United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (of Counsel) Instructed by: Ms C Aylott Messrs Lawford & Co Solicitors 102-104 Sheen Road Richmond Surrey TW9 1UF


 


JUDGE ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at Leeds on 7th April and 1st June 1999. It comes before us by way of preliminary hearing to determine whether there is a point of law which merits a full hearing before the Employment Appeal Tribunal.

1. The appeal is by the employee and it relates to the assessment of compensation following a finding of unfair dismissal. The Employment Tribunal found that the appellant had suffered no loss and made no compensatory award following dismissal for redundancy.
2. It relates to the employment of the appellant at the Leeds branch of the respondent's bank. It appears that there was discussion about closing one of two banks in Bradford and Leeds. On 11th March 1998 there was discussion with employees at Leeds. On 18th May 1998 the Leeds branch was closed. Nonetheless, although that is a finding of the Employment Tribunal, the employees seem to have continued to have worked there thereafter. There may be a technical factual error in the way that closure was expressed.
3. On 6th August 1998 a meeting of the personnel committee of the respondents minuted that the appellant should be made redundant. The Employment Tribunal found that at that time the decision to dismiss the appellant was taken and that accordingly any later consultation with him was not meaningful. He was at that time or about that time, away from work due to sickness with back injury until his employment was terminated. There was subsequently a detailed consultation meeting with him at his home and the Employment Tribunal observed that he could not give an indication of when he would be fit to return to work and he did not himself suggest any alternative work. Enquiries by personnel revealed a post, at the time filled, of clerk/receptionist that was within the appellant's capability. It was a temporary post which at the time was expected to end three months later in January 1999. The appellant was dismissed on 20th October 1998.
4. In their decision at paragraph 2(9) the tribunal set out their findings of fact in relation to alternative employment. There is an error in that paragraph in that for Leeds should be substituted Bradford on the three occasions where it occurs. Be that as it may, the enquiry established, on the findings of the tribunal, no permanent vacancies in Bradford and a single temporary post. They go on to say that the post was being satisfactorily filled, but that the appellant could have undertaken the tasks of the post. They ended the paragraph by saying:

"Technically her job could have been considered to be suitable alternative employment for him. However her appointment was of a temporary nature and as at October 1998 was expected to end in January 1999."

In fact, there was an extension to May 1999.

5. The Employment Tribunal then considered the relevant law in relation to unfair dismissal in s.98 of the Employment Rights Act 1996. They also referred in that connection to a number of relevant decided cases. The tribunal then go on, without specifically saying that it relates to compensation as a separate discrete exercise, to refer to the case of Fisher v California Cake & Cookie Ltd [1997] IRLR 212 EAT. The tribunal quote the case as deciding:

"3. … that if the employee has been dismissed unfairly on procedural grounds but had the employers conducted a fair hearing and given him access to the appropriate information the outcome may have been the same, then the Tribunal needs to conduct its own investigation and reach its own conclusion; that we need to assess the risk of him fairly being dismissed in percentage terms and that percentage could be as much as 100%."

It is conceded in this appeal that the Employment Tribunal asked itself thereby the right question.

6. In paragraph 4 the Employment Tribunal then went on to analyse the facts. First, they found that the decision to dismiss was taken in the absence of any meaningful consultation, for such consultation as there was came after the decision to dismiss was taken. Secondly, the Employment Tribunal found that in reaching that decision, the respondents did not address the selection criteria for redundancy that they had set themselves. The tribunal then go on to deal with alternative employment, so it appears, at the end of bottom of page 5 of their decision when they say:

"We have come to the conclusion that the job being done by the Clerk/Receptionist could have been a suitable alternative employment for the applicant but the reason we say that the decision of the respondents was not outside the band of reasonable responses is two-fold. …"

The first reason they give is that there is a current team fulfilling the posts in Bradford and that it would have been necessary to have dismissed the person occupying one particular post to make way for the appellant. As to that the tribunal say:

"That was a decision which we consider to have been incumbent upon the respondents in these particular circumstances, given her qualifications and the temporary nature of her employment. They were perfectly entitled to take the decision they did."

The second reason for their decision was that the appellant himself could not give any idea when he was going to be able to return to work. The tribunal conclude the main body of their reasons as follows:

"We cannot say that it was unreasonable or unfair of the respondents to dismiss the applicant when their choice was dismissing an employee who was doing a valued and valuable job in the hope that the applicant would be fit enough to return to work before that dismissed employee's temporary contract came to an end."

7. Whilst the facts which are contained in the decision up to that point are clearly relevant to the issue of compensation, it appears on the face of the decision that up until that point the Employment Tribunal is addressing the facts as they relate to the fairness of the dismissal. It seems that the decision concludes that the dismissal was unfair because of the absence of meaningful consultation and the failure to apply a selection criteria, but that it was not unfair due to any failure to offer alternative employment.
8. The complaint is made that the Employment Tribunal when then considering the question of compensation did not adopt the rather different test which is confined to the question of discovering what actually was lost. Whereas a tribunal may not substitute its own view when considering the reasonableness of a dismissal, the assessment of compensation is an objective task that only the Employment Tribunal can establish on its own determination. The appeal is based upon the proposition that the Employment Tribunal never conducted, in relation to compensation, that separate exercise of evaluating for themselves what would have happened if a fair dismissal had taken place. It is argued that they should have done so in assessing the argument as to whether it would have made any difference, and if the tribunal is unable to find or do not find that it would have made no difference, in considering whether there was a measurable chance that it would have made no difference.
9. However, we are constrained to look at the very beginning of the decision of the Employment Tribunal. For at the outset of their decision, the tribunal found as follows:

"1. That the applicant was unfairly dismissed by reason of redundancy. However, this was a result of the respondent's failure to carry out a fair procedure. Had they done so the Tribunal's view is that dismissal would undoubtedly have followed and therefore the applicant suffered no loss and there is no Compensatory Award. The applicant's entitlement to a Basic Award has been extinguished by his redundancy payment."

10. It may be that the format of this decision is rather unfortunate. That explanation should more happily have appeared at the end of the reasons than in the decision part of the document. We read the document as if that is what had occurred, because it is clearly phrased in that way as to make that appropriate.
11. However, it seems to us that a question does still remain. It does appear that the Employment Tribunal did consider their own view and did state what their was. They have said so. They did not expressly state what the reasons for their views were. It may be that they adopted the reasons of the employer. It may be that they agreed that that is what would have happened. But it seems to us that, on a preliminary hearing, we would be making an assumption which is not expressly apparent on the face of the decision if we came to a conclusion on that . It therefore falls to us to conclude at a preliminary stage that there is at least an argument that the Employment Tribunal did not state why it came to its view in addition to its finding as to why it recognised the reasonableness of the employer's views in relation to the question of whether or not the dismissal was fair. That argument, it seems to us, is better canvassed at a full hearing in the light of all the many findings of fact contained in the decision.
12. Accordingly, we direct that this appeal be set down for a full hearing, in Category C for one day. Skeleton arguments are to be furnished to the Employment Appeal Tribunal not less than 14 days before the hearing.