United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 49_95_1707

Appeal No. EAT/49/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17th July 1995

HIS HONOUR JUDGE BUTTER Q.C.

MR R H PHIPPS

MR R TODD

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RANK XEROX (UK) LTD          APPELLANTS

W P STRYCZEK           RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MRS E ANDREW

(of Counsel)

Mr C H Adams

Company Solicitor

Rank Xerox ( UK) Ltd

Bridge House

Oxford Road

Uxbridge

Middlesex

UB8 1HS

For the Respondent MR D OUDKERK

(of Counsel)

Paul K Pitts

Solicitor

20 Barclay Road

Croydon

Surrey

CR0 1JN


 


JUDGE BUTTER Q.C.: Mr Stryczek was employed by Rank Xerox (UK) Limited from January 1978 till 28th February 1994 when he was dismissed. His work was that of a field supervisor; he was in charge of 12 engineers and his work involved discipline, training of the engineers, reviews including salary reviews, and assessments.

In March 1994 he issued an application claiming that he had been unfairly dismissed. In the form "IT1" he ticked the box which indicated that he was claiming compensation only. That part of the form, it will be recalled, states: "You can change your mind later - The Tribunal will take your preference into account but will not be bound by it."

In or about November 1994, he indicated that he wished to be reinstated. His employers said that the dismissal had been because of redundancy, but accepted that it was an unfair dismissal. The employers went along to the Tribunal hearing to deal with the question of compensation and reinstatement.

At the Tribunal hearing, at Whittington House on 18th November 1994, the Tribunal held that there had been an unfair dismissal. It appears that Mr Stryczek, at the suggestion of the Chairman, indicated that he did not seek reinstatement but was now seeking re-engagement.

We have been told today that what happened was as follows: the solicitor acting for the employers was then asked to provide details of all available vacancies. These were obtained during the luncheon adjournment. The Tribunal then invited the applicant to make his selection, at first he chose three, but then was told to select one, and he selected the particular job of National Technical Specialist 5090.

The Tribunal said in paragraphs 5 and 6 of their reasons:

"5 At the time of the hearing there were a number of vacancies available but none in the same position in which Mr Stryczek had been employed at the time of his dismissal."

6 One such vacant position, referred to in an internal vacancy document (R4) was that of National Technical Specialist-5090 Family. This position is based in Uxbridge and the salary is in the range of £18,000-£21,000. The post holder is also entitled to a company car. Mr Stryczek readily meets the 6 points of the "preferred candidate requirements" referred to in that vacancy notice. The post holder would report to a Mr Steve Lee who Mr Stryczek does not know."

There is a regrettable conflict of recollection as to what evidence was given to the Tribunal. Counsel who appeared here today were not present at that Tribunal. Clearly there was some evidence but there are no notes of that evidence before us. The appellants are not alleging that the decision was perverse, they say there was an error of law. Some of the arguments presented to the Tribunal do appear at paragraph 8 of their reasons.

The Industrial Tribunal decided unanimously to order the employers to re-engage the applicant in the specific employment of National Technical Specialist 5090. The employers appeal against that decision to this Tribunal today.

It is necessary to consider the wording of Section 69 of the Employment Protection (Consolidation) Act 1978. Sub-section (1) provides:

"(1) An order under this section may be an order for reinstatement (in accordance with subsections (2) and (3)) or an order for re-engagement (in accordance with subsection (4)), as the industrial tribunal may decide, and in the latter case may be on such terms as the tribunal may decide."

Sub-section (2) deals specifically with reinstatement. I need not read that out, nor sub-section (3). I should turn to sub-section (4).:

"(4) An order for re-engagement is an order that the complainant be engaged by the employer, ... in employment comparable to that from which he was dismissed or other suitable employment, and on making such an order the tribunal shall specify the terms on which re-engagement is to take place including-

(a) the identity of the employer;

(b) the nature of the employment;

(c) the remuneration for the employment;

..."

(d), (e), and (f) refer to further matters.

Sub-paragraph (5) deals with the discretion to be exercised in relation to reinstatement. Sub-section (6) says:

"(6) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and if so on what terms; and in so doing the tribunal shall take into account the following considerations, that is to say-

(a) any wish expressed by the complainant as to the nature of the order to be made;

(b) whether it is practicable for the employer ... to comply with an order for re-engagement.

(c) where the complainant caused or contributed to some extent to the dismissal, [It is not alleged in this case} whether it would be just to order his re-engagement and if so on what terms;

and except in a case where the tribunal takes into account contributory fault under paragraph (c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement."

Words which, in our view, are important are those in the concluding part of sub-section (1): "on such terms as the tribunal made decide", under sub-section (4): "employment comparable ... or other suitable employment", sub-section (6)(b): "whether it is practicable for the employer ... to comply with the order for re-engagement", and finally, the words at the end of sub-section (6): "terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement".

The applicants' previous salary was £16,779; he was expecting a pay rise. The National Technical Specialist 5090 employment involved a starting salary of £18,000. It carried with it a company car unlike the job which the applicant had held. We are told, and we recognise that the evidence about this is not clear, that the work of National Technical Specialist 5090 would require a higher level of technical expertise, as well as other qualities, to those involved in the former employment.

In overall terms, we have no doubt that the order for re-engagement was in respect of employment at a substantially higher level to that of the applicant's previous job and would have amounted to promotion.

On this appeal the employers say firstly, that there was no jurisdiction in the Industrial Tribunal to order re-engagement in respect of a specific job. There appears to be no known authority as to this proposition.

In the opinion of this Tribunal it is, in general, undesirable for an Industrial Tribunal to order re-engagement in respect of a specific job, as distinct from identifying the nature of the proposed employment. We can think of some circumstances, which do not apply in the present case, where such an order might be permissible. The example which occurs to us is that the evidence before a Tribunal might show that there was only one appropriate job in the particular firm. In that situation it might, we think, be permissible for an Industrial Tribunal to order re-engagement of the applicant to that job.

Our main conclusion today, however, which is unanimous, and is in favour of the appellants on their further argument is that as a matter of interpretation it is not permissible for an Industrial Tribunal to order re-engagement in respect of employment significantly more favourable than that which the employee might have obtained if reinstatement had been ordered. In our view, this is implicit from a reading of the whole of Section 69 and from the concluding words of sub-section (6). Any other interpretation would, in our judgment, produce curious results which were not, we believe, intended by Parliament. We do not consider that the case of Freemans Plc v Flynn [1984] IRLR 486, assists very much, though it may be convenient in passing to make reference to paragraph 13 to which we were referred. There it was said:

"It has secondly been submitted to us on behalf of the company that the Tribunal misdirected themselves in law in a further proposition which emerges from the language of their decision. Again, Mr Pearson, supporting the conclusion, does not dispute that this is a proper inference from the language used. What the Tribunal said was that the effect of a re-engagement order was to make it the duty of the employers to search for and find a place in their ranks for Mr Flynn, irrespective of vacancies that came up. It is not, they said, just a question of the employers considering vacancies which arise from time to time within the organisation but, as they put it, of fulfilling a duty to fit the applicant in somewhere. Merely considering official vacancies which arose in the ordinary course of events, they said, was simply not good enough. We think this states the duty of an employer against whom a re-engagement order is made far too highly. If that duty is carried to such extremes there would be no logical answer to the argument that it becomes the employer's duty to dismiss other employees in order to create the necessary space for he or she who is to be re-engaged."

We bear in mind the argument concerning "two bites of the cherry", an argument which relates to the two stages at which the question of what is practicable has to be considered. Nevertheless, in our judgment, the order for re-engagement should be an order which is realistic in the first place. In the present case, the Tribunal, in our judgment, fell into error as a matter of law, in concluding that it could direct re-engagement in respect of employment which was not just significantly, but was substantially, on better terms than the employment formerly held by the applicant.

In these circumstances it follows that the appeal is allowed and we will now discuss with Counsel the form of the order which will be appropriate.

This case will be remitted to the Industrial Tribunal to consider the appropriate remedy in the light of the decision today.