United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STUART RITCHIE (Of Counsel) Instructed by: Messrs Allen & Overy Solicitors One New Change London EC4M 9QQ
For the Respondent	MISS ELAINE BANTON (Of Counsel) Instructed by: Messrs Levenes Solicitors Bedford House 125-133 Camden High Street London NW1 7JR


 


JUDGE PROPHET

1. An Employment Tribunal sitting at Bedford on 12 and 13 February 2002 with Miss Thomas as the Chairman found that Mr Bolger's claim of an unfair dismissal was well founded and awarded him compensation in the sum of £50,000. Other claims in respect of disability discrimination and under the Part-Time Workers Regulations were dismissed. We might mention that the decision incorrectly states that the hearing took place only on 12 February 2002.
2. The appeal from the employer was allowed to proceed to a full hearing and it is that which we are hearing today. It is limited to the assessment of compensation. The Appellant is represented by Mr Ritchie of Counsel and Mr Bolger by Miss Manton of Counsel. We are grateful to them for their concise and helpful submissions.
3. It seems to us that the approach adopted by the Employment Tribunal to the assessment of compensation for unfair dismissal is in the particular circumstances of this case difficult to sustain. It is clear from the Employment Tribunal's decision that Mr Bolger's dismissal for redundancy was virtually inevitable and therefore whatever were the errors by the employer in respect of consultation prior to his being given notice of dismissal for the redundancy, for the Tribunal to approach compensation by first taking a period of some 4½ years, ie until he intended to retire at 60, appears to us to be a curious one.
4. It is also difficult to understand how the Tribunal could have assessed the chances of Mr Bolger retaining employment within the group at 30% in the absence of any evidence of there being suitable vacancies for him, as we understand the position to be. It is also difficult to understand from the wording in the reasons how they arrived at a figure of 30% at all.
5. Whilst the Tribunal was able to find unfairness for the purpose of liability in the absence of consultation prior to notice and about which of course there is no appeal, for the purposes of assessing a suitable award they were obliged to take into account what happened also in the period from giving notice to the effective date of termination. In this case that was an unusually long period, ie 12 months during which both sides presumably had adequate time to explore alternative employment opportunities within the organisation.
6. The Employment Tribunal's approach to the assessment of compensation in this case is in our view unsafe and the appeal is upheld. Mr Ritchie has strongly urged us to find that not only should the appeal be allowed but that we should substitute an alternative finding of nil compensation. We have considered that carefully but feel that the correct course is for the matter to be remitted to Employment Tribunal level for an approach to compensation being adopted which properly reflects the particular circumstances which applied to Mr Bolger's dismissal.
7. Although Miss Banton has argued to the contrary, our conclusion is that the appropriate course is for that matter to be dealt with by a differently constituted Employment Tribunal as determined by the Regional Chairman and we would therefore request her to take that step. Both sides may wish to reflect on the advisability of presenting to that new Employment Tribunal some written submission as to what they consider to be the proper assessment of compensation having regard to the particular facts.