United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTYN WEST Advocacy Systems Manager Penninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB
For the Respondent	MR RICHARD SAMUEL (Of Counsel) Instructed by: Messrs Ashby Cohen Solicitors Ltd 18 Hanover Street London W1S 1YN


 


SUMMARY

Failure by Employment Tribunal to indicate that it properly considered the application of Polkey to the award, following a finding of an unfair dismissal – Award remitted to same Employment Tribunal.

HIS HONOUR JUDGE PROPHET

1. An Employment Tribunal sitting at Watford on 25 and 26 June 2003 with Mr Postle as the Chairman and Mr Francis and Mr Underwood as the lay members found unanimously that Miss Oliver had been unfairly dismissed by her former employer Tate Bramald Ltd. That decision also dealt with some other causes of action which are not relevant to this appeal. So far as remedy arising from the finding on unfair dismissal was concerned that was adjourned to be dealt with on 26 August 2003.
2. In fact the Remedy Hearing took place before the Employment Tribunal on that date and also on 23 September 2003 resulting in a decision promulgated on 20 October 2003. Compensation awarded to Miss Oliver in respect of the unfair dismissal was, subject to recoupment £44,957.66.
3. The appeal by the employer is in regard to that award. It was set down on 3 February 2004 by Mr Justice Rimer for a Preliminary Hearing which duly took place on 29 March 2004 before an Employment Tribunal presided over by his Honour Judge Peter Clark who set the case down for a Full Hearing and arranged for there to be an amended Notice of Appeal.
4. We are constituted today to conduct that Full Hearing. The Appellant is represented by a representative Mr West and Miss Oliver by Mr Samuel of Counsel. The thrust of the appeal is that the Employment Tribunal failed to take into account the fact that the reason for Miss Oliver's dismissal, as they found, was redundancy and that consequently the Employment Tribunal should have applied itself to making an assessment of the chances of Miss Oliver remaining in employment notwithstanding the unfairness of the dismissal process. In other words that the principles established by the well known House of Lords' decision in Polkey v AE Dayton Services Ltd [1987] IRLR 503 should be applied – see Redbank Manufacturing Company Ltd v Meadows [1992] IRLR 209.
5. As Mr West says to us today there is nothing in the Extended Reasons in the Remedy Decision which indicates that the Employment Tribunal clearly applied itself to that issue. Mr Samuel has been compelled to argue that the Employment Tribunal found by implication that Miss Oliver would have been retained in employment in some capacity if the procedure leading to her dismissal had been a fair one or that the findings of the Employment Tribunal were such as to negate altogether the application of the Polkey principles. If as we accept from Mr Samuel the Employment Tribunal was directed to Polkey at the Remedy Hearing it seems strange that there is no mention whatsoever of that decision in the Employment Tribunal's reasonings.
6. It is true as Mr Samuel has emphasised to us today that a full reading of the Employment Tribunal's Extended Reasons could be said to support the view that the Employment Tribunal's heavy criticism of the employer's actions could well be seen as having led them to conclude that Miss Oliver would certainly have remained in employment if she had been fairly treated or that the kind of reasoning necessary for the application of the Polkey principles was inappropriate in the particular circumstances of this case.
7. However, be that as it may, we agree with Mr West that these matters ought to have been properly addressed and adjudicated upon by the Employment Tribunal with adequate reasons given for their conclusions on those matters. Unfortunately that did not happen. Consequently we allow this appeal on the assessment of remedy for the unfair dismissal and remit the matter to the same Employment Tribunal to address the issues raised in this judgment and having done so then to consider the appropriate award to make for Miss Oliver.