United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M FOSTER (Solicitor) Instructed by: Mr M J Foster Messrs Fynmores Solicitors 10-12 Parkhurst Road Bexhill-on-Sea East Sussex TN40 1DF
For the Respondents	MS C WOODHEAD (Representative)


 


JUDGE WILSON: This is has been the hearing of full argument concerning the applicant's appeal against the decision of the Employment Tribunal, which was promulgated on 4th February 1999. The applicant/appellant has been represented by Mr Foster, who appeared for him in the original proceedings and the respondent School has been represented by Ms Woodhead.

1. At the outset the question of the amended Notice of Appeal was raised and the tribunal indicated that it would hear the appeal on the basis of the amended Notice. Mr Foster addressed us concerning the terms of section 123(1) of the Employment Rights Act 1996. In particular he submitted that since there had been a failure of consultation totally with the applicant/appellant, there had been a substantive unfairness in all the circumstances of the case. Paragraph 37 states it succinctly:

"37 We concluded therefore that the dismissal was substantively unfair because of the use of this unfairly restricted pool."

The tribunal had found that the applicant had been regarded as a sole person and that he should have been considered in a pool with the domestic cleaners. By considering him on his own, it meant that the pool was unfairly restricted. This gave an unfair result to the applicant, as he was considered separately and not with other employees who were doing similar work.

2. In those circumstances, it having been found that it was a substantive unfairness, Mr Foster referred us to the judgment in the case of Steel Stockholders (Birmingham) Ltd v Kirkwood [1993] IRLR 515. That was a case where the employers had created an artificially narrow pool from which to select employees for redundancy and thereby they deprived the respondent of something of substantive importance, namely the opportunity of being considered against the whole range of employees who were genuinely involved in the reorganisation which the employers were carrying out. Those are substantially the same circumstances in the case before us. Where it was submitted that the Industrial Tribunal in that case should have had regard to the principles in Polkey v A E Dayton Services Ltd [1987] IRLR 503 HL, and the matter should be remitted to a different tribunal for reconsideration, it was found by the Employment Tribunal that those principles do not apply where the grounds for holding a dismissal unfair arise from the substance of the decision. That too, covers the situation in the case before us and accordingly, we so find.
3. We turn to consideration of section 123(1):

"Subject to the provisions of this section … the amount of the compensatory award shall be such amount as the tribunal considered just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

4. We turn to paragraph 40 of the decision:

"We then went on to consider the question of compensation. The redundancy payment received by the Applicant would, of course, subsume the basic award, and our attention was therefore drawn to the question of a compensatory award. In looking at this, we took into account that the school was a relatively small employer and needed to make significant financial decisions within a short timescale. The other significant factor was that Mr Standivan was on sick leave; in fact he was to remain medically certificated until 23 October 1998. Clearly, he could give no assurance to his employer in June as to when he could return work. In July he was signed off for a further three months period. We concluded that, given the school's financial situation, it was, on balance, unlikely that the Respondent could have allowed further time off for Mr Standivan to recover, when it was planning new cleaning duties with a reduced quota of staff. In all the circumstances, therefore, we found that it was just and equitable to make an award of one month's salary, i.e. £763.22. We concluded that this would reflect the period of time during which Mr Standivan should have been properly consulted by the Respondent, and we have arrived at that amount of time, given that consultation with other staff took place between 2 and 29 June, and, secondly, that if Mr Standivan had been in the appropriate pool of workers, then consideration of that pool would have taken slightly longer that it had in fact taken."

5. We have had the advantage of Mr Foster's recollections of the original proceedings before the tribunal and have, therefore, become aware that the tribunal made that assessment, as set out in the paragraph from its judgment just quoted, without inviting and receiving submissions on either side concerning the loss sustained by the complainant in all the circumstances "in so far as that loss was attributable to action taken by the employer", to quote the words of section 123(1).
6. In those circumstances, it seems to us that the tribunal did not direct their minds to at least two factors, which should have been taken into account. The first is the likelihood of selection for dismissal because of redundancy, even if Mr Standivan had been in the right pool; and secondly, the quantification of the applicant's entitlement to continuing full pay while sick-certificated, which, Mr Foster tells us, he had not exhausted at the time of the dismissal. It seems to us, therefore, that this matter should go back to the tribunal as constituted on 27th January 1999 for them to consider quantification of loss within the terms of section 123(1) of the 1996 Act.