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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bison Floors Ltd v Jugpall [1994] UKEAT 1017_93_1512 (15 December 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/1017_93_1512.html
Cite as: [1994] UKEAT 1017_93_1512
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At the Tribunal
Before
HIS HONOUR JUDGE J HULL QC
LORD GLADWIN OF CLEE CBE JP
MRS M E SUNDERLAND JP
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR M GRIFFITHS
(of Counsel)
Evershed Hepworth & Chadwick
Cloth Hall Court
Infirmary Street
Leeds LS1 2JB
For the Respondent MR S PHULL
(Legal Practitioner)
JUDGE J HULL, QC: This is an Appeal to us by Bison Floors Limited, of Iver, Buckinghamshire. They are the manufacturer of building products. The Respondent to the Appeal was the claimant before the Industrial Tribunal, Mr Kuldip Singh Jugpall. He is a gentleman who is now aged 34. He was, at any rate at the material time, based in Slough and he was a leading hand maintenance electrician. His employment with the Appellants began on 31 January 1983 and continued, so far as we know without any particular adverse event, until 1992, when the company found that its business was contracting. There was a need for redundancies. That bore fruit, in April 1992; the redundancies were on a fairly modest scale. But as Summer came to an end, it became obvious that further redundancies would be necessary and it was decided as the appropriate step to close one of two sheds in which the business was carried on (the smaller of the sheds and the more old-fashioned apparently) and it was decided in consultation with the unions to select 33 men for redundancy. We do not need to go into all the details.
In due course, Mr Jugpall was chosen for redundancy; he complained to the Industrial Tribunal that he had been unfairly dismissed and he wanted to ask for reinstatement, though later that was considered inappropriate and (going forward) he was in fact awarded compensation.
The Industrial Tribunal sat on 29 and 30 September 1993 at Reading under the chairmanship of Mr Leese and it seems to us that we cannot do better than go to the decision of the Industrial Tribunal to show what they found.
They record in their Full Reasons that the applicant's case was that he had been unfairly selected for redundancy and he also made a complaint of discrimination in a racial sense with which we are not concerned (that complaint was rejected by the Industrial Tribunal). So the complaint which they were considering with which we are concerned, was one of unfair selection for redundancy. It was not suggested that there was in truth no redundancy situation. It was not suggested that there had been an absence of warning and consultation, it was a case of unfair selection and that was what they had to consider; and we would say that in passing that although the facts are found in some detail by the Industrial Tribunal, very little was in dispute here. The matter is recorded in various documents to which we have been referred and of course in the findings of the Industrial Tribunal.
They record the history of the matter which is not directly material until we get to paragraph 11. They say from there onwards that the union (which was the Transport and General Workers Union) put forward certain suggestions as to the basis of selection for redundancy and those suggestions did not wholly commend themselves to the management and certain of them were rejected and certain others were accepted with qualifications. It was amongst other things suggested by the union that workers nearer retirement should be made redundant. That was rejected by the management as it stood, because management said that in their view that might well be unfair to some of the more senior members of staff. Of course if members nearing retirement chose to volunteer for redundancy, that would be acceptable.
So that was what was said about that. The management, as normally happens, wanted to maintain a balance of skills for the future and that of course limited the capacity for accepting other criteria; they wanted to maintain a balance of skills, but they would take into account other matters.
They record in paragraph 15 of their decision that Mr Fisher, who had been works manager for some years, earlier in that year had had the misfortune to have a heart attack and had undergone surgery and despite that, he was still a sick man; but he returned for this redundancy exercise (if I can call it that), after the operation and he was the person who actually took the decisions on the people who were to go. There was a Mr McIntyre, also described as works manager, who as we understand it must have taken over in a general way from Mr Fisher in his absence, but it was Mr Fisher's decision, they say.
They record various events which occurred on the way to choosing those who were to be made redundant. They say there was a meeting on 24 September and they record who was there and they say that at that stage the proposals which had been made by the shop stewards on behalf of the union were discussed and dealt with. There was a Mr Saghera there, a senior shop steward. He was personally involved in the redundancies because he too was a candidate for redundancy. There was also a Mr Munday, a more senior official of the Transport Workers Union. Mr Munday made the following observations. He said:
"... Although it was a general union principle to support last in, first out, nonetheless the union took note of the respondents' position in relation to the requirement of a balanced, skilled workforce..."
We accept what is said to us by Mr Griffiths that as a general fall-back principle last in, first out, is acceptable to a great many people.
There was a meeting on 16 October and it was then announced that 33 of the work force would be made redundant; and there was a list of names, again with our papers, and that list was sent to Mr Munday under cover of a letter of 19 October; all these documents we have seen and there is no debate about them.
In paragraph 19 they say as follows:
"... The company had taken the view that there was no longer any need for two electricians..."
Mr Jugpall was one of the electricians and the other was a Mr Bansal. Although Mr Jugpall had been with the company for a substantial time (as I say 9 years plus), Mr Bansal easily outdid him in that regard, had been with the company something like 26 years (and I am reading again from the decision):
"... and that the workload could successfully be carried out by one in the foreseeable future. We were told that the applicant was compared with the other electrician, a Mr Bansal. Mr Bansal had been with the company for 26 years as distinct from the applicant's nine years. When management considered the position, Mr Fisher came to the conclusion that there was nothing to choose between the men on the question of skill. The next criterion which was applied was the question of timekeeping and absenteeism. [Again, we accept what Mr Griffiths says to us that basically it was a case which could conveniently be called attendance, because there was nothing separately about timekeeping]. In this regard it was contended that Mr Bansal's record was superior to that of the applicant over recent years.
And this is of some importance in paragraph 20:
"... 20 It was explained to us by Mr McIntyre that it had been the practice for many years for members of the workforce to be in the habit of taking a day off and then, on return to work, asking for that to be registered as a day's paid holiday. Mr McIntyre said that the practice was wrong and that the real requirement was, in regard to holidays, that the company should have two weeks' notice. Nonetheless this practice had gone on a long time and had been condoned by the management.
21 Looking at the applicant's record, we saw that on 3 October 1992, he was noted as having had a day's absenteeism. In evidence, the applicant said that on that particular day, he had done what he had done in the past, namely taken a day off and asked Mr Fisher to put it down as a day's paid holiday. Mr Fisher refused to do so. But, according to the applicant, nonetheless at the same time a Mr Sharma had taken a day off and was allowed to book it as holiday. In the applicant's case, however, it went down as a day's absenteeism. This was to have a significant effect later on..."
It might be appropriate to mention here that Mr Fisher who, as we have said, was a sick man, did not in fact attend and give evidence in the Tribunal, so that his side of that particular matter was not, at any rate so far as Mr Fisher was concerned, put to the Industrial Tribunal; they had decided to proceed in his absence, most understandably in all the circumstances. So they go on:
"... 22 In due course, on 21 October, there was a meeting attended by Mr Bish, Mr McIntyre [that was the management side - Mr Bish was the personnel manager], Mr Munday, Mr Saghera [they as I say represented the union side] and the departmental stewards, to discuss the final selection of people for redundancy some three days later. The minutes of the meeting show that Mr Munday, with Mr Saghera, raised the selection of the applicant as the electrician to be made redundant. The company said that the criteria used had been three. First of all, in regard to ability it was considered that there was nothing between them. Secondly, the attendance record of the retained electrician, Mr Bansal, was superior to that of the applicant. Thirdly, Mr Bansal had been employed for a longer period (of some 26 years) than the applicant's nine years. According to the note at that stage, Mr Munday seemed to be satisfied that the selection criteria had been satisfied and the final one was last in first out.
23 That, however, is not borne out by a document in the respondents' bundle, dated 21 October, send by Mr Fisher as Works Manager to Mr Saghera and the applicant. It refers to a meeting with the applicant of 19 October to explain why he was selected for redundancy. Mr Fisher goes on to say "of the two electricians, namely Mr Jugpall and Mr Bansal, their "in factory" skills are equal within the bounds of this factory. The final choice was taken on timekeeping and absenteeism which the records show Mr Bansal came out on top".
That then was Mr Fisher's decision and the real reason behind it..."
When one looks at the two documents concerned, the letter from Mr Fisher is quite a short one at page 19 of our bundle of documents and it does indeed record what the Tribunal say that it records. There is nothing there about last in, first out or anything of that sort; it refers as they say to his skills being equal to those of Mr Bansal, but Mr Bansal was superior in the matter of timekeeping and absenteeism. That was what was said in the letter of 21 October. In fact, though, at page 23, there is the record of the meeting of 21 October which was attended, as I say, by representatives of both management and unions. I will read from those minutes.
"... Mr Munday with Mr Saghera then raised the selection of Mr K S Jugpall as the electrician to be made redundant. The company replied that the selection had been between two electricians and the criteria had taken into consideration had been three.."
And they set out ability, agreed that they are two men of equal ability, the attendance record of the two men and then they say:
"... 3. Mr Bansal had been employed for a longer period (26 years) than Mr Jugpall (nine years)..."
With this appraisal, the company had selected Mr Jugpall for redundancy and Mr Munday acknowledged that the selection criteria had been satisfied and that the final criteria of last in, first out had also been used in the selection.
There are two things at least to be said about that. The first is that Mr Fisher was not present, apparently, at that meeting although he wrote the letter and in the judgment of the Industrial Tribunal, was the one who took the decisions, he wrote the letter of 21 October. So it may be that there was some element of being at cross-purposes. At any rate, the Industrial Tribunal was of course entitled as the only tribunal of fact to say what it found was, in truth, the reason why Mr Jugpall had been selected rather than Mr Bansal and they found that it was contained in the reasons stated by Mr Fisher in the letter of 21 October 1992; and the only other comment, which perhaps is perfectly obvious, is that they might have found their task easier, had Mr Fisher been able to be called in front of them, which he was not, but there it is.
So then they go on, having said that the real reason was that the abilities being equal, management had relied on the record with regard to timekeeping and absenteeism or attendance, as Mr Griffiths justly calls it. They say:
"... 24 Having considered the evidence and the contentions of the parties in this matter, we find, unanimously, that the applicant has been unfairly dismissed. Having condoned the practice relating to absenteeism for many years, management in the form of Mr Fisher, suddenly decided to use that as the important criterion to select the applicant against Mr Bansal. We find that this was unfair and that the applicant had been unfairly selected for redundancy. We find that his complaint of unfair dismissal on those grounds is upheld..."
And there of course they are referring back to paragraph 21; Mr Sharma had been allowed, in accordance with the usual condoned practice, to take a casual day off and call it part of his holiday, whereas Mr Jugpall, unhappily, had not. Again, Mr Fisher was not there to explain the exact basis of it, but the Tribunal concluded (as they were perfectly entitled to do) that that was unfair. I say "perfectly entitled to do", subject to a submission which Mr Griffiths made to us which I am going to deal with in a moment, but clearly that was a fact for them and if the evidence was less full than it might have been, they still had to make their findings of fact so far as they could, and they did; and we, of course, are not invited to go behind those findings of fact.
Now the first submission which is made to us by Mr Griffiths is that this finding that the day's absenteeism was put down as absenteeism rather than being taken as a holiday, the finding that that was to have a significant effect and the finding that the applicant had been unfairly selected for redundancy is, he says, a perverse finding. Not in the sense that there has been some concealed error of law and that the Tribunal must have had in mind some error of law which they did not make plain, but he says on simple grounds of logic. It was not a conclusion which could possibly be reached. He invites our attention to what is said in the Act, because of course under Section 57 the Tribunal is required to look to see what the reason is, or if there is more than one, the principal reason for the dismissal and if the employers can show that (and here there was no doubt about it, it was redundancy), the Tribunal is required to go on; the question whether the dismissal was fair or unfair shall depend on whether in the circumstances (including the size and administrative resources of the employers' undertaking) the employers acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and the substantial merits of the case. Of course, that has been the subject of much elucidation and there is no doubt that, in the case of redundancy, the Tribunal will normally expect to see that the work force, perhaps through the trade unions, has been warned, that proper criteria have been drawn up, that there has been proper consultation and that the selection has been made in a fair and proper way. As Mr Griffiths said, and we accept this submission, the Industrial Tribunal does not have an unlimited jurisdiction to consider fair or unfair acts by an employer, what it is required to do is to consider whether the employers acted reasonably (which is often translated entirely legitimately into the expression "fairly") in treating the reason for dismissal as a reason which in fact leads to the dismissal. Therefore the Tribunal is concerned, first and foremost, to look at the employers' behaviour and see whether in treating the redundancy as a reason for dismissal the employers acted fairly or unfairly.
Now to understand this submission, one has to look at a table which is reproduced both in the Appellants' Skeleton Argument and in Mr Jugpall's Skeleton Argument which is drawn by Mr Phull on his behalf. It shows the record of each of the two rivals, if I can call them that, Mr Jugpall and Mr Bansal, in the matter of absences for various causes. There are absences for holidays, absences when sick and what one might call mere absenteeism when, for reasons which are not explained and not sought to be excused, one or other gentleman took a day off. When one looks at that, a three year period is taken and it is not contended that that is an unrepresentative or unfair way of doing it. Mr Jugpall was away on holiday (and no criticism is made of him of course for being away on holiday) but he was away on holiday for 41 days during those three years, and if you include this contested occasion on 3 October of 1992, it would be 42. He was away sick over the three years for a total of 24 days and he was merely absent without excuse for 6 days or, if the correction is made for what happened on 3 October, it would be 5 days. If one looks at Mr Bansal, there are no corrections to be made, he was away on holiday over the three years for a total of 30 days. He was away sick for 9 days and he was absent for 2 days. So one looks to see how those compare. If one looks at it from the employers' point of view, which of course was, in respect of his absence on 3 October, said to be an unfair point of view by the Industrial Tribunal, then Mr Jugpall had been on holiday for 41 days during the three years, compared with 30 days for Mr Bansal, sick for 24 days, compared with Mr Bansal's 9 days and absent for 5 or 6 days, depending upon which view you think is correct, as opposed to Mr Bansal's 2 days. Now it was as we have recorded found that in the matter of skill there was nothing between these two gentlemen, but in the matter of absences, there was in every respect an unfavourable comparison. It probably would be unfair and irrational for any employer or indeed Industrial Tribunal to take holidays into account, because holidays are holidays and there is no criticism of the man for that, but when it comes to sickness and absence, Mr Jugpall was very definitely less favourably placed than Mr Bansal, whatever view you took.
Mr Griffiths makes it plain that this is not a submission on the basis of "what difference would it have made". "On the contrary" he says. The submission is this: that there simply was no causative nexus, or to use plain English, there was no relationship of cause and effect between this alleged unfairness which the Tribunal found to be established and the decision to dismiss. It could have had no effect. Mr Griffiths accepted an illustration of what he was saying which appeared to me to put it simply (and Mr Griffiths was content to accept this as one way of looking at it), if some independent minded person had been present at any of the deliberations of the employers in deciding whether to choose Mr Jugpall rather than Mr Bansal and had said "Look gentlemen, I am sorry but I observe that he was recorded as being absent on 3 October and I happen to know that Mr Sharma was absent on the same day, but was allowed to record it as a holiday; that does not seem terribly fair; indeed I think it is unfair and I think that ought to be pointed out" and if management had then said, "Yes, we think you are right about that. We will cut out the 3 October from our calculations altogether" - that, says Mr Griffiths, would make no conceivable difference to the result, because if you just look at the arithmetic, that must be so. It cannot therefore be part of the cause of the dismissal. It was a matter which was merely incidental and since the Industrial Tribunal were, in logic, quite unable to find that it had anything to do with the dismissal, they had no business to be saying whether it was unfair or fair. It was simply something which was wholly irrelevant. They could well say "Well there is some doubt and debate about 3 October. We are not satisfied that that is correctly recorded as being an absence, we are going to disregard that", - then the result would have been just the same.
Mr Phull, who appears for Mr Jugpall, invites our attention to what is said by the Tribunal and he says "Well there is a finding of fact in paragraph 21". He says "Here is a plain finding of unfairness".
We, having considered those submissions on both sides as carefully as we can, have come to the conclusion that Mr Griffiths is correct. We asked Mr Phull whether there was any basis on which it could be suggested that the other employee, Mr Bansal, should have been selected in place of Mr Jugpall and the only criterion that he was able to think of was one which had been expressly rejected and which the union no longer wished to go on with, namely that Mr Bansal was so much more senior that he might be said to be approaching retirement. He was on any view an older man. Management had rejected that suggestion on the grounds that it might be unfair to many of those who were approaching retirement and it would stand the principle of last in, first out on its head; it could not possibly be combined with that. So that was a merely, with great respect to Mr Phull, a rather hypothetical observation; it does not seem to us to carry the matter any further.
The Tribunal finds no other facts from which unfairness is to be spelled out by them. There are no other findings of unfairness than this one occasion of 3 October and in all the circumstances, it appears that Mr Griffiths is right to describe what has happened as perversity, not in any sense, as I say, of an error of law which is concealed, but it simply does not logically follow. It is an illogical situation and just as if the Tribunal had added two and two and made five or something of that sort, or had made a mistake about dates so that they had attributed something which happened later as being the cause of some event which had happened earlier, such obvious logical mistakes are as much entitled to be called perverse as hidden errors of law, something which makes us say "that cannot be right".
It does not end there because Mr Griffiths says "This is a case where the facts were all perfectly apparent and not in doubt and even if my first submission is wrong, then it was the duty of the Industrial Tribunal in those circumstances to ask themselves what effect the unfairness which they detected had? The time for asking that question" as Mr Griffiths rightly points out "is after they have decided whether there has been fairness or unfairness and in deciding on the question of compensation, because of course under Section 74 of the Act of 1978:
"(1) Subject to sections 75 and 76...the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer..."
Now that introduces two phrases which clearly point to the fact that there must be a causative link between the unfairness and the loss. It must be due to the dismissal:
"...in so far as that loss is attributable to action taken by the employer..."
Mr Griffiths referred us to Polkey and what is said by Lord Bridge in his concurring speech. He said:
"... Employers contesting a claim of unfair dismissal will commonly advance as their reason for dismissal one of the reasons specifically recognised as valid by section 52(2)(a), (b) and (c) of the Employment Protection (Consolidation) Act 1978. These, put shortly are: (a) that the employee could not do his job properly; (b) that he had been guilty of misconduct; (c) that he was redundant. But an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as "procedural," which are necessary in the circumstances of the case to justify that course of action. [Then we look to see what Lord Bridge said were procedural matters] Thus, ...in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation..."
And so, says Mr Griffiths, Lord Bridge when laying down this principle expressly identified as matters which he would call "procedural", the adoption of a fair basis on which to select for redundancy and of course fairness in other ways too, so that selection is one of the procedural matters.
We were referred by Mr Phull to the case of Steel Stockholders. He did not actually cite the case to us, but he referred to extracts from it and we were referred by Mr Griffiths to the case of Boulton & Paul Limited v. Arnold [1994] IRLR, page 532. In the case of Steel Stockholders (Birmingham) Ltd v. Kirkwood [1993] IRLR, pp 515, Lord Coulsfield made a gloss on the case of Polkey, saying that in the view of the Employment Appeal Tribunal in Scotland, there was a restricted meaning to be given to what had fallen from Lord Bridge, namely that it related to procedural matters which Lord Coulsfield, it appears, was regarding more restrictively possibly than Lord Bridge had done; we are not going to go into all the details. What this Tribunal said in the Boulton & Paul case, under the chairmanship of Mr Justice Knox with Miss Corby and Mr Scott sitting with him, is this at paragraph 20, page 535:
"... We were referred to Steel Stockholders (Birmingham) Ltd v. Kirkwood [1993] IRLR 515, where the Employment Appeal Tribunal sitting in Edinburgh dismissed an appeal against a decision of an Industrial Tribunal that the employers in selecting for redundancy had created an artificially narrow pool from which to select for redundancy. Lord Coulsfield at p. 517, paragraph 7 said of the passage quoted above from the speech by Lord Bridge in Polkey v Dayton:
"...It is true that Lord Bridge included the adoption of a fair basis of selection among the steps he described as procedural. We do not, however, think that by doing so he can have intended that matters such as the choice of a pool in the adoption of criteria for selection should be treated as procedural.'
[and then this Tribunal continued] We would respectfully doubt whether it is for the Employment Appeal Tribunal to adopt a view that this very well-known and frequently quoted passage in a leading case in the House of Lords does not in effect mean what it says..."
So they there respectfully dissented from what fell from Lord Coulsfield and his tribunal and it appears to us that in the face of conflicting decisions in our own Tribunal, we should look to see what fell from Lord Bridge and it does say, quite plainly, that the selection procedure is part of the procedural matters; of which Lord Bridge said, if there were any error in those selection procedures, the Tribunal should go on to look and see what effect it would have when they were assessing compensation. There was no need, as has been said, for an all or nothing decision. It may be that the Tribunal will conclude that the unfairness (if that is what it is) in the selection procedure has had no appreciable effect. It may be, on the other hand, that they will hold, on balance of probabilities, that it did have a decisive effect; or it may be that they are left in doubt about the matter. It might have led to the dismissal, or, on the other hand, even if an impeccable procedure had been adopted, there might still have been a dismissal. In that case, they should, in a proper case, go ahead and reach a percentage assessment, putting their best assessment, so far as they feel able to, on the likely effect of the unfairness.
Now here, says Mr Griffiths, this is just such a case. He referred us to Dunlop v. Farrell [1993] ICR, 885; that was a decision of this Tribunal, presided over by Judge Hague, QC., sitting with Mr Jackson and Mr Scott and in that case this Tribunal said:
"... under section 74(1) of the Employment Protection (Consolidation) Act 1978 compensation was limited to the loss sustained in consequence of dismissal in so far as the loss was attributable to action taken by the employer; that where compensation had to be assessed after a failure to consult, the industrial tribunal was required to consider whether consultation would have resulted in the employee being retained or whether it would have made no difference and, if the answer was uncertain, to make a percentage assessment of the probability of his being retained which had then to be reflected in the award; and that, as the industrial tribunal had not attempted to assess the chance of the employee being retained but had compensated the employee for the full loss arising from his dismissal, the matter would be remitted for reconsideration..."
When we look here to see what this Tribunal did about assessing compensation, they, as Mr Griffiths says, having devoted a good deal of trouble and care to the ascertainment of the facts, seem simply to have gone on to assess compensation on the basis of indemnity. They said that they were going to do so, taking 48 weeks from the date of termination to the date of the second day of hearing and that produced a figure almost as large as the statutory maximum, even after proper deduction. They then gave certain further sums by way of compensation and arrived at a figure larger than the statutory maximum and gave, therefore £10,000.00 in respect of their compensatory award. That was not on the basis of making any reduction, not even treating it as an imponderable.
When we look here at what in fact happened, we ask ourselves, in the light of Mr Griffiths' submissions, was there any conceivable basis on which, had these employers adopted an impeccable procedure, they would have been led to dismiss Mr Bansal rather than Mr Jugpall? We have had Mr Phull's suggestion that possibly on a different criterion, namely that Mr Bansal was approaching retirement, they might have made such a choice, but he was unable to suggest any other criterion and of course we have to deal with the criteria which were adopted and which, on the face of it, were ones approved by the union. If they had gone on to last in, first out, of course Mr Bansal was easily the winner.
Mr Phull said "Well, there are cases in which the Industrial Tribunal is not required to engage in any such exercise" and he cited the case of Boulton & Paul v. Arnold to which we have already referred. He said that was a case where the Employment Appeal Tribunal held, since there was no evidence on which to assess whether or when the employee would have lost her job had a fair criterion regarding attendance been adopted, there was no basis for reducing her compensatory award. The Industrial Tribunal were not required, said this Tribunal, to embark on an exercise in weighing what were total imponderables, matters which could not properly be weighed. The employers had adopted an unfair system of awarding points for non attendances, which was manifestly unfair in view of the Industrial Tribunal. Needless to say, if they had to compare that with the result which would have followed had an entirely fair system of awarding points been followed, they would have been embarking upon a great sea of unknowns; they could not do that and this Tribunal said that they were under no duty to do it. One must contrast that with the present case, in which the employers simply had to choose between these two employees against whom there were no serious complaints at all, but they had to choose between them and they did; and it appears to us to be a case in which the Industrial Tribunal should have gone on to consider, under the principles in Polkey v. Dayton Services Limited, the question "What difference does it make now that we come to assess compensation? Suppose the employers had adopted an impeccable procedure and had treated this absence on 3 October as being a holiday and not an absence? Would it have made any difference?" "The answer to that", says Mr Griffiths, "would have been perfectly obvious. It would have made no difference. It could not have resulted in Mr Bansal being chosen and in those circumstances" says Mr Griffiths, "the only conceivable decision which would have been reached, would have been that Mr Jugpall would indeed have been dismissed, so that his loss in terms of compensation to be awarded would have been nil. What has been referred to as the addition in Mining Supplies (Longwall) Ltd v. Baker [1988] ICR 676, to the compensatory award in respect of the time taken up by consultation would hardly arise here because time had already been taken up in consultation and selection. So the only possible answer" says Mr Griffiths "is that the compensatory award would, in the circumstances, be nil".
We have come to the conclusion, having considered what has been said by Mr Phull, that Mr Griffiths is right about that too and that if he fails on his first submission (we think he succeeds on his first submission) he is entitled equally to succeed on his second submission. It follows that we reverse the decision of the Industrial Tribunal in this case. With all facts known, it is perfectly plain to us that there could properly only be one conclusion here, on the basis of the evidence which was laid before the Tribunal, and that is that the complaint of unfair dismissal is not made out. We therefore substitute that decision for the one which was made by the Industrial Tribunal.
That is the decision of us all.