United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A SHORT (ELAAS)


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in respect of a decision of an Industrial Tribunal held at London (North) on 23 April 1997.

The Tribunal were concerned on that occasion to consider the question of the compensation which should be paid to the Applicant, Mr Ortega, in respect of dismissal by his former employers, CNC Processes Ltd, which an Industrial Tribunal, on an earlier occasion, had adjudicated as being unfair. Not only did they conclude that the dismissal was unfair, but they made a reinstatement order to take effect as from 18 November 1996. There was no appeal against the decision of that Industrial Tribunal.

The company did not comply with the reinstatement order and the question then arose as to what compensation Mr Ortega would be entitled to. In this case the question arose as to the consequences of the employers not complying with the order for reinstatement. Unless the employer proves that it was not practicable to comply with the order, then the Tribunal is required to make an additional award of compensation. That is the effect of the provisions of Section 117(3) and (4).

The Tribunal first of all addressed their attention to the question as to whether they should make an additional award and that hinged on the question as to practicability. Sub-section 7 of the same section says, that in deciding the issue of practicability, the Tribunal shall not take into account the fact that the employer had arranged for the dismissed employee's work to be done by engaging a permanent replacement.

In this case there was no doubt that a permanent replacement had been engaged and the question arose whether it was practicable for the employers to have arranged for the dismissed employee's work to be done without so engaging a permanent replacement. That was the matter which the Tribunal had to consider.

There were a number of reasons which were put forward for not complying with the order. The Tribunal first of all noted that the employers had changed their ground somewhat since the first hearing, where they were not relying on the engagement of the permanent replacement but rather on a different ground.

The Industrial Tribunal then referred to two other matters, namely the feelings of other members of the staff and suggested serious misconduct which had come to light since the dismissal. So far as the feelings of the other members of the staff are concerned, the Industrial Tribunal concluded that the "round robin" circular which was signed by the eleven female employees and three male employees, had been procured, in a sense, by the employers, very shortly before the reinstatement hearing and therefore, no doubt, the Tribunal was of the view that there was a certain element of artificiality about it. Their conclusion was that it did not appear to the Tribunal that the petition represented a serious level of opposition, because it was by no means un-prompted; those signing it would clearly realise that by doing so they would be fitting in with their managers' wishes and finally that it was an exaggerated reaction, bearing in mind that being a lorry driver, he was only likely to be on the premises for a relatively short period of time. It seems to us that those were findings which the Industrial Tribunal were fully entitled to make on the evidence before them.

In relation to the alleged misconduct, they listened to the evidence about that. The employers produced no sound basis for arriving at a conclusion that he had been guilty of misconduct. There was tittle-tattle or hearsay as they put it, but on the other hand, once Mr Ortega had been asked about it, it became plain that there was no substance to the allegation of serious misconduct. They were entitled, in our judgement, to arrive at that conclusion. We do not have to determine whether Mr Short on behalf of the ELAAS scheme, to whom we are grateful, is correct in his submission that it is a question simply of what the employer believed, because in this case it is plain that they had no basis for their belief and the Industrial Tribunal dealt with it on that basis.

We turn, then, to the question as to the permanent replacement. The submission is made to us that the Tribunal had mis-directed themselves in law. We are bound to say that we disagree with that. What the Tribunal have done is to draw attention specifically to the leading authorities. It is quite right that they have sought to distinguish them on the facts but that they were fully entitled to do, because they truly could be distinguished factually. But distinguishing those cases factually, does not lead inevitably to the conclusion that in some way the Tribunal has departed from the principles which those cases seek to establish.

Furthermore, it seems to us, that there is no basis for suggesting that implicitly the Tribunal can be shown to have mis-directed themselves as to the correct approach. It is said that they failed to accord to the employer a reasonable margin of appreciation for the taking of a commercial judgement as to how they should organise their business in deciding what replacement was required or not, as the case might be. That seems to us to be an unfair criticism of this decision. The Tribunal have taken infinite pains to go through the arguments that were presented to them. They have accepted much of the company's case on the question of replacement, namely that it was necessary for there to be two delivery drivers; that a succession of agency drivers was not a commercial solution; and, in that respect, they plainly were mindful of the tests laid down in the authorities. But they were entitled, in our judgement, to arrive at the conclusion that the employers could be faulted for having taken the view that they could engage a permanent replacement after Mr Ortega had made it plain, in the appellate process, that he was seeking reinstatement, bearing in mind that there was a "buyer's market" as it might be said, for people doing driving jobs. In other words there were more employees seeking this type of work than there were vacancies available and it would have been open therefore to the employers, as the Tribunal indicated, to recruit somebody otherwise than on the basis that they were there permanently.

It seems to us that that is a decision on the facts. The Tribunal were entitled to take that decision. They had not mis-directed themselves in law in any way and it seems to us, accordingly, that there had been no mis-direction.

The second submission put forward was that the Tribunal have substituted their own judgement of the facts for that of the employer. To some extent every such adjudication is going to involve a judgement to be made by the Industrial Tribunal. They are always exposed to that allegation wherever they have not simply accepted what the employer has told them. But it seems to us to be unfair to suggest that they over-stepped the mark in this case.

We all read this decision separately and were each of us convinced that the Industrial Tribunal had approached the matter in a careful and coherent way in accordance with the law. Accordingly we are unable to accept Mr Short's submissions that there is an arguable point of the law here fit for hearing before a full Tribunal, and therefore we must dismiss this appeal.