Appeal No. EAT/0102/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 July 2003

Before
THE HONOURABLE MRS JUSTICE COX QC
MR P DAWSON OBE
MR I EZEKIEL

CORUS & REGAL HOTELS PLC	APPELLANT

MR I M WILKINSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DUGGAN
(Of Counsel)
Instructed by:
Messrs Astons
Solicitors
The Stables
Manor Road
Staverton 
Nr Daventry
Northamptonshire
NN11 6JD

For the Respondent	MISS MARION BATTEN
(Solicitor)
Messrs Finn Gledhill
Solicitors
1-4 Harrison Road
Halifax
West Yorkshire
HX1 2AG	

MRS JUSTICE COX QC

1.	This is an appeal by the Corus & Regal Hotels plc against the decision of an Employment Tribunal sitting at Leeds promulgated on 15 November 2002 that the Applicant (the Respondent to this appeal) was unfairly dismissed because the Appellant had failed to show a reason for the dismissal. 

2.	The Appellant contends that the Respondent was dismissed because of redundancy and that this was a potentially fair reason within the meaning of section 98 of the Employment Rights Act 1996.  The matter was listed before us today for a full hearing and bundles of documents and skeleton arguments from the parties were before us in the usual way.

3.	The Appellant is proceeding in this appeal on the basis that there was a very clear factual matrix, which was before the Employment Tribunal and in respect of which there was little dispute between the parties.  He seeks to persuade us, having regard to that factual matrix, that applying the relevant authorities which have considered the statutory test for redundancy correctly there was clearly a redundancy, applying the law correctly to the facts as found by the Tribunal.  

4.	The Respondent resists the appeal on the basis that the Tribunal correctly applied the law and made clear findings of fact that the Appellant had not discharged the burden of proof upon them to establish that there was a redundancy and that we should not interfere with those findings by the Tribunal, absent an allegation of perversity which does not feature in this case.
 
5.	The problem that confronts us today is the following.  In paragraph 5 of the Extended Reasons the Tribunal said as follows:

“It is not necessary for the Tribunal to set out at length the events which took place.  These are well documented in the witness statements and bundle of documents.  In the main, there was little dispute between the parties as to the factual matrix.  The real gulf between the parties lay in the interpretation to be placed on the factual matrix.  Insofar as there were differences in the evidence we preferred that of the Applicant to that of the Respondent  There were a number of inconsistencies in the respondent’s evidence and in some respects, the contemporaneous documentation appeared at odds with the evidence given.”

The Tribunal do not then set out what their detailed findings of fact were as to the position which existed before the restructuring or reorganisation by the Appellants and the position which prevailed after that restructuring exercise had been carried out.

7.	There is a general paragraph, paragraph 7, where the Tribunal do make some findings and it is in that paragraph that the Tribunal state that they were not persuaded by the Appellant that the test laid down in section 139 of the Employment Rights Act 1996 was met.  Unfortunately what has become clear in the opening moments of this appeal today is that there is not agreement between the parties as to what was the precise factual matrix, on the basis of which the Tribunal proceeded to reach their conclusions.  This is regrettable, given the Tribunal’s understanding that there was little dispute about the facts, but it is nevertheless the case and the problem needs to be resolved.

8.	We have given the parties an opportunity and every encouragement to endeavour to reach agreement as to the precise factual matrix which formed the basis of the Tribunal’s conclusions but it appears that they have not been able to achieve full agreement as to precisely what the facts found by the Tribunal were.  That places this Appeal Tribunal in some considerable difficulty given the issues which arise for determination in this appeal.  In particular there are Court of Appeal decisions addressing the meaning of the statutory test for redundancy which are not easily reconcilable and which can only properly be considered if there is a clear factual basis for the submissions of law which are to be made.  We are therefore agreed that this appeal cannot proceed any further until the Employment Tribunal makes clear and clarifies for our assistance what the factual matrix was as referred to in paragraph 5 and which formed the basis of their findings which are set out in paragraphs 7 and 8.  We therefore direct that this appeal be adjourned and that the matter be sent back to the Employment Tribunal in order for the Tribunal to clarify and set out in full what the factual matrix referred to at paragraph 5 was.  In particular, insofar as there were differences in the evidence in respect of which they expressed a preference for the evidence of the Applicant, we need to know what those differences were and how they were resolved.

9.	Only when there is a clear account of the Tribunal’s findings of fact can we then proceed to determine the issues of law which arise for consideration on this appeal.  For those reasons this appeal will be adjourned until that factual clarification is available from the Employment Tribunal.