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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Budenberg Gauge Co Ltd v Griffiths [1994] UKEAT 43_93_2401 (24 January 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/43_93_2401.html Cite as: [1994] UKEAT 43_93_2401

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BAILII case number: [1994] UKEAT 43_93_2401

Appeal No. EAT/43/93 & EAT/162/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24th January 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D O GLADWIN CBE JP

MRS M E SUNDERLAND JP

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BUDENBERG GAUGE CO LTD          APPELLANTS

MRS M L GRIFFITHS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR SEAN JONES

Of Counsel

Legal Department

EEF

Broadway House

Tothill Street

London SW1H 9NQ

For the Respondent MR B CARR

Of Counsel

Rowley Ashworth

247 The Broadway

London

SW19 1SE


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal sitting in Manchester on the 17th July and 6th August 1992. The Tribunal unanimously decided that Mrs Griffiths, a Gauge Calibrator employed by the Respondents, had been unfairly dismissed. Mrs Griffiths was awarded the maximum sum of £10,000.

The hearing before the Tribunal on the 17th July was concerned with determining liability for unfair dismissal. The hearing on the 6th August was held to determine remedies, including the assessment of compensation.

The decision was notified to the parties on the 30th November 1992. After the notification there was correspondence, which we shall refer to in more detail later. The correspondence included an application made by the Appellants on this appeal, Budenberg Gauge Company Limited, who were the Respondents to the application for unfair dismissal and were the former employers of Mrs Griffiths.

On the 3rd December 1992, Budenberg Gauge asked the Chairman for a review of the decision promulgated on the 30th November. A further letter in support of the request for the review was sent on the 17th December. On the 7th January 1993, the Chairman of the Tribunal at Manchester refused the application for review on the grounds that it had no reasonable grounds of success. That decision was notified to the parties on the 12th January.

That is a brief outline of the proceedings below which have given rise to two appeals. The first appeal dated 8th January 1993 is an appeal by Budenberg Gauge against the decision promulgated on the 30th November, both as to liability and as to assessment of compensation.

The second appeal, also by Budenberg Gauge is dated the 22nd February 1993. It is an appeal against the Chairman's refusal to grant a review of the earlier decision.

We have heard the appeals in the order in which they were issued. That is convenient for our decision.

We dismiss the appeal against the decision notified on the 30th November for the following reasons. It is necessary first to look at the factual background which gave rise to the proceedings.

Mrs Griffiths was employed from the 1st January 1974 as a Gauge Calibrator, a semi-skilled job performed for Budenberg Gauge who carry on business as instrument manufacturers. Mrs Griffiths' employment, after all those years, ended on 2nd August 1991 when she was made redundant. She considered that she had been made redundant unfairly and presented to the Industrial Tribunal, on the 18th September 1991, an application complaining of unfair dismissal. Her complaint is briefly, but clearly, expressed. She says:

"On being made redundant I asked for the reason why, as I did not agree that my job was redundant, because there was a lot of my work coming through, plus orders to follow, the reasons given me are on an enclosed letter from the firm, in addition I asked for the matrix system that they applied, three times in all, and am still not in receipt of it up to this date 13.9.91."

Budenberg Gauge put in an appearance to the complaint on the 15th October 1991 stating:

"It is difficult to see what if anything the Applicant [Mrs Griffiths] is alleging was unfair in her dismissal . . .

Due to the recession and the continuing fall in orders plus an improving administration system the Company had to review their staffing levels and costs in order to maintain their competitiveness in the market place.

On July 1st, 1991 the Company issued an H.R.1 declaring that there would be a total of 94 redundancies comprising 65 manual employees and 29 staff employees."

The Notice of Appearance then states the criteria which the Company intended to use in the redundancy exercise. The Company entered into discussions with the relevant trades unions, including Mrs Griffiths' union. Following lengthy discussions with the union Mrs Griffiths was informed that her job was potentially at risk and she was asked whether she had anything to say to be taken into consideration before the final decision was made. Her redundancy was confirmed soon after that and she was dismissed on the 2nd August 1991. She was advised of a right of appeal which she did not exercise.

In those circumstances Budenberg Gauge contended that they had acted as any reasonable employer would have acted given the same facts and circumstances.

Those documents clearly state the issue before the Tribunal when at the hearing on the 17th July 1992 it came to consider liability. It is argued by Mr Jones, on behalf of Budenberg Gauge, that the decision of the Industrial Tribunal was reached in error of law. In order to see whether that is a good submission it is necessary to look, first:, at the facts which the Tribunal found; secondly, at the law which the Tribunal applied to those facts; and thirdly, at the conclusions which the Tribunal reached in applying the law to the facts.

The Tribunal stated the facts in relation to the nature of Budenberg Gauge's business, and the problems caused by the recession which led them to a decision to make a number of redundancies. In an important part of the decision on fact, the Tribunal stated at paragraphs 5 (e), (f) and (g) as follows:

"(e) Following lengthy discussions with the relevant Trade Unions including the applicants unions there was no agreement reached as to whether there was a redundancy situation let alone the criteria to be used on a point matrix system which they wished to use to enable them to retain those employees with the required skills and experience.

(f) The respondents forwarded to Mr Carlisle as Chairman of the Joint Union (Budenberg Gauge) Consultative Committee on the 9th July 1991 ten copies of a form which they described as the points matrix redundancy selection criteria. This form was not the same one as was eventually used by the management in completing the individual employees redundancy assessment. The original form contained four criteria - length of service, attendance, timekeeping and ability. The one actually used covered performance (with sub assessment relating to skill, ability, work rate and quality), special skills, length of service, time keeping, attendance and disciplinary offences."

I pause to mention that in the course of submissions we have been shown the documents referred to relating to the points matrix redundancy selection criteria. We agree with the comments of the Tribunal has on those documents. The two documents in question are contained in the "Exhibits Bundle" prepared for this appeal. The copy of the form sent to the Union Representatives appears on page 68 of the Bundle headed "REDUNDANCY SELECTION CRITERIA". The form actually used by Budenberg Gauge in awarding points on the redundancy exercise is contained in page 39 of that Bundle.

The Tribunal then went on to find facts specifically relating to Mrs Griffiths. They said at 5(g) of their decision:

"g) On the morning of 25 July 1991 Mrs Griffiths with others, was called into the office in alphabetical order and told that she was a person at risk having been identified by a points matrix system and, asked if she anything to say, she said `she did not agree that her job was redundant'."

The paragraph deals with certain other matters irrelevant to this appeal. We have seen the selection criteria form completed for Mrs Griffiths which showed that she scored a total of 91 points. Of the 91 points she was awarded under box A for "Performance" only 4 for skill, which indicates below average. In the next box headed "Special Skills" she was awarded only 2 points, indicating no special skills. We have also been shown the total points scored in the application of the selection criteria using the Budenberg Gauge form which was not disclosed to the Union, or to Mrs Griffiths. According to the totals those who scored 92 and above were not made redundant. Mrs Griffiths scored 91.

It appears from the Chairman's Notes, which have been supplied in response to a request of the Appellant, that evidence was given and not contradicted to this effect: that the Shop Steward, Mr Anthony Carlisle, had not, before the date of his cross-examination on the 17th July 1992, seen the points scoring form, Selection Criteria, used by Budenberg Gauge. He had not seen it. He was not aware that any other Shop Steward had seen it before the date of the hearing. It also appeared from those Notes of Mrs Griffiths' oral evidence, that the first she saw of her completed form was at an interlocutory hearing. She gave evidence, in relation to special skill, that she could do work of the others and, if she had been given fair marks for special skills, she considered that she would not have lost her job. She was not given the form at the time. If she had, she would have raised points and Budenberg Gauge could then have reached a decision upon the basis of her comments. As she was not shown the form, she was not in a position to give any comments.

The Tribunal referred correctly to the standards to be applied, and to good industrial relations practice in relation to redundancies. They referred to the case of Williams v. Compair Maxam Ltd [1982] IRLR 83. They summarised the good industrial relations practice which requires an employer to consult with the union by the best means, trying to achieve agreement as to the criteria which will be applied in selecting the employees to be made redundant. The passage cited from to that case refers to the fact that:

"Whether or not an agreement as to criteria has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely on the opinion of the person making the selection but can be objectively checked against such things as attendance records, efficiency at the job experience and length of service.

The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selections."

The Tribunal referred correctly to the question posed for them under Section 57(3) of the Employment Protection (Consolidation) Act 1978 and stated in paragraph 11 of their decision that they had to determine whether, in the particular circumstances of each case, the decision to dismiss the employee falls within the band of reasonable responses which a reasonable employer might have adopted.

In a crucial paragraph of the decision the Tribunal stated in paragraph 11:

"After most careful considerations we conclude that taking all the circumstances of the matter into account the respondent did not act reasonably in what it did. Our concluded and unanimous view is that the respondent did have a potentially fair reason for dismissing the applicants, namely that the applicants were redundant, but that in all the circumstances the respondent did not act reasonably in the manner in which the applicants were dismissed. While the employer had started off a process of consultation with the union, no sensible result ensued and the respondent did not properly consult either applicant."

"Either Applicant" refers to Mrs Griffiths and another Applicant a Mr Hazelwood, with whom we are not concerned on this appeal.

"In addition, Mrs Griffiths who is semiskilled was put at a disadvantage in that the other employees with whom she was compared were skilled."

The Tribunal went on to calculate the compensation. I will return to that calculation in a moment.

Mr Jones, on behalf of Budenberg Gauge, complained that the Tribunal had not given satisfactory reasons for coming to the conclusions in the passage just quoted. He referred in to the Court of Appeal's comments in Meek v. Birmingham District Council [1987] IRLR 251 which emphasises:

"Although the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, it must contain an outline of the story which has 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."

Bingham L J said:

"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. It is also 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."

Mr Jones read further passages from the judgment of Bingham L.J. The passage I have read is sufficient for his purposes. His criticism was that, without properly stating reasons, the Tribunal had come to decisions as to lack of consultation with the unions and with the individual Applicant, Mrs Griffiths. They have not stated in what respects Budenberg Gauge departed from the standards laid down in Williams v. Compair Maxam Ltd. His clients were left in the position where they did not really know why they had lost the case.

We reject those submissions. It is clear to us simply by referring to the facts and documents mentioned earlier in this judgment that there was ample material on which a reasonable tribunal, properly directing itself to the law, as this Tribunal did, could come to the conclusion that there had not been consultation with either the unions or with the individual, Mrs Griffiths.

Two points of obvious importance in the view of the Tribunal were, first, that the assessment criteria, which were not agreed, were determined and applied by Budenberg Gauge without any further consultation with the Union as to what the criteria were. The Union had no idea until the hearing of Mrs Griffiths' case what form had been used to score the relevant points.

Secondly, and more seriously, the Tribunal noted that Mrs Griffiths had been called in and told she was "at risk" on the 25th July and given notice on the following day that her employment would be terminated on the 2nd August. She was not shown the form which contained her scores on the application of the various criteria. This was not meaningful consultation, since she had no opportunity to comment on the scores which she had achieved under the various heads. The Tribunal were entitled to take the view that this, in the case of Mrs Griffiths, was a serious point, as she was only one point off scoring the amount that was needed to be retained in the employment of Budenberg Gauge.

For those reasons we reject the submissions made by Mr Jones. It is no discourtesy to him that I have summarised very briefly his points made at greater length in his skeleton argument.

The second point taken by Mr Jones on this appeal relates to the calculation of compensation. In paragraph 13 of the decision the Tribunal make a basic award to Mrs Griffiths and deduct a redundancy payment and then goes on to make the contentious awards. They awarded first, compensation for loss of wages for the period from the 2nd August 1991 down to the 30th November 1992, which is the date of promulgation of the decision. That is a period of 68 weeks and the net average wage was £146.86. There is calculated to be due to Mrs Griffiths the sum of £9,986.48. There is deducted from that money in lieu of notice. There is then added to that an estimated future loss of wages, which is 26 weeks at £146.86, producing £3,815.36. Both of those figures are in dispute, for reasons I shall mention in a moment. There was added to that the loss of pension rights. A total of £13,619.82 was arrived at. The maximum limit of £10,000 was then applied.

On the appeal against the decision notified on the 30th November 1992 Mr Jones had one simple point it was erroneous in law for the Tribunal to have assumed that, in the period between the hearing date on compensation, (6th August 1992), down to the promulgation date (30th November 1992), the position remained unchanged. It is obvious from the way in which the calculation is made that the Tribunal assumed that wages were lost by Mrs Griffiths over the whole of the period from the date of dismissal down to the date of promulgation. He says that, when there was such a long period between the date of the hearing and the date of promulgation, it was erroneous in law for the Tribunal to assume that the position would remain unchanged.

We reject that argument. If the Tribunal has heard the evidence and argument, takes time to consider its decision and make its calculations, they are in law entitled to assume that the factual position is unchanged, unless and until someone tells them to the contrary. It cannot be right that the Tribunal would be under an obligation, before they made the promulgation of their decision, to enquire of the parties in each case whether there had been any factual change. The burden, if anywhere, is on the parties to keep the Tribunal informed of significant factual changes and, if necessary, to inform them of matters which might require further evidence and argument before the decision is promulgated. There is no error of law on that aspect of the Tribunal's calculations.

That brings us to the second appeal. It is against the refusal of the Chairman to order a review.

The circumstances in which the request for a review came about are these. The decision, was promulgated on the 30th November 1992. On the 2nd December Budenberg Gauge were notified by the Recoupment Notice given under the 1978 Act that the total amount of benefit paid to Mrs Griffiths in respect of the period 2nd August 1991 to 30th November 1992 was only £193.20. Those representing Budenberg Gauge, (the Industrial Relations Adviser to the Engineering Employers' Association South Lancashire, Cheshire and North Wales) regarded this as new information which had come to light since the hearing and had a significant bearing on the case. They therefore requested a review under the "Industrial Tribunals (Rules of Procedure) Regulations 1985" Under Rule 10:

"(1) A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that -

. . .

(d) new evidence has become available since the conclusion of the hearing to which the decision relates provided that its existence could not have been reasonably known of or foreseen;

. . .

(2) An application for the purposes of paragraph (1) of this Rule may be made at the hearing. If the application is not made at the hearing, such application shall be made to the Secretary of the Tribunals at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.

(3) An application for the purposes of paragraph (1) of this Rule may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."

Under that Rule a letter was sent to the Assistant Secretary of the Tribunals at Manchester, the Regional Office on the 3rd December 1992 stating:

"New information has come to light since the industrial tribunal hearing which I believe has a significant bearing upon this case.

The Respondents' [Budenberg Gauge's] understanding was that Mrs Griffiths was unemployed, claiming benefit and actively seeking employment.

The Benefit Office in Altrincham informed me that there would be very little recoupment in the case of Mrs Griffiths and that she had only claimed benefit until November 1991.

If this is accurate then I believe that this suggests one of two possibilities. These are that:

(1) Mrs Griffiths found employment in November 1991 and was working from then onwards.

(i) It must be the case, why has the tribunal awarded 68 weeks known loss and 26 weeks future loss.

(ii) If Mrs Griffiths was not working and not claiming benefit then why not?

My understanding of the Unemployment Benefit Rules are that to claim the benefit one must be unemployed, have done no work and be actively seeking work.

Mrs Griffiths was perhaps ill claiming sickness benefit. If so then she was not actively seeking employment and the tribunal should have taken this into consideration."

Unfortunately, the letter goes on for another two pages to raise a lot of matters concerning consultation of Mrs Griffiths; failure to consider a relevant case; failing to consider that Mrs Griffiths was disadvantaged in that she was semi-skilled and was compared in the redundancy exercise with skilled employees and so on. None of those matters were properly included in the request for review. Mr Jones on this appeal has not sought to defend their inclusion.

A further letter was sent to the Regional Office at Manchester on the 17th December by the Engineering Employers' Association of South Lancashire. That included a letter which had been sent by Mrs Griffiths to her adviser in response to an enquiry raised with her advisers by the Engineering Employers' Association. Her advisers sent her a letter of the 7th December pointing out the query raised with them on behalf of Budenberg Gauge. She replied on the 11th December 1992 saying this:

"I have been unemployed since being made redundant until 3rd September 1992. I was on the dole and my GP put me on the sick, as due to losing my job, and not being able to get work, and the breakdown of my marriage, I was suffering from general malaise and depression. It didn't stop me looking for work, as like a catch 22 situation, being out of work was the reason for me being depressed, and if I could get a job it would alleviate the problem, which it has proven to do, as I am now working and have improved greatly, I'm not sure of the date of my sickness, I think it was around the beginning of December 1991.

That letter was sent by Mrs Griffiths' adviser to the Industrial Relations Adviser with the Engineering Employers' Association. He then sent it on, on the 17th December, to the Chairman of the Tribunal. He comments on that letter:

"It confirms that the Applicant from December 1991 was not available for work.

At the hearing in July either the Applicant was not questioned on this point or there was some misunderstanding. In either event I consider that the amount of compensation awarded to the Applicant has been incorrectly calculated."

Pausing there it is clear from reading the two letters sent to the Tribunal on behalf of Budenberg Gauge, together with the enclosed letter from Mrs Griffiths to her Adviser of the 11th December, that two important facts had emerged which would bear on the calculation of compensation for loss of wages from the 2nd August 1991 down to the 30th November 1992 and to the calculation of future loss. Those two facts were, first, that Mrs Griffiths had in fact been employed from the 3rd September 1992 onwards. In other words she got a job after the hearing on the 6th August. That covered part of the period down to the date of promulgation of the decision. It is also clear, in reading the letters together, that from December 1991 she had not been unemployed and available for work. It appears that she had been sick and possibly not available for work. It is not clear what was the cause of her illness. She asserted in her letter that it was due to losing her job. That matter was never investigated at the hearing on the 17th July or the 6th August 1992.

When the Tribunal Chairman made his decision on the application for a review, he stated:

"In exercise of the power conferred upon me by Rule 10(3) of the Rules of Procedure set out in the Schedule to the Industrial Tribunals (Rules of Procedure) Regulations 1985 I refuse the application for a review by the respondent contained in his letters dated 3 December 1992 and 17 December 1992 on the grounds that it has no reasonable grounds of success."

He sets out the Reasons in three numbered paragraphs. The second and third are not relevant since they relate to the irrelevant material included in the original request of the 3rd December 1992. Only the first paragraph is relevant and that states:

"The evidence given, by the applicant at the date of the hearing was that she was out of work and had been seeking work. The applicant's letter of 11 December 1992 confirms that although she was ill, this did not stop her looking for work. In assessing the amount of the award the Tribunal bore in mind the local levels of employment and there is no evidence that the applicant had failed to mitigate her loss by the time of the hearing."

Mr Jones submitted that there had been an error of law on the part of the Chairman. It was clearly relevant to the assessment of compensation that the facts were different from what they believed to be by the Tribunal when they made the calculations. They were significantly different, both in relation to the fact that she was employed for part of the period and to the fact that for another part of the period she was not unemployed. She was sick. In support of this part of his case Mr Jones referred us to the judgment of Sir John Donaldson, when President of the National Industrial Relations Court, in Yorkshire Engineering & Welding Co  Ltd v. Burnham [1974] ICR 77 at page 82. He said at page 82E:

". . . the test to be applied in deciding whether or not to review a decision is as follows. [and that was a review in relation to calculation of compensation] The tribunal must ask themselves whether the forecasts which were the basis of their decision have been falsified to a sufficiently substantial extent to invalidate the assessment and whether this occurred so soon after the decision, that a review was necessary in the interests of justice. There must be some finality in these matters. But at the same time, if very shortly after a tribunal has reached a decision it comes to their notice, on an application for review, that the facts are so different from those which it had assumed, that the whole substratum of its award has gone, then, subject to such considerations as whether the party applying could have obtained that evidence before the hearing, there is manifestly a case for review.

As the interval of time between the original decision and the application lengthens, it becomes more and more difficult to justify a review, for two reasons: first, because of the need for certainty and finality in litigation, and second, because any tribunal which is looking into the future should recognise that the further into the future they look, the more impossible it is to be accurate. Longer term inaccuracies do not therefore strike at the foundations of the tribunal's award because they will have been contemplated.

But in this case the employers submit that within a very short time of the tribunal's decision they knew, or thought that they knew, that an important part of the basis of the tribunal's assessment of compensation was fallacious. The decision having been given on May 16, the application was made on May 24 and it was refused on May 30. Those dates have to be looked at alongside dates which we have been given de bene esse in order that we might consider the strength of this aspect of the appeal. They are that the employee applied for the job with Butterfields and was interviewed on May 17. He was offered the job on May 21, he accepted on May 31 and he began work on June 4. It is quite clear that the employers were not in a position to know any of the facts, other than that the employee had applied for the job with Butterfields at the time when the tribunal were considering this matter. Accordingly, if it were the fact that the benefit of employment with Butterfields was substantially different from that which the tribunal had foreseen, we should have had no hesitation in sending the matter back to the tribunal in order that it might reconsider its assessment of compensation."

In this case, Mr Jones argued, the interval which has occurred between the original decision and the application for review could hardly have been shorter. The decision was promulgated on the 30th November. The request for the review was made on the 3rd December 1992 in the light of information only been made available on the 2nd December. It was supplemented by the letter of the 17th December 1992 which enclosed the important letter written by Mrs Griffiths on the 11th December.

On the question of looking at what effect this further information is likely to have on the calculations, it is very difficult for us to express a view, just as it must have been for the Chairman of the Industrial Tribunal. It is an unfortunate aspect of the case that, when making the application for review, those representing Budenberg Gauge did not follow up the new information, which had been obtained, by requesting from Mrs Griffiths' advisers details as to her sickness, any sickness pay which she had obtained, or her new job and what remuneration she had received. These figures were not available to Budenberg Gauge's advisers because they did not, apparently take steps to obtain them. They were not available to the Chairman when he made his decision. They have not been provided to us on this hearing.

Mr Jones' submission is that, in view of the promptness with which the request was made and the potential importance of the new evidence, the Chairman was in error of law in refusing to grant the request for a review.

Against that Mr Carr argued, very concisely and cogently, that there can be no appeal against the decision to review. The Chairman has a wide discretion. There has not been demonstrated any error of law. The Chairman dealt with the application for review the basis stated in the letters. It was not made clear in the two letters, in which the review was requested, that the question of Mrs Griffiths' availability for work or her sickness, or her new job, would have a substantial impact on the calculation of the loss of earnings and loss of future wages. There had been no error of law on the part of the Chairman. If there was any error at all it was on the part of those representing Budenberg Gauge in failing to make it clear in their application what the exact grounds were for seeking a review. Matters had been made even more difficult for the Chairman of the Tribunal by seeking a review on other grounds which were completely irrelevant.

We have decided that we should allow the appeal for this reason. It appears that, looking at the letters sent to the Chairman, including in particular Mrs Griffiths' letter, it would have been apparent to a reasonable Chairman that two points relevant to fresh evidence had emerged since the Tribunal's decision and that those two points might have an effect on the calculation of loss of earnings.

We return to the calculation at the end of the decision. The calculation of the first figure for the period of 2nd August 1991 to 30th November 1992 was for loss of wages for 68 weeks at the net average wage mentioned. The assumption was that during that 68 weeks Mrs Griffiths was available to work and she had lost wages which she could have earned during that period. As to the estimated future loss of wages that was calculated at 26 weeks at £146.86 per week. It was obviously the basis of that calculation that Mrs Griffiths would lose those wages, because she was not employed at any time throughout that period. The facts appear to be different, both in relation to the 68 week period and in relation to the 26 week period. It is not for us to decide what are the true facts. That is a matter to be determined on review. There may be questions in establishing what are the facts. What were the causes of Mrs Griffiths' illness? What benefit was she receiving during the period of an illness? What new position she obtained on the 3rd December 1992? What salary did she achieve in that position? Those are all matters which ought to be looked at in a review.

Our conclusion is that there was an error of law on the part of the Chairman in that a reasonable chairman would have appreciated, even from the rather unclear explanation in the letters requesting a review, that there was new evidence which might have an impact on the calculations. It was erroneous in law for him to refuse a review by the full tribunal on that point.

We therefore propose to allow the appeal and to remit to the same Tribunal the question of the calculation of the figures for loss of wages and loss of future earnings in the light of new evidence relating to the period of Mrs Griffiths' illness, to what happened during that period in relation to benefits she received, and to her fresh employment starting on the 3rd September 1992.

There has been some argument as to whether this should go to a different tribunal. In our view, there is no reason why this should not go back to the same Tribunal. We are not criticising the Tribunal for any error in relation to the determination of liability. We are not criticising the Tribunal in the determination of any question of compensation relating to matters which they knew on the 6th August 1992, when they had the hearing, or on the 30th November, when they promulgated their decision. The only criticism made is of the Chairman's refusal of a review. That is a mild criticism. We have sympathy with him in his position when the matter had not been explained as clearly as it should have been in the letters sent requesting a review.

We also mention for the consideration of the parties, in order to save time and expense on the remitted hearing, that some provision should be contained in our order under which relevant figures are supplied by each side to the other. We have in mind, again this can be a matter for submission, that Budenberg Gauge should supply figures in relation to any sickness benefits payable under the contract of employment. Mrs Griffiths' advisers should supply figures relative to the benefits which she received while sick and figures relevant to the remuneration she has received in her new job.

So the order we shall make is that, as regards the appeal on liability and compensation assessed as on the 30th November 1992, the appeal is dismissed. As regards the appeal against the refusal of a review, we shall allow the appeal and remit the matter to the same Tribunal.