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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Maguire v. BAE Systems (Defence Systems) Ltd [2004] UKEAT 0605_03_1601 (16 January 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0605_03_1601.html Cite as: [2004] UKEAT 0605_03_1601, [2004] UKEAT 605_3_1601

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HIS HONOUR JUDGE J R REID QC

1. This was an appeal from a decision of an Employment Tribunal held at Southampton. After a hearing spread over five days the decision was sent to the parties and entered on the Register on 5 June 2003. By that decision the Tribunal dismissed claims by the Appellant, Mr Maguire, that he had been constructively dismissed and that the reason for his dismissal was redundancy. At the conclusion of the hearing we indicated that the appeal would be dismissed but that we would give our reasons later. We also invited the parties to make submissions in writing on the issue of costs. We received written submissions on costs from the Respondent ("BAE") and from Mr Maguire. We now give our reasons for dismissing the appeal and our decision on the issue of costs.
2. The facts, as found by the Employment Tribunal are follows. BAE is a well known major manufacturer and supplier of defence equipment. Until the summer of 2000 Mr Maguire was employed by BAE as a Procurement Executive - Production Buyer within its Avionics -Communications and Defence Industry ("CDI") Division based at Christchurch and Ilford. He managed a team of 28 staff, 16 based at Christchurch and 12 at Ilford and was responsible for procuring materials for the manufacture of avionic systems by BAE at its Ilford factory.
3. Mr Maguire had many years experience in the defence procurement industry and his skills were highly valued by BAE. His duties included the management and negotiation of major contracts with suppliers, identifying areas for savings, selecting suppliers and monitoring their performance. The Ministry of Defence was BAE's principal customer and Mr Maguire was authorised to the highest level of security clearance by the Ministry of Defence.
4. In December 1999 BAE merged with Marconi Electronics Systems Ltd. The merger led to a fundamental reorganisation of the business including the CDI Department. The reorganisation led to a reduction in the number of senior executive positions and Mr Maguire's line manager Mr Goldsworthy was made redundant. Marconi Defence Svstems had manufacturing sites at Rochester and Basildon. In June 2000 the Respondent company announced its intention to close the manufacturing site at Ilford and to transfer the manufacturing work from there to the Rochester and Basildon sites. Mr Maguire was based at Chichester.
5. The official announcement of the reorganisation came in a notice from the Chief Executive Mr John Weston dated 15 June 2000 distributed to all employees. It announced that the programme of reorganisation would result in the equivalent of three thousand eight hundred job losses. It was anticipated that the Ilford site would close in the first quarter of 2001. Steps to minimise the effects of the announcement on employees were to include a selective voluntary redundancy programme and an early retirement scheme. There was to be consultation with trade union and employee representatives. As a result of these announcements Mr Maguire became concerned about the continuity of his employment with BAE. Since his role covered the procurement of materials for manufacture at Ilford but not the procurement of products from sub-contractors he foresaw that the closure of Ilford could mean that his position would disappear. He assumed that Christchurch would in future source in-house manufactured products from the manufacturing plants at Basildon and Rochester and both already had fully staffed procurement teams. He reported to his Line Manager, Mr Bradshaw. Mr Bradshaw reported directly to Mr Paynter, the Managing Director of CDI but in practice he also reported to Ms Luckhurst, the Procurement Director of the Tactical Products Division.
6. In June 2000 Mr Maguire had meetings with Mr Bradshaw and Ms Luckhurst when he raised concerns about the security of his employment and the possibility of redundancy. He told Mr Bradshaw that he would resist any attempt to make him redundant. It was common ground that BAE never reached the stage in 2000 of having to put him at risk of redundancy in any formal sense, but it is clear that his position was under threat as a result of the planned closure of the Ilford site. He was regarded by BAE as an able procurement executive and the company was anxious to retain his skills. The intention was to redeploy him if at all possible.
7. At their meeting in June 2000 Mr Maguire to Mr Bradshaw that he would not be interested in any redeployment that would involve having to move house. His marriage had broken down and he had just formed a new relationship. He also wished to maintain his income because he still had children at University. Mr Bradshaw's immediate concern was the management of the transition from direct manufacture at the Ilford site to subcontracted manufacture in Basildon and Rochester. Mr Hugh Letheren was the Head of Strategic Communications Projects and in the summer of 2000 Mr Maguire was responsible for procurement on a number of a number of specific procurement projects at the Ilford site which were expected to take another six to twelve months to conclude. Mr Letheren told Mr Bradshaw that in his view the Applicant was playing a key role on a number of his projects and that the profitability of these projects would suffer if Mr Maguire were to leave. Mr Bradshaw told Mr Letheren that he wanted Mr Maguire to manage the transitional arrangements in the role of manufacturing transition manager.
8. Mr Bradshaw reassured Mr Letheren that this new role would leave Mr Maguire with ample capacity to conclude the work he was doing on Mr Letheren's projects. At their meeting in June 2000 Mr Bradshaw explained to Mr Maguire that there was no intention to make him redundant and

that the intention was to redeploy him. Mr Bradshaw went on to explain to him that he wanted him to undertake the role of Manufacturing Transition Manager in addition to completing Mr Letheren's projects. This work was expected to last between nine and twelve months. Mr Bradshaw told Mr Maguire that he was prepared to retain him in the new role of Manufacturing Transition Manager for as long as necessary. He said that he envisaged the role would change and diminish over a period of about twelve months as the transition was accomplished, and that it would probably cease to be suitable for someone of Mr Maguire's seniority.

9. Mr Bradshaw drew up a draft job description for Mr Maguire's approval in about October 2000. This was submitted to Mr Maguire and he returned it to Mr Bradshaw ticking some items and adding further comments of his own. Mr Bradshaw then produced a job description incorporating Mr  Maguire's amendments. As a long serving employee Mr Maguire was entitled to an enhanced contractual notice period. When offering redeployment as an alternative to redundancy it is BAE's policy to offer redeployment on a new contract with no such enhancement. However, BAE considered that it would be unfair to Mr Maguire to require him to accept the new role on these terms because he had not formally been declared at risk of redundancy. He was therefore allowed to retain his existing terms and conditions including his right to an enhanced notice payment.
10. Mr Maguire continued to perform part of his old role as Procurement Executive whilst managing the transition of manufacturing from Ilford to Basildon and Rochester. He was involved in meetings to discuss the methods for calculating costs for reimbursement between Christchurch and Basildon/Rochester, making decisions about legally executing the sub-contracting of work, raising of purchase orders to formally transfer the work and direct access to Basildon's works order systems.
11. By early 2001 the Ilford site was effectively closed. Procurement staff at Ilford, who had been part of Mr Maguire's team were gradually redeployed to their new jobs at Basildon. Four Procurement staff from Christchurch continued to be based at Christchurch and he continued to manage them for pay purposes but they became part of Rochester Procurement and were functionally under the management of Rochester.
12. It was not in dispute that Mr Maguire never accepted the job title of Manufacturing Transition Manager, always insisting that his job title was Procurement Executive. In March 2001 Mr Dixon. the Human Resources Manager wrote to him to confirm a salary increase. The letter referred to his job title as Manufacturing Transition. When Mr Maguire wrote objecting to the title change on the 13 March Mr Dixon replied amending his job title to Procurement Executive Production. When Mr Bradshaw and Mr Dixon discussed his objection to the job title they did not feel that there was enough significance in the change of title to make an issue of it. Since it had appeared to upset Mr Maguire, they agreed that the old title could be reinstated. The important thing from Mr Bradshaw's point if view was that Mr Maguire was performing the role of Manufacturing Transition in addition to completing Mr Letheren's projects.
13. In the Spring of 2001 BAE supported Mr Maguire's own efforts to explore alternative job roles. Between February 2001 and April 2001 he was in discussions with the Grippen and South Africa Programme ("Grippen") one of BAE's subsidiaries. In April 2001 he was offered the post of National Industrial Participation Executive with Grippen for an initial period of two years to commence on the 1 June 2001. The transfer to Grippen would have required him to accept a new contract with terms and conditions which were less generous, particularly in relation to his enhanced notice provisions. Attempts to resolve this difficulty included the offer of a lump sum payment of £10,000.00.
14. When he rejected this, he was offered secondment. This would not require the issue of a new contract provided he signed a compromise agreement guaranteeing his enhanced termination payment if he was to be made redundant at the end of the initial period of secondment without suitable alternative employment being offered to him. Initially he appeared enthusiastic, but finally rejected the offer, asking for a £20,000.00 increase in salary and for a payment equivalent to a redundancy payment to be made to him at the commencement of the secondment. He was also offered the opportunity to be considered for the role of Head of Procurement with BAE which would have been a promotion for him, but he declined to be considered for this role.
15. According to Mr Maguire's evidence to the Tribunal he was offered a Procurement role with Thomson-Marconi ("Thomson"), then 49% owned by the Respondent in response to an approach from the Applicant in May 2001.
16. In June 2001 Mr Maguire made a series of demands to be dismissed on the grounds or redundancy and to be paid an enhanced redundancy payment. On the 7 June 2001 he was called to a meeting with Mr Dixon and Mr Paynter, Managing Director of CDI Division at Christchurch. The meeting took place in Mr Paynter's office. The purpose of the meeting was to offer him the permanent post of CDI Manufacturing Procurement Manager. It combined the role of Manufacturing Transition Manager with a new job title and an additional area of responsibility for manufacturing at the Respondent's site in Blackburn. A goodwill ex-gratia payment of £40,000.00 was offered to him.
17. On 18 June 2001 Mr Dixon wrote enclosing a formal offer of the permanent position of CDI Manufacturing Procurement Manager attaching a job description. It was similar to the job description drawn up by Mr Bradshaw for the Applicant the previous autumn, save for the change in job title and a widening of the remit to include overseeing manufacturing procurement at Blackburn. On 15 June 2001 Mr Maguire's solicitors wrote to Mr Dixon explaining that he had rejected the offer of the post of CDI Manufacturing Procurement Manager on the grounds that it was not suitable alternative employment. They argued that he was redundant and was entitled to a redundancy payment and was considering leaving and claiming constructive dismissal.
18. In reply Mr Dixon explained that Mr Maguire's role continued and if he were to leave he would have to be replaced. On the 12 July 2001 Mr Maguire sent an e-mail to Mr Paynter, Mr Dixon, Mr Bradshaw and Mr Letheren. It announced an intention to copy the memorandum more widely by the end of business the following day. It was couched in offensive, threatening and emotive language. He made reference to declaring war on BAE. Shortly afterwards on the 19 July Mr Maguire lodged a formal grievance. He complained that his post of Procurement Executive had been systematically dismantled over the previous 12 months and that no suitable alternative position had been offered. He also claimed that a previous complaint made in writing on the 5 March 2001 had not been resolved.
19. As Mr Maguire's Line Manager Mr Bradshaw conducted the first hearing of the grievance on the 23 July 2001. Mr Bradshaw rejected the grievance. On the question of offers of suitable alternative employment he took the view that Mr Maguire had failed to give credit for the fact that BAE went to some lengths to assist Mr Maguire in assessing the suitability of the Grippen job including allowing him to visit South Africa for an extended period to explore what was involved. Mr Bradshaw took the view that the CDI Manufacturing Procurement post was substantially the job that he was already undertaking.
20. Mr Maguire pursued the grievance to the next stage and this was heard by Mr Dixon. He rejected the grievance on the grounds that the company's treatment of Mr Maguire had been fair. Mr Maguire pursued the grievance to the final stage which was heard by Mr Bernard Walsh, the Human Resources Director. The hearing took place on the 16 August. At their meeting Mr Walsh explained the background to the merger process. The meeting lasted about an hour and a half and afterwards Mr Walsh spoke to Mr Paynter, Mr Snow (Group Procurement Director), Mr Bradshaw and Mr Dixon. He conceded that Mr Maguire's job had changed but that this was inevitable following the closure of the Ilford manufacturing site and the organisational review undertaken following the merger,
21. No-one suggested to Mr Maguire that he should leave. Unlike many thousands of BAE's employees at the time, he was not under any threat of redundancy. He had been made an offer of the work he was currently undertaking on a permanent basis. He had been offered a post in Grippen on an increased salary but had rejected it. Mr Walsh assured Mr Maguire that procurement was still an important and valuable function within BAE. On 20 August Mr Walsh wrote to Mr Maguire rejecting his grievance and on the 24 August 2001 the Applicant wrote to Mr Paynter tendering his resignation, claiming that his post was redundant, that he had not been offered suitable alternative employment and requesting a redundancy payment and a payment in lieu of notice.
22. It was Mr Maguire's case that a decision was taken by the Respondent in or about June 2000 to close the Ilford manufacturing site which, it was anticipated, would take between six to nine months. He claimed that there was a specific agreement between him and BAE that he would undertake Procurement activities for specific projects for a period of twelve months from June 2000, after which his job would be redundant and he would then be entitled to receive the enhanced contractual redundancy terms to which he was entitled. It is suggested that BAE subsequently attempted to vary his duties unilaterally and later to force him to accept an unsuitable alternative position in order to avoid making a redundancy payment to the Applicant.
23. Mr Maguire further complained that despite grievance hearings on three separate occasions his complaints were not addressed. It was also suggested on his behalf that as from 30 June 2001 his job as Procurement Executive had become redundant and that no suitable alternative work was offered to him. It was claimed BAE's treatment of Mr Maguire amounted to a repudiatory breach of contract, namely a breach of the implied duty of trust and confidence and/or a breach of the duty to provide him with work He claimed that his resignation on the 24 August 2001 was a constructive dismissal and unfair and that he was entitled to compensation for unfair dismissal and a statutory redundancy payment.
24. The Employment Tribunal found against Mr Maguire on all points. It held that there had been no such "specific agreement", that there was no breach of the implied term of trust and confidence, that Mr Maguire was not redundant, that his rejection of alternative employment was unreasonable, that he terminated his contract but not in circumstances such as he was entitled to terminate it by reason of the employer's conduct.
25. It was an issue between the parties, on the way in which the decision was expressed, whether the Tribunal also found that he terminated his employment by reason of his decision to take up employment with Thomson-Marconi and not because of anything done by BAE.
26. Counsel for Mr Maguire advanced four grounds of appeal. In short form they were (a) that the decision was based at least in part on a finding of fact that was perverse; (b) that the Tribunal failed to give adequate reasons for its rejection of Mr Maguire's claim that BAE was in breach of the implied term of trust and confidence; (c) that the finding that Mr Maguire was not redundant between June 2001 and his resignation of 24 August 2001 was unsustainable; and (d) that the Tribunal's alternative finding that the job offered to Mr Maguire was suitable alternative employment could not stand. He accepted that the third and fourth grounds only arose if Mr Maguire was successful in establishing one or other of the first two grounds. In the circumstances we did not find it necessary to hear argument on grounds (c) and (d). All four of those grounds started from the proposition that BAE's treatment of Mr Maguire was causative of his departure.
27. Counsel for BAE contested all the grounds of appeal but in addition submitted that in any event the Tribunal had held that the reason for Mr Maguire's resignation was not BAE's alleged breach of contract but because he had decided to leave BAE and had taken a new job with Thomson before he resigned. It was submitted that in those circumstances even if there were a breach of contract by BAE, there was no constructive dismissal because Mr Maguire's departure was not a consequence of that breach. If the Tribunal had made that finding and it stood, he submitted Mr Maguire's claim was bound to fail, what ever other defects there might have been in the decision.
28. Since Counsel for Mr Maguire accepted that if he could not establish either that the Tribunal had held that Mr Maguire's departure was caused by some one or more of the matters of which he complained or that any finding to the contrary could be impugned, the appeal could not succeed it is therefore sensible to begin by considering what the Tribunal's findings were as to the cause of Mr Maguire's departure and whether they can stand.
29. The Tribunal correctly stated at paragraph 32 of its decision:

"To succeed in his complaint of constructive dismissal the Applicant must show that the Respondent was guilty of a fundamental breach of contract or showed an intention no longer to be bound by an essential term, that the breach and not something else caused the Applicant to leave and that the Applicant did not waive the right to terminate the contract by delaying too long after the breach."

Then at paragraphs 38 and 39 the Tribunal having held that there was a continuing role for Mr Maguire when he resigned in August 2001, went on:

"38 If we are wrong and the Applicant became redundant in June 2001 we are satisfied that the offer made to the Applicant at the meeting of 7 June 2001 was suitable alternative employment….The Applicant's rejection was unreasonable. We remind ourselves that by this time the Applicant had located alternative employment with Thomson [in Somerset].

39. The Applicant had taken the decision to acquire property in Somerset and hoped to partially service the purchase with a redundancy package from the Respondents…..Having decided to leave and take up his post with Thomson it is not perhaps surprising that any offers made by the Respondent were regarded by the Applicant as "unsuitable"."

30. In our judgment the Tribunal was there making a finding that the cause of Mr Maguire's departure was not any supposed redundancy or breach of term by the employer but because he had decided to take the job offered to him by Thomson. In our view that was a decision which the Tribunal was entitled to reach on the material before it. Furthermore it was clearly a correct decision. By agreement between the parties there was produced to us a document which had not been before the Tribunal. It was a letter from Thomson to Mr Maguire dated 26 February 2001 offering him employment. Endorsed on the letter was Mr Maguire's acceptance of the offer dated 15 April 2001 and an indication of a proposed start date on 30 July 2001. That start date was subsequently fixed for 3 September by another letter dated 22 August 2001. In those circumstances Mr Maguire's evidence to the Tribunal that he received a job offer from Thomson in May was plainly untrue. By that time he had already accepted Thomson's offer. Thus, notwithstanding Mr Maguire's deception of the Tribunal as to the date of Thomson's offer and his failure to mention that he had accepted it in April, the Tribunal reached an obviously correct conclusion that his departure was not caused by any conduct of BAE and it followed that his claim was bound to fail.
31. In these circumstances it is not necessary for us to deal with the grounds of appeal (a) and (b) but since we heard full argument on them we think it appropriate to express our views on them briefly. Although the grounds were expressed separately in the grounds of appeal, Counsel for Mr Maguire stated that they overlapped to a considerable degree and his argument on ground (b) was largely conducted by reference back to the points previously made under ground (a) we think it is appropriate. In those circumstances we think it is appropriate to deal with the two grounds together.
32. Counsel for Mr Maguire submitted that the Tribunal's decision that the Applicant was not constructively dismissed was based, at least in part, on a finding of fact that the Applicant had been undertaking the duties (of Managing Manufacturing Transition) from June 2000 was perverse. He attacked the finding at paragraph 37:

"...We are unanimously of the view that the Applicant was not redundant after June 2001. The Applicant denies ever receiving the final draft of the job description prepared by Mr Bradshaw from the original draft containing the Applicants amendments. However it is clear from the evidence that from June 2000 until the effective date of termination of employment the Applicant was undertaking those duties outlined in the job description even though he rejected the title of Managing Manufacturing Transition. There was clearly a continuing role for the Applicant when he resigned in August 2001."

Mr Maguire's case was that he never, in any meaningful sense, undertook the role of Managing Manufacturing Transition, as contended by BAE, whether in June 2000 or afterwards, albeit that he accepted that on occasion he did perform some of the duties in the job description.

33. There were two elements in this attack. The first was that on the evidence the finding that Mr Maguire undertook his supposed new role from June 2000 was unsustainable. The second was in relation to Mr Maguire's case that there had been an agreement that he would be made redundant in June 2001 and pending that agreement taking effect that, in effect, he would be employed in running down Ilford and on procurement work for Hugh Letheren. He asserted in effect that there was a breach of the obligation of trust and confidence as a result of BAE refusing to honour that agreement. The attack was to the effect that the Tribunal failed to consider the relevant evidence, failed to make relevant findings and made impermissible findings as to that issue. It was said that in the absence of proper findings on that issue the Tribunal could not proper findings on the issue of whether Mr Maguire ever undertook his supposed new role.
34. BAE's pleaded case in its ET3 was that:

"The Applicant's position of Procurement Executive - Production Buyer ceased to exist in or about December 2000...Consultation with the Applicant concerning the deletion of his post and his future with the Respondent was carried out by Mike Bradshaw and Colin Dixon. It began in about July or August 2000 and ended in about December 2000 when he was redeployed into the position of Manufacturing Transition Manager...The Applicant's new duties commenced in about December 2000"

35. The witness statement of Mr Maguire's line manager Mr Bradshaw (whose evidence the Tribunal accepted) stated that Mr Maguire "worked reasonably happily in his new role from about October 2000", whilst in cross-examination he described the position as "More of a phased transition from one job to another." He described it as "shades of grey" and pointed out that the date of December 2000 was significant because that was the date when the Ilford factory ceased to have a procurement need (ie on its closure at Christmas 2000). He "saw the tasks JM working on in the latter half of 2000 as transitioning into MTM role". Hugh Letheren, in respect of whose projects Mr Maguire was able to continue in a procurement role after June 2000, said at para 2 of his witness statement: "...I believed my intervention had saved him from redundancy." The Tribunal also accepted his evidence.
36. Counsel for Mr Maguire submitted that in considering the issue a vital question (allegedly not answered by the Tribunal) was the date and provenance of a job description for Mr Maguire produced on the computer of Mr Bradshaw. Mr Bradshaw said it had been produced in October 2000 after he had had comments from Mr Maguire on an earlier draft and that it effectively accepted Mr Maguire's suggestions. It had been asserted at the Tribunal on behalf of Mr Maguire that the document was not produced till much later. In fact the Tribunal did (though briefly) make an express finding in relation to this point at para 12:

"This [the earlier draft job description] was submitted [in October 2000] to the Applicant and he returned it to Mr Bradshaw ticking some items and adding further comments of his own. Mr Bradshaw then produced a job description incorporating the Applicant's comments". That passage can only properly be read in the light of the Tribunal's express statement that its decision was made having considered all the evidence both oral and documentary"

(see para 2) as a finding that the revised job description was produced in or about October 2000, as Mr Bradshaw testified. This point is therefore of no substance.

37. In our view the position was that there was evidence on which the Tribunal could properly find that from June 2000 Mr Maguire was undertaking the role eventually laid out in the job description thrashed out between himself and Mr Bradshaw and reflected in the document the Tribunal clearly found to have been produced in or about October. It could properly hold that the creeping transition which occurred began in June when the plans for the closure of the Ilford factory were made public. There was no dispute that Mr Maguire was unhappy about his job title but that did not affect the substance of his position. In any event the creeping nature of the transition between Mr Maguire's old and his new duties was such that even if the Tribunal were in error in describing the start date of the new duties as June 2000 rather than October or December, the error was not one which in any sense undermined the decision. It could not be said that it was an error which caused the whole of the decision to unravel.
38. So far as the second allegedly perverse finding of fact is concerned, Mr Maguire's pleaded case was that there was an oral agreement made between June and August 2000 that he would be made redundant in summer 2001. He identified the persons with whom the agreement had been made as Mr Bradshaw, Mr Dixon, Mr Letheren, Ms Luckhurst and Mr Charmak As a result of this pleading all these people gave evidence before the Tribunal. In each case their evidence was inconsistent with the case made by Mr Maguire. In fact when he gave his evidence Mr Maguire did not assert an agreement made with anyone other than Mr Bradshaw. The Tribunal properly summarised their evidence by saying that the witnesses "gave evidence to the Tribunal denying the existence of such an agreement". They were not corroborating each other in the sense that there was no suggestion that the agreement had been made on an occasion when they were all present, but they all supported the case that there was no agreement. And the Tribunal was entitled to accept that evidence. Indeed, it seems to us that in the light of Mr Maguire's failure to mention the alleged agreement in communications with BAE (in particular his letter of 5 March 2001 and his e-mail of 12 July 2001) or at any stage in his grievance hearings, it might well have been perverse for the Tribunal to conclude that there was any such agreement.
39. The decision which the Tribunal reached was one which took account of their findings on the credibility of the witnesses who gave oral evidence and a clear view was expressed: "We accept the evidence of the Respondent's witnesses." This was despite a sustained attack on the veracity of, in particular, Mr Bradshaw including an allegation that the October job description was a forgery in the sense that it was produced at a substantially later date. In our judgment there is no basis for asserting that those findings were perverse or that they were inadequate.
40. Against this background the remainder of Mr Maguire's complaints lose their significance. There was a continuing role for him at BAE; he had not been promised redundancy in summer 2001; he had exercised his right to use BAE's grievance procedure. His real complaint was that he had not got what he wanted out of that procedure (ie a large payment to help him with the purchase of the property in Somerset that he was acquiring for the purposes of his new job with Thomsons).
41. The attack on the decision on the grounds of lack of findings and of perversity (skillfully though it was done) was no more than an attempt to lure the Employment Appeal Tribunal into an impermissible factual investigation. As the Court of Appeal pointed out in Yeboah v Crofton [2002] IRLR 634, only the Employment Tribunal hears all the evidence at first hand, the Employment Appeal Tribunal only has a version of the evidence which is "always seriously and incurably incomplete" in order to fulfil its role of dealing with questions of law. It has no jurisdiction to hear appeals on fact and the appeal is not a retrial of the case. In this instance the Tribunal admirably fulfilled its duty as laid down in Meek v Birmingham District Council [1987] IRLR 250. It made all the necessary findings of fact and gave a sufficient statement of its reasons to enable the parties to see why they had won or lost. Its decision also enabled the appellate tribunal to see the issues of law that arose. The only oddity in this case was that by consent the appellate tribunal was allowed to see two further documents (which ought to have been produced to the Employment Tribunal) which reinforced the correctness of its decision.
42. So far as costs are concerned: we accept the submission made on behalf of BAE that this appeal was improper and vexatious and that Mr Maguire's conduct in pursuing the appeal was unreasonable. The letters of 26 February and 22 August 2001 should have been produced to the Employment Tribunal. Mr Maguire chose not to produce them to his legal advisers until during the hearing of the appeal, when they were rightly disclosed and put before us. The letters revealed that Mr Maguire had agreed to take his new job with Thomsons some four months before the final event which he asserted entitled him to treat himself as constructively dismissed. So far as the appeal relied on a supposed oral contract sometime in the summer of 2000 to make him redundant in the summer of 2001, it was manifestly hopeless. In our judgment the circumstances are such that Mr Maguire should be ordered to pay BAE's costs of the appeal. Happily for him much of the preparation for the appeal was carried out by BAE's trade federation and as a result BAE only seeks counsel's fees. Those fees amount in total to £4668.33 and we assess and award costs in that sum. Since we can see no reason why BAE cannot recover the VAT on those fees as input tax we make no order in respect of the VAT on those fees.