United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR B CARR (of Counsel) Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE
For the Respondents	MR J BENSON (of Counsel) Messrs Pannone & Partners 123 Deansgate Manchester M3 2BU


 


JUDGE H WILSON: These appeals and cross-appeals have concerned three of the former employees of Goss Graphic Systems Ltd, Mr Goodson, Mr Moon and Mr Sheridan. All were found to have been unfairly dismissed and the Respondent company cross-appeals about that finding. So far as the three employees are concerned, their appeals divide into two. Mr Goodson appeals against the refusal of a review so far as his award was concerned and Mr Moon and Mr Sheridan appeal because they say the decision of the Industrial Tribunal, that any compensation would be exceeded by the payment they had already received, was in fact a misdirection.

We deal first with the appeal of Mr Goodson. The Industrial Tribunal proceedings were progressing alongside a claim for personal injury which he had against his employers. The last day of the Industrial Tribunal proceedings had been on 10 December, and that hearing in effect concluded with submissions on behalf of the Applicants, but not from the Respondent employer. There is some duplicity of evidence about what happened. It may be that Miss Bradley had asked about this my colleagues and I are not quite clear whether that was on 10 December or subsequently. The result of raising the matter was that she was offered a short time on 5 January. However that may be, in due course, a letter from the solicitors acting on behalf of the employer, responding with information which the Tribunal had asked for, took the opportunity in the letter to point out that they had had no proper opportunity to put their case and sum it up and as a result the Tribunal fixed a final date on 30 January 1998, and that was when the employer's closing submissions were heard.

By that time, only by a few days, the personal injury case had been settled in the Leeds County Court. The Tribunal hearing was in Manchester. There is no clarity of information about when the detail of that settlement got through to the union representative of the Applicant, but what is certain is that his Union advisor, who had been representing him in the Tribunal proceedings, wrote to request a review of the Tribunal's findings which had been published. That letter from Mr Kitchen was dated 25 February and it was accompanied by two letters from the solicitors Rowley Ashworth, who had been acting for the Applicant, both in the Industrial Tribunal proceedings and his civil action. The first letter was dated 11 February, that is to say, after the final hearing at which nothing had been said concerning the compromise of the County Court proceedings. The second letter was dated 23 February and, from its first paragraph, we infer that having received the earlier letter Mr Kitchen got on to the solicitors and said "give me more details and put it in writing". That was done, and immediately on receipt of the written details, he had written off to ask for the review.

The Chairman refused a review. He sat alone and he subsequently wrote to the Employment Appeal Tribunal to confirm that he had dealt with the matter as an application for review. In those circumstances, he must have been acting under Rule 11(5) which implies that there is no reasonable prospect of success, otherwise he is not entitled to sit on his own. That is not the wording of the decision, and in any case there was a considerable percentage of the Applicant's award apparently at stake. One of the features of the settlement of the County Court proceedings had been the acknowledgement that the figure at which settlement was achieved took into account credit being given by the Applicant for the £11,000 redundancy payment which he had already received. That was also what was taken into account by the Industrial Tribunal in finding that there was nothing more due.

It is not clear from the supporting letters to which we have referred what the state of knowledge had been on 30 January or what the precise status of that hearing had been. If the Chairman was acting under Rule 11(5) by himself, it seems to us that he had taken exception for some reason to the application because of the grounds upon which it was presented. We have in mind the last two paragraphs of the decision which refer to the settlement. He says:

"The settlement was reached on the morning of the trial on 8 January. It is not accepted why if this arrangement were an integral and explicit part of the settlement it does not appear to have been specifically mentioned to His Honour Judge Adams on that day and properly recorded in the Court Order of 8 January."

Pausing there, the terms are quite clearly recorded on Counsel's briefs which were before the Chairman and they are of binding authority on the parties. The Chairman continues:-

"It is not accepted further that the parties' representatives, at another hearing, have the right to usurp the jurisdiction of the Tribunal and/or pre-empt its decision, particularly in circumstances where the Tribunal had concluded its hearing, reserved its decision and was exclusively seised of the matter."

Intemperate language of that kind is rarely justified in a legal decision and we can find nothing to jutify it in this case. In our view, however that may be, the interests of justice (see Rule 11(1)(e)) clearly required that there should be a full hearing for both sides before a Tribunal constituted as it had been for the full hearing. Therefore, so far as Mr Goodson's appeal is concerned, it succeeds and we direct that the matter be remitted for hearing by a completely freshly constituted Tribunal.

So far as Mr Moon and Mr Sheridan are concerned, their appeal is on the grounds that the Industrial Tribunal misdirected itself, having found unfair dismissal, in finding that any award of compensation which is just and equitable would not have amounted to the sum of £11,705 which each of them had already received. It seems to us having listened to arguments on both sides and the submissions and amplification of skeleton arguments which have been urged upon us by Mr Carr and Mr Benson that the Industrial Tribunal did indeed err, because it had already made a Polkey finding of 50% and because it should, before reaching the conclusion it did reach, have gone through the necessary calculations upon which they reached the conclusion, in order to show how and why they reached their conclusion. Had they done so, they would have found that the head of compensation for payment in lieu of notice alone, was in itself sufficient to outweigh the amount the Applicants had already received once the Polkey deductions were made in the appropriate way. This deficit might have been increased had they construed the provision of s.123 as they should have construed it, namely, to quantify the failures to mitigate loss because of pre-existing illness which was already a feature in the Polkey deduction as we have said.

In our view the matter so far as these two Appellants are concerned should be remitted for full calculations to be made and we direct that those calculations should be made by the same totally and freshly constituted Tribunal which will deal with the other appeal. We think all three cases should be before the same Tribunal because there is a considerable amount of overlap.

It follows that the cross-appeals (which are the same in each of the three cases) must fail. We considered the submissions made by Mr Benson about the references by the Employment Tribunal to the case of Paine & Moore v Grundy (Tedington) Ltd [1981] IRLR 267. On page 4 of the Extended Reasons of the decision at paragraph 12 the Industrial Tribunal refers to the regard it has had to the case and it quotes a section from the decision of the Employment Appeal Tribunal:

"Applying the general principle that employers should do all that is reasonable to ensure that they have in their possession as full information as is reasonable about their employees and the relevant situation before coming to any decision to dismiss, where employers use employees' attendance records as a criterion for selection for redundancy, they should seek to ascertain the reasons for the absences which make up the attendance records of the particular employees concerned."

That quotation comes after the preamble sentence of paragraph 12 in the Extended Reasons that the case being considered by the Tribunal essentially turned on its own facts and the Tribunal went on to find in paragraph 13 that:

"The Tribunal found, as a fact, that the system of selection and its application to the three applicants: having regard to the absence of consultation, the inability to advance any reasons for absences and the inconsistency of the pass-out system had affected, to some extent at least, their chances of selection, ie that other employees might have been selected in their place. The Tribunal found this unreasonable and unfair."

Paragraph 14 went on:

"14. The Tribunal was critical too of the respondent's Appeal procedure. As mentioned, Mr Moon was the only applicant who had appealed. Mr McCombe told the Tribunal there had been "only one appeal out of 50". But there had been no mention in the individual dismissal letters of any right of appeal. In evidence, Mr McCombe accepted, with hindsight, that this was incorrect. It was, indeed, poor industrial practice."

It seems to us therefore quite clear when the Extended Reasons are read as a whole that, while they did have regard to the judgment in the case of Paine, it was only part and certainly not a compelling part of their deliberations in coming to the conclusions to which they did come. We are quite satisfied therefore that the grounds of appeal advanced should not succeed and accordingly the cross-appeal is dismissed.