United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 367_93_1301

Appeal No. EAT/367/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th January 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

MR G H WRIGHT MBE

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COMPASS SERVICES (UK) LIMITED          APPELLANTS

MISS E McILROY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MISS J ELLIS-DENT

Personnel & Training Manager


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at Southampton on the 18th March 1993. For reasons notified to the parties on the 1st April 1993, the Tribunal decided that the Applicant, Miss McIlroy, had been unfairly dismissed from her position as a Catering Manager with the Respondent, Compass Services (UK) Limited, on the 30th September 1992.

The decision of the Tribunal was this: that Miss McIlroy had been dismissed by reason of redundancy, but the dismissal was procedurally unfair because the respondent Company had failed to consult her or advise her of other job possibilities within their organisation. The Tribunal also came to the conclusion that had such consultation taken place Miss McIlroy would have had a 50% chance of securing employment in a lower paid capacity within the respondent Company. The compensation was reduced accordingly.

The upshot of those decisions was that the Industrial Tribunal made an award in favour of Miss McIlroy of £4,137.50, and subject to the operation of the Recoupment Regulations in relation to the prescribed element, the Tribunal ordered that that sum should be paid to Miss McIlroy.

On the preliminary hearing of this appeal Miss Ellis-Dent, who has represented the employer both here and below, has sought to raise two points as matters of law. The first was in relation to consultation. The Tribunal found as a fact that there had been a procedural unfairness because of the lack of consultation with Miss McIlroy.

The Tribunal rejected the submission of the employer that consultation was pointless because of the illness from which Miss McIlroy was suffering. What the Tribunal said in paragraph 10 of its decision was that there had been a complete failure to consult Miss McIlroy. Ordinarily that would render the dismissal, by reason of redundancy, procedurally unfair. They went on to say:

"We have heard evidence that, after the redundancy took effect, the respondents very properly took steps to acquaint the applicant with various job opportunities and, indeed, we understand she went for several interviews, but, unfortunately, was not selected. The applicant (Miss McIlroy) was offered the possibility of applying for the post of Domestic Services Supervisor. We have heard that three other applicants were short-listed and had the applicant herself wished to be included in that, we are satisfied she would have been, but she did not respond to the invitation to put her name forward and attend for interview."

They referred to evidence given by the Applicant. Somebody else was appointed following external recruitment.

The Tribunal said, in a crucial part of the decision,:

"Where we have found considerable difficulty in this case is that, as I have indicated in the management restructuring exercise, a third chef was to be recruited to work within the catering side of the contract. It was suggested to Mrs Harvey [she had given evidence on behalf of the Company] that the applicant might have been invited to apply for this post. It was clear that the respondents had never considered this possibility. We feel that, had proper consultation taken place, this is something which should have been explored. Consultation would have included not only the question as to whether the applicant would have been made redundant, or whether somebody else might have been made redundant in her place, or any other re-organisation possibility, but would also have included exploring the immediate possibilities of alternative employment."

They referred to evidence which Miss McIlroy have given to the Tribunal that she would have been prepared to apply for this position (third Chef) despite the fact the salary would have been roughly half what she had been earning in her position as a Catering Manager. The Tribunal found it difficult to come to a firm conclusion as to whether she would have been successful. They said it might very well have been the case that, with the experience that she has now had of finding another job, in present difficult conditions, she would have been prepared to accept this. Whether she would have been prepared to accept it at the time, which was in June or September 1992, without that experience gained first-hand in the difficult market, is something which is very difficult to assess. The Tribunal went on to consider the point about the medical condition of Miss McIlroy. They said, in conclusion,: "we feel that the failure of the respondents to pursue this possibility with her did constitute a procedural unfairness. We have also asked ourselves whether, if this had been pursued, the outcome might have been different, and, if so, to what extent. This is an exercise which, if nothing else, calls for the use of a crystal ball in trying to assess what chance she might have had of obtaining the post of a third chef, if it had been mentioned to her, as, indeed, it was not. The best that we can do in the circumstances is to say that had this been investigated she would have had a 50% chance of success in that application. It may very well be that the applicant would have taken such a post if she had had the opportunity of doing so, purely to keep herself in the job market and to be in the best possible situation to take advantage of any other vacancies . . . "

They held that there had been a case of procedural unfairness. If she sought an award of compensation, that would be calculated on the basis of the loss she has sustained and that would be reduced by 50%. That is what they did.

The complaint by the Company against that decision is that the Company did advise her of other job opportunities commensurate with the redundant position. She chose not to pursue two of them and, given that she chose not to pursue management positions on the grounds of their unsuitability, it is highly unlikely, the Company submits, that she would have considered the much reduced position of third Chef at half the salary. This is expanded in a skeleton argument, which deals with the points about Miss McIlroy's long absence due to illness, preventing consultation from taking place. The skeleton argument refers to evidence submitted regarding Miss McIlroy's mental health, suggesting that she was suffering from severe strain, due to prolonged medical problems. It is submitted that, in view of her absence and the uncertainty, it was decided not to distress her by consultation. Even if she had been consulted, it would have made no difference to the outcome. In relation to the third Chef's position, it is submitted:

"even if that had been discussed Miss McIlroy was not physically fit enough to take up that post, either before or after redundancy notice was issued."

These submissions do not amount to any point of law arising from the Tribunal's decision. The Tribunal considered these facts in relation to the illness, the lack of consultation, the consequences of the lack of consultation and the probabilities of what would have happened if there had been consultation. Having considered these matters the Tribunal came to conclusions on the facts. There is no appeal to this Tribunal against any of those facts. There is no point of law in relation to the lack of consultation.

The second point relates to the assessment of compensation. Again we are unable to detect any point of law. Miss Ellis-Dent was unable to formulate for us on the 1978 Act or on the Recoupment Regulations, any point of misinterpretation or misapplication of the law in relation to the assessment. What is submitted on the calculations is:

"In calculating Miss McIlroy's loss of earnings, the tribunal acknowledged that Miss McIlroy's ill health prevented her from seeking work for a period of four months following redundancy. Evidence was given by Miss McIlroy that she received unemployment benefit in February until starting work in March."

There is reference to the fact that, after the decision of the Tribunal on, the 1st April 1993, Miss McIlroy submitted evidence that she had not received unemployment benefit during this time but had remained on invalidity benefit. Miss Ellis-Dent submits that, in order to qualify for invalidity benefit, Miss McIlroy must have been medically incapable of work. In view of the loss of earnings it is submitted that the Tribunal failed to consider whether this was due to Miss McIlroy's medical condition and not to her redundancy. A job offer was made to her in September, prior to being made redundant. She was unable to take the job because she was in hospital. Had she been fit for work redundancy would have been avoided.

It is therefore submitted that the Tribunal wrongly calculated the loss of earnings. Miss McIlroy exhausted her entitlement to both Company and statutory sick pay prior to redundancy. Had she continued to be employed she would not have received Company sick pay until April 1993 and therefore the Tribunal should have addressed any losses from September 1992 to March 1993 based on that fact. For all these reasons it was submitted that the compensation was wrongly calculated and it should have been less than the sum of £4,137.50 which was awarded. No revised calculation was made.

All these submissions about the calculation are submissions on the facts of the case, either as they were presented to the Tribunal before it made its decision or as they have come to light in the letter from Miss McIlroy to the Tribunal after the Tribunal reached the decision. As this Tribunal only has jurisdiction to deal with errors of law it is incapable of entering into factual investigations relevant to the calculation of compensation, whether those facts were known to the Tribunal or whether those facts have come to light after the Tribunal's decision.

This Tribunal cannot deal with those matters. They are not errors of law. The only way in which these matters could possibly be investigated further is by an application on behalf of the Company to the Industrial Tribunal to review its decision under Regulation 10 of the Industrial Tribunals (Rules of Procedure) Regulations 1985. There is a time limit for making such an application for review, but the Industrial Tribunal has power under Regulation 13 to extend any time appointed by the Rules. If the Company wishes to pursue these matters further, an application can be made to the Industrial Tribunal to extend the time for a review of the calculation of compensation. We are unable to say whether the Industrial Tribunal would grant that application or not. It is a matter for the Industrial Tribunal, not for the Employment Appeal Tribunal. What we are clear about is that neither of the points raised by Miss Ellis-Dent are matters on which this Tribunal has jurisdiction, because they are complaints about factual matters. This Tribunal can only deal with complaints on legal matters.

For those reasons at this Preliminary Hearing the appeal will be dismissed.