United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S GORTON (of Counsel) Messrs D P Hardy & Co Solicitors 3rd Floor 81 Dale Street Liverpool L2 2HT
For the Respondents	MR T RESTRICK (of Counsel) Messrs Dibb Lupton Alsop Solicitors India Buildings Water Street Liverpool L2 0NH


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a full hearing the appeal of Mr C Constantine in the matter Constantine v McGregor Cory Ltd. After a two day hearing in September 1998 the Employment Tribunal at Liverpool under the chairmanship of Mr N E Coles sent its extended reasons to the parties on 17th December 1998. The unanimous decision was:

"(i) the applicant was unfairly dismissed

(ii) the respondents are ordered to pay to the applicant compensation in the sum of £350."

On 26th January 1999 Mr Constantine lodged a Notice of Appeal. It came before the Employment Appeal Tribunal for a preliminary hearing on 25th May 1999. Mr Gorton then appeared for Mr Constantine and it was his amended Notice of Appeal that was permitted to come forward this full hearing. Mr Gorton also appears for Mr Constantine today and Mr Restrick appears for the respondent employer.

1. First we look at the decision itself. The nature of Mr Constantine's complaint is set out as follows:

"2. The applicant's complaint to the Tribunal was that he was unfairly dismissed by the respondents by reason of the fact that he was dismissed by reason of redundancy on 20 March 1998, that the procedure adopted by the respondents in relation to such dismissal was unfair and that he was unfairly selected for such redundancy."

2. It was the case that a redundancy situation did indeed exist. The Tribunal said at paragraph 6:

"6. The Tribunal is satisfied, and the applicant's representative did not dispute this, that by the end of 1997 a redundancy situation existed by reason of the fact that the respondents major customer, Makro, had decided to withdraw its business from them. Although the respondents had been successful in partially replacing that lost business with a new contract with Kellogg's, the nature of the work involved in that new contract would be different from that which had previously operated with Makro."

3. Mr Constantine had put in 28 years of service with this employer. He was the joint longest-serving employee. In the past, it seems, he had taken a rather inflexible view when called upon to work outside his preferred speciality, which was forklift truck driving. As to that the Tribunal said this:

"7. The applicant described himself in his Originating Application to the Tribunal as a forklift truck driver. As such he was also a warehouse operative but other warehouse operatives had traditionally been involved in and become experienced in "picking" and "loading". The Tribunal is satisfied that the applicant was more keen on forklift truck driving than picking and loading and had been reluctant to engage in such when asked to do so. He was a good forklift truck driver and regarded such activity as his principal responsibility."

4. In the situation in which the company found itself some redundancy criteria needed to be drawn up. On that subject the Tribunal said this:

"8. The redundancy situation having come about, the respondents decided on criteria for selection for redundancy which was on a points basis. Contrary to their own procedure, the respondents failed to consult with the recognised trade union, USDAW, before choosing that particular selection criteria. The union was, however, told about the proposed selection criteria and, it is accepted by the applicant's representative, did not object to it. The Union was in a difficult position since any criteria adopted by the respondents could potentially be prejudicial to some of its members. Nevertheless, the Tribunal is satisfied on the balance of probabilities that the respondents acted unfairly in failing to consult with the union before deciding upon the selection criteria."

5. Such criteria as were in fact used were not free of shortcomings. On that, the Tribunal said in their paragraph 9:

"9. The Tribunal was also concerned about the fact that the respondents own written guidelines for selection criteria in redundancy situations were not followed. It was also concerned about the fact that the points system used by the respondents referred to "attitude" and "flexibility" for which the applicant received such low points as to justify the respondents in dismissing him. Those criteria were unclear and misleading and, in the Tribunal's view, contributed to its conclusion that the dismissal was unfair for procedural reasons."

6. Mr Constantine was dismissed without any consultation with him personally having taken place. Paragraph 11 of the extended reasons says:

"11. Mr Heaton dismissed the applicant on the recommendation of Mr Austin and there was no consultation with the applicant before that decision was made. This, in the Tribunal's view, also rendered the decision unfair from a procedural point of view."

7. Mr Constantine appealed internally unsuccessfully and the Tribunal concluded that his dismissal had been unfair. The Tribunal said this at their paragraph 13:

"13. For the reasons stated above, and having regard to the provisions of Section 98(4) of the Employment Rights Act 1996, the Tribunal concluded that the dismissal of the applicant was unfair. However, the Tribunal went on to consider whether, if a correct procedure had been gone through, the decision to dismiss the applicant would have been different, on the assumption that the respondents would have acted fairly."

8. There is no appeal as to the unfairness of the dismissal. We are concerned, therefore, only with remedy.
9. There had been a factor that could, perhaps, have pointed to a low award or, indeed, none because the Tribunal in paragraph 10 say:

"10. … the applicant was given the opportunity to relocate to the Huyton site which may have given him the opportunity to return to the Knowsley site should business improve. The applicant was not prepared to do this, principally by reason of distance from his home, but the Tribunal did not feel that the applicant gave adequate consideration to such option."

10. However, that led to no finding as to contribution or other reduction and so it can now be ignored save in this respect: as we have understood the chronology of the case, the opportunity to work at Huyton was offered to Mr Constantine at a time when, although he knew redundancies were imminent and that they could include him, he did not know that he had in fact been selected for redundancy. The offer of employment at Huyton instead of Knowsley was on the basis "if you are picked to be redundancy, would you transfer to Huyton?" The selection had not been gone through at the time when that offer was made. It was that conditional offer that had been declined by Mr Constantine. Of course, a man's answer whilst redundancy is only a possibility may not be the same as his answer once redundancy at Knowsley had become a certainty. We have not understood the offer to have been revived once Mr Constantine had been selected for redundancy. It is a consideration which points to the absence of personal consultation being other than a mere defect in form or procedure on the facts of this particular case. An absence of consultation could, perhaps, have here led to the difference between dismissal and continuing employment.
11. To revert to the Tribunal's decision, what caused the lowness of the monetary award was that the Tribunal continued as follows. As we have indicated already in the citation from the Tribunal's paragraph 13, the conclusion that the discrimination had been unfair: led to the posing for themselves of the question of whether the applicant would have been dismissed in any event if the respondents had acted fairly. The Tribunal went on:

"14. The Tribunal is satisfied that the applicant was essentially a forklift truck driver and did not possess the wider skills and experience which other warehouse operatives who were retained possessed. The Tribunal is therefore satisfied, on the balance of probabilities, that even if the applicant had been more properly consulted before the decision to dismiss was made, and even if a different format of selection criteria had been adopted, it would nevertheless have been reasonable for the respondents to select the applicant for redundancy by reason of his restricted work experience."

12. Accordingly, in the Tribunal's last paragraph, they said:

"15. It was for that reason that the Tribunal concluded that the only financial loss sustained by the applicant as a result of his unfair dismissal was his net loss of earnings during a proper period of consultation. That was assessed by the Tribunal at 2 weeks net wages amounting to £350. The applicant had received a redundancy payment which was in excess of the basic award for unfair dismissal."

13. The amended Notice of Appeal requires to be considered against that background. We take the grounds in a different order to that in which they appear in Mr Gorton's amended grounds.
14. The first one was shall consider is simply said to be as follows:

"The Employment Tribunal in any event failed to consider:

(1) The Appellant's claim for reinstatement/reengagement …"

15. The Tribunal found the complaint of unfair dismissal well-founded in the sense that the dismissal was held to be unfair and, accordingly, section 112 applied. It provides:

"(1) This section applies where, on a complaint under section 111, and employment tribunal finds that the grounds of the complaint are well-founded.

(2) The tribunal shall-

(a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and

(b) ask him whether he wishes the tribunal to make such an order.

(3) If the complainant expresses such a wish, the tribunal may make an order under section 113."

Section 113 provides:

"An order under this section may be-

(a) an order for reinstatement (in accordance with section 114), or

(b) an order for re-engagement (in accordance with section 115),

as the tribunal may decide."

16. The Tribunal was thus required by statute to explain what orders may be made under the Act, namely reinstatement/re-engagement or compensation, and to ask whether the complainant wished for either reinstatement or re-engagement.
17. Mr Constantine's IT1 asked expressly for reinstatement only. There is no suggestion that at the hearing, when he was represented by a Union official, that he had indicated that he did not want reinstatement or re-engagement.
18. It does not render the whole decision a nullity if section 112(2) is not complied with but the Court of Appeal indicated in Cowley v Manson Timber Ltd [1995] IRLR 151 CA, that the Employment Appeal Tribunal should be very ready to remit cases back to Employment Tribunals for remedy where that subsection has not been complied with, at all events, if thereby prejudice or injustice was suffered See Cowley Supra at paragraphs 23 and 30. Here, in our view, injustice might well have been caused. Who would elect for compensation rather than for reinstatement or re-engagement if reinstatement or re-engagement were not manifestly unlikely to succeed and where an alternative in money could be for a sum as small as £350? If the choices had been explained by the Employment Tribunal who can say what Mr Constantine would have pressed for? It is notable too that whereas in Cowley the complainant's IT1 had asked only for compensation and not for reinstatement or re-engagement (see paragraph 3), Mr Constantine, by contrast, asked only for reinstatement in Box 10 of his IT1.
19. It is accepted by Mr Restrick, who did not appear below, that there is nothing to indicate the Tribunal either explained possible remedies or considered reinstatement or re-engagement. He argues, though, that that has no practical consequence and that no injustice or prejudice was caused because if, as the Employment Tribunal found, Mr Constantine would have been dismissed in any event, re-engagement or reinstatement would never have fallen to be considered and Mr Constantine, therefore, could have suffered nothing by reason of their not being considered.
20. We were unconvinced of that, but Mr Gorton, in our view, had the complete answer to the point. He took us to Polkey v A E Dayton Services Ltd [1988] ICR 142 at 164 in the House of Lords per Lord Bridge where Lord Bridge says at 164B:

"… It is noteworthy that an industrial tribunal may, if it thinks fit, make an order for re-engagement under that section and in so doing exercise a very wide discretion as to the terms of the order. In a case where an industrial tribunal held that dismissal on the ground of redundancy would have been inevitable at the time when took place even if the appropriate procedural steps had been taken, I do not, as at present advised, think this would necessarily preclude a discretionary order for re-engagement on suitable terms, if the altered circumstances considered by the tribunal at the date of the hearing were thought to justify it."

21. In holding that Mr Constantine would have been dismissed in any event the Employment Tribunal was looking at facts as they seemed as at the time of dismissal. A ruling on re-engagement or reinstatement requires a look at the facts at the time of the remedies hearing. One cannot prove one by looking at the other. We cannot hold reinstatement or re-engagement was manifestly impossible or that Mr Constantine suffered no prejudice or injustice upon their not being explained and, if necessary, then examined, as the statute requires. In Cowley Neill LJ said, as we have already noted, that the Employment Appeal Tribunal should be very ready to remit cases for further hearing on remedies on this account and we shall bear that encouragement in mind.
22. Next we need to look at the Tribunal's conclusion that Mr Constantine would have been dismissed shortly in any event. This raises the subject of the so-called Polkey reduction. If the view as to early dismissal in any event is well-founded, then, as awards are required to be compensatory, Mr Constantine's compensation should indeed have been tailored to fit the position that he would not have continued indefinitely in this employ but would have been dismissed shortly. Tailoring to fit, so to speak, was what the Tribunal took itself to be doing when it awarded only £350.
23. We have been taken by both sides to a case that throws light on this subject, namely, King v Eaton Limited No.2 [1998] IRLR 686 in the Inner House of the Court of Session. The issue there was a rather limited one. At the foot of paragraph 3 on page 687 of the decision Lord Prosser, giving the judgment of the Inner House, says:

"… The question for the court is therefore whether we should overturn the decision of the industrial tribunal, which was upheld by the Employment Appeal Tribunal, that the employers' motion for leave to lead additional evidence should be refused."

24. The additional prospective evidence was not before the Court of Session in full but was explained to it in outline. It was a case in which there had earlier been a finding of unfair dismissal. In paragraph 4 of the judgment one finds this:

"… The industrial tribunal had concluded that the employers had failed to show that their method of selection was fair or applied reasonably. There were two reasons for this conclusion. One was lack of proper consultation. The other was that the industrial tribunal found it impossible to decide whether the selection criteria had been fairly applied in the absence of evidence from those who had made the relevant markings when assessing employees for redundancy. The court found it unnecessary to determine whether the industrial tribunal were well-founded upon this second matter. …"

25. There had also been an earlier finding as to the inadequacy of the evidence on the hypothetical position that would have arisen had there been a fair procedure. In paragraph 8 there is a quotation where one finds it said:

"… Because of the absence of evidence from those primarily responsible for the selection these are not cases in which we feel able to assess the applicant's chances of escaping selection for redundancy had been there been adequate consultation."

26. The sort of evidence which was intended to be led but which had been declined to be accepted below is described in the Court of Session's judgment in paragraph 11 where one finds this:

"Before turning to consider the parties' submissions in more detail, it is appropriate to identify more precisely what evidence it was that the employers sought to lead, but were refused leave to lead. In giving their reasons for the refusal, the tribunal say that counsel sought leave lead evidence 'from witnesses who … would say that if there had been consultation, and if the applicants had had at that point the opportunity to say to the employers what they had said to us about the marking in the individual assessments, the applicants would still have been dismissed.' …Put shortly, it appears that the hypothetical consultation which would have been covered in the proposed evidence would have related specifically to these individual assessments, within and according to the adopted method and criteria, and would not have been a broader consultation as to the appropriateness of that adopted method or those criteria. In considering whether it was right to refuse leave to lead the evidence, it is of some importance to bear in mind what the proposed evidence was – and was not."

27. There have in the past been disputes as to whether a Polkey reduction is available only where the defect that leads to unfairness in the dismissal is fairly described as "procedural" and, if so, what "procedural" means in that context. That was a subject which the Court of Session returned to and in their paragraph 19 they say this:

"… In broad terms, it appears to us that there will be situations where one can say that what went wrong was 'merely' procedural. Equally, in broad terms, we think there will be situations where one can say that an employee has been deprived of 'something of substantive importance', to use a phrase of Lord Coulsfield's. We see no need to discard entirely terminology of this kind; and while in many cases it may inappropriate to allocate the particular facts of either category, or to do without enquiry, it seems to us that a distinction between the 'merely' procedural, and the more genuinely 'substantive' will often be of some practical use, in considering whether it is realistic, or practicable, or indeed 'just and equitable' to embark upon an attempt ton construct a hypothesis, enabling one to assess what would have happened, if only it had. If there has been a 'merely' procedural lapse or omission, it may be relatively straightforward to envisage what the course of events would have been if procedures had stayed on track, rather than briefly leaving the track in this way. If, on the other hand, what went wrong was more fundamental, or 'substantive', and seems to have gone 'to the heart of the matter', it may well be difficult to envisage what track one would be one, in the hypothetical situation of the unfairness not having occurred. It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one simply cannot sensibly reconstruct the world as it might have been. It does not seem to us that there is anything very wrong in using the word 'substantive' in connection with this latter situation."

28. The Inner House identifies, too, that there is no requirement in Polkey itself that a Polkey reduction is to be available only in a "procedural" case. In paragraph 20 the Inner House says:

"So far as Lord Bridge's observations in Polkey are concerned, it is no doubt correct to say that he is not drawing a categorical distinction between 'procedural' cases and 'substantive' case, or excluding the latter as a category from the possibility of what has become known as a Polkey reduction. … we cannot read him as trying to lay down a general proposition, to the effect that an employer will always be entitled, however fundamental his unfair course of action may have been, and however speculative the question of what would have happened but for these acts and omissions, to insist upon a tribunal hearing a tract of evidence, designed to reconstruct the world that never was, and ask for a finding as to the likelihood of the employee having been dismissed in that speculative world."

29. On the unusual procedural history that existed in King it transpires that it would have made no difference even if the evidence about an individual's markings and assessments had been admitted because the criteria underpinning those markings were still held to have been unsatisfactory and to have been arrived at without consultation - see paragraph 23.
30. Accordingly, the Court of Session concluded in paragraph 24:

"On the whole matter, we are satisfied that the proposed evidence should not be allowed, and we will refuse the appeal."

31. As we see it, the question for the Employment Tribunal in our case, in the light of the language used in King and using some of that language, becomes this: did the Employment Tribunal in our case have evidence laid before it upon which an Employment Tribunal, properly instructing itself and applying the appropriate standard of proof, could have concluded that the unfair departure from what should have happened was of a kind which made it possible to say with some confidence that Mr Constantine would in any event have been dismissed after a further two weeks? As to that, there had, after all, been a selection on a points basis. The Union, it was found, knew of the criteria and had not objected to them, although there had not been such a discussion as could be described as a consultation on the subject. The Tribunal had seen the matrix or table which showed the points basis on which the various individuals were awarded their marks on different subjects. Against that, though, the system was in part highly subjective and the Tribunal was "concerned" at the low marks attributed to Mr Constantine on the two headings of flexibility and attitude. Indeed, those two subjects or criteria were described by the Tribunal as having been unclear and misleading. As for flexibility, one of those two vulnerable subjects, there was no finding that Mr Constantine could not "pick" or "load" rather, as it seemed, that he preferred forklift truck work, although it was also held that he did not possess the wider skills and experience which the retained men did possess.
32. Moreover, Mr Gorton draws attention to weaknesses in the Tribunal's reasoning. They did not identify what the right criteria would have been. Indeed, there was, it seems, no evidence of any redundancy selection system being considered other than the defective one that was in fact used. There is no reason, he says, why an Employment Tribunal should do the employer's work for it and suppose what the result under some alternative fair system would have been, thus giving the employer a second chance to get things right. He draws attention, rightly in our view, to the fact that Mr Constantine was by no means a hopeless candidate for retention. The decision as to his redundancy was far from open and shut. The tabular matrix which the Employment Tribunal had before it showed Mr Constantine getting 218 points and being redundant and the next better candidate getting 227 point and being retained. Mr Constantine, as Mr Gorton put it, was "on the cusp". If only Mr Constantine had scored anything at all by way of marks for flexibility or attitude, those being the very categories described by the Tribunal as misleading and unclear, then so long as the other candidates marks had remained the unchanged, Mr Constantine would apparently have been retained because the minimum mark under those subjects was 25 points, if any marks were awarded at all. Mr Constantine had been awarded on zero in each of those two categories. The case was thus borderline. The Tribunal's decision contains no clue, Mr Gorton rightly urges, as to what the marks for attitude and flexibility should have been had the criteria in those areas been clear and unmisleading and had the marking system on those subjects not given rise to concern.
33. However, it is important to note that we not have the Chairman's notes. The preliminary hearing in this matter indicated that at a later stage an order in that behalf could be sought but none was ever sought.
34. If the proper question for the Tribunal was as we have described it, it is hard to see, absent Chairman's Notes, how we could answer it in the negative as we just do not know what the evidence was. The Tribunal plainly felt able to conclude as a matter of impression and judgment 'on a balance of probabilities', to use the phrase from King, that they could fairly conclude that Mr Constantine would have been dismissed in 14 days.
35. Mr Restrick argues that Mr Constantine's case on this part of the argument is truly a perversity argument and we see force in that answer. We can only hold that there was no foundation for the Employment Tribunal's conclusion on the balance of probabilities if we had seen the evidence, which we have not. So that thus far the decision survives.
36. But it is necessary to revert to the decision. It will be remembered that in paragraph 14 the Tribunal says:

"… The Tribunal is therefore satisfied, on the balance of probabilities, that even if the applicant had been more properly consulted before the decision to dismiss was made, and even if a different format of selection criteria had been adopted, it would nevertheless have been reasonable for the respondents to select the applicant for redundancy by reason of his restricted work experience."

37. This gives rise to the question, is the balance of probabilities the right test? The objection to it is that it seems to lead to an all-or-nothing finding. If the Tribunal is, so to speak, 51% certain that an employee would in any event have been dismissed after two weeks it awards only two weeks pay. The case is thus evaluated as if that man had no chance at all of staying for longer than 14 days, and yet, consistent with such a finding he could have had a 49% chance of doing so. The balance of probabilities leads to a degree of unreality and to compensation that is not truly tailored to the particular loss suffered. That is why Lord Bridge adopted Browne-Wilkinson J's observation in Sillifant v Powell Dufryn Timber Ltd [1983] IRLR 91 at 96, when he came to the point in Polkey at [1988] ICR 142 at 163. There, Lord Bridge said in that situation, which is the situation of assessing compensation, as Browne-Wilkinson J put it in Sillifant's case, at page 96:

"There is no need for an 'all of nothing' decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."

38. Mr Restrick argues that the balance of probabilities is always appropriate. He refers to a passage slightly earlier in Polkey where Lord Bridge says earlier at 163E:

"… First, as was pointed out by Browne-Wilkinson J in Sillifant's case, if the industrial tribunal, in considering whether the employer who has omitted to take the appropriate procedural steps acted reasonably or unreasonably in treating his reason as a sufficient reason for dismissal, poses for itself the hypothetical question whether the result would have been any different if the appropriate procedural steps had been taken, it can only answer that question on the balance of probabilities. …"

39. Mr Restrick says that even when a tribunal determines that an employee has lost only, say, a 20% chance of staying on the Employment Tribunal nonetheless decides that on a balance of probabilities.
40. We make two observations. Firstly, Lord Bridge in the passage just cited was dealing with the question of whether the dismissal was fair or unfair. That is decided on the balance of probabilities. The compensation stage is different and Lord Bridge so says because he goes on at 163G:

"… But if the likely effect of taking the appropriate procedural steps is only considered, as it should be, at the stage of assessing of compensation, the position is quite different. …"

41. A tribunal does not say "we are 51% certain that the employee lost a 60% chance of staying on" as that would lead to the question of whether one therefore had to say that the true loss was a 30.6% chance of staying on. The Tribunal on compensation, if it cannot be certain what would have happened and when it would have happened had all been properly attended to, then has to switch to dealing with compensation and evaluation of chance and once it does that it moves away from the balance of probabilities.
42. Very often a Tribunal leaves the position unclear as to whether they have decided such a question as assessment of a lost chance on a balance of probabilities or on a basis of complete certainty on the evidence. But here the Tribunal in terms says that it decided the point on "the balance of probabilities". The question has, in other words, been approached as if an all-or-nothing approach was appropriate, despite what we must regard as the inevitable uncertainty or doubt introduced into the topic by the Tribunal's own findings, let alone the doubts introduced by the nature of the hypothetical fair evaluation and the time that that hypothetical fair evaluation would have taken.
43. Looking to the Tribunal's own findings, as we have already pointed out, there were unclear and misleading criteria used on two important subjects, attitude and flexibility. There had been concern at the subjectivity of attitude and flexibility and the points system used on those subjects and the low marks awarded to Mr Constantine on them. There was the fact, too, that Mr Constantine had not been consulted at all. There had been no finding that personal consultation would have been utterly futile.
44. Moreover, it is worth reflecting on what would have been needed to happen within the 14 days if the unfairness or shortcomings found to exist in the actual redundancy selection process were to be undone and replaced by fair process. The existing criteria would need to be reviewed as they were, in part, unclear and misleading. New ones would then have needed to have been framed. It would be, at lowest, prudent that they should then be put to the Union to be consulted upon. That might lead to negotiations as to the particular words used. It would be wise also to wonder how far the new system proposed accorded with the company's own existing written criteria. A new block of criteria would emerge in this way. The candidates for redundancy would need to be re-evaluated by reference to the new emerging criteria or, at least, it would need to be established how Mr Constantine would have faired alongside his competitor co-employees had the new and better criteria been applied equally to all of them. Suppose against Mr Constantine that he was selected for redundancy even under the new improved criteria, he would then need to be consulted. He would be quite likely to ask his Union representative to accompany him and a date would need to be fixed that was able to accommodate both of them. Suppose Mr Constantine was nonetheless confirmed for redundancy, he might then have wished to reconsider employment at Huyton. If he declined that and was still dismissed he could appeal that dismissal. Again a date and time that suited both him and his Union representative as well as the company would need to have been fixed. Let it be supposed that he loses such an appeal. Then the dismissal would at last take effect. In the real world the chance of that all taking place within 14 days is, in our view, negligible. No Employment Tribunal could, in our view, have concluded that it was certain that Mr Constantine's dismissal would have taken place at the expiry of a further 14 days. The consequence of that is that to decide the point on the balance of probabilities in effect deprives Mr Constantine of his being compensated for the loss of a chance which could have been as high as a 49% chance of staying on longer than 14 days. If the Tribunal could have been certain that Mr Constantine would have been dismissed within 14 days then he would not have suffered by way of the Tribunal deciding the point on the balance of probabilities. But, this being a case in which the Tribunal, on its own findings, could not have been certain that a supposed fair dismissal could have occurred in any event not later than 14 days after the actual unfair dismissal, the Tribunal should have used a percentage basis of assessment to reflect that Mr Constantine had had a chance of staying on longer than the 14 days which the Tribunal held, on a balance of probabilities, was the likely outcome.
45. Mr Constantine should have been compensated for loss of a chance that had a fair procedure been employed he might have survived either altogether or at all events for longer than 14 days. To pay him for two weeks only when consistently with the Tribunal's own findings, he had a chance of staying longer, is not fairly to compensate him for what, consistently with the Tribunal's own findings, he must be taken to have lost. The use of the balance of probabilities leads to a compensation that could be unfair as not compensating for what had actually been lost.
46. There is, here, in our view, a second error of law beyond the one which we identified earlier about the failure to explain and perhaps then consider reinstatement and re-engagement. There are, thus, in our view, two material errors of law in the judgment and we accordingly allow the appeal and will remit the matter.
47. The remission is to be same Tribunal as heard the matter before, unless the Regional Chairman indicates to the parties that the same Tribunal cannot be reconstituted within a reasonable time. We shall leave to the Regional Chairman the issue of how long is a reasonable time.
48. The remission is on the question of remedy only. If the parties are unable to come to terms then it will be best that there should be a directions hearing first to enable the parties to explore, with the Tribunal's assistance, how far they will need to range in their evidence in order fully to address the availability or not of re-engagement of reinstatement and to address also the quantification of the appropriate compensation, if compensation is to be awarded, based on Mr Constantine's loss of a chance that he might have survived a fair redundancy selection or, at any rate, have survived it for some period.
49. We allow the appeal and remit on that basis.