United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A SAMPSON (CONSULTANT) Alan Sampson Associates Amberleigh Butterleigh Cullompton Devon EX15 1PL


 


JUDGE JOHN BYRT: This is a Preliminary Hearing in an Appeal against a decision promulgated on 11th December 1998 of an Employment Tribunal sitting at London (South) when they upheld that the Employee, Mrs Head, had been unfairly dismissed. The Employers appeal.

Quite shortly, the facts are that Mrs Head was employ as a teacher in the Junior School by the Appellants between September 1992 and August 1997. At the end of that time as a result, so the Appellants say, of a catalogue of complaints about Mrs Head as a teacher, they dismissed her. The Tribunal which heard this case in the first instance considered the procedures which were employed by the Appellants leading to the dismissal and came to the conclusion that they had been unfair. Accordingly, on procedural grounds, they found the dismissal unfair. The Appellants do not appeal that part of the decision. It is on the issues of remedy which the Appellants appeal.

The Tribunal considering what awards to make to Mrs Head applied the principles set out in Polkey -v- A E Dayton Services Ltd and came to the conclusion that had fair procedures been followed there was a 20% chance that the Employers would have come to the same conclusion and in any event, would have dismissed Mrs Head. Accordingly, they awarded a 20% discount on that account.

There were other issues, namely relating to mitigation, which the Respondent strongly relied upon and also, contributory conduct, having regard to the fact that there was such a long catalogue of complaints made against Mrs Head and the fact that she had had a series of warnings on the way. We ourselves, have considered and scrutinised the Tribunal reasons. This Tribunal took 9 days to conclude the hearing. They certainly investigated all its details and eventually they came to the conclusion that there should be no discount on the grounds of failure to mitigate or contributory conduct. Mr Sampson has argued the case on behalf of the Appellants today and has strongly urged that there should have been some discount for contributory conduct and failure to mitigate and, certainly, he says, they should have found under the Polkey issue a discount of something approaching 100% rather than 20%.

We have considered this matter with care and think there is an arguable case that the percentage on the Polkey issue might have been larger than 20%. It would not be right for us to say more at this point. Once, in fact, we allow this matter to go forward to a full hearing on that issue, we think it would be unrealistic not to allow the Appellants to address the issues arising on mitigation and contributory conduct. The Tribunal which hears this matter at a full hearing will, in any event, have to be fully apprised of all the facts in order to consider the Polkey issue and it will entail little extra time if they scrutinise the other findings as well.

In all the circumstances therefore, we allow this matter to proceed to a full hearing.