United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S GORTON (of Counsel) Instructed By: Messrs D P Hardy & Co Solicitors 3rd Floor 81 Dale Street Liverpool L2 2HT


 


JUDGE PETER CLARK: The Appellant was employed by the Respondent from 2 November 1969 until his dismissal by reason of redundancy effective on 20 March 1998. Since 1992 he had been employed at the Respondent's site at Knowsley, where they operated a distribution warehouse.

The Appellant was designated a warehouse operative but an Employment Tribunal sitting at Liverpool on 10 and 28 September 1998 to hear his complaint of unfair dismissal found, in Extended Reasons dated 17 December 1998, that he preferred fork-lift driving to "picking" and "loading", other tasks performed by his colleagues.

The background to the dismissal was that the Respondent had lost a valuable contract from a major customer. Job numbers had to fall.

The Tribunal found that the Appellant's dismissal by reason of redundancy was unfair for the following reasons:

(1) there was no consultation with the recognised union to which the Appellant belonged, USDAW, as to selection criteria to be used in this redundancy exercise.

(2) there was no consultation with either the union or the Appellant as to his own selection for redundancy.

(3) the selection criteria used were flawed, in that they included criteria of "attitude" and "flexibility" which were unclear and misleading, and on which the Appellant scored so badly that he was selected for redundancy.

We are told by Mr Gorton that the Appellant scored no points in either category; the maximum score for each was 50 points. There is no finding by the Tribunal as to where the Appellant came in the points matrix. He apparently scored 218 points.

For these reasons the Tribunal found the dismissal unfair. However, when considering the issue of remedy they found that had different selection criteria been used the Appellant would nevertheless have been dismissed because he did not possess the wider skills and experience which other warehouse operatives who were retained possessed.

Accordingly the compensatory award was limited to two week's pay, representing the time which a proper consultation exercise would have taken, in the view of the Tribunal.: see Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676.

In this appeal against the Tribunal's assessment of compensation Mr Gorton raises the continuing debate concerning "procedural" and "substantive" unfairness in a redundancy dismissal. It had appeared that the distinction had been disapproved by the English Court of Appeal in O'Dea v ISC Chemicals Ltd [1995] IRLR 599. However, the significance of "substantive" unfairness and its impact on the level of compensation under the so-called Polkey principle has now been revived in the Scottish Court of Session decision in King v Eaton Ltd (No.2) (1998) IRLR 686.

The principal question arising in this appeal is whether it was open to the Employment Tribunal to enter the realms of speculation by constructing a "fair" selection process which would have resulted in the Appellant losing his job in any event.

We think that the appeal is arguable and accordingly we shall grant leave to the Appellant to amend his grounds of appeal in the form of the draft submitted by Mr Gorton; permit the appeal as amended to proceed to a full hearing; list it for one day, Category B and direct that skeleton arguments be exchanged between the parties not less than 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged at the same time with this Tribunal.

We make no direction for Chairman's notes of evidence at this stage but both parties will have liberty to apply to me for a further direction, should it be considered necessary.