Appeal No. UKEAT/0015/11/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 May 2011

Before
HIS HONOUR JUDGE HAND QC
DR B V FITZGERALD MBE FRSA LLD
MS P TATLOW

MR M JOHNSTON	APPELLANT

WELSH NATIONAL OPERA LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR NICHOLAS SMITH
(of Counsel)
Instructed by:
MLM Cartwright Solicitors
Pendragon House
Fitzalan Court
Newport Road
Cardiff
CF24 0BA
	
For the Respondent
	MR SIMON CHEETHAM
(of Counsel)
Instructed by:
Messrs Eversheds LLP
1 Callaghan Square
Cardiff
CF10 5BT

SUMMARY
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason

The Employment Tribunal misconstrued the contract of employment and as a result the determination of fair dismissal under section 98(4) was unsound.  The case was remitted for a rehearing.

HIS HONOUR JUDGE HAND QC
Introduction
1.	This is an appeal from the Judgment of an Employment Tribunal comprising Employment Judge Harper, Miss Sinclair and Mr Hamilton sitting at Cardiff over four days in October 2010.  The Judgment was sent out to the parties on 26 October 2010.  The Appellant had complained that he had been automatically unfairly dismissed because of a failure to follow the statutory procedures, and also dismissed unfairly in terms of section 98(4).  He lost on both points; only the latter is the subject of this appeal.

2.	Mr Smith of counsel has represented the Appellant today, as he did at the Employment Tribunal, where the Respondent was represented by Mr French-Williams; today the Respondent has been represented by Mr Cheetham of counsel.

The facts 
3.	The Employment Tribunal’s Judgment is 20 pages in length, and deals extensively with the facts, which effectively start at paragraph 15 and continue through to paragraph 77.  What follows is the barest summary of the facts taken from those paragraphs.

4.	The Appellant was the principal oboist in the Respondent’s orchestra between 1974 and his dismissal by reason of capability, which was communicated on 25 September 2008.  The Musical Director of the Respondent, Mr Carlo Rizzi, came back to the orchestra in 2004, and raised in 2004 and 2005 three concerns about the Appellant’s playing: namely, his intonation, his emission of sound, and his blending of sound in relation to other instruments and in terms of what has been called ensemble playing.  In 2006 those concerns were raised with the Appellant in a letter, and on 20 September 2006 the Respondent invoked an audition procedure, which is to be found in a collective agreement made between the Respondent and the Musicians’ Union.  What was happening is described by the Employment Tribunal at paragraph 22 of the Judgment in these terms:

“On the 20th September 2006 a memo was given to the claimant, requiring him to attend a meeting the following day with Mr Harrap and Mr Rizzi.  As a result of that meeting, the Respondent implemented clause 1.17.1 of the WNO/MU agreement, requiring the claimant to attend an audition on the 23rd October 2006.  Provision was made for a second audition if it was required, to take place on the 7th November 2006.”

5.	The audition was held on 23 October 2006; it was a solo audition, and the Appellant passed it.  The Respondent’s position was made clear immediately after the audition: namely, that it had not dealt with the criticism made about the Appellant’s ensemble playing.  It could not have done so because it was not an ensemble audition.  Paragraph 27 of the Judgment at page 40 describes the position the Appellant had taken before the audition in a letter written on 4 October 2006, where he had said:

“It seems bizarre that if the main thrust of your requirement for me to audition is the quality of my playing in ensemble, the audition should consist of playing only with a piano.”

6.	The paragraph goes on to describe the Respondent’s position in these terms:

“The respondent’s position, both to the claimant and in the presentation of its case to the Tribunal, was that since the respondent perceived there to be a performance issue with the claimant, there was no alternative but to embark on implementing clause 1.17.1.  This did not provide for playing in ensemble, and the respondent made the point that if they had departed from such agreed position, then such departure could itself be the subject of criticism from the claimant or the Musicians’ Union.”

7.	Whether or not it was right to suggest the Claimant might have been critical, having regard to the terms in which he had written on 4 October 2010, the Union’s position seems to have been as anticipated by the Respondent.  At paragraph 10 on page 38, the following 
appears:

“Paragraph 1.17.1 does not provide for an audition in ensemble.  This point was acknowledged by the claimant’s union representative, Mr Kerr, in a letter dated the 14th November 2006, appearing between pages 138 and 139 of the bundle.”

8.	There is a considerable amount of documentation in our bundle, but as Mr Cheetham of counsel observed in his submissions, not all of it appears entirely relevant.  Unhappily, the letter referred to in paragraph 10 is not amongst the papers in our bundle; but, more happily, there is some indication of its context at paragraph 35 of the Employment Tribunal’s Judgment, where this is said:

“On the 14th November 2006 Mr Kerr wrote to the respondents, at pages 138‑139 of the bundle, confirming that ensemble playing was not an option included in the company’s procedure, and suggested that a solution could be ‘good, patient rehearsal, without individuals having to be singled out for unwelcome attention.  I would suggest that this would be the fairest way forward in dealing with this matter’.”

The paragraph ends with the Tribunal indicating that this is in effect what the Respondent had gone on to do.

9.	The Appellant was aggrieved by the audition procedure and the criticisms made of his playing, and the way in which they had been made by Mr Rizzi.  He raised a grievance, which was not upheld; subsequently he was excluded from a particular recording of an operatic piece called ‘Katya’, and through 2007 and 2008 the issue of his ensemble playing remained unresolved.  In June 2008 five members of the orchestra made criticisms of the Appellant’s playing in a meeting; minutes were taken.  The Appellant never saw this material until after he was dismissed.  In June 2008 he was stood down from some rehearsals, and this may or may not have been the catalyst for him approaching solicitors; at all events he consulted solicitors at about this time.  Their subsequent correspondence was described by the Employment Tribunal at paragraph 87 as “unnecessarily aggressive”.  We will need to come back to paragraph 87 in due course.

10.	Irrespective of its tone, we were invited by Mr Smith to consider some of the content of the correspondence; in particular, we were asked to look at a letter of 17 September 2008.  In fact, the letter is referred to at paragraph 64 of the Judgment (page 49 of the bundle) in a single sentence, which reads:

“The claimant’s solicitors wrote a letter on 17th September 2008, making various suggestions.”  

The content of the suggestions was not developed by the Tribunal or referred to in any detail at all.  One of the suggestions is that set out at pages 100‑101 in a letter written by the Appellant’s solicitors on 17 September 2008.  The fifth paragraph on page 100 (continues overleaf to page 101) reads as follows:

“We have indicated on several occasions that it is our firm belief that to address any concerns about Mr Johnston’s ensemble playing, your clients must follow the agreed procedure and in particular the section entitled ‘Poor Artistic Performance’.  We have mentioned on several occasions that we do not agree with your view that the procedure only applies to solo performance.  The procedure does not indicate at any point that it is restricted to solo performance.  Equally, it does not specifically state that it applies to ensemble performance.  Nevertheless, the section is headed ‘Poor Artistic Performance’ and sets out the procedure which must be followed by your clients to address concerns of poor artistic performance.”

11.	That paragraph does not make it absolutely clear that what is being referred to as the agreed procedure is the collective agreement made between the Respondent and the Musicians’ Union, although that must be what is being discussed.  The letter goes on to make the suggestions referred to by the Employment Tribunal.  It reads (page 101):

“We suggest the following options:
(1) That your clients concede that the Poor Artistic Performance Procedure should be followed and that there should be agreement on who should participate in the audition on an ensemble basis.  We would need to agree who would be on the audition panel and, in particular, which instruments should be played by way of accompaniment to adequately assess Mr Johnston’s ensemble playing.”

12.	That was the Appellant’s position.  The Respondent’s position is that summarised at paragraph 27 in the Judgment (pages 40‑41), to which we have already referred.  The Respondent’s specific answer to the point raised by the Appellant’s solicitors was given in a letter dated 19 September 2008 by their own solicitors.  This is to be found at page 106 of the bundle.  The third paragraph reads as follows:

“Your letter continues to assert that the ‘Poor Artistic Performance Procedure’ (‘the Procedure’) should be used to assess your client’s performance.  Without wishing to repeat ourselves, the Procedure has always been used to assess solo performance rather than performance in an ensemble situation.  It remains our client’s view that this procedure would not prove any benefits in assessing ensemble playing as you simply cannot recreate the live performance arena (where our client has concerns about your client’s performance) neither will it address whether your client is able to perform on a consistent basis.  As you are very well aware, the concerns our client has with your client’s ensemble performances have been informally raised in 2004 and formally raised as far back as November 2005.
We note that you have made several suggestions in relation to options going forward and we reply to these using your numbering:
(1) As stated above, the Procedure is not appropriate due to the fact that it simply cannot recreate a ‘live performance’ situation (which is where your client’s ensemble playing is not at the standards acceptable) and will not address the issue of consistency as mentioned above.”

13.	The two points made there, it will be appreciated, comprise one specific point about the difficulty of recreating a live performance in an audition and a more general point that, as to consistency, one audition is not going to provide anything other than a snapshot of a particular piece of playing, as opposed to allowing examination over a period of time.  For those reasons, the Respondents were not going to follow the paragraph 1.17.1 procedure.

14.	Matters moved rapidly at this stage.  There was a disciplinary hearing on 22 September 2008; the procedure did not involve any witnesses, and relied upon the written material that had been assembled as a result of an investigatory hearing which the Appellant had not attended.  The Appellant was not allowed to call any witnesses before the disciplinary hearing because those witnesses had not been proffered at the investigatory stage.  He was dismissed by a letter of 25 September 2008; he appealed, and his appeal was rejected.

15.	After dealing with the issue of automatically unfair dismissal with which, as we have already indicated, we are not concerned, the Employment Tribunal went on to consider what they described at the end of paragraph 80 on page 53 as the “ordinary” claim for unfair dismissal.  Under a heading that was entitled “WNO/MU Agreement – Disciplinary Process – Other Process,” the Tribunal discussed various aspects of the case which it had in terms of factual findings and some discussion and conclusions set out earlier in its Judgment.  At paragraph 81 the Employment Tribunal makes this statement:

“It is clear that the WNO/MU Agreement provides for poor performance to be dealt with by way of an audition of solo playing.  Mr Kerr confirmed in correspondence, that the Agreement did not provide for concerns about ensemble playing.  The Agreement which replaced that Agreement, which came into force in 2010, sought to address this issue.”

16.	In summary form that was a reprise and a compression of what the Tribunal had earlier set out at paragraphs 10 and 12‑14 of its Judgment.  At paragraph 82 it found that the Respondent:

“[...] perceiving the claimant to be under performing, had no alternative but to place the claimant on the Poor Performance Procedure, as they were obliged under the Agreement to do.”

17.	It then went on to describe the fact that he had passed the solo audition, but that he had been told there were still concerns about ensemble playing.  Paragraph 82 was therefore a compression of a number of previous factual findings, with the conclusion that the Respondent had had no alternative but to go into the Poor Performance Procedure.

18.	At paragraph 83 the Employment Tribunal make another finding in the first sentence, which reads:

“The Respondent could not use the disciplinary part of the WNO/MU Agreement, because the Claimant was a performer.”

19.	As the Tribunal put it, their conclusion was that that “left the respondent in a limbo position.”  The Tribunal accepted the submission that it was not an option for the Respondent to do nothing; why not?  The Tribunal said, it was:

“[...] simply because the WNO/MU Agreement was silent on the set of facts which it perceived to exist.  The Respondent acted within a range of reasonable responses in deciding that they had to take some action.”

20.	That is a formulation that, whilst we would not accept Mr Smith’s analogy that it is spread around the Judgment like confetti, certainly appears on a number of occasions.  No doubt our count may be inaccurate, but we have identified 17 separate occasions where the phrase appears.  That of course is not of itself anything other than evidence of repetition of a particular phrase.

21.	The Tribunal then, at paragraph 84, repeat what they describe as their analysis earlier in this Judgment as to the handbook.  In order to understand paragraph 84, one has to go back to paragraphs 12 and 13 of the Judgment.  We have already referred to paragraph 10, where the conclusion is reached that the collective agreement (as we will call the agreement between the Musicians’ Union and the Respondent) did not provide for audition in ensemble.  Paragraph 12 sets out part of paragraph 1.18.1 of the collective agreement, and refers to what it describes as a caveat:

“For orchestra players, this procedure is used for all issues other than poor artistic performance for which the procedure in 1.17 above is used.”

22.	Then at paragraph 13 the Employment Tribunal turn to the handbook.  The Tribunal refer to page 64 of the handbook; this is to be found in our bundle at page 230a.  There is to be found the heading “Disciplinary Procedure”, and a subheading, “Informal Meetings – Poor Performance”.  The Tribunal then alighted on a sentence immediately under that subheading of “Poor Performance” that appears in square brackets and reads:

“This section does not apply to Musicians, who should refer to the WNO/MU House Agreement”.

The Employment Tribunal thought it unclear whether that bracketed sentence qualified only the words “Informal Meetings”, or whether it was intended to qualify the whole disciplinary procedure.  The Tribunal concluded that it was only intended to qualify “Informal Meetings” because that is where it appears in the format of the document.  The Tribunal then went on to the next page to look at what is described by them as a further subheading, “Formal Disciplinary Procedure”, below which is another heading, “Indiscipline/Poor Performance”.  The Tribunal then records the Respondent’s case in these terms at paragraph 13:

“It was the respondent’s case that, since the WNO/MU Agreement did not provide for the factual situation existing, the respondent followed a procedure which was akin to the disciplinary procedure.  The respondent did not embark on the stages of a quasi‑disciplinary procedure, such as oral warning, written warning and final written warning, because they were conscious of the additional level of stress which this may place upon the claimant.  To do so was acting within a reasonable range of responses.”

23.	That is repeated at paragraph 30 on page 41 in perhaps less specific terms, namely:

“The Tribunal are satisfied that the respondent during this time, was keen to minimise the stress levels which the claimant may have endured.”

24.	An example is then referred to.  So paragraph 84 is repeating what had been found right at the outset of the Tribunal’s Judgment.  The Tribunal go on to say this of how they viewed the factual situation:

“What the respondent appears to have done is to create something of a hybrid procedure, using a procedure akin to their disciplinary procedure, but avoiding steps such as an oral warning, written warning and final written warning, as a precursor to dismissal.  This was because they stated that to do so, would place additional stress upon the claimant.”

25.	That too is a reprise of paragraph 13.  Then at paragraph 86, having reminded themselves that they should not substitute their own Judgment for that of the employer, but assess whether the actions of the Respondent were within a reasonable range of responses, they say:

“We conclude that the respondent was acting within a reasonable range of responses, either to use the disciplinary procedure, or to create a hybrid procedure, to fill the vacuum left by the inadequate provisions of the WNO/MU agreement.  Therefore, whether the disciplinary procedure or any hybrid procedure was used, it was inside the range of reasonable responses for the respondent to require the claimant to attend what was called a disciplinary hearing.”

26.	The Tribunal then deal with the Claimant’s position.  They do not identify it in the terms that we have, by reference to pages 100‑101; they say this:

“It is unrealistic for the Claimant to submit that there was no attempt to seek agreement with the Claimant or his union to adopt a varied procedure, since it was evident from the evidence of Mr Kerr, that the amended agreement which came in operation in 2010, had taken an extremely long time to be undertaken.  It was within a range of reasonable responses not to wait a very long time to reach a different agreement.  Mr Kerr was also at pains to stress, that once the claimant had consulted his own solicitors, then the union’s involvement on his behalf, was very considerably reduced.  It is, in our judgment, incorrect for the claimant to assert in the skeleton argument, that the disciplinary procedure was used as a convenient vehicle to terminate the claimant’s contract of employment.  The evidence suggested quite the reverse.  The respondent had tried very hard to accommodate a process which was within a range of reasonable responses for them so to do.  The respondent’s operation, both of the second grievance process and this disciplinary process, was hampered by the unnecessarily aggressive tone of the letters from the claimant’s solicitors, and their insistence on advising the claimant not to attend various meetings.”

27.	It will be appreciated that what the Employment Tribunal does not do is address the proposition put forward by the solicitors acting on behalf of the Appellant: that the collective agreement in paragraph 1.17.1 did provide for ensemble playing, or certainly could be adapted, by agreement, for ensemble playing, although it might be thought that is dealt with by implication in paragraph 87.  It is not immediately obvious, however, what the reasoning might be for rejecting that position or, on the other hand, for accepting the Respondent’s position.  We come to the conclusion that the Respondent’s position must have been accepted by the Tribunal because of the outcome is that the Respondent succeeded.
 
28.	The Tribunal then rejected in paragraph 88 the criticisms that had been made about the way that the procedure had developed.  The first sentence specifically rejects a failure to seek balanced or alternative views of the Claimant’s capability.  In essence, the paragraph goes on to suggest that Mr Fisher was a witness to some of the poor performance and was quite capable of assessing it.  “The Respondent was acting within a reasonable range of responses to rely on [his] observation” the Tribunal found.

29.	The Tribunal then went on to deal with the situation in relation to Mr Rizzi, and to deal with capability, but these later paragraphs, which have not featured in the arguments of either Mr Smith or Mr Cheetham, do not take us any further than the critical part of the Employment Tribunal’s Judgment, which is essentially paragraphs 81‑88.

The Appellant’s case
30.	Mr Smith submits that there are two major errors that can be seen in the Judgment that we have just analysed.  Firstly, there is the error of construction which he submits the Employment Tribunal made at paragraph 13 and repeated at paragraph 84 of the Judgment; and secondly, he submits that the Tribunal have reached a decision that no reasonable Tribunal properly directing itself could have reached on the factual material, or, in other words, that this is a perverse decision.  His submission as to the construction point involves an analysis of the rubric of the collective agreement and the disciplinary procedure to be found in the handbook.  His point on perversity takes two examples in terms of the oral submissions from his skeleton argument, although he commends his skeleton argument to us and relies upon it.

31.	The first of the specific matters that he addresses is the finding that it was reasonable for the Respondent to curtail the procedure by omitting any steps earlier than the dismissal procedure or hearing because the Appellant was thereby relieved of the stressful experience of having to undergo those earlier stages.  His second main point is that it makes no sense for the Tribunal to have reached a conclusion that this was a hybrid procedure; this was scarcely a procedure at all on analysis, Mr Smith submits, but it was certainly not an amalgamation of any other procedures, as one might expect by use of the adjective ‘hybrid’.  He was also critical of the fact that the Tribunal brushed over the Appellant’s not being allowed to bring witnesses, and he raised an issue about the Appellant not having had any opportunity to deal with the second of the points; namely, that he would have been put under stress by going through the procedure.  He referred us to the Judgment of this Tribunal in Doherty v British Midland Airways Ltd [2006] IRLR 90.

The Respondent’s case
32.	Mr Cheetham’s position on behalf of the Respondent in relation to construction was twofold. Firstly, as a matter of construction the Employment Tribunal was quite correct in its interpretation of the meaning of the procedure. Secondly, even if it were in error, that could take the case nowhere for two reasons: firstly, because the Employment Tribunal had recognised the totally uncontroversial and agreed position occupied by both the trade union and the Respondent that the collective agreement procedure could not be used to scrutinise poor artistic performance in terms of ensemble playing; and secondly that, when one looked at the procedure that had been adopted, the Tribunal had plainly examined each stage of the process from the point of view of section 98(4).  It was not a vice but a virtue that the Employment Tribunal had repeatedly referred to the range of reasonable responses.  That might perhaps be less useful language than simply concentrating on the words of the statute, which require scrutiny of “all the circumstances”, but it showed that the Tribunal were looking at every aspect of this.  If there was a breach of contract, and it could be said that the Tribunal’s construction prevented them from placing that into the scales of examining all the circumstances, it could not have possibly tipped the scales in favour of the Appellant.

33.	So far as the second submission was concerned (namely, perversity), Mr Cheetham submitted that the Employment Tribunal could not be criticised as having plainly got this wrong.  They had accepted the evidence of the Respondent that this was going on for a very long time and that the Respondent had ultimately got to deal with it; the Tribunal had found that to be the case.  Further, the Respondent had never committed itself to following any particular procedure; the issue was whether the procedure they had followed was a reasonable one in all the circumstances, and that the Tribunal had found that to be the case.  Putting a breach of contract into that set of scales would not have altered the outcome.

Construction
34.	We turn then to the construction point.  Although in his submissions Mr Cheetham suggested that this was a perfectly tenable construction by the Employment Tribunal, with which we therefore ought not to interfere, ultimately he was not suggesting that this does not raise a question of law for us to decide.  Matters of pure construction, which this is, are always questions of law, and the issue is whether the Employment Tribunal’s construction is correct or not.  For reasons we do not know about, and in respect of which the Employment Tribunal cannot be criticised, we do not know a great deal about the context of the collective agreement.  From page 223a, the frontispiece of the agreement, we can be clear that it is obviously an agreement between the Respondent and the Musicians’ Union, but it would seem to us that behind that it is possible to step and to infer that it is an agreement made by a trade union amongst whose interests will be the protection of the terms and conditions of its membership (namely, musicians) on the one hand, and an employer who obviously, amongst many other people no doubt, employs musicians.

35.	It is accepted by the parties before this Tribunal, as it was at the Employment Tribunal, that the terms of this collective agreement were incorporated into the individual contracts of employment of employees of the Respondent and, more pertinently, of the Appellant’s contract of employment.  The Employment Tribunal do not say that in terms, and we were glad to hear that there is no issue because it eliminates the necessity to consider in great detail the terms of paragraph 1.8, which is entitled “Contracts of Employment”.  It does not eliminate from consideration, however, the terms of paragraph 1.8.2, which reads:

“An individual may enter into a private contract with WNO. The contract must set out any variations from the Union Agreement.”

36.	Mr Smith’s submission was that that enables an individual, either at the outset when the employee enters into employment or at any time, to seek a variation.  By ‘outset’ we mean when the employee enters into employment.  The clause plainly allows for the individual, in terms of negotiations as to his or her contract of employment, to arrive at an agreement that does not include all or indeed any of the terms of the collective agreement.  This of course does not apply to the Appellant.  The Appellant was in employment from 1974 onwards, so the issue so far as the Appellant is concerned is whether the clause provides for a variation.  Mr Smith raised this matter because he submitted that that may be what was at issue in the later part, particularly after the solicitors had intervened.  We do not take that view of the correspondence.  It seems to us that pages 100‑101 were setting out the very clear position adopted by the Appellant through his solicitors that he was entitled to the terms of the procedure to which we are now going to turn.  Accordingly, it seems to us that we need not take up further time deciding when and in what contexts clause 1.8.2 might allow for a variation of contract.

37.	The clause at issue is 1.17 entitled “Poor Artistic Performance”.  It seems to us that it is a phrase of considerable importance in the construction of the collective agreement and therefore of Mr Johnston’s contract of employment.  It is not about any sort of performance or persons whose work does not entail artistic performance; it is obvious, it seems to us, that this is going to apply to musicians.  If there were to be any doubt about that, it is confirmed by the next line (clause 1.17.1).  It opens with the words “the contract of a musician,” and that description of the employee as “the musician” follows in all the sub‑clauses of clause 1.17.1.

38.	We have already mentioned that there was no evidence as to the background of the collective agreement.  In the course of submissions, Mr Smith raised the question of the lack of evidence as to what happened in the negotiations; the extent to which such evidence is admissible on the issue of the proper construction of a contract may be limited.  Nevertheless, it is clear that some of the background circumstances are of relevance to the task of construing a contractual document; Lord Hoffman’s speech in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98; [1998] 1 WLR 896 makes that clear.  The Tribunal did not hear such evidence, and so we have limited information as to what the broad background might be.

39.	It seems to us, however, that we can collect enough from the characteristics of the negotiating parties to realise that it is an opera and orchestra employing musicians, which is negotiating a set of terms and conditions for musicians, who are members of the trade union, the objectives of which, we think it is not going too far to infer, may include protection of the members’ situation in employment.  It has been put to us, both by Mr Smith and Mr Cheetham, that we are not looking at the usual employment situation, and that is obviously correct.  In what might be termed usual employment situations, the measurement of performance is likely to be achievable by various objective measures; salesmen’s performance can be measured by their sales figures, and so on.  In terms of playing in an orchestra which provides the music for an opera, the measurement of performance is likely to be more subjective.

40.	What paragraph 1.17, and the eight bullet points set out in 1.17.1, provide is a mechanism, no doubt imperfect, by which some form of arbitration is to be made as to whether or not there is poor artistic performance.  The Tribunal have found that the clause does not provide any mechanism for arbitrating upon allegations of poor performance in ensemble playing.  In fact, as the Appellant’s solicitors observed in the correspondence to which we have referred, the clause is silent on the question of ensemble playing.  The fourth bullet point reads:

“The music for the audition shall be taken from the orchestra’s current repertoire except that a prepared solo piece may also be required.”

41.	It is possible that one could construe this as opening up the possibility of an ensemble piece audition.  On reflection, though, it seems that the words are not clear enough to suggest that there could be ensemble playing in an audition.  The Respondent’s position on the facts is that it was too difficult.

42.	We do not think that it is possible to do any more than to say that the collective agreement in clause 1.17 is silent on the question.  It does not seem to us, however, that the text of the clause excludes it; moreover, we would have thought that it was the intention of the parties, by the very construction of this mechanism, to provide a means by which all aspects of poor performance could be scrutinised.  Accordingly, we regard the construction adopted by the Employment Tribunal that ensemble playing is not included in clause 1.17.1 as erroneous.  There is nothing in the language to exclude it; it is excluded only by the Respondent’s case that it is too difficult, but that is not a matter of textual construction, and the difficulty of application is an unsure – and in our judgment an unsafe – basis upon which to reach the conclusion that it was never the intention of the parties that the agreement was not to cover all aspects of poor artistic performance.  It does not say anything to the contrary.  Moreover, it was invoked by the Respondent in respect of two out of the three criticisms that were made of the Appellant; indeed, the Tribunal found that in respect of two out of three of the criticisms the Respondent was obliged to use it.  Those are not matters of textual construction, but they are matters that need to be borne in mind when considering the agreement in the context of the Employment Tribunal’s decision.  They are matters to which we will return in due course.

43.	The language is permissive; the phrase used is “may be terminated”.  But set in its overall context it seems to us the fact that the language is permissive is not an indication that the procedure is discretionary.  The “may be terminated” relates to the dismissal.  The important words in our judgment are, “…after the following procedure has been followed”.  It seems to us that those are an indication that in relation to poor artistic performance the procedure is indeed mandatory.  As we have just observed, the Respondent accepted it to be so in relation to two matters.  We cannot see any basis upon which it could be construed as not embracing all aspects of artistic performance.  Its mandatory nature is in our judgment emphasised again in the last bullet point:

“Notice of termination of contract may not be given [...] unless and until the Musician has been judged by the panel to have failed both auditions.”

44.	Its juxtaposition with the disciplinary procedure in the collective agreement is also of some significance.  It is obviously separate and different to the disciplinary procedure.  The two things do not purport to have any connection in terms of any of the language used in either of the clauses with the exception of this, which appears under the heading “Disciplinary Procedure” in 1.18 and under the subheading “Purpose and Scope” in 1.18.1, the last sentence of which reads:

“For orchestra players this procedure is used for all issues other than poor artistic performance for which the procedure in 1.17, above, is used.”

45.	Those are clear words of demarcation.  They establish the scope of the disciplinary procedure and of the performance procedure.  The issue then is whether that clear demarcation has been in some way altered by the terms of the disciplinary procedure set out in the company handbook issued in 2007.  This is what the Employment Tribunal thought to be the critical document.  The Employment Tribunal, in paragraph 13 of the judgment as repeated at paragraph 84, set the terms of the collective agreement, which it has been accepted is incorporated into the contract of employment, at odds or in conflict with the disciplinary procedure.  The Employment Tribunal did this by taking the words below the two headings “Informal Meetings” and “Poor Performance”, “this section does not apply to musicians, who should refer to the WNO/MU House Agreement” as meaning that the House Agreement (i.e. the collective agreement) only applied to informal meetings; when a formal procedure was adopted, as was the case here, the House Agreement did not apply.

46.	It seems to us that the status of the handbook was never fully established by the Employment Tribunal.  We are not being critical of Mr Cheetham when we say that his position on this was not entirely consistent throughout; it certainly would be unfair to criticise him because he was obviously getting further instructions at various stages of the argument.  The position, however, from the Respondent’s point of view remains one of a lack of clarity, so far as the disciplinary procedure is concerned.  We are prepared to assume for the sake of argument, that the disciplinary procedure is also incorporated into the individual contracts of employment, although the evidence on that appears to be at best ambiguous and at worst absent.  Assuming that it is, we have now a clause that suggests, according to the Employment Tribunal’s construction, that the WNO/MU House Agreement only applies in informal meetings, to set against a procedure which clearly has no such restriction, and indeed does not even mention informal meetings; that is to say, the House Agreement itself.

47.	In our judgment, the words in brackets are advisory words designed to assist the reader to understand that the informal meetings procedure does not apply to the collective agreement.  Where we regard the Employment Tribunal as having fallen into error in terms of construction is that they have taken what is in parentheses as overriding the demarcation that we have identified in the collective agreement, and substituting for it a construction that in effect nullifies the collective agreement and makes the procedure in the collective agreement more or less otiose unless, of course, the Respondent wishes to use it.  The position that results from this interpretation, and has been sanctioned by the Employment Tribunal, is that on the one hand the employer can adopt the arbitration procedure, as we have called it, in the collective agreement, but on the other hand carve out of it an exception for poor artistic performance relating to ensemble playing.  

48.	The submission addressed to us by Mr Cheetham was that most poor artistic performance in an orchestra will be ensemble playing.  Thus, by that interpretation at a stroke, the Employment Tribunal have removed any utility for the poor artistic performance procedure, and, as we have just expressed it, nullified it.  That cannot be a sound construction of the disciplinary procedure when read in conjunction with the collective agreement.  To produce what is essentially an odd, if not absurd, result from construction is always a worrying conclusion but it does not seem to have troubled the Employment Tribunal at all.

49.	In our judgment, the right construction is that, assuming that the disciplinary procedure from the handbook is part of the contract of employment, the collective agreement is to be reconciled with it in this way: the informal procedure does not apply to the poor artistic performance in the collective agreement.  There does not need to be any informal procedure; for that matter, there does not need to be any formal procedure because here is the arbitration procedure under the collective agreement to deal with poor artistic performance.  It should be noted that the handbook goes on at page 230b to deal with “Indiscipline/Poor Performance”.  It should also be emphasised that does not suggest that poor artistic performance falls within its scope.  By that construction, one can reconcile the disciplinary procedure and the collective agreement.

Conclusion
50.	We reach the conclusion that the Employment Tribunal has misconstrued the contract of employment.  Does it make any difference, as Mr Cheetham submits, that the trade union may have adopted the position that ensemble playing could not be catered for by the collective agreement?  We have reached the conclusion that on the facts of this case it can make no difference whatsoever.  That might have been a compelling feature had it not been for the very clear terms of the letter at pages 100‑101, in which the Appellant set out his case.  His case was that he was entitled to the procedure and wanted the procedure, and that they could reach an agreement as to how the procedure could operate in these circumstances.  It seems to us that the fact that at one point the trade union may have been inclined to agree with the employer is of no consequence at the end of this unhappy saga, because it was quite clearly being stated that the Appellant wished to have the procedure.  The Respondent was saying that it did not need to or have to, or could not, adopt the procedure in ensemble playing.  As already observed, it was saying it in specific terms as to the difficulty of conducting an ensemble audition, and in the general terms that an ensemble audition would be of no utility in terms of consistency.  The latter, as it seems to us, was not an answer to the fact that there had been an agreement between the employer and the trade union incorporated into the contract of employment that this was the procedure that would be adopted.

51.	Equally, we do not think that the difficulties that the employer perceived were an answer either.  That does not of course dispose of Mr Cheetham’s other point: namely, that the Employment Tribunal has reached such a comprehensive set of findings as to the range of reasonable responses that this can make no difference.  We have given that point careful consideration, because this is a case that took four days and ended a very unhappy period of over four years for the Appellant.  In those circumstances, the finality of the Employment Tribunal’s Judgment is something to be borne in mind, and we accept Mr Cheetham’s submission that we must not interfere with Judgments of Employment Tribunals because we ourselves might take a different view of some components of the decision.

52.	It seems to us, however, that Mr Cheetham’s submission cannot be accepted.  It is not as though the breach of contract in this case is as to a particular aspect of the employment relationship, such as whether or not this was or was not gross misconduct or whether or not a particular period of notice was appropriate.  It seems to us that this was a very fundamental plank of the Employment Tribunal’s Judgment.  Their conclusions as to reasonableness stem from their construction of the collective agreement as not applying to ensemble playing.  The reasonableness of the Respondent’s refusal to meet the Appellant’s suggestions as set out at page 101 are in large part in our judgment dependent on the construction that they have given to the collective agreement. 

53.	In those circumstances it seems to us that we cannot say with any certainty that, had the Employment Tribunal appreciated that the Appellant was entitled to have the poor artistic performance procedure operated in terms of his ensemble playing, they would have reached the same conclusions about the reasonableness of the employer’s position.  They would have had to examine such things as we have already referred to: namely, that the employer felt compelled, and indeed the Tribunal as a matter of construction accepted that the employer was obliged to, adopt the poor artistic performance procedure for two out of three of the criticisms made about the Appellant’s playing.  That might well have been a very different consideration had it been found by the Tribunal, as we judge they should have found, that the Appellant was contractually entitled to the poor artistic performance procedure in relation to the ensemble playing criticism as well.  Nor do we think one could be certain that the Tribunal could say that the procedure adopted by the Respondent in those circumstances would be a reasonable procedure.  One would have to set against the contractual obligation to adopt the poor artistic performance procedure the fact that the employer chose to adopt an entirely different procedure.  In those circumstances we take the view that the whole Judgment is flawed by the misconstruction of the poor artistic performance procedure and its application to the facts of this case.

54.	We feel that it is necessary to consider the question raised by Mr Smith, either generally in terms of his skeleton argument or specifically in terms of the points that he has raised, as to whether or not this was a decision that no Employment Tribunal properly directing itself could have arrived at.  What we will say is that some of those points struck us as having rather more substance than others, but we need say no more than that.

55.	What is to be done?  Mr Cheetham has accepted that if the matter is to go back it must go back for a complete re-hearing by a different Employment Tribunal.  That is Mr Smith’s alternative position; his first position is that we can substitute our own Judgment for that of the Employment Tribunal.  We cannot accept that it would be a proper use of our powers to do that in the circumstances of this case.  All that we have just said about why the Employment Tribunal might have decided things differently if there had been a correct construction of the contract of employment in this case militates against us being in a position to substitute our own Judgment for that of the Employment Tribunal.

56.	Much remains to be considered and discussed in this case; unhappily, having regard to the fact that it has gone on for a long time.  We take the view that the right course is for the appeal to be allowed, and this matter to be remitted for a complete re-hearing by a differently constituted Employment Tribunal.  Even though the matter is agreed, we should say that we think there are two main reasons for that: firstly, this is a case where we have come to the conclusion there is a vitiating flaw going through the Judgment; and secondly, it is a case where the Employment Tribunal has expressed itself in very clear, confident and strong terms in finding against the Appellant on every aspect, and so it is effectively what is called, in Sinclair Roche & Temperley v Heard and Another [2005] UKEAT 0637/05/2111, “a second bite of the cherry”.