United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	THE APPELLANTS NEITHER BEING PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This appeal raises two arguable points of law in relation to the Bury St Edmund's Industrial Tribunal's final calculation of the awards of compensation for three appellants following findings that each was unfairly dismissed by reason of redundancy without contributing to their dismissal by their own conduct.

The tribunal concluded that had the respondent approached the matter fairly there was a 60% chance that each appellant would have remained in employment.

The tribunal then proceeded to approach the question of remedies in this way.

Basic Award

Each was entitled to a basic award of 9 x £210 = £1,890; but that figure was reduced by 40% (the Polkey deduction).

Compensatory Award

The total net loss of earnings from the date of dismissal until the date of hearing (21 weeks) was calculated; a period of future loss was assessed; an award for loss of statutory rights of £250 was made; the Polkey deduction of 40% was then applied to the total.

It is to be noted that each appellant complained of unfair dismissal, wrongful dismissal and entitlement to a redundancy payment in his Originating Application.

The two arguable errors of law in the tribunal's approach are these:

(1) Each appellant was found to have been dismissed by reason by redundancy. No redundancy payment was made by the employer. Consequently each was entitled to a full redundancy payment of £1,890. The Polkey deduction does not apply to redundancy payments. The full redundancy payment will then extinguish the entitlement to a basic award.

(2) The appellants were summarily dismissed without pay in lieu of notice. Their contractual claim for pay in lieu of notice is again not subject to the Polkey deduction.

Consequently, it is submitted, the correct approach for the Industrial Tribunal to take is:

(a) to award a redundancy payment of £1,890. That extinguishes the basic award;

(b) to award, by way of damages for breach of contract, six weeks net pay in lieu of notice;

(c) to make a compensatory award based on 15 weeks loss to the date of hearing; plus future loss; plus £250 for loss of statutory rights; the total to be reduced by 40%.

We shall accordingly allow this matter to proceed to a full appeal hearing. It will be listed for half a day. Category C. There will be exchange of skeleton arguments between the parties and copies lodged at this tribunal not less than 14 days before the date fixed for the full appeal hearing.

There is one final matter. Unusually the original extended reasons have been corrected twice in substantive terms under the hand of the Chairman. We would be grateful if the matter was returned to the Chairman who should be invited to produce a final corrected decision with extended reasons for the benefit of the Appeal Tribunal which hears the full appeal.