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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Tolwood Multifasteners Ltd v Dixon [1994] UKEAT 490_92_1805 (18 May 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/490_92_1805.html
Cite as: [1994] UKEAT 490_92_1805
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At the Tribunal
Before
HIS HONOUR JUDGE J PEPPITT QC
MR T MARSLAND
MR T THOMAS CBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR K FLETCHER
(SOLICITOR)
Messrs Jacksons
Solicitors
1/15 Queen's Square
Middlesbrough
Cleveland
TS2 1AL
For the Respondent NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
RESPONDENT
JUDGE PEPPITT QC: This is an appeal from a majority decision of the Newcastle upon Tyne Industrial Tribunal sent to the parties on 5 June 1992. The majority awarded the employee compensation of £2,702.77 for unfair dismissal. The Industrial Tribunal had previously found that the employee had been unfairly dismissed, the ground of unfairness being that he was unfairly selected for redundancy as a result of extensive flaws in the employers' procedure leading to his selection. The employers now appeal against the award of compensation. The Respondent employee does not appear before us but has written a letter indicating that his non-appearance is on financial grounds.
The only issue before the Industrial Tribunal at the compensation hearing and before us was its consideration in the context of compensation, of the affect of those flaws in the employers' selection procedure. The question that the Tribunal in assessing compensation asked itself was, as Mr Fletcher on behalf of the Appellants accepts, the correct question - "Would it have made any difference if the appropriate procedural steps had been taken?". This was not, of course, a permissible question in deciding whether the dismissal was unfair but it is a relevant question when the Tribunal embarks upon a consideration of the amount of compensation to award.
Mr Fletcher referred us to Polkey v A E Dayton Services Ltd 1988 ICR 142 and especially that part of the speech of Lord Bridge which appears at page 163D-164C. He submitted that when embarking upon the Polkey question the Tribunal was not required to regard it as an "all or nothing decision". If there was a doubt about whether the employee would have retained his employment had the correct procedure been followed, that doubt could be reflected by reducing the full compensation by a factor representing the employee's prospects of keeping his job. That emerges from the case of Silliphant v Powell Duffryn Timber Ltd [1983] IRLR 91 which Lord Bridge in his speech cited with approval. But in answering the Polkey question the Industrial Tribunal must not substitute its own views of what the employers should have done. They must consider what the employers would have done had the correct procedure been followed and that is the area which Mr Fletcher attacks.
The basis for the majority decision appears at paragraph 11. The majority relied upon 3 grounds for maintaining that the Respondent's compensation should not be reduced to any extent by reason of the Polkey factor. The first reason as it appears from the decision, reads as follows:
"The majority consider that if the applicant were so far behind his follow employees in commitment the matter ought to have been raised with him."
One of the factors by reference to which the Respondent was selected for redundancy, perhaps the major factor, was his alleged lack of commitment. We understand the majority to be saying in this sentence that because lack of commitment had not been raised with the Respondent before the selection process leading to his redundancy began, he could not have been so far behind the others in that respect as the Appellants considered.
Mr Fletcher submitted to us, in our judgment rightly, that the inference, and the only inference, which could be drawn from that finding was that the majority was substituting its own views upon the Respondent's commitment without regard to the views which the employers undoubtedly held in selecting the Respondent for redundancy.
The second ground on which the majority relied in reaching its decision was a finding that the primary duty of training rested on management; the majority preferred the evidence of the Respondent to that of Mr S Stephenson and found that the applicant was never shown how to change press nuts. The relevance of that finding is that the Respondent's answer, or one of his answers, to his alleged lack of commitment was that he had never been shown how to change press nuts. His inability to change press nuts, as is apparent from the decision, formed a very subsidiary part of the matter canvassed before the Tribunal. It does not seem to us that the resolution of that issue in the Respondent's favour can or should affect the decision which a reasonable employer could have made in deciding whether or not to select the Respondent for redundancy.
The third ground relied upon by the majority was that the question of warnings was not properly evaluated in relation to the 5 candidates for redundancy. In spite of Mr Brown's evidence that Mr Boylan, to use the majority's own phrase, had "learned a lesson" from a warning about horseplay, the majority still considered that the seriousness of this incident should have out-weighed the warnings on the applicant's record which were for far less serious matters. The significance of that expression of view lay in the Appellants' decision not to make Mr Boylan redundant although he had had a warning for flicking a piece of metal at the light in the workshop. The evidence which the Appellants gave was that this warning had had its effect and that since it was given that particular employee had matured and caused no further trouble. On the other hand, the Respondent had had a series of warnings for minor matters over the period leading to his dismissal.
The majority felt that the Appellants in its view were wrong to regard Mr Boylan's single, albeit serious warning, as of less consequence than the several warnings for minor matters given to the Respondent. That was, as we see it, a clear substitution of the majority's own view for that of the employers. No other grounds were relied upon by the majority in reaching its decision that the Respondent should receive his compensation without deduction. Accordinglty in our judgment, for the reasons which we have given, the majority in reaching that decision approached it by an impermissible route and the majority decision cannot stand.
Ordinarily having reached such a conclusion, we would remit the case to the same tribunal to enable it to reconsider the question in the light of the proper test but in view of the small amount of money involved and because, as Mr Fletcher tells us, the Chairman of that Tribunal has retired, we do not propose to take that course. Instead, we propose, at Mr Fletcher's invitation, to make the necessary calculation ourselves in the light of the facts that the Tribunal found.
In all the circumstances we cannot find that the Respondent would certainly have lost his job if the correct procedure had been followed but we are unanimously of the view that the odds were against his retaining that job. In the circumstances, and doing the best we can, we think that had the proper procedure been followed the Respondent had a one in three prospect of retaining his employment and accordingly we reduce the compensation which the Tribunal awarded by two-thirds. To that extent the appeal will be allowed.