancing that argument Counsel necessarily accepted that the Employment Tribunal did not deal with them directly or in express terms.  The thrust of his submission was that having regard to the conclusion of the Employment Tribunal the inevitable inference from the Extended Reasons is that (a) they rejected Miss Lardier’s arguments in this respect, and (b) accepted the arguments advanced on behalf of the Respondent company in this respect.

27	In this context Counsel for the Respondent company referred us to the well known case of Meek v City of Birmingham District Council [1987] IRLR 250, without citing it but the well known passage is contained in paragraph 8 of the judgment given by Bingham LJ.  Counsel for the Respondent company also referred us to Jones v Mid Glamorgan County Council [1997] ICR 815 and, in particular, to the headnote and a passage in the judgment at page 826 C to 827 E.  On the basis of that authority he submitted, and we accept, that we should approach and construe the Extended Reasons benevolently and should not take technical or drafting points in respect of them.  Further he submitted, but we do not accept, that as in the Jones case this is also, in short, a case of sound reasoning poorly expressed.

28	In our judgment however benevolently one approaches these Extended Reasons they fall well short of the standard required by the Meek case.  

29	Further in our judgment, a benevolent reading of the Extended Reasons does not support the submission made on behalf of the Respondent company that the inference to be drawn from them is that the Employment Tribunal understood and dealt with the points that are the subject of this appeal and rejected Miss Lardier’s contentions in respect of them.  Rather, in our judgment, they support the conclusion that they did not understand, or fully understand them and that they did not deal with them or deal with them properly.

30	Returning to the submission made on behalf of the Respondent company, it is that we should infer that the Employment Tribunal concluded that Miss Lardier’s claims were not made out and that she knows why she lost and the Respondent company knows why it won from the following:

(a)	what the Employment Tribunal do say in the Extended Reasons and their silence therein on many of the points raised and argued before the Employment Tribunal, and

(b)	the arguments put before the Employment Tribunal by both parties.  

This is a tall order, particularly when it is remembered how much of the important timetable and events relating to the “breach of contract claim” and its “knock-on effect” we have had to set out in this judgment for the simple reason that they are missing from the Extended Reasons.

31	We take the elements of the breach of contract claim in turn:

(1)	The conduct of the appeals in a proper manner and in good faith.

We deal with delay separately as a different element of the breach of contract claim.  

	We accept that there is force in the argument put forward that implicitly the Employment Tribunal (a) must have rejected the arguments advanced by Miss Lardier that the Stage I and Stage II appeals were not conducted in good faith, and (b) must have accepted the contrary arguments advanced on behalf of the Respondent company.  We are of this view because if the Employment Tribunal had thought that the appeals had not been conducted in good faith their Extended Reasons and their conclusions set out therein would probably have been different.

	But even if this inference is made it does not follow that the parties know why they won and why they lost on this issue as to good faith and thus, for example, whether all, or only some of the arguments advanced by the Respondent company were accepted.

	Further, even if this inference is made it does not deal with the second aspect of this part of the claim, namely whether the appeals were conducted in a proper manner.

	In our judgment it is impossible to discern, or to infer, from the Extended Reasons what view, if any, the Employment Tribunal took on the point that no appeal was heard against the evaluated grade of Miss Lardier’s job and the only appeals that were heard were against the content of her job description.

	Having regard to the content of the Extended Reasons we do not agree that the natural inference is that because the Respondent company won, and Miss Lardier lost, the Employment Tribunal considered this point and decided against Miss Lardier in respect of it.  In our judgment the more natural reading of the Extended Reasons is that the Employment Tribunal simply did not take this point into account.

	In any event in our judgment it is too great a leap to assume that all the arguments of the Respondent company concerning the appeal process were accepted and all those of Miss Lardier were rejected.  It follows in our judgment that the Extended Reasons do not tell us, or the parties, why Miss Lardier lost on this aspect of her claim.

	(2)	Delay

	These were considerable and they are not dealt with by the Employment Tribunal.

	Again, in our judgment it is not possible properly to infer from the Extended Reasons that the Employment Tribunal considered the points that were raised in respect of delay and (a) rejected Miss Lardier’s arguments in respect of them, and (b) accepted the arguments of the Respondent company in respect of them.  Again, in our judgment the more natural inference is that the Employment Tribunal did not consider these points or did not consider them properly.

	Further, the question arises as to which of the arguments advanced on behalf of the Respondent company we should infer the Employment Tribunal accepted.  Was it the argument at the hearing that there were no time limits or was it the alternative argument that if there were delays they were immaterial because, for example, Miss Lardier could never have succeeded on her appeals?  The Employment Tribunal do not answer these questions in the Extended Reasons.

	(3)	The Stage III Appeal

	Again the Extended Reasons do not deal with the competing arguments relating to this.  As to the Stage III appeal the Respondent company argues (and argued before the Employment Tribunal) that there was an implied term that this appeal stage died with the removal of the Regions.

	The Respondent company say that  it is to be inferred that the Employment Tribunal accepted this argument.  If so, again in our judgment, one cannot discern or infer why they did so.  The Respondent company go on and argue that we can deal with this argument.  We do not agree and in any event, in our judgment, on the information we have we are far from clear that such a term should be implied and even if it was to be implied, why it deals with all of Miss Lardier’s points because

(a)	the appeal structure was in place when the appeal process against the grading commenced by Miss Lardier (and others) began,

(b)	the Regional Councils were not removed before Miss Lardier sought to invoke the Stage III process, and

(c)	given the timetable and the continued existence of the Appeal Body after the Regions were abolished, it is not clear why or how the implied term is said to operate on the facts of the case.  
In any event the implication of a term is something that has to be assessed against the relevant factual background at the relevant dates.  Here the relevant dates appear to be the dates when the appeal process was put in place and when it was incorporated into Miss Lardier’s contract or became relevant thereto.  We know little or nothing of the background and surrounding circumstances at those times and cannot say that any Employment Tribunal, as the fact-finding body, would clearly having regard to the facts it found conclude that the implied term relied on by the Respondent company existed, and was effective in this case.

32	We have said earlier that, in our judgment, the more natural inference from the Extended Reasons is that the Employment Tribunal did not understand, or properly understand the points relating to Miss Lardier’s “breach of contract claims” and their “knock-on effect” or did not deal with them or deal with them properly.  We base this conclusion primarily on a reading in their context of paragraph 7 together with paragraph 5 of the Extended Reasons.  Notwithstanding the arguments put on behalf of the Respondent company to the contrary and the fact that the Employment Tribunal heard extensive argument on the “breach of contract” claims, we consider that the natural reading of paragraph 7 with the passages in paragraph 5 beginning with the sentence “We deal in the first place with the question of the Applicant’s regrading” and ending with the sentence “In so far as the Respondents did on any occasion refuse to consider her for a G3 vacancy we find that it was quite proper of them to do so having regard to the Applicant’s grade G2” indicate that the Tribunal thought that it was not necessary for them to go into Miss Lardier’s “breach of contract claims” and their “knock-on effect”.

33	For example, in our judgment, the sentence in paragraph 5 “This is a matter into which the Tribunal cannot enquire” is not, on a natural reading, restricted (as the Respondent company submitted) to the issue that Miss Lardier was in fact regraded G2.  In our judgment a more natural reading is that this sentence covers both (a) that regrading, and (b) the appeal process relating to it (and thus their “knock-on effect”). 

The Alternative Argument of the Respondent Company that even if Miss Lardier were to establish her breach of contract claims they are immaterial because they would make no difference

34	At the heart of this argument is an assertion of the Respondent company that Miss Lardier’s grading as G2 was plainly right and no appeal she might bring against that evaluation of the grade for her job could succeed.  In this respect the Respondent Company rely on a statement from a gentleman they assert was Miss Lardier’s line manager.  We accept that this is helpful to the Respondent company’s case.  However, Miss Lardier contended before us that this gentleman was not in fact her line manager.

	35	In our judgment correctly, Counsel for the Respondent company did not pursue this alternative argument vigorously before us.  

36	In our judgment this argument was doomed to failure.  As to this:

	(a)	it is not clear to us on the information we have seen that Miss Lardier’s appeal against the evaluated grade for her job was doomed to failure.  It seems to us that this would be likely to raise issues of judgment upon which reasonable people might differ, and

	(b)	even if one assumes that Miss Lardier’s appeal would fail, or was doomed to fail, it has not been suggested that she was pursuing it in bad faith and it is not clear to us, given the facts that

		(i)	her appeal against the evaluated grade of her job was never commenced, 

		(ii)	there were on any view considerable delays and

		(iii)	a Stage III appeal on the content of Miss Lardier’s job description was never heard, 
that any Employment Tribunal would conclude that the Respondent company acted reasonably in conducting its efforts to redeploy and therefore find Miss Lardier alternative employment on the basis that she was a G2 employee and thus on the basis that it was right and she was wrong on the issue of her grading.

Conclusions

37	In our judgment this appeal succeeds.  

38	In short, for the reasons we have given in our judgment Miss Lardier has succeeded in establishing either:

	(a)	that the Employment Tribunal erred in law in not dealing at all, or in not dealing fully and properly with the issues set out below, or

	(b)	the Employment Tribunal have failed to provide proper reasons for their conclusions.

39	We have described the issues as “Miss Lardier’s breach of contract claims” and their “knock-on effect”.

40	It follows from our conclusion that those issues should be remitted to an Employment Tribunal.  In more detail they are that:

	(1)	The Respondent company acted in breach of contract and, in particular, the implied term of trust and confidence in that:
		(a) 	it did not conduct the appeal procedure properly or in good faith and, in particular, it did not hold an appeal against the evaluated grade of Miss Lardier’s job,
		(b)	it  did not conduct the appeal process within a reasonable time and indeed, that there were very considerable delays, and 
		(c)	it did not hold a Stage III appeal, and

	(2)	Having regard to the matters upon which such breach of contract claims are founded, and even if they do not constitute breaches of contract, in its redeployment programme and, in particular, in the efforts it made to find alternative employment for Miss Lardier the Respondent company did not act reasonably and therefore her dismissal was unfair.  

41	It follows that, in broad terms, the issues that are to be remitted are the “breach of contact claims” and the claim for unfair dismissal.  

42	It is difficult to define precisely the limits of the arguments and points that can be raised on such remission and, in our judgment, this is essentially a matter for the Employment Tribunal that hears the case.  However, it is easier to identify matters which have been dealt with and which therefore cannot properly be raised again on a remission.  These are:

		(a)	the conclusion that the reason for Miss Lardier’s dismissal was 	redundancy, and

		(b)	the claim that she had been discriminated against on the grounds of her 	sex, and 

		(c)	her complaints based on actions short of dismissal.

43	As we mentioned earlier in this judgment, as we understand it,  Miss Lardier advanced a further breach of contract claim before the Employment Tribunal.  In her skeleton argument before us this is entitled “Breach of contract - Redeployment Policy” and it appears therefrom that this claim is based on the new terms and conditions which she asserts were agreed with UNISON and an allegation that they included a contractual right to redeployment. We did not investigate this alternative argument in any detail.  Although:
 	(a) 	as we understand the position, this alternative argument was not identified as an arguable point on the preliminary hearing before this Tribunal, and 
	(b) 	we accept that it is easier to say that it was implicitly rejected by the Employment Tribunal 
we have concluded that Miss Lardier should not be precluded from pursuing this alternative argument on remission to an Employment Tribunal because we think that (i) it is a short point, (ii) if Miss Lardier continues to represent herself it is unlikely that she would refrain from advancing it, and (iii) to further the objective of justice being done and being seen to be done the Employment Tribunal should deal with this alternative breach of contract argument if it is advanced.

Remission to the same or a different Employment Tribunal

44	We were urged by the Respondent company to remit to the same Employment Tribunal.  The primary basis for that submission were that:

	(a)	this appeal has succeeded essentially on the basis that the Employment Tribunal have failed to deal adequately with the arguments raised in detail before them, and

	(b)	remission to the same Employment Tribunal would save time and expense both for the parties and the public purse.  

45	We have some sympathy with those submissions, particularly because we agree that this appeal has succeeded essentially on the grounds that the Employment Tribunal have not dealt at all, or properly, with issues that were argued in some considerable detail before them.  Indeed, we expressed the hope at the end of the hearing before us that both parties would bear this in mind in considering whether this litigation could be brought to an end by agreement.

46	However, we are clear that it would not be appropriate to remit this case to the same Employment Tribunal.  In reaching that conclusion we make clear, as we did during the course of the hearing, that we have not had regard to the allegations made by Miss Lardier as to the conduct of the original Employment Tribunal in conducting the hearing.  She was not allowed to proceed with those allegations and therefore, in our judgment, we should ignore them and we have ignored them.

47	In our judgment this is not a case where it can be said that if the matter is remitted to the original Employment Tribunal they would remember the detail of the case and be able to deal with the remitted issues quickly and easily on the basis that they fully considered them but failed to provide an adequate explanation of their reasons relating to them.  Indeed, as we have said, in our judgment a fair reading of the Extended Reasons indicates that they did not properly understand the issues and did not properly consider them.  

48	Further, in our judgment, in the circumstances of this case and, in particular, having regard to the extent and nature of our criticisms of the Extended Reasons it would be unfair to the members of the original Employment Tribunal, and the parties, to direct that the case should be remitted back to the original Employment Tribunal for further consideration.  In our judgment, even if the members of the original Employment Tribunal  were able to overcome the difficulties that would arise in considering whether (i) they were simply explaining matters that they had considered before, or (ii) were embarking upon a reconsideration of the case, we are of the view that, judged from the standpoint of the objective observer,  justice would not be seen to be being done if the case was remitted to the original Employment Tribunal.