United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 463_95_0807

Appeal No. EAT/463/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th July 1996

Before

HIS HONOUR JUDGE PETER CLARK

MR P R JACQUES CBE

MRS M E SUNDERLAND JP

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BRADWELL PACKAGING SERVICES LTD          APPELLANTS

MR E CHADBURN          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M E COLES

(of Counsel)

Messrs Woskow Brown

Solicitors

Banners Building

620 Attercliffe Road

Sheffield

S9 3QS

For the Respondents MR T KIBLING

(of Counsel)

Messrs John Howell & Co

Solicitors

427-431 London Road

Sheffield

S2 4HJ


 


JUDGE PETER CLARK: Bradwell Packaging Services Ltd ["the company"] carries on the business of distributing packaging materials in the South Yorkshire and North Derbyshire area from its warehouse premises at Stretfield Mill, Bradwell, Sheffield.

At all relevant times it employed seven people, including the Managing Director, Mr Darwent. One of those employees was Mr Eric Chadburn ["the employee"].

He commenced his employment in January 1987. The company operated two delivery vehicles; a 7¹/₂ ton Leyland Daf Roadrunner and a much smaller Leyland Daf 400 van. Until September 1993 the employee drove the larger vehicle; but during that month Mr Darwent transferred him to the smaller van. The employee had developed diabetes in 1988, when he was 52 years old; and Mr Darwent wanted a fitter man to do the multi-drop work connected with the Roadrunner.

In April or May 1984, the company's motor policies came up for renewal. Their insurance brokers advised Mr Darwent that due to the employee's diabetic condition the premiums were to be increased by more than £3,000 per annum. The brokers were unable to negotiate better terms. It may not have helped matters that the employee had been involved in three accidents the previous year, two in March and one in August 1993, which required the insurers to pay out a total of £5,900 in claims.

The employee offered to pay for his own insurance, but the tribunal found that this was impracticable.

Mr Darwent had three options. To pay the additional premium; dismiss the employee, or continue his employment and take on someone else to do the driving. Initially, the employee was transferred to the warehouse, sweeping up and mending pallets. However, it was decided that there was insufficient work to keep him occupied there and on 4th July 1994 he was handed his notice to take effect on 19th August 1994.

Following his dismissal he complained to an Industrial Tribunal of unfair dismissal on 4th October 1994. That matter came before the Sheffield Industrial Tribunal on 8th March 1995.

The Tribunal decision

In its extended reasons dated 27th March 1995, the tribunal made the following further material findings of fact:

(1) that the company could not afford to pay the additional insurance premium for the employee to drive on a profit of £10,000 per annum;

(2) that there was insufficient work to keep him fully occupied on non-driving duties;

(3) that there was no formal consultation between Mr Darwent and the employee before he was given notice of dismissal;

(4) that Mr Darwent was aware of the Disability Advisory Service, but did not consult them before dismissing the employee.

Based on their findings of fact, the tribunal concluded that:

(1) the lack of consultation rendered the dismissal, which was for some other substantial reason, unfair;

(2) an order for reinstatement or re-engagement under Section 69 of the Employment Protection (Consolidation) Act 1978 would not be practicable; and

(3) the chance of the employee retaining his employment, had proper consultation taken place, was to be assessed at 50%.

Accordingly, it awarded 50% of the full compensatory award assessed in the usual way.

Against those findings there is an appeal by the company and a cross-appeal by the employee. Three issues arose for determination by this tribunal:

(1) Ought the company to have leave to amend its Notice of Appeal to challenge the finding of unfair dismissal? If so, is that challenge made good?

(2) Alternatively, was the finding that there was a 50% chance that the employee would retain his job following proper consultation perverse?

(3) Ought the Industrial Tribunal to have order reinstatement or re-engagement? (The cross-appeal).

Those issues have been narrowed down. Mr Kibling now abandons his cross-appeal; Mr Coles accepts that the argument which he seeks to raise by way of amendment cannot succeed if he fails on his original grounds of appeal; the second issue. It is therefore convenient to deal first with that issue.

He advances the argument succinctly and attractively. In essence, the conclusion that there was a 50% chance of the employee remaining in employment is inconsistent with the Industrial Tribunal's findings of primary fact which we have set out earlier in this judgment. Its conclusion is illogical. It can therefore properly be characterised as perverse.

We are reminded by Mr Kibling that it will be rare for this Appeal Tribunal, limited in its jurisdiction to correcting errors of law on the part of the Industrial Tribunals, to interfere with a tribunal's discretion on a matter such as the assessment of the lost chance when assessing compensation under the Polkey principle. He relies upon the words of Lord Thomson in Nohar v Granitstone Ltd [1974] ICR 273, 274G, where he speaks of a figure "manifestly unwarranted" by the evidence led before the Industrial Tribunal, and the observations of Judge Peppitt QC giving the judgment of this Appeal Tribunal in Britool Ltd v Roberts [1993] IRLR 481 at paragraph 26, where he said:

"If, for example, the employee is able to put forward no more than an arguable case that but for the lack of consultation or warning he would have kept his job, that will ordinarily be sufficient."

In that case, to secure full compensation.

In our judgment, this is a case where, although we might ourselves have reached a different conclusion as to the lost chance question, we cannot say that the tribunal's conclusion was perverse. The exercise which the tribunal is asked to carry out is by its nature necessarily speculative. It found that there was no consultation with either the employee or the Disability Advisory Service. There ought to have been. What that consultation might have achieved is a hypothetical question. The Industrial Tribunal had to answer it as best it could. It is not for us to substitute our own speculation as to what might have happened. We therefore reject this ground of appeal.

It follows, as Mr Coles concedes, that the amended ground of appeal must also fail and therefore we dismiss both the appeal and the cross-appeal.

There will be the usual order for Legal Aid taxation of the respondent's costs.