Appeal No.	 EAT/670/99 EAT/671/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 June 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MISS A MACKIE OBE
MR N D WILLIS

(1)	MR A GENTLE
(2)	MRJ RACKSTRAW
(3)	MR S ROBINSON	APPELLANTS

PERKINS GROUP LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the First, Second and 
Third Appellants	MR ROBINSON
(IN PERSON)	
For the Respondents	MR SEAN JONES
(of Counsel)
Instructed By:
Mr J Chamberlain
Messrs Wragg & Co
Solicitors
55 Colmore Row
Birmingham B3 2AS	

MR JUSTICE LINDSAY (PRESIDENT):	We have before us, by way of a full hearing the appeal of Mr A M Gentle, Mr J.G.H. Rackstraw and Mr S.G. Robinson in the matter Gentle and Others against the Perkins Group Ltd.  

1	This matter has, unfortunately, a litigation history which is very long indeed.  Fortunately, though, it is not necessary to give more than a brief summary of the background matters.  

2	On 8 November 1991 all three Appellants, Gentle, Rackstraw and Robinson, who were long-serving employees on the technical side of Perkins Group Ltd, were dismissed.  The reason given to each at the time was that he was dismissed for redundancy.

3	On 16 January 1992 all three presented IT1s for unfair dismissal.  Each claimed reinstatement as a remedy.  All three had worked in the same department or team at Perkins and Mr Robinson became spokesman or representative for all three and that has remained the case throughout the years since 1991.  Today he, in person, speaks for all three of them; Perkins has appeared by Mr Sean Jones.

4	The reason given at the time for the dismissals, as we indicated, was redundancy but the IT1s claimed that the three had been selected unfairly because, they said, they had previously repeatedly complained to the company that their team leader, a Mr Brammall, had been deceiving the company by putting in false time sheets.  Although Mr Brammall had, in consequence of complaints made against him, been given oral warnings by the company and a final written warning by the company, it was not he that was made redundant but the three.  Indeed, Mr Brammall was given a special job outside the range of redundancy.

5	It was the case of all three that the work they had previously been doing for the company had neither ceased or diminished.  Perkins’ IT3 gave redundancy as the reason for the dismissal of all three of them, consistent with what the employees had been told at the time.

6	It was not until late 1992 that the substantive hearing began.  It was spread over some seven days between September 1992 and January 1993.  The decision was promulgated on 4 March 1993 and all three claims for unfair dismissal were dismissed.

7	There then began a series of applications for review, appeals to the EAT and actual hearings of review which we do not need to specify in any detail, but the remarkable outcome, eventually, was a second review hearing in September 1998.  Evidence was heard over three days and the Employment Tribunal met on a further day for discussion.  The outcome was remarkable in that the Tribunal changed its decision by, so to speak, 180 degrees.  The original decision was varied and the Tribunal held that all three had been unfairly dismissed.

8	The position as to how that arose was as follows.  In March 1993 Mr Robinson had heard something that suggested that Perkins had laid false documents before the Tribunal at the original hearing.  Employees at Perkins usually had, or should have had, annual or at least periodic assessments.  The 1991 assessments for all three respectively were put into evidence by the company at the original hearing.  They appeared to assess each of the three at a lower level of success than had previously been the case.  What Mr Robinson heard suggested that these 1991 assessments had been prepared after the three had been dismissed rather than, as they purported to show, before they had been dismissed.  Mr Robinson took the matter to the Bedfordshire Police, regarding it as an attempt by someone on the company’s part to have sought to pervert the course of justice.  Little progress was made by the Bedfordshire Police, as he saw it, and he took the complaint to Inspector Bullock of the Cambridgeshire Police, an individual whom, it seemed, he knew.  Inspector Bullock interviewed a number of witnesses and he drew up a report.  He also prepared a Witness Statement that was used at the second review hearing at which he gave oral evidence and was cross-examined.

9	The Tribunal at the second review admitted the Inspector’s evidence as evidence which could not have been obtained in time for the original hearing even had due diligence been applied to its collection.  It was inevitably seen by the Tribunal as material which cast doubt on the veracity of the Respondents’ witnesses and also was relevant to the question of whether there had been correct selection for redundancy.  The matter was by no means open and shut but Inspector Bullock’s evidence was finally accepted by the Tribunal.  It was held by the Tribunal that the 1991 appraisals were false documents.  They were “not what the Respondents purported them to be”, so held the Tribunal.  The Tribunal went on:

“25.  … The Tribunal cannot be certain as to what would have happened if at the original hearing evidence to show the falsity of the 1991 appraisals had been presented.  There must be an element of uncertainty about this.  However on balance we are satisfied it would have affected the outcome.”

They continued:

“26.  There are two ways that could be considered as to how this further evidence could affect the decision.  One way would be to find either that the dismissals were not by reason of redundancy or that the dismissals were by reason of redundancy but that they were selected improperly because of the various matters affecting Mr Brammall.  While this may be the case, after all these years were are not satisfied that this be the case.  Although we have found the 1991 appraisals were false in the sense set out in this decision, there is obscurity as to the details.  However we are satisfied the Respondents acted unreasonably in dismissing the Applicants for redundancy. …”

A little later, they say:

“… the original decision would have been different.”

10	They thus hold that it may have been that the dismissals were not by reason of redundancy, or that there may have been an improper selection because of the Brammall affair, but that they were not satisfied that that was the case.  It may be that to require “satisfaction” was to have required more than a conclusion on the balance of probabilities but we cannot take that point further.  But one can say that the Tribunal held that the original decision would have been different and that there is no conclusion in this part of the second review that there had been a redundancy but rather that there may have been a redundancy but that the Tribunal was not satisfied that there had not been a redundancy.

11	The complaint of unfair dismissal was held well-founded.  It was not said that the company’s shortcomings were merely procedural, or that the three had contributed to their own dismissal.  It is to be remembered that the onus was on the company to show the reason for dismissal.  There may have been an error of law in their conclusion that there may have been no redundancy and yet that the Tribunal was not satisfied that that was the case.  That could, perhaps, have reversed the burden but again that is a matter that, unfortunately, we cannot really explore any further.

12	At all events there then began the question of remedies.  It is this, and this alone, which is before us as a matter for this appeal.  At a directions hearing on 17 May 2000 His Honour Judge Clark ruled on the subject:

“The issue at the hearing on 12 June will be whether or not the Tribunal below erred in law in concluding that there was a loss of trust and confidence between the parties such that neither reinstatement nor re-engagement was an appropriate remedy.”

13	It is worth looking first at the statutory provisions.  We will refer to the current provisions because, although there were earlier provisions extant over the long years of this case, there is no suggestion that they differed in substance.  Section 112, sub-section (1) says:

“(1)  This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are well-founded.”

That is exactly this case.

“(2)  The tribunal shall –
(a)	explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and
(b)	ask him whether he wishes the tribunal to make such an order.
(3)  If the complainant expresses such a wish, the tribunal may make an order under section 113.”

14	This is a case where the Applicants (the Appellants before us) had expressed a wish for reinstatement or re-engagement and so one gets led on ultimately to section 113.  A request for relief under section 113 is not only a gateway to reinstatement or re-engagement but it may prove to be a gateway to a much higher financial remedy than would otherwise be available.  Section 113 provides:

“An order under this section may be –
(a)	an order for reinstatement (in accordance with section 114), or
(b)	an order for re-engagement (in accordance with section 115) 
as the tribunal may decide.”

15	We do not need to set out the provisions for reinstatement and orders for re-engagement under sections 114 and 115 but we do need to look at section 116.  This begins under the heading “Choice of order and its terms.”:

“(1)  In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account –
(a)	whether the complainant wishes to be reinstated,
(b)	whether it is practicable for the employer to comply with an order for reinstatement, and
(c)	where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.”

16	We shall be focussing on (b), whether it is practicable, because that was the chief issue below and is the chief issue before us.  Subsection (2) is in very similar terms in relation to reinstatement and, again, (3) (b) says:

“(b)	whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement.”

Subsection (5) says:

“(5)  Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.”

And subsection (6) says:

“(6)  Subsection (5) does not apply where the employer shows –
(a)	that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or
(b)	that –
(i)	he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and
(ii)	when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.”

17	We do not have issues in relation to subsections (5) and (6) before us but they represent a defence which Perkins wished to raise but which was never reached because of the decision of the Tribunal on practicability which we shall come on to.

18	On 11 March 1999 there was a remedies hearing and the three Appellants sought first reinstatement and, failing that, re-engagement.  For reasons which will emerge the two possible remedies came to be dealt with in different ways, by different decisions and, ultimately, at different hearings, but before we come on to that we make some general comments.  

19	Firstly, the issue of practicality, be it within subsections 116 (1) (b) or 116 (3) (b), is, of all issues, surely one of fact to be left to the Tribunal, a Tribunal carefully composed not only of a legally qualified Chairman but also by lay members, having practical experience on both sides of industry and who might, on that account, be expected to know what is practicable and what is not in the circumstances of which evidence is given to them.

20	Secondly, there will doubtless be many cases where the evidence at the liability hearing would still be fresh in the Tribunal’s mind and where the practicability issue has scarcely needed any further evidence directed to it, so obvious would it seem.  Thus, in Nothman v London Borough of Barnet [1980] IRLR 64, the Employment Appeal Tribunal, reversing the decision of the Employment Tribunal (the Industrial Tribunal as it was then called), held that Ms Nothman had been unfairly dismissed and there and then decided, at the Employment Appeal Tribunal level, that reinstatement was not an appropriate remedy.  There is no mention in the report, which is of the Court of Appeal refusing leave to appeal against the decision of the EAT, that the EAT itself had received fresh evidence and that would be so unusual that we could not expect it without it being fully explained in the report.  It would be appropriate if we read a passage from the Nothman decision because it is referred to in argument before us.  Lord Justice Ormrod, in the course of refusing leave to appeal, said:

“It is only right to say that anyone who believes that they are a victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged.  In my judgment the Employment Appeal Tribunal - and as my Lord in the course of argument has pointed out it is not just Mr Justice Slynn but he and two very experienced members of the Tribunal - came to the conclusion that it was in their words ‘impossible to order reinstatement’.”

21	But the Court of Appeal was not, of course, saying that where a conspiracy has been alleged but not upheld there could never be reinstatement.  To say that would be to restrict section 116 by adding a limitation which Parliament itself had not chosen to put in place.  Moreover, there is no hint in the Nothman case that there had been any shortcomings on the part of the employer save that the employer had failed adequately to warn Ms Nothman ahead of her dismissal that she was performing poorly as a teacher.  In other words, it was an unfair dismissal on procedural grounds.  If, as seems to have been the case, she had been bad at her job, well then, reinstatement was surely hardly on the cards.  

22	There cannot be any general proposition that evidence is not needed for a decision as to practicability.  Very often it will be necessary for an informed decision on the part of the Tribunal and especially, one might think, that that would be the case as in the case at hand because here the original liability hearing had been looking at events as far back as 1991 and the second review hearing had been looking at events chiefly in and around 1993 to 1995 and yet the reinstatement position needed to investigate what was the position as at 1999.

23	In many aspects, even if the Tribunal was able accurately to have remembered earlier evidence, things might have changed since then.  As for anything remembered from that earlier evidence, then the further factor came into play which was that the credibility of the company’s witnesses had been accepted to have had great doubt cast upon it by the discovery as to the falsity of documents.  The company had been found responsible for the production of false documents and care would be needed to ensure that the company did not rely on consequences of that as a ground for resisting reinstatement because, certainly if that had been the only ground, there would be something close to a party seeking to take advantage of his own wrong.

24	However, at the hearing, which was the only hearing as to reinstatement, which was on 11 January 1999, no evidence was received.  On 26 January 1999 the Tribunal gave Summary Reasons as to reinstatement.  In the course of those Summary Reasons the Tribunal, referring to argument put in front of them by Mr Jones, say:

“1. … He referred to the allegations which the Applicants had made against existing employees; the fact that Mr Brammall had been brought to a police station in connection with matters arising out of this case; that for reinstatement to be applied it would involve moving other employees, and that while some had left the company others still remained and it would prove difficult for the Applicants to be considered as ordinary employees.

25	There had, in fact, been no evidence given at that hearing by Mr Brammall; there had been no evidence that it was in any way improper that he had been questioned, as he had been, by the police; there had been no evidence that the three had procured, or could have procured, the manner in which the police had questioned Mr Brammall.  They could, of course, and did press the police that there should be an enquiry but, once the police elected to enquire, then one would ordinarily expect that to have been an operational question for the police itself.  There had been no evidence of the moving of other employees and there had been no evidence satisfying the issues (which we touched on earlier as not having been raised) of section 116 (5) and (6).  The Appellants before us had, of course, been heard at that hearing and (as recorded by the Tribunal) they said this:

“1.  … The basis of the application for reinstatement was that the work which the three Applicants did was still being done; the persons carrying it out were the same ones who were there when they were employed; the Applicants were prepared to forgive and forget their dismissal and what has happened since; they were of the view that they could get on with the employees who were still there and there would be no extra problems arising out of their reinstatement.”

That, too, was not a matter of evidence, but, as it would seem, only of submission or address.  The Summary Reasons go on to say this:

“3.  The three Applicants were working in a particular area, some of their former colleagues are still working there, and allegations have been made against them.  There are some similarities to the Nothman case in that allegations of conspiracy have been made.  We are satisfied, notwithstanding the period of time, that a satisfactory working relationship would not be practicable, let aside the question of problems that would arise involving the existing employees and the need for them to be moved.
4.  In these circumstances we refuse the order for reinstatement.”

26	There had been no evidence from any former colleague at that hearing who would have been in their vicinity had they been restored to the job that they previously had.  The company’s own then-recent correspondence had included a letter of 7 January 1999, which we have had put in front of us, which has as its last sentence the following:

“You should also note that our clients do not accept you were unfairly dismissed.  They have always told the complete truth.  They have decided not to appeal as all relevant personnel have now left their employment and they do not share your intensity of feeling in the matter, preferring instead to concentrate on their ongoing business.”

27	The allegations which had been made by the three and which were apparently relied upon by the Employment Tribunal were not described and the analogy with Nothman is, with respect, inapt.  The employer had not there been found guilty of producing false documents to the court or any other comparable wrong-doing and there the employee had been poor at her job.  Here, that was not said of the three Appellants.  In fact, glowing references were given to them by the employer.  

28	We have so far looked only at the Summary Reasons given as to reinstatement.  We shall need to move on to the Extended Reasons.  But these Summary Reasons were given in respect of the one and only hearing which led, later, to the Extended Reasons.  The question of re-engagement was, at this hearing, adjourned and it was adjourned because it was recognised that evidence needed to be led on that latter subject.  There is also an observation in these Summary Reasons that “We accept that the Applicants were dismissed by reason of redundancy”, although quite what effect such a late addition by way of Summary Reasons on a remedy issue could have had upon the different conclusion, which we have already cited, reached as part of the Extended Reasons for the second review, could be debated.

29	Coming on to the Extended Reasons for reinstatement, they were given on 22 April 1999.  Reinstatement was, of course, refused, as it had been in the Summary Reasons.  The Extended Reasons expressly state that no evidence was received as to reinstatement, but the Tribunal then adopted the reasoning which it had by then promulgated in a decision as to re-engagement after the hearing of the re-engagement issue at which evidence as to re-engagement had been given over three days in March 1999.

30	The Tribunal, as to reinstatement, a question which it had heard only on 11 January 1999 and as to which it had refused reinstatement by Summary Reasons of 26 January 1999, was now adopting the reasoning of a decision of 5 April 1999 which was arrived at after a further three days of evidence in March 1999 and which was, moreover, evidence directed not, presumably, to the already concluded question of reinstatement but to the adjourned question of re-engagement.  Unless it is quite clear that the evidence given as to re-engagement in March 1999 did not in any way, affect the reasoning deployed in the Extended Reasons refusing reinstatement there would be a clear error of law, namely in taking into account as to the concluded question of reinstatement evidence heard later on and on a different question.  That obviously raises a considerable doubt.  But, even leaving that doubt aside, the Extended Reasons given as to reinstatement go on, after mentioning Nothman, as follows:

“6.  … The Court of Appeal in the Nothman case deal specifically with the allegation being raised by an employee of conspiracy; in the present case a conspiracy was raised by the Applicants and on our findings we did not find that conspiracy proved, namely to dismiss the Applicants through a conspiracy because the Applicants raised the question of Mr Brammall and their complaints against him.  We are satisfied it would not be practicable for the Respondents to comply with an order for reinstatement.  The basis for this is on the question of mutual trust and confidence being destroyed.  It is unrealistic to expect a satisfactory working relationship to subsist between the Respondents and the Applicant if they were reinstated.  In considering the difficulties in relationships with other employees at their old place of work, bearing in mind Mr Brammall works there, we have borne in mind that it was Mr Brammall who was involved in the false document and it might be said that he would just have to bear it because his actions are one of the factors in finding the dismissal to be unfair.  However it is the Respondents who would be employing both the Applicants and Mr Brammall.  We not found that they were parties to a conspiracy in that they knowingly put forward false evidence at the hearing.  They would have the problem of sorting out relationships at the original place of work.  When one couples this with the fact of possible disciplinary problems that could exist with the Applicants coming back to work for the Respondents we are satisfied that reinstatement would not be practicable.  We are not suggesting that there would necessarily be disciplinary problems and if so that they could not be resolved but the reinstatement order if complied with would create a greater and unacceptable risk to the employment working out satisfactorily.  Therefore on the issue of mutual trust and confidence we refuse the order for reinstatement.”

31	That gives rise to a number of considerations.  True it is that no conspiracy was proved against Perkins but the company had been held to have produced false documents at the hearing.  It was not held that no one in the company had been responsible for what was, prima facie, an attempt to pervert the course of justice, at any rate unless explained as some simple error or mistake, which was not the evidence that was accepted even if had been given.  Unlike the Nothman case the Applicants here had been held to have very serious grounds to complain about their employer’s behaviour.  Nothman was little or no guide to the position in the case at hand.  

32	Secondly, mutual trust and confidence had been destroyed, said the Tribunal, but there had been no evidence at all as to that as the only hearing as to reinstatement was on 11 January 1999 and at that hearing no evidence had been adduced.  Save for the plainest cases, it cannot be right merely to allege that trust and confidence has broken down; it is an issue that needs to be proved and, moreover, it needs to be proved as at the present, rather than by looking only into some earlier past state.

33	Thirdly, there had been no evidence as to what fellow-employees at their old place of work would or did say on the question of reinstatement.  Nor was there evidence that Mr Brammall still worked there, as, after all, he had been given a different job and there was no evidence of how often contact between any of the three and Mr Brammall, if any, would have been necessary if they had been reinstated.  The “possible disciplinary problems” are not identified and, in any case, had not been the subject of any evidence at the only hearing, which was on 11 January 1999.  That is all that is said on the subject of reinstatement, save for the further reference in paragraph 7 as follows:

“7.  The Tribunal should perhaps add that all three Applicants wished to be reinstated and there is no question of contributory fault.  The issue for refusing the order for reinstatement is on the practicability issue.  As we have refused the order for reinstatement on the mutual trust and confidence issue there is no need to consider the question of dismissal of other employees to make room for the Applicants if there was an order for reinstatement.”

So, in other words, the defences in section 116 (5) and (6) never were reached.

34	In our judgment, in the unusual circumstances applicable on 11 January 1999, the Tribunal could not have come to a fully judicious and informed decision on reinstatement without hearing fresh evidence.  Nothman was no real authority and should have been seen to have been giving no real guide to the Tribunal.  The Tribunal in our view erred in law in concluding reinstatement at that hearing.  Then, in their Extended Reasons on 22 April 1999, the Tribunal came to conclusions as to which either they had received no evidence or as to which they had received only evidence after the question of reinstatement had been concluded, and which evidence had been directed to a different subject, namely re-engagement.

35	Accordingly, although we are very willing to emphasise that the Tribunal is master of fact and that the practicability or otherwise of reinstatement is a prime subject for the Tribunal as the so-called industrial jury, there were, in our view, significant errors of law in relation to the way the Tribunal here came to a conclusion of fact that required to be underpinned by evidence but where there was no evidence available.  They came to conclusions of fact either without evidence or deriving from evidence given only after the case for reinstatement had been concluded, it being evidence also directed to a different subject.  Accordingly, we set aside the decision as to reinstatement.  We shall need to remit it to a Tribunal, if only, because as we have mentioned, there were other defences on Perkins’ part which were never reached.  We shall have to return later to whether it should be to the same Tribunal or to a different one.

36	We now turn to re-engagement.  As we have said, on 11 January 1999 that was adjourned for evidence.  Evidence and submissions were heard on 5 March and on 11 and 12 March 1999.

37	On 5 April 1999 Extended Reasons were given by the Tribunal refusing re-engagement.  There had, in this case, been no preceding Summary Reasons.  The Tribunal heard evidence from all three of the Applicants.  As to that, they said this:

“11.  The Applicants gave evidence on their own behalf in this case.  They have referred to the fact of their long unblemished record with the Respondents, they have referred to the fact that whilst there may have been some allegations made in the course of proceedings, all would be forgiven and forgotten if they were re-engaged.  Matters are sometimes said in the heat of the moment which should easily be forgotten after the matter had been resolved through re-engagement and they referred to the fact that they had made allegations against Mr Brammall; he had received a warning but nevertheless their relationship had been a harmonious one.  Furthermore, reference was made to the fact that in an industrial dispute frequently harsh things are said and done which are forgiven and forgotten after matters have concluded and the dust [of] battle has subsided.  The situation in this case was analogous to that.”

38	It is not said that their evidence that all would be forgiven and forgotten if they were re-engaged was not accepted.  Nor was it said that their reference to the ability in industrial disputes for parties to become harmonious after the dust of battle has subsided was a matter which the Tribunal could not accept.  To counter that view the only witness who was called there and then and could be cross examined there and then was Ms Jan Nicholls, Perkins’ in-house legal adviser.  As to her evidence the Tribunal said this:

“12.  The Respondents for their part have called Ms Jan Nicholls, a legal adviser, who gave evidence and in addition supplied a number of exhibits.  There was also a statement from Miss Karen Brown who gave evidence at the original hearing.”

We intervene to say that that statement from Miss Karen Brown is not available to us today, but, continuing with the quotation:

“13.  We are satisfied from the evidence of the Respondents’ witnesses, that there is a lack of trust and confidence for the employment relationship to satisfactorily be maintained if there were to be re-engagement.”

They then turn to the reasons for that conclusion and they deal with those in paragraph 14, on page 9 of our bundle, and the first is this:

“14. … We accept the argument that it would not be practicable because of the trust and confidence issue, notwithstanding the finding in favour of the Applicants.  There are several reasons for this.  They are firstly that the allegations made by the Applicants are wider than necessary to support the findings of the Tribunal.  This is in two respects.  They have made allegations against a number of managers of the Respondents of improper conduct using the word generally in connection with this case.  Whilst on our findings Miss Lawrence and Mr Parker were those most directly involved, it would also involve Mr Brammall and the other manager who was involved directly in the assessments.  However, more persons than that have had allegations made against them.  Furthermore, the scope of these allegations would embrace not only them individually but the company generally.  We have not found that those having the conduct of the case put forward knowingly false documents to their solicitors.”

39	If an applicant wilfully or unreasonably or maliciously makes allegations against his employer then we can see that, even if his basic complaints succeed, such unjustified allegations might have inflicted wounds in the employer so deep and so attributable to the malice or other impropriety on the part of the employee that re-engagement would plainly be quite impracticable.  But here the three Applicants’ grievance was very serious and was upheld.  The company had produced false documents to the Tribunal.  No individual was either exonerated or blamed by the Tribunal.  Even today it is not known or shown who was or who was not involved in that serious misconduct.  Although some management must have known of what was going on in relation to the production of false documents, which was a point that the Tribunal itself made in yet another decision, one promulgated on 30 March 1999 (which we otherwise do not need to refer to), there is no suggestion that the company, having had the adverse conclusion that it had been responsible for the production of false documents then investigated who was responsible for that unattractive (to put it no higher) act.  One can hardly expect long-serving employees to remain entirely temperate when in such circumstances they are expected to respond to a case where they feel that an injustice has been done and where it transpires that an injustice, indeed, was done.  The Tribunal appears to give no weight to the possibility of righteous anger on the part of the three Appellants.  The Tribunal then continued with a further finding as to the reasons on which they were relying:

“The other aspect we would refer to is that the actions taken by the Applicants were wider than necessary to properly set out their case.  [The next sentence is important].  By that I mean the reference to the Police.  While the evidence of Mr Bullock which was critical to the finding for the Applicants at the second review hearing was obtained as part of a Police investigation, the actions of Mr Robinson and through him the other Applicants go beyond obtaining such evidence.  It must have caused considerable awkwardness and unpleasantness.  The Police decided to take no further action.  It was not necessary to properly present their case to the Tribunal to take these steps.”

40	That is a mystifying reference.  Whether the Police investigated or not and how they investigated, if they chose to investigate, were surely operational questions for the Police and no one, certainly without express evidence which the Tribunal does not mention, would expect the three to have been able to influence the manner in which the Police investigated.  Secondly, Inspector Bullock’s investigation and report and his evidence given to the Tribunal was absolutely crucial to the conclusion which was arrived at on the second review.  It was his evidence that led to the conclusion that false documents had, indeed, been produced to the Tribunal by the Respondent.  To say that it was not necessary to the proper presentation of the case of the three to have referred the matter to the Police, which seems to be what is being said, is absolute nonsense, given that the Police evidence was what the Tribunal itself relied on.  Also the Tribunal had greatly relied upon the fact that, unlike the three, Inspector Bullock was not partisan; that he had had no axe to grind had been expressly relied upon by the Tribunal at the second remedy hearing.  One might ask rhetorically how could the three have obtained independent evidence of such weight without having gone to the Police?

41	Another ground for the conclusion of the Tribunal emerges in paragraph 16:

“16.  We also have considered the point that all this took place some 7½ years ago.  Some employees have gone, for instance Mr Parker, Miss Lawrence, and indeed Mr Fisher.  Therefore those who are involved now would find it remote and not be affected.  However whilst some have gone, others have come into the picture.  For instance Ms Jan Nicholls was not there when proceedings started but has played a part since then.  It is therefore on the issue of trust and confidence which we accept has been destroyed that make it a case where it would not be practicable for the Respondents to comply with an order for re-engagement.”

42	One might therefore expect that the Tribunal had had evidence from Ms Nicholls that had suggested that there was a real risk in relation to all three of the Applicants that they were likely to end up working in some sort of proximity with her if they were re-engaged and that that would be intolerable, not perhaps only to her but to the company.  She is the in-house legal adviser to the company.  All three Applicants were on the technical side.  One would not ordinarily expect them to work in the legal side of things but it transpires, we are told, that one of the jobs that was considered in the course of re-engagement was a job which would have required, presumably, only one of them, to be working in some degree of proximity with Ms Nicholls.

43	There is a difficulty here because we have a Witness Statement from Ms Nicholls but that is all that we have.  Earlier attempts by the Company, Perkins, to obtain Chairman’s Notes have been refused as long back as an early decision of His Honour Judge Hicks, followed by a decision of the Registrar in January 2000 and a much more recent decision of His Honour Judge Peter Clark in May 2000.  There was a very late application on the part of Mr Jones that we should have at any rate notes of some of the evidence of Ms Nicholls.  We have earlier declined that as being too late in all the circumstances and so, so far as concerns Ms Nicholls’ evidence, all that we have as a record of what she said is her Witness Statement of 4 March 2000 and that makes no reference at all to any difficulty she would have in working in any proximity with any of the Applicants, even were proximity to be inevitable, or even likely, as to which again she says nothing.  Moreover it would require cogent evidence before it could be treated as appropriate in a re-engagement case to postulate some intrinsically unlikely job as likely to be given to the Applicant, to say that the award of that job would create personal difficulties for an existing employee and to inflate that, in a case such as the present one, where the employer employed literally thousands of employees at its premises in the area, be a ground for holding that it was not practicable for the employer to comply with an order for re-engagement.  We have no reason to think any such cogent evidence was given and it may be said that if Ms Nicholls had entertained strong feelings on the point she would surely have raised them in her written evidence, which she did not.

44	It is worth reminding ourselves again of that letter of 7 January 1999 where Wragge & Co, as Perkins’ Solicitors, said 

“They have decided not to appeal as all relevant personnel have now left their employment and they do not share your intensity of feeling in the matter, preferring instead to concentrate on their ongoing business.”

45	Mr Jones has sought to persuade us that that reference to “all relevant personnel having now left “was to the relevant personnel who might possibly have given evidence relevant to an appeal and one can see that there is some force in that.  But the passage also makes the point, which is not explained away, that the Company has (so to speak) no intensity of feeling in the matter and prefers simply to get on with their ongoing business, which is exactly what the three before us as Appellants, are asking to be given a chance also to do.  As we have said, there is no indication that the Tribunal did not accept the Appellants’ evidence that they could and would forgive and forget.  All three of them, in any case, are very senior employees with little time yet to serve in any case before retirement.

46	In the circumstances the Tribunal’s decision on re-engagement is within that very limited class that can fairly be described as perverse.  The reasoning as to the role played by the Police and the Appellants in relation to it and the reference to Ms Nicholls and her evidence having a part in the matter are, as it seems to us, both illogical and confused and could not fairly have been relied upon as pointers towards the conclusion that re-engagement was impracticable.

47	This is not a case where re-engagement was blatantly impracticable.  The Tribunal had before it individuals who were not poor performers; they were given very good references.  They had an employer who did not feel any intensity about the matter but preferred to go back to ordinary working practice and getting on with the job.  Many, if not all, of those not directly involved were said to have gone.  The Tribunal itself said:

“Therefore those who are involved now would find it remote and not be affected.”

48	The Appellants themselves were willing to forgive and forget; they so swore and they were not said to have been untruthful on that point.  Indeed, they had not found to be untruthful on any point.

49	The matter was not open and shut therefore, by any means, and good reasons therefore needed to be specified towards the conclusion that re-engagement was not practicable and we take the reasons that were given, at least as to two of them, to be so confused and illogical as not properly capable of leading to the conclusion which was arrived at.

50	We do not say that no Tribunal could have concluded that re-engagement was impracticable but we do say that no Tribunal properly directing itself could have so concluded for the reasons which this Tribunal gave for that conclusion.  We do not have Chairman’s Notes that might have corrected the view of perversity that, in the absence of further explanation, we feel obliged to adopt.  Accordingly, we set aside the conclusion as to re-engagement as well.  It, too, has to be remitted because, again, there are defences on Perkins’ part that were not explored.

51	A question then arises upon that remission:  is it to be to the existing Tribunal that has heard the matter over many years or to a fresh Tribunal?  This Tribunal has (and we have only touched upon the whole procedural history of the matter) dealt with the matter over very many years but also, at very many points, has been held to have got things wrong and there comes a point at which a party is entitled to say that it no longer has confidence in the particular Tribunal.  Such a point, we think, has been arrived at here.  We do not say that the confidence cannot subsist in the Tribunal but we do say that the Appellants are entitled to say that they no longer have it and that it is not unreasonable for them so to assert.  That being the case it seems to us only proper that the Tribunal to which the matter is remitted is a fresh Tribunal, unencumbered by the baggage of what has or has not been heard or decided in the past.

52	All that we remit is the question of remedy which will, of course, start with the issue of practicability, which is the point at which, so far, the Tribunal has stopped.

53	We think it would be appropriate that the fresh Tribunal should first hear a directions hearing at which the parties can address it as to what evidence is needed, both documentary and by way of Witness Statement and by way of oral supplement and cross examination and so on.  But we do remit the subject of remedy, in the way that we have indicated, to a fresh Tribunal.

54	One of the things that the fresh Tribunal will need to be careful about is that it must be very wary to the extent, if any, to which Perkins assert that they had lost confidence in the employees by reason of the incident as to false documents.  Mr Jones rightly says that that has not been their case but, if it were Perkins’ case, then there would be a danger that in using that loss of confidence to resist reinstatement or re-engagement they would be seeking to profit from their own wrong.  We do not say that that is what they have done or that it is what they will try to do but it is worth mentioning that the Tribunal must be on guard that that is a possibility which must be guarded against.  We say no more than that it needs to be borne in mind as a possibility of a dangerous area in the law.

55	To sum up, we allow the appeal both as to reinstatement and re-engagement.  We remit both to a fresh Tribunal.  That fresh Tribunal can hear evidence afresh and, indeed, will need to hear evidence afresh and the nature of the evidence and how it is to be adduced and so on can be dealt with at a directions hearing before that fresh Tribunal.

56	There have been other issues sought to be raised at the very beginning of the hearing before us which went outside that which His Honour Judge Clark had indicated was the proper area to be investigated today.  Quite what those other issues are we cannot be sure because they were never fully explained but they involve, for example, costs and forms of compensation and so on.  We note that Mr Robinson made application that there should be a hearing of those other issues.  We note also that, if that had been permitted, Mr Jones would, not unnaturally, have said that, not having come prepared to argue those issues, there would have had to have been an adjournment.  It was on that basis that we elected to continue the hearing with what was plainly prepared as the matter for hearing today, leaving aside the other matters as matters to be adjourned.  We have not really heard the full nature of a case on the subject of whether there are issues that can still properly be raised other than the ones we have already dealt with and whether there is, in fact, anything proper to be adjourned and before we finish today - it is now 18 minutes to 5 - we perhaps need to hear what those other issues are, whether they have already been thoroughly ruled out or whether it is still possible for them to be adjourned.  

[After hearing the parties further]

57	All we can do is adjourn the question of whether there were further issues that were capable of being raised today and that should have been raised today for restoration to the Employment Appeal Tribunal within two months.