United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M WEST (Senior Advocate) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY
For the Respondent	MS J OMAMBALA (of Counsel) Director of Legal Services UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE PETER CLARK: The Appellant in this case is a publicly funded charitable organisation operating through a limited company. At the relevant time it was nominally run by a management Council. It employed staff, including the Respondent, Mr Barklem. He was first appointed to the post of Administrator on 5 November 1990, and with effect from 20 February 1993 assumed the role of Manager.

Unfortunately he became caught in the cross-fire between two rival factions within the Council. The opposing camp, led by a Council member called Lawford Quaye, contrived to dismiss the Respondent whilst he was abroad on holiday in circumstances which the Stratford Industrial Tribunal, hearing the Respondent's complaint of unfair dismissal, described as a "travesty of justice and fairness". He was reinstated, and then dismissed again.

The Tribunal unanimously found that the second dismissal was unfair and against that finding there is no appeal.

However, the Tribunal were divided on the issue of contribution. As appears from their Extended Reasons dated 23 May 1996 the minority member would have reduced the Respondent's award by 50 per cent to reflect a finding that the Respondent had contributed to his dismissal by his own conduct.

The majority members rejected the Appellant's argument that the Respondent had been guilty of culpable or blameworthy conduct. They refused to make any reduction in the award on this basis.

Before us Mr West has abandoned any complaint about the majority's finding that the Respondent had not contributed to his own dismissal, and instead takes this point on compensation. He submits that the Tribunal failed properly to consider the principle of just and equitable compensation enshrined in what was Section 74(1) of The Employment Protection (Consolidation) Act 1978. Specifically, he says that the Tribunal having unanimously found that the relationship between the Respondent and the Council and the staff had broken down, it ought to have gone on to consider whether at some point the Respondent would in any event have been dismissed fairly and reduced the award of compensation accordingly. He refers to this as the Polkey deduction.

It is common ground that such an argument was not advanced on behalf of the employer before the Industrial Tribunal Mr West not having appeared below, but he says that nevertheless the Tribunal was bound to consider the point.

In support of that proposition he relies on two unreported decisions of the Employment Appeal Tribunal. Hepworth Refractories Ltd v Lingard [1990] EAT 555 and Webster Machine Co Ltd v Cliff [1991] EAT 637, and the reported decision in Red Bank v Meadows [1992] ICR 209.

We have considered those cases, and note that in each case the Tribunal was concerned with what were described as procedural defects. Although the distinction between procedural and substantive defects leading to a finding of unfair dismissal has been criticised by the Court of Appeal, we think that the distinction is important in relation to the submission in this case.

Where, for example, an employee is dismissed by reason of redundancy without prior consultation the dismissal may be unfair, but, following Polkey v A E Dayton Ltd [1988] ICR 142, it will then be for the Tribunal to consider what were the chances of the employee retaining his employment had a fair procedure been followed. In assessing the compensatory award, the Tribunal may reduce the gross calculation of loss to reflect that lost chance.

That is not the case here. The Respondent was substantively unfairly dismissed without, as the majority found, any fault on his part. In these circumstances, we do not consider that the cases relied on by Mr West apply here.

Further, it is clear that this Tribunal had in mind the just and equitable principle. It set out the words of Section 74(1). It chose not to reduce the award on the basis advanced today. That was a permissible option in our judgment.

Finally, even if we were wrong in our approach and the Industrial Tribunal fell into error in the way submitted by Mr West, we are quite satisfied that on the material before it, and the facts as found, the Industrial Tribunal's decision was plainly and unarguably right and should be affirmed.

Accordingly, this appeal is dismissed.

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Following our judgment in this case, Ms Omambala applied on behalf of the Respondent for the costs in this appeal, under Rule 34(1) of the Employment Appeal Tribunal Rules 1993.

Having considered submissions on both sides, we reach the conclusion that this appeal was unnecessary; indeed, we go further and say it was hopeless and therefore it is a prima facie proper case for costs.

We thought it right to enquire as to the means of the Appellant to pay the costs. Mr West told us that there are no funds to pay the costs. However, this is not the case of an unsuccessful applicant in person. The Appellant is a company limited by guarantee and we accept that funding is obtained from local authorities for specific projects, but we have also been told by Ms Omambala that the Appellant runs commercial enterprises, such as a book shop and a cafe.

In these circumstances, we are not satisfied that the means of the Appellant preclude us from making an order in a case which plainly falls within the provisions of Rule 34(1).

Accordingly, we shall order the Appellant to pay the Respondent's costs in this appeal to be taxed under the provisions of Rule 34(2).