United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A CHOUDHURY (of Counsel) Instructed by: Mr E H S Lock Messrs Lock Marlborough Solicitors 3 The Broadway Gunnersbury Lane London W3 8HR
For the Respondent	MRS P M DUFFAY (Representative) The Employment Law Advice Centre 22 St Edmunds Road Northampton NN1 5EH


 


JUDGE A WILKIE QC

1. This is an appeal by Valueunion Limited against a Decision of an Employment Tribunal sent to the parties on 9 June last year, arising out of a hearing conducted on 17 May and 9 June that the Applicant, Mr White, had been unfairly dismissed and that compensation would not be subject to any percentage reduction, as would be the case were the Tribunal to have applied the Polkey principle.
2. This appeal is the subject of a full hearing, following upon permission given by another Division of this Tribunal, but only on the limited questions whether there was an error of law in the Tribunal characterising the reason for dismissal as some other substantial reason, namely re-organisation rather than redundancy, and following on from that whether the Tribunal erred in law or were perverse in declining to make any assessment of reduction for loss of a chance arising out of the Decision in Polkey. An appeal against the finding of unfair dismissal was not permitted to be pursued to a full hearing.
3. We are indebted to Mrs Duffay who has represented the Applicant for reminding us that the application in this case had not started life as an application for a finding of unfair dismissal: rather it was on the footing that there was an ongoing employment relationship and the claim was for illegal deductions of wages, essentially for a period during which he was not working, but was prepared to work, and for which it was said he had not been paid.
4. The question of unfair dismissal only arose when, on 26 October 1998, the Respondents put in a Notice of Appearance in which they asserted that the Applicant had been dismissed and that his employment had ended on 10 September of that year and he had been dismissed by reason of redundancy. Therefore this was a situation in which, on the facts found by the Employment Tribunal, the Applicant had never understood that he had been dismissed, let alone by reason, allegedly, of redundancy, but where notification of this fact did not come until after he had commenced proceedings in the Employment Tribunal for another reason. Mr Choudhury has, in his extremely helpful and able submissions, sought to argue that the Tribunal did err in law in concluding that there was not a dismissal by reason of redundancy and he urges us to come to that conclusion based on the authorities of the House of Lords in Murray-v-Foyle Meats [1997] ICR 827 approving the Employment Appeal Tribunal's judgment in the case of Safeway Stores -v- Burrell [1999] ICR 523.
5. It seems to us that there may well be something in his argument, and certainly for the purpose of concluding this appeal and for hearing the argument we were prepared to assume that he was right in saying that the Tribunal got it wrong in characterising the dismissal as one for redundancy rather than some other substantial reason. The Employment Tribunal addressed themselves to that possibility because they said in dealing with the question of fairness that they, though concluding that the dismissal was for some other substantial reason, did not consider that the reason for dismissal makes any difference to the fairness of the dismissal, and in so doing they relied, as an authority, on the then President of this Tribunal's statement in Church-v-West Lancashire NHS Trust [1998] IRLR 4. They then went on regardless of the characterisation of the reason for dismissal to conclude that the dismissal was unfair on the basis that there was no warning or consultation whatsoever with the Applicant.
6. Having made that decision, the parties then asked the Tribunal to consider an argument by the Respondent that a fair procedure would have made no difference to the outcome. What Mr Choudhury says is that the mis-characterisation of the reason for dismissal means that this Tribunal went off at a tangent in its attitude towards the Polkey aspect of its Decision. Their Decision on this aspect of the matter is contained in sub-paragraph 12 (iv), in that sub-paragraph they say that:-

"The procedural defects were substantial and amount to the Applicant being faced with a fait accompli, to which he had made no input"

Bearing in mind the history of the matter, we can find nothing to criticise in that description of the position.

7. They reject the 'all or nothing' argument: namely that a proper procedure must have led to a dismissal, and again, we can see no basis for criticising them in coming to that conclusion. It is plain that they then go on to consider the question of whether they should make any percentage reduction on the basis of the Polkey principle which also involved the adoption of the approach to the loss of a chance established in Sillifant-v-Powell Duffryn Timber Ltd [1983] IRLR 91 and applied by the House of Lords in Polkey.
8. It is clear that the Tribunal attempted to go through the process of reconstructing what may have happened, had a fair and proper procedure been adopted. In particular, they did address the question of whether, had alternative employment been offered, the Applicant would have accepted it. They also considered the question whether others might have been selected for redundancy, if that be the true analysis, rather than the Applicant, and they were able to do so on the basis of a conversation about alternative persons being made redundant, as to which there was no dispute in the evidence.
9. However, they came to the conclusion that they simply could not predict the outcome of a fair procedure being followed because the procedural defects were so fundamental that they could not sensibly reconstruct the hypothetical course of events. In taking that approach, they were adopting the test, and indeed pretty well the language, approved by the Court of Session in King-v-Eton No 2 and further approved by this Tribunal in the case of Constantine-v-McGregor Cory Ltd [2000] ICR 938.
10. We can see no basis whatsoever for criticising them in taking that approach and in reaching the conclusion that they did. It is clear that the defects were indeed fundamental, as there was never any express dismissal. Rather, the Applicant had to find out that he had been dismissed, having commenced proceedings on the assumption that his employment was continuing. Where defects are so fundamental, it seems to us not possible to criticise the Tribunal for declining to undertake an exercise which would be wholly speculative and based on no sensible evidence whatsoever.
11. Therefore, in our judgment, the approach of this Tribunal to the law and to the facts cannot be criticised. Whether or not they were right in characterising the dismissal as a redundancy or some other substantial reason, it is clear that the test which they applied on the Polkey point was the correct one, and therefore this appeal must be dismissed.