United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	RODERICK MOORE (of Counsel) Messrs Gales Solicitors 512 Wimborne Road Winton Bournemouth Dorset BH9 2ET


 


HIS HONOUR JUDGE J ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at Southampton on 4 October and 17 November 2000. It comes before us by way of Preliminary Hearing to determine whether or not there is a point of law capable of argument in full before the Employment Appeal Tribunal. The decision of the Employment Tribunal was, first, that there was an unfair dismissal and from that finding there is no appeal. However, the Employment Tribunal also found that there was a 90% chance that the employee could have made the grade and therefore deducted 10% from the relevant proportion of the compensation.
2. It seems to us that the essential reasons for that are set out in paragraph 8 of the Employment Tribunal's decision. They there give their reasons for it. Those are reasons with which the Appellants disagree. The second ground of appeal suggests that they do not know the reason why the figure of 90% is so high because the Employment Tribunal suggested that the Respondent's assessment was too harsh, so that it was unwise to place too much reliance upon the personal profile. However, to suggest that an assessment is too harsh, it seems to us, is simply another way of saying that on the basis of their findings of fact they disagree with that assessment and refer to the matters also contained within that paragraph. So far as placing too much reliance upon the personal profile the Employment Tribunal make the point that there was no comparable personal profile.
3. It seems to us that whilst there may be arguments relating to ground one which embrace those points they do not give rise to an arguable statement that the Employment Tribunal failed to give reasons for their decision and we dismiss ground two of the Notice of Appeal. However, the way in which the Employment Tribunal approached the Polkey test in paragraph 8 and elsewhere is a matter that we consider should go to a Full Hearing under paragraph 1. Possibly in favour of the Appellants, the Employment Tribunal responded to the invitation:

"….to go on to consider whether or not Mr Hill would ever have made the grade."

It seems to us arguable that the proper test is for the Tribunal to ask themselves whether or not any deduction should be made at all and whether on the evidence they are able to form a judgment as to what that should be, and then for the Tribunal to make an assessment on the evidence and material before them as to what the employer could reasonably have done had he adopted a fair procedure or would have done had be adopted a fair procedure.

4. Accordingly it seems to us there is an argument that the approach to the matter was flawed and the extent to which that is a substantial matter or not really depends upon the Employment Appeal Tribunal having some means of reviewing the material before the Employment Tribunal upon which that decision was made. Accordingly we permit this matter to go forward to be argued under ground 6.1 of the Notice of Appeal. We request that the Chairman provide, first, his notes of such part of his evidence as goes to that assessment only and restricted to that, no doubt containing the oral evidence about the capacity of the Respondent to do his job. We understand that that is inevitably a laborious task but we can see no other way for the Employment Appeal Tribunal to be able to review the approach of the Tribunal to that question. The bundle before the Appeal Tribunal should also contain those parts of the witness statements that were before the Employment Tribunal dealing with the question of capacity relevant to the 90% chance. Also, insofar as it is going to assist the Employment Appeal Tribunal, the personal profile should be included. We also direct that skeleton arguments be furnished not less than 14 days before the hearing. That should be accompanied with a reduced extract of the evidential material that we have indicated should be before the Employment Appeal Tribunal, confined to the very narrowest parts of that evidence on which the parties rely in support of the propositions of law being raised so that the Employment Appeal Tribunal that hear this case can concentrate on the specific parts of the relevant evidence without having to absorb unnecessary evidence which should not be reviewed at this stage in any event. The matter can be listed for a day in category C.