United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P MICHELL (of Counsel) Instructed By: Messrs Bridge McFarland Solicitors 19 South St Mary's Gate Grimsby North East Lincolnshire DN31 1JE
For the Respondent	MR R THOMAS (of Counsel) Instructed By: Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF24 0EE


 


JUDGE D M LEVY QC:

1. We have before us today an appeal by Mr K.R. Evans from a decision of an Employment Tribunal sitting at Kinmel Manor on 1 and 2 May 2002. The question before the Tribunal was: had the Appellant been unfairly dismissed? The Tribunal found he was and awarded him compensation of £3,255 for the reasons they then gave. The decision was sent to the parties on 29 May 2002.
2. We have to say that, in more than one place, there are errors of transcription in the Extended Reasons which have led to issues of construction arising during the hearing. The errors were very obvious and would have been avoided by careful or more careful proof reading.
3. The Appellant commenced work as an Operating Technician for Simon Storage Group Ltd on 29 January 1996. The employment was transferred to the Respondent under the TUPE Regulations in October 2000. By March 2001 a Mr Goodwin of the Respondent wrote to staff advising a review of Service Schedule for HSS Stena Explorer. A day later Sue Morris, the Respondent's Personnel and Training Manager wrote about the same matter. Clearly redundancies were in the offing.
4. On 6 April 2001 the Appellant and other employees were placed in a selection pool to be assessed on performance. On 11 April 2001 the Respondent held individual consultation meetings with, amongst others, the Appellant. On the very same day the Appellant wrote to Sue Morris of Stena appealing against the redundancy. The Company held a further consultation meeting with the Appellant on 12 April 2001, when Sue Morris wrote to him again. She advised him on 23 April 2001 of arrangements for an appeal hearing. That hearing took place on 3 May 2001. He was advised on 10 May of the outcome of his appeal which was unsuccessful.
5. Thereafter he was asked, by letter dated 15 May 2001, if he wished to be considered for a position as Port Service Assistant, should a job become available. The terms offered were far worse that his then conditions of employment. On 21 May 2001 the Appellant wrote to the Company, by Sue Morris, advising that he wanted to be considered for the new position, if he was able to retain his present rate of pay.
6. On 24 May 2001 the Company wrote to him, by Sue Morris, confirming that there were no existing vacancies for a Port Services Assistant and confirming that his employment would be terminated as from 21 May 2001, enclosing his redundancy entitlement.
7. Meanwhile on 19 April 2001 the Appellant had made a complaint by Originating Application seeking reinstatement. A Notice of Appearance was entered by the Company on 16 May 2001. On 10 September 2001 the Company, by Sue Morris, wrote to a representative of the Appellant's Union asking whether the Appellant wanted to apply for the vacancy of Port Services Assistant. We do not consider that letter to be an offer for the job.
8. On 12 September 2001 the Appellant's Solicitors wrote to the Respondent's Solicitors confirming that the Appellant wished to apply for the vacant position, subject to certain conditions.
9. Following the promulgation of the decision of the Employment Tribunal, on 29 May 2002, the Appellant lodged a Notice of Appeal on 10 July 2002. On 4 November 2002 at the Preliminary Hearing of his appeal, a panel of the EAT Tribunal gave leave for the Appeal to proceed to a full hearing and for an Amended Notice to be filed. The Amended Notice of Appeal is at page 7 of the trial bundle. It is against the determination of the Remedy awarded by the Tribunal to him that the Appellant appeals.
10. In the interests of the parties we are giving judgment today, rather than giving a reserved judgment. We are clear in the answers to be given and we believe it is in the interests of both parties for them to be given sooner than later.
11. We have been very much indebted to both Counsel for the helpful submissions today. They have been of great assistance to us in our consideration of the grounds raised in the Amended Notice of Appeal.
12. The first ground of appeal really is as to whether re-engagement was considered by the Tribunal. In that context Counsel for the Appellant has drawn our attention to the provisions of Section 116(2) of the Employment Rights Act 1996 and to an authority which says that the minutiae of this Section is too often disregarded.
13. Counsel for the Respondent has endeavoured to persuade us that paragraph 20 of the Extended Reasons deals not only with re-engagement but reinstatement. That is because the penultimate sentence of that paragraph reads:

"That would inevitably have made it impractical to the (sic) re-employ him. In those circumstances the application for reinstatement is rejected."

14. Taking out the word "the", but looking at the context of paragraph 20 in the light of the preceding paragraphs, we are under no doubt at all that re-engagement was not considered by the Tribunal.
15. The next point which is raised in the Notice of Appeal: was there a 50 per cent chance of redundancy? We have carefully listened to all the submissions made by Counsel and on this we conclude that the Tribunal fully looked at the material on this point. It reached a conclusion which it was entitled to make in the circumstances of the case. It would be wrong for us to interfere with the 50 per cent chance of selection as determined by it.
16. On the question of mitigation of loss, which has been very keenly argued, we are satisfied that there was no offer made to the Appellant in 2001; on the other hand it is quite clear that there was a job opening. Further, the Tribunal were well aware, with its local knowledge, of what the position would have been in the area at that time.
17. Although there was no particular job offer made to the Appellant, we have closely examined the material contained in pages 95, 95A, 95B and 96 of the bundle. From these pages we conclude that there was a job which could have been taken by the Appellant. Other than it might have been on the terms offered to any others, rather than special offers being made to him, we cannot determine the terms of such offer.
18. The Tribunal, in our judgment, were therefore right in concluding in paragraph 21 of the Extended Reasons that, if the Appellant had applied for the job there was a 50 per cent chance he would have got it, and to take this into account in assessing compensation.
19. We were asked not to consider questions of calculation of loss until we had reached this point of our judgment and we will therefore stop at this point to ask Counsel what they would now like us to do.