United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WEST Deputy Advocacy Litigation Manager Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB
For the Respondent	MR A SMART (Friend of the Respondent)

SUMMARY

Unfair Dismissal: Polkey Reduction

Unfair dismissal on grounds of redundancy. Employment Tribunal failed to consider Polkey reduction. Appeal against compensatory award allowed and case remitted to same Employment Tribunal to consider that issue.


 


THE HONOURABLE MR JUSTICE BEAN:

1. This is an appeal against a decision of a Tribunal held at Reading, which determined that Mr Mark Hainge had been unfairly dismissed by his employers, B E Enterprises Ltd. A Reserved Judgement, dated 25^th November 2004, was supplied to the parties following hearings on 1^st September, and 15^th October 2004.
2. The Tribunal criticised the employers, when selecting Mr Hainge for redundancy. They determined that the company had acted unreasonably, by not providing the selection criteria used to determine who would be made redundant, with one member of the Tribunal panel dissenting.
3. The Tribunal also found it unreasonable that Mr Hainge had not been given the opportunity to appeal, because the appeal deadline had been changed from 7 to 5 days, a decision which was unanimous. The change of timing of the appeal deadline was important because Mr Hainge was going on holiday, which the company were aware of.
4. The Notice of Appeal is against these two findings and a failure by the Tribunal to make a Polkey v Dayton assessment in the compensatory award and to reduce it accordingly.
5. Subsequently, or at about the same time as the Appeal was lodged, a Remedies Hearing was held on the 6^th January 2005. The hearing made a compensatory award of £11,375.80.
6. Within the Reasons for Remedy, dated 25^th March 2005, the Tribunal deal with mitigation of loss and financial calculations, but no mention is made of Polkey v Dayton.
7. When the Notice of Appeal was lodged the President requested the Tribunal to expand their reasoning, following cases such as Polkey v Dayton and King v Eaton, which the Tribunal helpfully did by letter dated 1^st March 2005.
8. Mr West, for B E Enterprises Ltd has described the Appeal as being in three parts: the original liability decision, the supplementary reasons and the remedy.
9. Mr West almost conceded, in light of the supplementary reasons provided by the Tribunal, that the Appeal, in respect of non publication of the selection criteria and changing the appeal time from 7 to 5 days, cannot succeed. He did not concede, but we so find.
10. The burden of the complaint was that he (Mr Hainge) was not told the criteria, the weight attached, and his actual score. So he neither had the opportunity to challenge them in the lead up to the redundancy, or to consider them as part of any potential appeal. How could he possibly argue his case?
11. Mr Smart, on behalf of Mr Hainge, has told us there were a number of factual errors which his client would have made representations against at the time; but it was too late, the information was not provided to him until the Tribunal.
12. Therefore we do not find that there is an arguable appeal regarding the provision of selection criteria. Furthermore, we find that not providing the criteria was unfair because this effectively disallowed Mr Hainge from appealing, as he would not have been able to establish grounds for appeal.
13. However, Mr West has a good point regarding failure of the Tribunal to consider a reduction in the compensatory award as in Polkey v Dayton, in that a proper procedure may not have affected the outcome.
14. Such a reduction was not covered in the original decision of the Tribunal, although the additional reasons from the Tribunal make references to the likelihood of Mr Hainge being made redundant as being "less likely" and "even less likely". Such references recur throughout the document.
15. The only definite point, which Mr Smart quite naturally brought to our attention, is in Point 2.1 which stated that a remedy hearing had already been held and that compensation had been awarded on the basis that he (Mr Hainge) would not have been dismissed had a proper procedure been followed. Try as we may we cannot regard this as a satisfactory explanation to justify full payment of the compensatory award.
16. We consider that the award of £11,375.80 cannot stand, and must be set aside for a rehearing. Such a rehearing must consider, in the light of Polkey v Dayton, whether the award should be reduced or, if the Tribunal concludes that it should not be reduced, their reasons for so deciding.
17. We consider that there is no reason why the matter cannot be remitted back to the original Tribunal if available. Any member who is not available is to be replaced by a substitute chosen by the Regional Chairman.
18. It should be a case of each party presenting submissions. We believe, and both parties accepted, that there is no need for any further evidence without the permission of the Employment Tribunal and without good reason, for example in the event of a change in composition of the Employment Tribunal.
19. We note that neither party is challenging the award of £11,375.80 on a full award basis, just that Mr West is arguing that there should be a percentage reduction.
20. (Mr Smart was complimented on the professional nature of both his written and oral submissions to the Employment Appeal Tribunal)