Appeal No. UKEAT/0899/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2004
Judgment delivered on 26 February 2004

Before
HIS HONOUR JUDGE ANSELL
LORD DAVIES OF COITY CBE
MR I EZEKIEL

WILLIAM COOK SHEFFIELD LIMITED	APPELLANT

MR T BRAMHALL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A SENDALL
(of Counsel)
Instructed by:
Messrs Cobbetts
Solicitors
Trafalgar House
29 Park Place
Leeds
West Yorkshire LS1 2SP	
For the Respondents	MR M WESTGATE
(of Counsel)
Instructed by:
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London WC1B 3LW	

HIS HONOUR JUDGE ANSELL

1	This is an appeal from a Decision of an Employment Tribunal sitting at Sheffield, who after a lengthy hearing (including four weeks of evidence) commencing in March 2002, and unfortunately not concluding until July 2003, decided in a Decision sent to the parties on 30 July 2003 that the Applicant employee had been dismissed for “some other substantial reason” rather than on account of trade union activities, but in all the circumstances that dismissal was unfair.  

2	The appeal raises issues of errors of law and perversity surrounding the Tribunal’s Decision on the issue of unfairness, in particular with reference to the employer’s decision to dismiss part of its workforce after they had refused to accept new terms and conditions of employment and to recruit new staff.  In particular it is alleged that the Tribunal erred in law by substituting its own views of what the employers ought to have done rather than considering whether or not the actions of the employers fell within the range of responses of a reasonable employer.  Leave for this full hearing was given by Burton J on 12 November 2003.  By the Respondent’s answer dated 24 November 2003 they cross-appeal against the finding of the Tribunal that they were not dismissed for trade union activities or as a result of protected industrial action; that appeal is conditional and they do not pursue it if the Appellant’s appeal fails.  Leave for the cross-appeal to be heard was given by Burton J on 4 December 2003.

3	We propose to set out the background facts to this appeal relying on the Tribunal’s findings.  We say at the outset that we encountered some difficulty in this process since the Tribunal, while setting out the facts alleged by either party did not always make, regrettably, clear findings of fact as to what had occurred, although they appeared to base their conclusions particularly in paragraphs 95 and 96 of the Decision, on findings supposedly made earlier on in the Decision which were not readily apparent.  The Appellants are a private limited company which at the time relevant to these proceedings employed about 350 people in the core business of steel castings.  Their plant is split into three foundries known as the Heavy Foundry (HF), IMF (less heavy work), Greensand and Disa (lighter work).  The Respondents to the Appeal now number 19 out of an original total of 59 who claim to have been unfairly dismissed.  Cutbacks had originally occurred in around August 2000 and although that led initially to claims being lodged by the Heavy Foundry Welders alleging unlawful deductions from wages, matters were eventually compromised and agreement reached as to new terms and conditions.  The workforce claimed that they were assured that within the foreseeable future they would not be asked to make any similar sort of sacrifice, and this appears to have been accepted by the Tribunal.  The Tribunal also accepted that issues had been raised with regard to plant and machinery which do not appear to have been completely resolved.  The Tribunal, however, noted that the dispute was eventually compromised without it being necessary to resort to any formal strike action or serious industrial dispute.  

4	Unfortunately the changes did not bring about the hoped for improvement in the financial position of the Appellants and by January 2001 it was clear that further action would be needed, in particular both HF and IMF were not showing an acceptable level of profitability, caused certainly in part by a decrease in orders, and despite increased productivity on the part of the workforce, the financial outlook remained bleak.  From early January the employers began negotiations with the union AEEU, particularly involving Messrs Fidler, Graves and Simpson.  The management involved were Messrs Moore, Gilmore, Shaw and Henson.  It was believed that everybody concerned belonged to that union, although it later transpired that two employees, Messrs Bidwell and McNeill, belonged to the GMB.  The initial proposal related to redundancies within the ranks of HF workers affecting 61 manual workers.  Ten redundancies would actually be declared and other workers would be required to work harder and more effectively for less pay.  The workers were far from happy, particularly in relation to the concessions they had made the previous year and shortly afterwards decided to ballot for industrial action, should that in the last resort prove necessary.  The workforce had already been told at the beginning of January that despite failing to meet their targets, the quarterly bonus of £100 was going to be rolled over to the next quarter and would be paid if targets were achieved.

5	Thereafter, various meetings took place between members of the management and the union on a formal basis (termed external conferences) and on an informal domestic basis “in house”.  The employers were determined to implement further changes which they conceded in some cases would have a serious impact on the employees’ incomes.  They were also maintaining that some workers could do better in helping the company achieve its goals.  By the middle of February the employers had come to the conclusion that IMF was also unlikely to achieve the necessary level of viability, and further redundancies were proposed arising out of a proposal to merge HF with IMF.  The workforce continued to be extremely upset with these proposals, particularly in the light of previous sacrifices in the year 2000 and also because they alleged that previous promises relating to improvements of plant and maintenance had not taken place, thereby preventing the men from making up their losses on the pay front.  Both IMF and Greensand workers joined in supporting the proposed industrial action and votes were taken for strike action.  The employers had indicated in January that if insufficient numbers from amongst the existing workforce were willing to make the further concessions now deemed necessary, they would be forced  to recruit replacement workers who would be willing to accept the proposed lower rates of pay and more stringent conditions of service.  A key issue throughout this case was the contention advanced by the employees that the employers had throughout adopted a take it or leave it situation, thereby being unwilling to enter into any meaningful discussions or negotiations with the union.  The employers had refuted that suggestion and maintained that throughout they were willing to discuss matters fairly and sensibly with the workforce, despite having limited room in which to manoeuvre.

6	On 16 March the employers gave notice to those affected by the proposed changes that they had until 13 April to sign up otherwise they would lose their jobs.  The first termination date for those who had only short periods of employment would be towards the middle or end of April, but the effective termination date for others was as late as the end of June.  The letter was set out in paragraph 11 of the Tribunal’s Decision, and for convenience we repeat it here:
“16 March 2001
Dear Mr
I refer to the numerous meetings held with the Union over recent months to consult on the need to amend terms and conditions of employment and in relation to the amalgamation of the IMF and Heavy Foundries.  Unfortunately, we have been unable to reach any agreement in relation to amended terms and conditions of employment.  We are therefore left with no alternative but to serve notice of dismissal on employees in the affected areas coupled with an offer of re-deployment on the new terms and that is the purpose of this letter.
Your employment will terminate on ………….. 2001.  Since this is a termination relating to a change to terms and conditions, this is not by reason of redundancy and you will not be entitled to a statutory redundancy payment.
I am enclosing a revised contract of employment.  If you sign and return this contract by 13 April 2001, the company will be willing to withdraw your notice of termination.  If the contract is not signed unconditionally and returned by that date, we regret that this notice of termination will have to proceed, since by that date, it will be necessary for us to commit ourselves to the recruitment of alternative employees.
I would urge you to consider this letter very carefully and to return the signed contract without delay.  If you have any queries at all in relation to this letter, please do not hesitate to ring me for a discussion in confidence.  
Yours sincerely
PETER MOORE
Divisional Director”

7	Strike action followed; the first strike day was to be on Thursday 12 April, and thereafter industrial action would take place on Tuesdays and Thursdays in each week On Friday 13 April, a non strike day workers turned up for work though there was a sit in.  The men said that they would work to rule on non-strike days, in other words complying strictly with the letter of their current terms of employment, not taking any short cuts in terms of health and safety or in the interests of increasing productivity.  Mr Moore proposed an increase of 25p on the hourly pay rate as an alteration to the proposed new terms and conditions, although that increase would not become operative for twelve months, i.e. until April 2002.  In order that they could consider that further proposal, the men were told that the deadline would be extended until 20 April.  As will appear later in this Decision, a few of the men seemed to be willing to accept these new proposals, but in fact all the men, according to the employers, rejected the deal.  Before the Tribunal some of the affected staff contended that they had rejected the terms because they did not understand them or were seeking further clarification.  The employers’ contention was that the new terms and conditions were clear and that they were rejected because they would result in a drop in wages.  

8	Mr Moore had expected the Heavy Foundry Moulders and possibly others to return to work on 18 April, all signed up, and when this did not occur he regarded the later deadline of 20 April as no longer operative and the employers immediately began to recruit replacement staff.  The first offer letters went out on 18 April and the first replacement employee began working on 23 April.  The men exercised their right of appeal and the circumstances and events surrounding those appeal hearings took up a considerable amount of evidence before the Tribunal, and in particular the issue as to whether at those hearings, which took place in the main in late April and early May, the employees indicated a willingness to accept the new terms and conditions.  We shall examine those issues in more detail when we consider the issues raised in this appeal in relation to each employee.  Certainly by the end of April, following a union meeting, the men had decided on a change of heart, although the employers contend that it was not until 10 May when they had a further meeting with the union, that the men as a whole were indicating a willingness to accept the new terms and conditions which, as far as the employers were concerned, was far too late.

9	Before the Tribunal the employees had contended, and clearly remain convinced, that they had been dismissed because they had taken part in union activities, and were thus seen as obstacles in the way of the company, then and in the future and they refused to accept that the company’s financial plight was as serious as it was being made out.  Their view was that the company, having reneged on promises made the previous year, was “hell bent” on forcing through wholly unreasonable changes and was unwilling to discuss issues in anything like a reasonable way.

10	The company maintained that within the limited room within which they had to manoeuvre they were always willing to meet and consult with the workforce, but it was the workforce who had dug its heels in, being unwilling to talk rationally and to grasp the seriousness of the situation, leaving the company with no choice other than to dismiss the Applicants and forcing them to recruit alternative labour immediately, as otherwise they would not be able to carry out such work as it was bound by contract to do.  The Tribunal did record that the company had involved the AEEU officials from early January 2001 and also recorded the following:
“It is significant, too, that even when the company became aware of the fact that the men were attending union meetings and taking or proposing to take a collective stance backed by their trades unions, it continued to talk to groups of individuals on a section by section basis and achieved, in a few cases at least, some progress, albeit insufficient to solve its problems.”

11	In dealing with the issue of the reason for dismissal, the Tribunal firmly had come to the view that it was for some other substantial reason rather than on account of trades union activities and their conclusions are set out in paragraphs 23, 25 and 26:

“23  Having considered all the evidence in this lengthy case we can say at once that in our view the applicants’ trade union activities were not the reason or principal reason for their dismissals either at the stage when notice was given to them or at any time after that.  As we have already said, we have little doubt that the men in question truly believed, or at least came to believe, that their trade union activities were the cause of their dismissals and may continue to believe that whatever we say.  There were a number of what might be described as “coincidences” which occurred during the period between 5 January 2001 and 8 June  2001 (the effective date of termination of the last applicant to lose his job) but we are not persuaded that trade union activities were the principal reason for these dismissals.  We are prepared, though, to accept that the respondent was less than enamoured with what it perceived to be a continuing solid stance on the part of the applicants and we are also prepared to accept that their stance, officially backed as it was by their trade unions, may have led, to some degree at least, to a hardening of attitudes on the part of at least some members of the respondent’s management team.  We do not however believe that at any stage the main reason for the applicants’ dismissals remained anything other than that put forward by the respondents, namely ‘some other substantial reason’.  We are not persuaded by the evidence that the respondent was in a difficult financial situation and needed to obtain the applicants’ acceptance of pay reductions and changes in working practices.  The company’s position was, we accept, serious and provided a substantial enough reason for having, if necessary, to dismiss these applicants.  Not only do we find that trade union activities were not the main reason for the dismissals we positively find that the reason put forward by the respondent in all but one of the remaining cases has been established….
25  It is the tribunal’s unanimous view that when the company realised the situation it was in at the beginning of January 2001 it set out its stall and was determined to rigidly adhere to its plan of action subject to possibly being persuaded to make relatively minor changes, depending on circumstances.  We have considered, too, the applicants’ allegations that the proposed merger of IMF and HF was ill thought out and that the company’s plan designed more to divide and rule by exerting extra pressure on those who were seen to be most troublesome i.e those in HF, particularly the welders.  After considering that as well as the other factors we are of the view that the merger plan, too, resulted from an increasing awareness that IMF was likely to pose a problem from a financial point of view.  
26.  Whichever way one looks at it, therefore, we retain the view that the reason for dismissal throughout remained the same, namely the fact that the company decided that the applicants were unwilling to sign up to new terms and conditions which, in order to keep the company viable, were essential from the respondent’s standpoint.  This is a reason which sits readily within the terms of Section 98(1)(b) of the Employment Rights Act 1996.  It was not a trivial or insubstantial reason.  It was a very serious and substantial one in the circumstances of the case and the company was entitled to treat it as such.”
We shall return to those conclusions when dealing with the issue raised on the cross-appeal.  

12	As regards the issue of fairness the Tribunal then went through the evidence relating to the way in which each group of employees had been dealt with, and in particular in relation to their appeal hearings, and we shall consider those details below.  The Tribunal’s conclusions in relation to the issue of fairness were set out in paragraphs 95 and 96 of their Decision:
“95  What came across to the tribunal members during the course of a 20 day hearing was largely this.  Accepting as we do that the company did need to make cuts and probably reorganize its arrangements, here was a workforce, many quite long serving, which in the past had no doubt bargained toughly but who, in the end, had managed to come to some form of compromise without resorting to any official industrial action.  The pay structure appeared to us to be a little complicated but was no doubt geared to the company’s needs and to reflect the different jobs and patterns of work taking place within the company amongst different groups with different skills.  This, no doubt, was why, in part at least, it had been necessary to discuss matters on a group by group basis.  These men had accepted pay cuts, in some cases quite serious ones, in August 2000 and, we accept, had been assured that they would not again be asked to make any similar sacrifice in future.  Of course we take that to have been meant to be within the reasonably foreseeable future.  Fairly hard on the heels of that the men were being asked to go through a further painful cuts process.  One must remember, too, that there was some ill feeling abroad as a result of what the men (HF welders particularly) saw as the company reneging on their agreement to submit to cuts only for a trial period following the August talks.  Mr Moore had come directly on to the scene to deal with the situation in January 2001 and set out his stall to the HF workforce.  Despite it not being proposed, at that stage, to involve IMF, that area, too, became involved just a month to 6 weeks later.  This very much “moved the goal posts” insofar as the workforce was concerned.  Changing work patterns, different mixes of work, changes to “pool systems” and all that these changes would entail would give anyone cause to ponder as to how things would work out in future not least in terms of their pay.  Further there remained concerns that plant and quality issues, or some at least, had not been resolved.  Whilst accepting that the company needed to take action to save money and remain competitive it did not in our view seriously mean to enter into anything like serious negotiations as it had done in the past and in ways which had worked in the past.  These announcements about changes came straight on the back of the letter dated 2 January 2001 (page 7).  It is not altogether surprising, therefore, that the men were sceptical about the company’s true financial position.  Mr Simpson had at one of the Union meetings, famously remarked that if the company expected the men to believe its claim about its state of health then he was “the Prince of Wales”.  
96.  We believe the tenor and nature of the evidence given on both sides strongly suggests an over robust take it or leave it stance on the company’s part which paid little regard to the genuine and understandable concerns of the workers quite a few of whom were long servers with excellent productivity records.  It was a blanket approach which paid little, or at least insufficient, regard to the individual concerns of individual workers and groups of workers.  The company’s approach was unreasonable and we also believe that the company having decided to impose a deadline and stick to it, whilst at some stage and to a limited extent prepared to “tinker” with its proposals by making minor concessions was not otherwise prepared to enter into what could be described as any serious or meaningful negotiations or even sit down with the men and listen to their concerns and clear up points for them.  The dismissals were on course, the recruitment exercise was implemented (we believe too hastily) and being continued in the face of the increasingly apparent men’s weakening stance.  It must have become increasingly apparent to the company that the men were confused and that they wanted to continue to talk as they had done in the past.  Further, many of them had some weeks to go before their termination dates arrived.  The appeal process was, we are again quite sure, something of a farce. Whilst the reason for the dismissals may have been a substantial one, in truth the dismissals were effected as and when they were because the men had not accepted terms by a deadline date, terms which in many cases were unclear and confusing and when efforts by the men to obtain clarity were brushed aside, on one occasion because Mr Moore was “too busy”.  These dismissals were unfair, of that we have no doubt.  They did not meet the justice of the case when one takes all factors, past and present, into account.”

13	Before considering the matters advanced by Mr Sendall, we set out the principles of law involved, although there was no issue between the parties in this appeal as to the correct approach for us to take.

14	Section 98 Employment Rights Act 1996 provides that:
“98. - (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- 
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it-   
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
 (b) relates to the conduct of the employee,
 (c) is that the employee was redundant, or
 (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
(3) In subsection (2)(a)-   
(a) "capability", in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and
 (b) "qualifications", in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- 
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”

15	Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that:
”152.—(1) For purposes of Part V of the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— 
 (a) was, or proposed to become, a member of an independent trade union, or
 (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or
 (c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member.
(2) In subsection (1)(b) "an appropriate time" means— 
 (a) a time outside the employee's working hours, or
 (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union;
and for this purpose "working hours" , in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.”

16	As we are dealing with an appeal based on perversity, Mr Westgate quite properly has reminded us of the leading authorities.  In Piggott Brothers & Co Ltd -v- Jackson and Others [1991] IRLR 309, Lord Donaldson MR, giving the judgment of the Court of Appeal set out the position at paragraph 17 thus:
“17 ..... What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal.  If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as ‘perverse’.
18  None of this is new.  In Retarded Children’s Aid Society v Day [1978] IRLR 128, at p.;130, 17 Lord Denning MR said this:
‘I would add this.  The decision is entrusted in the ordinary way by Parliament to the Tribunal.  I do not think that it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning.  Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and they have not gone wrong in law, it seems to me that the appeal tribunal should not interfere with their decision even though they would themselves have come to a different decision.  Above all, the appeal tribunal did not see the witnesses.  They did not see Mr Day and his reactions.  They did not see the matron, and so forth.  One gets a very different impression from reading the notes than one gets from hearing oral evidence.  It seems to me that this is a case where the Industrial Tribunal’s decision should be upheld.  They did not go wrong in point of law, this appeal should be allowed accordingly’ ”

17	In Stewart -v- Cleveland Guest (Engineering) Ltd [1994] IRLR 440, Mummery P, set out the position thus at paragraph 33:
“(2) Whenever an appeal is based on the perversity ground, the Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence.  An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal  disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts.  This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is ‘irrational’, ‘offends reason’, ‘is certainly wrong’ or ‘is very clearly wrong’ or ‘must be wrong’ or is ‘plainly wrong’ or ‘is not a permissible option’ or ‘is fundamentally wrong’ or ‘is outrageous’ or ‘makes absolutely no sense’ or ‘flies in the face of properly informed logic’.  This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity.  The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity.  The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals all within the realm of reasonableness.  It is an area in which there may be no ‘right answer’.  The consequences of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to ‘meticulous criticism’ or ‘detailed analysis’ or to trawl through it with a ‘fine-toothcomb’.  What matters is the substance of the Tribunal’s decision, looked at ‘broadly and fairly’ to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion.  Viewed in that way, the decision of the Industrial Tribunal is not perverse.”
Finally, and most recently, in Yeboah -v- Crofton [2002] IRLR 634, Mummery LJ put the position in this way:
“93  Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.  Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment Tribunal, it must proceed with ‘great care’: British Telecommuncations plc v Sheridan [1990] IRLR 27 at paragraph 34.”

18	Finally, we remind ourselves of the well know passage in Meek -v - City of Birmingham District Council [1987] IRLR 250 where Lord Bingham set out the position thus:
“8  It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which have given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.
12  Judged by those yardsticks, the decision of the Industrial Tribunal did in this case, as the EAT rightly held, fall far short of the minimum necessary.  There was no account of the basic story of what had occurred, there was no statement anywhere in the reasons of what the Council believed the employee to have taken of the materials belonging to them or of the nature and the circumstances in which they believed him to have misused their vehicle.  There is no account of the questions put to him or the answers given.  There is no detailed account of the investigation which was made or of the investigations which, in the judgment of the Tribunal, the Council should have made and did not make.  There are various criticisms expressed without any statement of the basic underlying facts upon which those criticisms were based.”

19	We turn now to the grounds of appeal.  At the core of this appeal is the complaint that the Tribunal erred in law by substituting its own views of what the employers ought to have done rather than considering whether or not their actions fell within the range of responses of a reasonable employer, and Mr Sendall contends that when read as a whole, the Tribunal’s approach to its findings is based more upon its own views of the employer’s conduct rather than an assessment of what a reasonable employer, faced with the same situation, might have done.  In his submissions Mr Sendall sets out specific examples from the Tribunal’s Decision showing how the Tribunal substituted its own views for those of a reasonable employer, namely:
(a) Paragraph 38 of the Decision:

1 “it strikes us that it was wholly unreasonable”
2 “In our view this was indicative of the fact that ….”
3 “On the evidence adduced the Tribunal members believe that the Respondent was wholly uncompromising ….”

(b) Paragraph 40 of the Decision:
1 “Their appeals were, in our view, perfunctory ….”
2 “The question we would ask is ….”
(c) Paragraph 80 of the Decision:
1 “….we would suggest ….”
2 “….in our view the Respondent’s way of dealing with this was unfair.”
(d) Paragraph 86 of the Decision:
 “Again, we find that the company adopted an inflexible approach which was unreasonable in all the circumstances of the case.”
(e) Paragraph 93 of the Decision:
 “It seemed to us that …. They too were treated unfairly”
(f) Paragraph 96 of the Decision:
1 “We believe the tenor and nature of the evidence given on both sides strongly suggests an over robust take it or leave it stance on the company’s part …”
2 “…. the recruitment exercise was implemented (we believe too hastily) …”
3  “The appeal process was, we are again quite sure, something of a farce.”

20	Mr Sendall contends that the Tribunal clearly took the view that it would have acted differently in the same circumstances and that, from its perspective, the actions of the Appellant were unreasonable, but he contends that it failed to approach its Decision from the perspective of a reasonable employer faced with the same situation.  In the first part of its Decision, the Tribunal had concluded that the company’s situation was serious and provided substantial enough reason for having, if necessary, to dismiss the employees.  He contends that the Tribunal made no findings that a reasonable employer would not have issued the Notice of Termination coupled with the offer of new terms and a deadline for acceptance.  He also contends that the Tribunal made no findings that a reasonable employer would have extended the deadline.  In particular, he criticises the Tribunal’s view in paragraph 96 of the Decision that “the recruitment exercise was implemented (we believe too hastily)”.  Mr Sendall contends that this is the clearest example of the Tribunal imposing its own views rather than stepping back and asking themselves what a reasonable employer would have done in the circumstances faced by these employers, bearing in mind that they had a business to run and that notice periods were running, with no sign at the time that the recruitment process had started, that there would be a change of heart on the part of the workers as to signing up the terms.  Further, he contends that if for example a reasonable employer would have extended the deadline for acceptance of the new terms, the Tribunal ought to have made findings as to the length of that extension, given that notice periods were running, and that recruitment would need to take place with sufficient time to allow for continuity of the business.  As has been pointed out above, some of the notice periods were due to expire before the end of April.  Further, he contends that if a reasonable employer would not have commenced a recruitment process till later, the Tribunal ought to have made a finding as to the point at which it could reasonably commence that recruitment process.  Finally, he contends that if a reasonable employer would have suspended the recruitment process, the Tribunal should have found at what point it should have been suspended and for what period.

21	Mr Sendall goes on to give further examples of the illogicality of the Tribunal’s position, since by the time that the workers began to indicate a willingness to sign, the recruitment process was well under way.  The Tribunal failed to consider what a reasonable employer would do in those circumstances, given that a decision to sign up all the workers at that point would simply create a further redundancy situation as there would be more workers than required.  It was not clear whether the Tribunal was suggesting that those new employees should simply be dismissed to make way for the workers who now wished to sign up.  Further, the Tribunal did not make clear how the remaining jobs should be offered to those workers who eventually decided to sign up.  

22	For the Respondents, Mr Westgate argues that although the Tribunal did not expressly refer to the bands of reasonable responses test, this Court should not infer from that failure expressly to mention the test that the Tribunal did not have it in mind - see Retarded Children’s Aid Society v Day [1978] IRLR 128.  He reminds us that the Tribunal’s approach should be that as set out in Post Office -v- Foley [2000] IRLR 831 where at paragraph 52 Mummery LJ set out the correct approach:
“52  It was also made clear in Iceland Food at p.442, 24-25 that the members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer.  Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses ‘which a reasonable employer might have adopted’.
53  In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer.  But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to ‘reasonably or unreasonably’ and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances.  In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not.”

He contends that it appears from the Decision that the Tribunal did understand its function and relies on the following matters:
(a) the Tribunal referred to the statutory test at paragraph 35;
(b) on a number of occasions within the Decision the Tribunal refer to the employer’s actions as “unreasonable” or “wholly unreasonable”, or “unreasonable and unfair”, and in particular at paragraph 52, they set out their views in relation to the employer’s treatment of a particular group of employees in the following way:
“….. we are of the view that the respondent’s stance was not only hard and uncompromising (as such may be fair and at times necessary) but also unreasonable to the point that no reasonable employer, even in these constrained circumstances, would have behaved as this employer did towards these men.”

(c) He reminds us of the language used by the Tribunal to express its conclusions, when they refer to the employer adopting an inflexible attitude or being unwilling to negotiate.
(d) At the end of its Decision the Tribunal makes reference to five authorities including Catamaran Cruisers Ltd -v- Williams & Others [1994] IRLR 386 which clearly emphasises the band of reasonable responses test in this type of case.  

23	Having considered these submissions, together with the language used by the Tribunal, and whilst mindful of our role that we should not seek to criticise the Decision using a “fine-toothed comb” we are in no doubt that, regrettably, this Tribunal failed to assess these employer’s actions within the band of reasonable responses test.  The Tribunal had accepted that the employer’s position was serious and provided a substantial enough reason for having, if necessary, to dismiss the employees, and also that the reason for dismissal remained the fact that the employers decided that the employees were unwilling to sign up to new terms and conditions, which in order to keep the company viable, were essential from their standpoint.  However the Tribunal failed to make specific findings, which were vital to this case, as to whether the employer acted within the band of reasonable responses in 
(a) imposing the deadline in the first place (although this appears to have been accepted in paragraph 26 of the Decision);
(b) by refusing to extend it;
(c) by commencing immediately the recruitment process, and in particular before any appeals had been heard;
(d) continuing to recruit despite the indication from some employees that they might be prepared to sign up to new terms.  

We agree that the Tribunal approached its task incorrectly by failing to consider the reasonableness of the employer’s conduct from a perspective of what a reasonable employer would have done in the circumstances, and instead substituted its own views.  

24	Assuming that the Tribunal did adopt a range of reasonable responses test, Mr Sendall submits that the Tribunal’s conclusion that the employers were being unreasonable in insisting upon the deadline, and refusing to permit workers to sign up after that date, was perverse.  In support of this ground he repeats the points that he made in respect of the general ground which we have dealt with above, and in particular that although the Tribunal found that the employer’s stance was inflexible and unreasonable, it made no findings as to what a reasonable employer would have done in this situation, particularly as to how the deadline should have been extended, giving that notice periods were running and that the recruitment process was under way.  

25	Mr Westgate argues that such a finding was not perverse in the light of the other findings made by the Tribunal including the following:
(a) the past history of negotiations between the parties and the fact that they had reached agreement in the past.
(b) The fact that on 13 April 2001 the employers had agreed conditionally to extend the deadline until 20 April, which could create the impression that there was room for further negotiation.
(c) The long service of the employees.
(d) The promise made the previous year that they would not have to face any further cuts.
(e) That the terms offered may have been unclear.
(f) The Tribunal’s finding that the employers acted hastily in their recruitment process.

26	We accept Mr Sendall’s submissions on this point, particularly as the Tribunal failed to make any findings as to what a reasonable employer would done in the situation and how they would have coped with extending the deadline and the effect on the recruitment process.

27	Mr Sendall then criticises the conclusion that there was no real move to seriously negotiate as had been the case in the past, as perverse, and in particular submits that there was no evidence to support a conclusion that the quality or the content of the previous negotiations had been any different, although in the previous negotiations they had not reached the stage of dismissal notices being served.  Again, we agree with Mr Sendall that the Tribunal’s conclusions of a “take it or leave it” attitude seemed to contradict their earlier findings, when they detailed the process of discussions and negotiations with the unions, commencing in January 2001, and highlighting in paragraph 24 the fact that even once the employers became aware of the union activity, it “continued to talk to groups of individuals on a section by section basis, and achieved, in a few cases at least, some progress, albeit insufficient to solve its problems”.  The Tribunal also made reference to the improved pay offer that Mr Moore had made in April 2001.  We therefore find that the Tribunal’s general conclusion as to the company’s attitude in the light of their previous findings to be perverse, although the Tribunal were clearly entitled to come to the conclusion that post the deadline date, the employers had no further intention to negotiate.

28	The next two grounds of perversity relate to the alleged implicit conclusion that the employees were not themselves unreasonable in allowing the clearly expressed deadline of 13 April to pass without indicating a willingness to sign up to the new terms or requesting an extension, and the conclusion that the employees had a reasonable expectation that the employers would not rely upon the deadline of 13 April.  Mr Sendall contends that the Tribunal completely failed to address the reasonableness of the conduct of the employees and the fact that until after the off-site meeting on 28 April, they kept a virtually united front against the new terms.  He also contends that it was implicit in the conclusions of the Tribunal that the employees had a reasonable expectation that the employers would not stick to the deadline.  Mr Westgate contends that these two complaints miss the point in that the focus of an unfair dismissal complaint is whether the employer acted unreasonably in treating the reason for dismissal as sufficient, and that the fairness of the dismissal does not depend on the reasonableness of their conduct, and that the issue as to whether the employees would or would not have accepted whatever had been done and said by the employers, is a matter to be raised at the compensation stage.  

29	We accept the force of Mr Westgate’s submissions that the main focus of attention must be on the actions of the employer, and whether they were reasonable in dealing with the industrial problem that they faced.  It does seem to us that the employees’ attitude may be of relevance in assessing whether it was reasonable for the employers to impose the deadline when they did, in the light of the continuing failure of negotiations.  Accordingly, we do not accept that these grounds are made out.

30	The next ground relates to the implicit conclusion from the Tribunal’s Decision that no reasonable employer would have refused to allow an individual who agreed at his appeal to sign up after the deadline, whilst there were still some jobs available, as being perverse.  Mr Sendall repeats the points we have raised above in relation to the fact that on the facts of the case there would not have been enough jobs for an employee who was in the same position as the particular individual who had previously agreed to the terms, so that the possibility of being allowed to sign up could well depend upon the order in which appeals were heard, irrespective of the seniority of the employee.  Further he argues that bearing in mind that others had been recruited, there would be an immediate redundancy situation if they allowed back individuals who had agreed at their appeals to sign up.  This ground appears to be, to a certain extent, a repetition of the general ground that we have dealt with above and relates to the Tribunal’s failure to deal with the question of how a reasonable employer should deal with a late change of mind by an employee, once the recruitment process was under way.  We do accept that it was implicit in the Tribunal’s decision that employees could have a change of mind regarding the terms and conditions after the deadline had passed and the Tribunal’s Decision gave no thought as to how a reasonable employer could deal with this situation, in the light of the continuing recruitment process, or the suspended recruitment process if appropriate.

31	Mr Sendall then criticises the implicit conclusion that had there been more explanations, information and more consultation, the employees, or certainly some of them, would have agreed to sign up to the new terms by the deadline, or at least at a time when it would be unreasonable of the employers to refuse to allow them to do so.  Mr Sendall submits that there was no evidential basis for the conclusion that more consultation would have persuaded the employees as a whole to offer to sign up sooner or in some cases to offer to sign up at all.  He makes the point that the appeals of the employees did not seek to suggest that they were having difficulty in understanding the new terms and conditions, indeed he submits that the reason for the industrial action was clear; that the employees had well understood that unfortunately their pay was to be affected by the new contracts.  He also submits that even by the time of the Tribunal hearing, many of the employees remained unpersuaded and refused to accept that it was necessary or reasonable for the Appellant to impose the changes to the terms.  Mr Westgate again submits that this ground seeks to view the issue of reasonableness from the standpoint of the employee, rather than judging whether the employers acted reasonably and repeats that the issue as to whether or not the employee would have actually accepted whatever had been said and done is a matter to be raised at the compensation stage.  We do agree that the focus again must be on the employer’s actions.  Thus if there was evidence before the Tribunal that as at the date of the deadline the employers had failed to explain the terms properly. or that there was a strong likelihood that further negotiations over a short time might lead to a resolution of the dispute, that is a factor that a Tribunal should take into account.  That evidential basis did not emerge from the Tribunal’s findings in this case, and accordingly we find that this ground is made out.  

32	The next ground is that the Tribunal failed to make adequate findings as to when individuals first offered to sign up to the new terms and as to why it would have been outside the range of reasonable responses to refuse to allow them to sign up at that point.  Mr Sendall submits that such a finding is crucial, given that the notice periods ran for different lengths of time and that the recruitment process would have had to have begun in time to allow continuity of the business.  As regards this finding it is necessary for us to consider the cases of the individual employees since Mr Westgate contends that the Tribunal did in fact make adequate findings in relation to when the individual employee offers to accept the new terms.  In particular he makes the following points:

(a) In relation to the HF welders the Tribunal in paragraph 73 found that by 20 April:
“…. it must have been clear to the respondent, we believe, that a number of people were now minded to relent despite the cuts they would have had to endure and a reasonable employer, given the history of past dealings with the men should have adopted a more flexible approach than it did.”
(b) On 26 April there was an external appeal in which a number of the welders in HF were represented by Mr Simpson what was available.  
(c) By 28 April following the union meetings when the members agreed collectively to sign the new terms, the employees’ case below before the Tribunal was that each of the appeals after this the employees routinely asked if they could accept, but were told that they could not.  

33	Mr Sendall contends that the Tribunal attempted to take a broadbrush approach to this issue without re-identifying any case why it was unfair to dismiss the particular individual.  We shall comment further upon these issues when we deal with each employee.

34	The next ground relates to the implicit conclusion that the appeals process was unfair and/or that it ought to have been regarded as part of the consultation process or to provide an opportunity to “parley” was a perverse conclusion.  The Tribunal made a number of criticisms of the appeal process, culminating in their describing it was “something of a farce” in paragraph 96.  Mr Sendall contends that the Tribunal failed to understand the purpose of the appeals procedure and that whilst there was an obligation to offer a right of appeal, most of them were utterly hopeless from a factual point of view.  He criticises the Tribunal’s view that the employers were in some way obliged to use the appeals process as a further opportunity to see if it could persuade the individuals to sign up, particularly as by the time of the appeal, many of the jobs had been filled by the new recruits.  He contends, in the circumstances of this case, that the appeal was only relevant for the purpose of checking whether:
(a) the employee had been aware of the deadline; 
(b) whether in fact he had agreed the terms by that date; 
(c) whether the employers had, to some degree, misrepresented the new terms and conditions;  
(d) whether there was some other special reason why this particular employee should not be dismissed for this reason.  

We fully accept that the Tribunal’s view of the case to a certain extent, was influenced by the apparent view that they took that the deadline could be extended, but they made no clear findings as to whether such an extension could be up to the time of the appeal hearing, although that appears to be implicit from their Decision, and whether a reasonable employer should have delayed the recruitment process until that time.  We agree with the Appellant’s contentions that simply to consider the appeal hearing as an opportunity for further negotiation is wrong.  It does appear to us to be a perverse view in the light of the material before the Tribunal, together with the implicit suggestion that it was therefore unfair of the employers to continue with its recruitment process.  

35	We now turn to consider the cases of the individual employees and will only deal with those workers who are still Respondents to this appeal, since a number have settled with the Appellants since the original Tribunal hearing.  We will deal with them in the same categories and order as did the Tribunal.  

HF Moulders - Mr Senior
36	The Tribunal found that the men within this group, Messrs Harrison, Pickering, Senior and Jessop, had all but agreed with the management, and indeed on the bundle, there is a copy of the new terms signed by Mr Harrison following a verbal agreement that the employers contended had been reached on 13 April.  Mr Moore did not receive the signed agreements as he had anticipated on the 18th and when they asked to see Mr Moore again to discuss matters, it is agreed that he refused to meet them.  It was the employers’ case that notwithstanding the negotiations that had been going on since January, and the agreement apparently reached on 13 April, Mr Moore was of the view that employees were again seeking to re-negotiate rather than to clarify the situation, and he refused to see them.  Mr Sendall contends that the Tribunal, once again, substituted its own views of the Appellants’ actions in considering their refusal to see the men and negotiate further as unreasonable, rather than considering whether or not they were the actions of a reasonable employer.  Further, he once again points to a finding that by the time of his appeal on 30 April, Mr Senior had indicated a willingness to sign up to the new contract, which they found as a fact, and the employers were unreasonable in being unwilling to take him back.  Mr Sendall complains that in Mr Senior’s case, as with many of the other employees, the Tribunal in making the finding that he was willing to return to work on the 30th, have seemingly ignored typed notes of the appeal hearing, which in Mr Senior’s case appear on page 174 of the bundle, wherein it is stated that in answer to the question whether he would accept if the new deal was still on the table, the answer was recorded as follows:
“Would have to look at new offer further before deciding”

In any event, Mr Sendall contends that the Tribunal, in making a finding that the employers were being unreasonable in not taking up Mr Senior’s acceptance, once again ignored the recruitment process which had commenced.  He also complains that whereas the Tribunal found that the employees were seeking clarification of an overtime clause that had appeared in their previous contract, the issue of the overtime clause does not appear in Mr Senior’s appeal notes.

37	Further, he complains about the Tribunal’s approach to the overtime clause in paragraph 38 of their Decision; the offending passages are as follows:
“The unreasonableness of the company’s stance is highlighted by the fact that the company was saying that the ‘offending clause’ in relation to overtime was no more or less than what was in the men’s contracts of employment anyway.  If that was the case why change anything?”
And further down in that paragraph, the following:
“Again, if, as the respondent suggests, there already was an overtime clause in the contract why not enforce it?”

Mr Sendall contends that this displays a failure on the part of the Tribunal to appreciate the issues in dispute, since the issue was as to the inclusion of the terms in the new contracts that the men were being asked to sign, not enforcement of it in existing contracts that were about to be terminated.  

38	Mr Westgate argues that the Tribunal were entitled to come to the view that the employer acted unreasonably in refusing to see the men on 18 April, failing adequately to explain the overtime clause and refusing to allow them to sign up after 18 April, because they had unreasonably rushed into the recruitment process.   

39	Again, we are satisfied that the Employment Tribunal did fall into error by substituting its own views of the Appellants’ actions, rather than considering whether or not they fell within the band of reasonable responses.  In particular we find the Tribunal’s comments in relation to the problems concerning the overtime clause, to be confusing, in the context of the employers’ actions in seeking to replace old terms and conditions with new ones, albeit that the overtime clause contained similar wording to the previous term.  Further the Tribunal failed to consider whether a reasonable employer would conclude that the men were seeking to re-negotiate rather than to clarify.  

HF Arc Airers - Mr Dennison
40	Mr Dennison was part of a group of originally three employees, together with Mr Whitworth and Mr Iqbal.  The Tribunal again found that the employers were unreasonable in adopting a take it or leave it attitude and appeared to have accepted the employees’ case that it was wholly unreasonable to expect them to sign up to terms which apparently even their own employer did not fully understand.  Mr Sendall complains that once again the Tribunal appeared to have completely ignored the appeal notes, for which it can be seen as far as Mr Dennison was concerned, the appeal did not relate to any uncertainty so far as the terms but sent it on a complaint as to her how another employee had been treated.  The Tribunal concluded in relation to Mr Dennison as follows:

“…. in Mr Dennison’s case the only sensible and honest way to interpret his query as to whether the terms being offered to Mr Jones were available to him was that, at the very least he would seriously consider signing up were they to be on offer.  Our view is that, more likely than not, he would.”

Mr Sendall complains that once again the Tribunal were seeking to impose their own views of the situation, rather than to consider whether the employers reasonably believed that Mr Dennison was willing to accept the terms as at 30 April.  Mr Sendall complains that the Tribunal did not deal with the appeal notes, which do not make it clear that Mr Dennison was willing to sign up, and in the event failed to deal with how an acceptance on 30 April could be dealt with within the recruitment process.  

41	Mr Westgate responds, pointing out that the Tribunal having had all the evidence, were entitled to find that Mr Dennison had asked to accept the terms on 30 April, and also that until that time, he had a legitimate concern about the precise meaning of the new terms on offer.  Whilst we accept that this may have been the Tribunal’s view of his evidence, it does seem to us that in the light of the Tribunal’s failure to deal with the apparent reasons for appeal, and/or the appeal notes, that they have once again failed to apply the proper test and/or come to a perverse view of the facts.  It is of interest, coming to this view, that in relation to another employee, Mr Iqbal, the Tribunal did make reference to the internal appeal in relation to an issue between the manuscript notes and the typed notes.

HF Burners - Mr Wareing
42	Mr Wareing and Mr Jackson were originally members of this group.  Mr Westgate contends that the Tribunal found these dismissals unfair because, amongst other reasons, the terms offered were unclear, but the Tribunal did not make any findings on this aspect of the case, and, indeed, found in paragraph 53 that Mr Wareing had been unwilling to sign up to the new terms because they would damage him excessively.  The unfairness, as far as he was concerned, arose from the company’s unwillingness to allow the new terms to be accepted once the deadline had passed.  We do not propose to repeat again the views that we have expressed above in relation to the general complaints about the Tribunal’s attitude on this aspect of the case, and the Tribunal’s failure to approach this issue from the standpoint of a reasonable employer.  However, again, the Tribunal failed to deal with the fact that according to the appeal notes, his appeal was dismissed on the basis that he was rejecting the terms and we therefore agree with Mr Sendall’s submissions that the conclusion that he asked to sign up to the new terms is perverse.  

HF Grinders - Mr Grimes and Mr Crossland
43	Mr Grimes and Mr Crossland were part of a group of four comprising them and Messrs Everton and Cunningham.  The Tribunal found that this group were not accorded their entitlement to proper meaningful consultation, although the Tribunal in their conclusions are unclear as to what further information and explanations they are referring to.  In paragraph 65 there is a reference to having more information as to which employees were going to be made redundant, since it might impact on pay, and also a contention by the workers that the employers did not pay enough attention to their concerns about plant and quality which Mr Cunningham suggested might have affected his ability to increase productivity.  Mr Sendall complains that the Tribunal failed to make any or adequate findings as to what further information or explanations or consultation should have been given, that would or might have persuaded these employees in the group to have accepted the new terms, and in particular points out that Mr Crossland continued to maintain his refusal to accept new terms throughout the whole process, and did not indicate that he would be prepared to sign up to the new terms until after he had commenced proceedings.  Similarly, Mr Grimes did not indicate a willingness to sign up to the new terms until after his dismissal.  Mr Westgate contends that as with other employees, whether or not they would have signed if the employer had acted fairly, is a matter that relates to compensation.  However that seems to us to miss the point; evidence of a continuing refusal of the employees to accept the terms does seem to us to amount to supporting evidence of the employers’ contention in this case that they had gone as far as they could have done in negotiation, and reasonably believed that these employees were simply not prepared to accept these new terms because of the effect on their pay, and we therefore conclude that the Tribunal’s conclusion that both Mr Grimes and Mr Crossland were unfairly dismissed was a perverse conclusion.  

HF Welders - Messrs Ducker, Glossop, Grimbley, McNeill and Price 
44	These are part of a larger group of twelve employees.  The Tribunal deals with this group at paragraphs 66 to 69.  Mr Westgate contended that the Tribunal, in addition to finding the employers to be unreasonable in allowance acceptances after the deadline had passed, also made findings in relation to the failure to genuinely engage with the workforce about new terms, and to deal with complaints about plant and equipment.  Whilst the Tribunal, in paragraph 70, referred to the conclusion that they had reached that the company was not prepared to seriously negotiate, there was no specific finding in relation to what particular failures there were in the case of this group of employees, and most of the findings relate to whether or not the particular employees had indicated at some stage a willingness to sign up to the new terms.  

45	In relation to Mr McNeill, the Tribunal had come to a conclusion that his treatment, together with Mr Bidwell was unfair because they had been “lumped together” with the AEEU members Mr Sendall contends that this conclusion is perverse because of the evidence that the Appellants were unaware that any of the men belonged to the GMB until after the GMB strike ballot was announced, and contends that the Tribunal’s conclusion that the employees either knew or ought to have known earlier than this, is perverse.  He also points out the consultations at a shop floor level were held on a department rather than on a union basis, and also that Mr McNeill was permitted by the AEEU to attend its external conferences with the employers.  We cannot see any grounds for the Tribunal coming to the conclusion that there was unfairness towards Mr McNeill arising out of the manner in which the employers chose to deal with the AEEU.  In relation to Mr McNeill signing up, the Tribunal, at paragraph 70, said this:

“As for Mr McNeill the evidence suggests to us that by the time of his internal appeal took place on 30 April it was pretty clear to the company that he would, in the situation in which he found himself, be prepared to sign.”

We are uncertain as to what the Tribunal means by the expression “the evidence suggests to us”, particularly in the light of the fact that later on in that paragraph dealing with the appeal hearing, they said this:
“Mr McNeill by his own reply that he was “only prepared to negotiate” ”

Mr Sendall contends that in fact he was not prepared to sign up until 8 May 2001, and indeed had lodged his IT1 before indicating a willingness to sign.  We agree with Mr Sendall’s submission that any conclusion from the Tribunal (although it is not clear that he ought to have been allowed to sign up at this stage) is perverse, bearing in mind that the recruitment process had been concluded by this time.  With regard to all the other employees, Messrs Ducker, Glossop, Grimbley, Headford and Price, there is a similar submission that the employees were not prepared to sign up until 10 May, and therefore any conclusion that they ought to have been allowed to sign up at that stage was perverse.  Mr Westgate in his submissions suggests that the Tribunal did find that these workers indicated a preparedness to sign earlier, but having considered the Tribunal’s Decision, we can find no specific findings in relation to any of these employees, and we therefore accept the submissions advanced by Mr Sendall.

HF Press - Messrs Hayes, Nowlan and Martin
46	The Tribunal’s Decision makes reference to problems raised by this group in relation to inadequate and defective equipment, and to the right to reasonably expect clearly explained proposals, but then go on to suggest that two of the group, Messrs Nowlan and Hayes, were eventually prepared to sign up to new terms but were not allowed to do so.  Mr Sendall complains that the Tribunal’s conclusion was perverse in that they make inadequate reference to the internal appeal hearing when Mr Hayes spent a large part of the meeting explaining why he was not prepared to accept the terms.  As regards Mr Martin, Mr Sendall contends that the internal appeal was not held until after both press jobs had been re-recruited, and indeed he made it plain in a letter that he continued to refuse to accept the new terms. Similarly Mr Nowlan never communicated a willingness to sign up to the new terms prior to his dismissal, and again the Tribunal failed to deal in any detail with the appeal hearing notes.  True, Mr Hayes had asked whether the new terms were still available; at the appeal hearing he was told no.  The Tribunal continues as follows:
“The respondent argues that this was not the same thing as his actually being prepared to sign.  We frankly find that argument specious and somewhat disingenuous given the particular circumstances of the case.”

However, Mr Sendall complains that the Tribunal failed to deal with the bulk of the appeal notes, which clearly indicated that Mr Hayes did not accept the new terms.  Accordingly, we are satisfied that any conclusion based on the willingness of these three employees to accept the terms, albeit at a later stage, is perverse.  

IMF Moulders - Mr Foster
47	Mr Sendall attacks the conclusion that Mr Foster was unfairly dismissed as being perverse.  The Tribunal referred to:
“...... the company adopting an inflexible attitude which was unreasonable in all the circumstances of the case.  The company was expecting Mr Foster to make concessions when, itself, it was not prepared to properly explain the changes or heed requests for improvements.”
However, Mr Sendall pointed out that Mr Foster pointed out that his application to the Tribunal was made at a time when he was clearly saying “no” to the new terms, and the collective change of mind did not take place until after he had presented the claim.  He had lodged his appeal against dismissal before 13 April deadline, which Mr Sendall said clearly demonstrated his opposition to the new terms.  He submits that the Tribunal failed to make any or adequate findings in connection with the issue, and in particular how the employers should have reasonably coped with a late acceptance of terms in the context of the recruitment process.  For these reasons, and for the reasons that we have set out above, we again agree that this is a perverse decision.  

IMF Welder - Mr Dyson
48	Again, although the Tribunal records Mr Dyson raising quality issues, we cannot accept that the Tribunal made specific findings with regard to a refusal to consider these particular issues, indeed, the Tribunal record that the employers refuted “all or much of this”.  The Tribunal’s conclusions refer to:
	“The respondent had imposed a deadline which, we find, it was not prepared to budge”

thereby suggesting that there was a later acceptance of terms from these employees.  However, Mr Dyson did not indicate a willingness to sign up until 21 May 2001, by which time all the positions had been filled.  The Tribunal made no finding whatsoever  as to how the employers should have coped with this situation, other than the general finding, to which we have made reference already, that the recruitment process was, in their belief, too hasty.  In all the circumstances, the conclusion that Mr Dyson was unfairly dismissed, based on the findings found by the Tribunal, is in our view perverse.  

IMF Arc Airers - Messrs Marper, Kellett and Piklington
49	This was a very effective group of workers which the employers were loath to see go, notwithstanding that paragraph 91 of the Tribunal’s Decision suggests that the Respondents had not taken the trouble to sit down and explain the terms to them, the appeal notes, to which the Tribunal did not make reference appeared to indicate that there was no confusion about the terms being offered, and that they were clearly being rejected by these three employees.  None of them communicated a willingness to sign to the new terms prior to their dismissal, and those circumstances, Mr Sendall submits that the conclusion that the men were unfairly dismissed was perverse.  Mr Westgate relies on the Tribunal’s view that the employers had failed to clarify terms, but certainly the appeal notes do not support that contention.  In the light of the failure of the Tribunal to deal with those appeal notes, we conclude that the findings made in relation to these employees were perverse.  

IMF Press - Mr Hancock
50	Before the changes, Mr Hancock worked alone as a press operative and as a result of the changes he would work within a pool which ultimately appeared to be a pool of four.  The Tribunal found that it was unfair of the employers not to have properly explained the effect of how working within a pool would have affected him.  Mr Sendall, however, again in his case submits that Mr Hancock was aware of the terms, as appeared from the appeal notes, and did not indicate a willingness to sign until 21 May, by which time all the Press positions had been filled.  He further submits that in evidence Mr Hancock was unable to remember the dates or content of any negotiations that he did have with the employer.  Whilst we accept Mr Westgate’s submissions that the unfairness in Mr Hancock’s case appeared to relate primarily to the failure to explain the working of the pool system, that failure was not made out either in Mr Hancock’s own evidence or in the appeal notes, and again we are satisfied that the conclusion as to unfair dismissal was perverse.  

51	We finally deal briefly with the cross-appeal, which appears to relate to the Tribunal’s failing to make specific findings in respect of the allegations relating to dismissal on the grounds of trades union activities, namely by reason of participating in meetings or ballots or by taking part in industrial action.  However, the Tribunal made clear in paragraph 23 of their Decision that  they were completely satisfied that the employees’ trade union activities were not the reason, or principal reason, for their dismissals, either at the stage when notice was given to them, or at any time after that.  Bearing in mind the lengthy submissions that were put in front of them in relation to these issues, we are quite satisfied that when the Tribunal referred to “activities” they had in mind the various activities that could be involved, including union meetings, indeed, the existence of those meetings was referred to by the Tribunal in paragraph 24 of their Decision.  Accordingly, we can find no error of law on the part of the Tribunal in dealing with the reason for dismissal.  

52	It follows from what we have said above that there will have to be a re-hearing on the issue of fairness.  We have not heard full submissions as to whether that should be before the same Tribunal or a fresh Tribunal, and accordingly we would invite both Counsel to deal with this issue by sending in written submissions within fourteen days of the handing down of this Decision.