United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 733_94_1307

Appeal No. EAT/733/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 July 1995

HIS HONOUR JUDGE N BUTTER QC

MRS T A MARSLAND

MR J H GALBRAITH CB

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MRS P BURNS          APPELLANT

CORVEDALE CARE LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T KIBLING

(of Counsel)

Beatrice Lebow

138 Harringay Road

London

N15 3HP

For the Respondents MR G JONES

(of Counsel)

Gamlins Storrar Cowdry

31/33 Russell Road

Rhyl

Clwyd

LL18 3DB


 


JUDGE N BUTTER QC: Mrs Burns was employed by Corvedale Care Limited from 10 December 1990 until 17 November 1993. She was the secretary at the Centre in Bishops Castle, one of three establishments run by the Company. Bishops Castle dealt with short-term placements of children needing urgent care.

There was a substantial drop in the number of children attending the Centre. According to the evidence, instead of 10 children a day the number had gone down to 5 by the Summer of 1993. In 1992 Mrs Burns complained that she was having to put in a lot of extra work for which she was not being paid, and this dispute was settled in September 1992 by the payment of £100.

On 11 October 1993, she raised the question of extra remuneration. On 18 October 1993, she was called to a meeting. She had no idea that it was going to involve her being made redundant. She thought it concerned her recent grievance. But, then and there she was told that she would have to be made redundant, but that consideration was being given to offering her a part-time job. She did not accept this and her employment came to an end. She applied to the Industrial Tribunal for compensation for unfair dismissal. Her claim came before the Industrial Tribunal at Shrewsbury on 14 April 1994. That Tribunal accepted the employer's case that Mrs Burns had been dismissed by reason of redundancy, but held unanimously that because of the procedure which had been adopted, the dismissal was unfair.

The Tribunal further decided that, if the proper procedure had been followed, the dismissal would have taken place two weeks later and that such a dismissal would have been fair in all the circumstances. The Tribunal therefore awarded compensation equivalent to about two weeks' pay, namely £296.

Mrs Burns appeals to this Tribunal against the decision that she was only entitled to two weeks' pay. The way in which the Tribunal decided on that, appears at paragraph 18, but the main attack advanced on behalf of Mrs Burns, is in relation to the first sentence of paragraph 17 of the decision, where it is said:

"17. Having said that, the Tribunal finds on the balance of probabilities, having heard the evidence, that consultation would not have made any difference to the outcome. .... ."

There was some argument before us today, as to perversity in relation to that finding which we do not accept. The major point however made, is that the Tribunal adopted a wrong approach and therefore in effect, misdirected themselves in law.

The argument is that the failure of consultation was not just procedural but was substantive and therefore, if there is any doubt as to whether Mrs Burns would have been re-employed, a percentage must be reflected in the award. A variety of cases were cited to us including predictably Polkey v A E Dayton Services Ltd [1988] ICR 142, in particular the well known speech of Lord Bridge; to Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 at page 96 including the reference to "There is no need for an all or nothing decision", and a number of other cases including the old case of Abbotts & Standley v Wesson Glywed Steels Limited [1982] IRLR 51. We express no views to the current standing of that latter case in the light of later authorities.

Normally the failure to consult is regarded as a procedural matter. There may be circumstances in which it is so serious that it should be regarded as substantive. Here however, it was open in our judgment for the Tribunal to find, as it expressly did, that this was a procedural breach albeit of a serious kind, though in passing we should say in fairness to the employer that an offer of part-time employment was made or due to be made.

If it was procedural, then in our opinion it was open to the Tribunal to reach the conclusion which it did and on the basis of the arguments presented to us, we are in the end quite simply not persuaded that there was an error of law on the part of a Tribunal. In the result, it follows that the appeal fails and must be dismissed.