SUMMARY
TRANSFER OF UNDERTAKINGS – Consultation and other information
Employers tried
to comply with the requirements of TUPE 2006 for consultation and
information, but failed to provide for the election of appropriate
representatives in a manner which complied with reg.14. An election was called
at 2pm on a day, with voting to be completed by 5pm, when it knew that an
employee would be absent till the next day, without showing any good reason why
it could not have waited for him to return. The result was that one employee
was clearly elected, but there was a tie for the next of two posts. Rather
than telling any of the employees or candidates about this, the manager chose
one of them. The Employment Tribunal held this unfair: an argument on appeal
that this decision was perverse was rejected. However, the ET erred by saying
that the circumstances were less serious than those in the case of Todd v
Strain (as they plainly were) yet awarding the same level of award as
had been made in that case; by approaching the award as compensation, rather
than as a punitive award; and being manifestly excessive for the fault of the
employer which could not be characterised as severe. It had distinguished
between Mr Langdon and Mr Brolly by holding that in one case only one of the
reasons for liability applied, whereas in the other both did (demonstrating an
erroneous compensatory approach), but there was no cross-appeal from Langdon,
and the award (2 weeks’ pay) was not manifestly excessive in his case and so
should stand. In the case of Brolly, 7 weeks pay was reduced to 3: as it
happened, to a figure only 3p different from that awarded to Langdon.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
This appeal raises the question of liability and consequent compensation
for alleged breaches of regulations 13 and 14 of the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (TUPE).
Regulation 13 is headed, “Duty to Inform and Consult Representatives”. Those
representatives are defined as appropriate representatives by regulation 13(3)
if they are under 13(3)(b)(i) employee representatives appointed or elected by
the affected employees.
2.
The appeal arises out of a decision made by a Tribunal sitting at Glasgow chaired by Employment Judge McManus, the Reasons for whose decision were delivered
on 8 November 2012. That Tribunal upheld a complaint made by each of Mr
Langdon and Mr Brolly that their employer, Shields Automotive (Shields) had
failed to comply with the requirements of Regulations 13 and 14. It upheld
their claims and awarded Mr Langdon £1,384.62 compensation and Mr Brolly
£3,230.71, those sums representing respectively two weeks and seven weeks pay.
The Underlying Facts
3.
Shields was engaged in the sale of motor vehicles in both Glasgow and
Hamilton. It was a Toyota dealer. The dealership and franchise were
transferred to Arnold Clark Automobiles Ltd with effect from, the Tribunal found,
9 August; we are told 10 August 2011. The transfer of that dealership from
Shields to Arnold Clark affected a number of employees. All of them, save one
who objected to the transfer, were in the event transferred from Shields to
Arnold Clark. At Hamilton there were 18 who could potentially have voted.
4.
The Tribunal found that though aware in March 2010 of the wish of Toyota
to transfer the dealership and by July 2011 that heads of terms were in place,
it was at only at 2.00 pm on 2 August 2011 that the employees were told by
management of the transfer and were invited to elect appropriate representatives
as provided for by Regulation 13(3)(b)(i) and Regulation 14 of TUPE. They were
given that afternoon until the close of business at 5.00 pm to nominate those
who might be prepared and willing to act and to cast a vote for those persons.
Mr Langdon was present at the meeting. He tells us that, concerned about the
short timescale, he deliberately chose not to exercise his vote. Mr Brolly was
not present, because it was his day off. The employer knew that there would be
one or more employees on a day off whatever day was chosen for the purposes of
the election. He therefore, though entitled formally to vote, was given no
opportunity to exercise that vote. There was no correspondence between the
employer and Mr Brolly for that purpose, nor was there any form of contact of
which evidence was given before the Tribunal.
5.
Against those background facts the Tribunal added a number of findings
about the way in which the employer had acted. It found at paragraph 12(e)
that it had sought advice from Arnold Clark as to its duties in a transfer
which was likely to be governed by TUPE. It sought specific advice from a
solicitor experienced in employment law and it decided to adopt a more robust
process than had been suggested by Arnold Clark. Importantly the Tribunal
concluded:
“Mr O’Donnell [he was the
managing director whom the Tribunal later found was a man of high moral
standards] was conscious of the Respondents legal obligations with
regard to TUPE and sought to comply with these.”
6.
The Tribunal found that each employee was given separately a sealed
envelope containing a ballot sheet providing for nomination. The papers were
returned to an office in Hamilton used by Mr McLaren and placed in a box. All
of the 18 members of staff who were present that day, save Mr Langdon, returned
their ballot papers. Mr McLaren counted the votes. He found that Norma Cook
had received six votes, Martin Jones and Tom Lorraine had each received four
votes and Mr Brolly, even though he had not been present that day to affirm his
willingness to stand, had received three votes. It was, therefore, plain to
him that Norma Cook had been elected by the members but there was a tie for
second place. The Tribunal found that he, Mr McLaren, decided that it was not
appropriate for Tom Lorraine to be an elected representative since he had a
regular day off on a Thursday and the consultation meetings were due to take
place on Thursday. He did not consult with anyone; he did not discuss his availability
on Thursday with Tom Lorraine. He chose Martin Jones to be the representative
duly elected by the affected employees.
7.
So far as Mr Brolly was concerned the Tribunal found that the Respondent
was aware, at paragraph 12(n), that as a result of their normal working
patterns not all employees were present at their premises on Tuesday 2 August.
The Tribunal went to note that as matters turned out neither Mr Langdon nor Mr
Brolly made any express objection to the identity of the employee
representatives, Norma Cook, who had been elected, and Martin Jones, who had
been chosen from the two with the next highest level of votes. It found that
the consultation process continued with those two, Cook and Jones, as the
appropriate representatives. It did not criticise the quality and content of
that consultation at all. It came to a finding of fact (12(t)) which it was to
repeat in the same terms in two subsequent paragraphs in its decision as follows:
“The Respondent failed to ensure that there was a fair election
process in respect of the election of representatives for the purposes of
providing information and consulting on the transfer. In particular these
failures were:
·
Failing to set an appropriate timescale for return of votes to
give all affected employees the opportunity to cast their vote for an elected
representative.
·
Determining which individual should be the elected representative
in the event of a tie in the number of votes between two candidates, without
informing the affected employees of this tied situation or of this
determination.”
8.
These two findings represented by the two bullet points gave rise to the
two heads under which Mr Hay, who appears for Shields before us on this appeal,
cast his argument terming them the “timescale” and the “tie-break” points
respectively.
9.
As to the timescale point the Tribunal decided at paragraph 38 as
follows:
“38 Regulation 14(1)(a) states:
‘the employer shall make such arrangements as are reasonably
practicable to ensure that the election is fair’
The Respondent set a timescale for close of the election process
as at around 5pm on Tuesday 2 August 2011, in circumstances where this election
process was initiated at a meeting beginning around 2pm on the same day and in
circumstances where it was known that not all of the affected employees would
then have the opportunity to place a vote for their preferred candidate. There
was therefore a requirement placed on affected employees that they had to be at
work at the respondent’s premises at either Glasgow or Hamilton on the
afternoon of 2 August 2011 to be able to vote. There was no explanation
provided by the respondent as to why the deadline could not be extended until
shortly after the start of business on 3 August 2011. It was not argued that
extending the deadline until the morning of the following day was not
reasonably practicable. The letters advising affected employees of the names
of the representatives were delivered to the Hamilton premises on the morning
of Wednesday 3rd August. Had the deadline been extended to the
morning of the following day, Mr Brolly would have been able to vote for his
preferred candidate [earlier, we interpose,
the Tribunal had pointed out that if he had chosen to vote for himself there
would have been a three way tie]. Additionally, this would have allowed
more time for all of the affected employees to discuss which of them should
stand for as a candidate (sic) for election, and to reflect on who should be elected.
39 It would have been reasonably practicable for the
respondent, in ensuring that its election process was fair, to ensure that
there was appropriate accommodation in the election process, including the time
period within which votes had to be placed, for the regular working patterns of
all affected employees, so as to ensure that no affected employee would be
unable to vote because of their regular working pattern.”
10.
As to the tie-break point, the Tribunal expanded its reasoning at
paragraph 40 as follows:
“40 The respondent made no accommodation for the
procedure which would follow in the event of a tie in the number of votes
between two candidates. Of itself this does not make the election processes
unfair. However, there was a tie in the number of votes between two
candidates, and Mr McLaren then made the decision as to which of these two
candidates would be one of the elected representatives. Mr McLaren made this
decision on his own, without consultation with anyone. Mr McLaren made this
decision on the basis of his understanding of one of the candidate’s
availability for consultation, without enquiring whether his understanding of
this candidate’s availability for consultation was correct. The final decision
on the elected representatives was made by Mr McLaren without offering the
affected employees the opportunity of choosing between the tied candidates and
without informing the affected employees that there had been a tie between two
candidates and that one of these candidates had been chosen by Mr McLaren. It
would have been reasonably practicable for the respondent, in ensuring that the
election was fair, to ensure that the final decision on the elected
representatives should be that of the affected employees. It did not do so.
Mr McLaren chose between two candidates.”
11.
Having thus found liability the Tribunal went on to direct itself in
respect of compensation. Compensation in this area is a misnomer. It was
agreed between the parties that the appropriate authority, though decided against
the background of other statutory provisions but nonetheless applicable, is
that of Susie Radin Ltd v GMB & Others [2004] ICR 400 CA. At
paragraph 45 in the judgment of Peter Gibson LJ with which Lord Justices
Longmore and Laws agreed he set out the matters which an Employment Tribunal should
hold in its mind in exercising its discretion to make a protective award and
for what period; the maximum being an award of 13 weeks pay. He said:
“1 The purpose of the award is to provide a sanction for breach
by the employer of the obligations in section 188 [we interpose that is a reference to the statutory provisions with
which that case was directly concerned. Here the relevant provisions are those
at Regulations 13 and 14 of TUPE]. It is not to compensate the
employees for loss which they have suffered in consequence of the breach.
2 The ET have a wide discretion to do what is just and
equitable in all the circumstances but the focus should be on the seriousness
of the employer’s default.
3 The default may vary its seriousness from the technical to
a complete failure to provide any of the required information and to consult.
4 The deliberateness of the failure may be relevant as may
the availability to the employer of legal advice about his obligations under
section 188.
5 How the ET assesses the length of the protected period is a
matter for the ET, but a proper approach in a case where there has been no
consultation is to start with the maximum period and reduce it only if there
are mitigating circumstances justifying a reduction to an extent which the ET
consider appropriate.”
12.
It is because of point 1 that we emphasis that the expression
“compensation” is inappropriate. An award is to be made, but not to compensate
the employee: it is to punish the employer. Its purpose is to ensure that
employers generally are mindful of their obligations to consult and inform,
particularly in circumstances in which there will inevitably be pressures often
of time upon the employer to do the opposite.
13.
As to point 5; although the length of the protected period, hence the
amount of the award, was said to be a matter “for the ET” that does not prevent
the Appeal Tribunal deciding that an award is manifestly excessive, depending
on the circumstances. An example of this was the appeal in the case of Todd
v Strain [2011] IRLR 11, a decision by the Appeal Tribunal presided
over by Underhill P. In that case there had been a failure of consultation.
It concerned the transfer of a care home. There was a meeting at which the manager
of the home was told without any prior notice of the intended transfer. No
detailed information was given. The precise date of the transfer was not known.
Nothing was communicated in writing. No attempt was made to communicate with
employees who were not at the meeting. Employees tried to find out more and
were unable to do so.
14.
The Tribunal in that case correctly thought that there was a “complete
failure” to observe Regulations 13 and 14 of TUPE but, despite that it was not
a case in which no information had been given to the workforce at all. At
least some basic information had been given and, importantly, a reassurance
that there would be no changes in staffing or terms and conditions of
employment consequent upon the transfer. It could not, thought the Appeal Tribunal,
be compared with a case such as Sweetin v Coral Racing [2006] IRLR 252 EAT in which the first the employees had known about the transfer was
when the representative of the new owners announced himself at the premises on
the day that it took place. On that case a maximum award was held to be
appropriate. But in the light of the fact that the employer in Todd
had taken significant steps to tell its employees of some of the information,
even though there had been no compliance at all with Regulations 13 and 14 of
TUPE, this Tribunal thought that the finding of the Employment Tribunal that
the claimant should receive 13 weeks pay could not stand; it was too much. It
observed that the guidance given at point 5 in Susie Radin was
directed at a case where the employer had done nothing at all, and should not
be applied mechanically to a case in which some information had been given or
some consultation had occurred, though without using the statutory procedure.
The Tribunal exercised its own powers to make an award of seven weeks pay in
that case.
Submissions
15.
Before us Mr Hay, in a careful and impressive argument to which we pay
particular tribute, has taken pains to avoid any exaggeration and has been
realistic and frank. He submitted that the appeal was a perversity appeal. He
argued that the Tribunal had erred to the extent of being perverse in
concluding that there was liability in either the timescale or the tie-break
point. If, but only if, the appeal in relation to liability failed he sought
to argue also that the conclusion as to remedy was also perverse. Given the
minimal nature of the employer’s default here, the attempt by Mr O’Donnell to
honour his obligations faithfully and the somewhat technical nature of the
defaults which had occurred in circumstances where the motivation of the
employer was entirely benign, there really should have been no award at all.
If he were wrong on that he would argue that the amounts given on the one hand
to Mr Langdon and on the other to Mr Brolly were wrong and should, he
submitted, be reduced given the limited nature of the amounts at stake. He
argued that we should exercise our discretion here if we were in his favour on
this point.
16.
He notes that in arguing his appeal in respect of liability that the
Tribunal had found that Regulation 14 had been breached because the
requirements under Regulation 14(1)(a) had not been met. So far as material
for our purposes Regulation 14 provides as follows under the heading, “Election
of Employee Representatives”:
“(1) The requirements for the election of employee
representatives under Regulation 13(3) [we
interpose to note that is the regulation which describes who are to be
appropriate representatives] are that:
(a) the employer shall make such
arrangements as are reasonably practicable to ensure that the election is fair
…
(b) all affected employees on the
date of the election are entitled to vote for employee representatives…”
17.
He submitted that in its conclusions the Tribunal could not without
perversity have decided that there had been a breach of 14(1)(a). His central
argument was that the Tribunal had focused overly upon the position of Mr
Brolly. He was one person. To argue that there was or might have been some
unfairness to him is to miss the point of the Regulation. The Regulation does
not require that the election arrangements or the election is fair for each and
every employee who is an affected employee; it is an overarching requirement to
ensure that the election is fair. That is, he submitted, the election process
taken overall. Taken overall, of the 18 employees affected at Hamilton, 17 had the opportunity participate in the election. The overall purpose was to
provide a vehicle for consultation. Mr Brolly, who had not been present on the
day of the election, was offered the opportunity individually to be consulted
when he returned to work the next day; accordingly, appropriate accommodation
was given to him. In those circumstances an overall view of the process would
result in the conclusion that it was fair.
18.
The Tribunal ignored what Mr Hay said was the fact that he was given the
opportunity to object to the representatives who had been elected and he did
not take it. It ignored the fact that overall the consultation process could
be, and was, effective. The Tribunal had no criticism in the event of the
quality and extent of the consultation that took place, only with the fact that
it did not take place with appropriate representatives, all of whom had been
elected by a process as required by Regulation 14.
19.
When he came to argue the tie-break point he argued that effectively the
process had produced a person who had been elected by the affected employees,
at least to the level of Mr Lorraine. He drew our attention to a passage at
paragraph 53 of the Tribunal’s decision which showed that the Tribunal had
wholly overstated the impact and significance of the issue. The Tribunal there
said:
“[…] by Mr McLaren choosing between two candidates who had
received the same number of votes leave (the failure set out at (b) above), he,
and therefore the respondent, had circumvented the election process. This went
to the heart of the requirement for a fair election and was serious with regard
to the democratic nature of the voting process […]”
20.
If that was its approach then it was ignoring the reality which was that
nothing so serious had actually occurred. The way in which Mr McLaren had
approached matters was not such, nor could arguably be said to be such, that it
would fundamentally undermine the fairness of the process. The Tribunal was,
he submitted, approaching the situation with hindsight whereas what had to be
looked at was a question of anticipating what might happen in advance. There
was nothing in either the timescale nor the tie-break point taken separately or
cumulatively which could be said to impugn the fairness of what took place.
Discussion
21.
The argument was on the basis of perversity. Arguments which seek to
hold that an Employment Tribunal’s findings of fact are perverse or that an
Employment Tribunal is simply not entitled to exercise its judgment as it has
done face a high hurdle. We do not need to quote the several cases in which
the height of that hurdle placed in the way of such an argument has been described,
merely to record that it must be shown that the decision which the Tribunal has
come to is one which is “wholly impermissible” or “flies in the face of reason”
or one which would excite astonished gasps from the amazed observer.
22.
The issue is not to be decided by broad appeals to fact but by beginning
with the statutory provisions. So far as the timescale point is concerned the
Tribunal decided that the employer had not made such arrangements as were
reasonably practicable to ensure that the election was fair. Those words
require close examination. The question is not whether the result of an
election is fair. The question is not whether there has been fair consultation
taken overall despite it. Regulation 14 deals only with an election process. The
context may be information and consultation but the requirement of the
Regulation is in relation to the election itself.
23.
The party which has the duty under the Regulation is the employer. It
is for the employer to make arrangements. That word contemplates some advance
consideration of what will be needed; undoubtedly there may be many cases in
which the advance consideration given may, for very good reason, be rushed.
That no doubt is why the clause does not require that the employer guarantees the
election is fair or that the arrangements ensure that the election is fair.
The arrangements must be such as are reasonably practicable to achieve that
effect. That does not require the employer necessarily to take “all possible”
steps, because the requirement of reasonableness exists, but where reasonable
practicability is to be relied upon it is, in our view, and Mr Hay did not
dispute the point in argument, for the employer to satisfy a Tribunal of that
fact; that is because it is the employers’ duty to make such arrangements as
are reasonably practicable to ensure that the election is fair.
24.
If, therefore, there is a particular reason why an electoral process
must be rushed and cannot reasonably practicably be taken over a slightly
longer timescale, it is for the employer to provide that material. It is a
pity, perhaps, that the Employment Tribunal here did not have, so far as we
know, the employer’s answer to any direct question why Mr Brolly was left out
of the process as a result of the adoption of the timescale that was chosen.
But if there had been a reason why it was not reasonably practicable, as the
Tribunal suggested, to extend the deadline until the morning of the following
day, it was for the employer to put that forward and it is plain that the
employer did not here do so. The Tribunal at an earlier stage in its decision
did not say that this particular transfer was one which had to be rushed. There
was no particular special circumstance which it identified in respect of it,
and it made that clear.
25.
The general principle, as we see it, is that in an election in which all
affected employees are entitled to vote the arrangements should ordinarily and
ideally be such that they may have a proper opportunity to exercise that
entitlement. We note that in 14(1)(g) the requirement is of entitlement to
vote. It is not opportunity to vote. The entitlement will, however, be a
hollow vessel if there is no opportunity to exercise it. We accept there may be
many circumstances in many cases in which the particular occasion is such that
although formally entitled to vote, the arrangements made by the employer have
to be such that it may be one or two or more affected employees do not have a
reasonable opportunity to exercise that entitlement. That is because the
question of opportunity to vote is to be looked at the through the spectacles
of 14(1)(a), but we return: if there is to be a diversion from what we see as a
general ideal in the light of circumstances it is for the employer to show that
those circumstances exist. Accordingly, so far as timescale is concerned, the
Tribunal was entitled, in our view, to come to the conclusion that the process
as a whole was unfair because it did not make sufficient provision for those
who had entitlement to vote, such as Mr Brolly, and in particular in this case for
him to exercise that opportunity. It was not perverse of the Tribunal to come
to that conclusion.
26.
As to the second point, the tie-breaker point, we note here that the
requirement of the statute in Regulation 13(3) is for the employee
representatives to be appointed or elected by the affected employees. The
effect of what happened here was that although the employees had a voice in the
election and selection, the ultimate selection was not made by them, it was
made by the employer. That, on any showing, is a breach, albeit it might be
thought in some circumstances a technical breach of the requirements.
Accordingly, we cannot regard it as perverse for the Tribunal here to come to
the conclusion that that too had an impact overall upon whether the election
was fair, as producing representatives who had the authority of the majority of
those who wished to vote for them.
27.
If follows that given the high standard which needs to be taken to
perversity, given the requirements of the statute, given the fact that there
was no evidence put forward of which we are aware, that there were particular
circumstances which made it not reasonably practicable to make arrangements
which would quite easily have secured the vote to all who had the entitlement
to exercise it and given that it was not established that it was not reasonably
practicable for Mr McLaren to have alerted employees to the fact of a tie and
to have allowed the employees to resolve how the tie would be broken, the
Tribunal’s decision on liability must stand. We turn, therefore having
dismissed the appeal in respect of liability to the appeal in respect of the
amount of the award.
28.
Here we have to draw a very clear distinction between the cases of Mr
Langdon and Mr Brolly. The way in which the matter was put before us was again
on the basis of perversity; we think that that perhaps is an inappropriate word
to use when looking at the quantum of an award. The test is rather whether the
sum awarded is manifestly excessive. A Tribunal’s decision as to what figure an
award should be is, as point 5 in paragraph 45 of the Radin case
demonstrates, a matter upon which the Tribunal’s discretion will generally be
accepted. There is a very wide margin within which there is a room for
reasonable disagreement as to what the precise amount of an award should be.
It s not the function of any Appeal Tribunal to interfere in such circumstances.
But it has to be recognised that there are some cases in which undoubtedly an
award is simply too much.
29.
Here the first submission made by Mr Hay (that there should be no award
at all) has in our view to be rejected. The Tribunal was entitled, having
found liability, to make an award. The purpose is perhaps to ensure that
employers who are, as this employer was, mindful of their duties and
obligations nonetheless are particularly scrupulous to ensure that they are
observed to the letter. Accordingly, it was not wrong, in our view, for a
punitive award to be made to some extent. So far Mr Langdon is concerned we
have not been persuaded that the sum which the Tribunal gave him, being two
weeks pay, was inappropriate as a punitive award.
30.
We, however, have some comments to make about the approach which the
Tribunal took. It directed itself in respect of compensation from paragraphs
48 onward to the conclusion of its decision. At paragraph 48 it noted that
compensation should begin at the maximum level, 13 weeks, unless it was to be
reduced by reason of mitigating circumstances; that is a correct starting point
given the observations of Peter Gibson LJ in Radin. It then said
that it had regard to Todd v Strain, in particular paragraphs 28
and 29. It thought that the circumstances of the present case were not similar
to those in the Sweetin case where there had been no attempt
whatsoever to comply with any of the obligations, and went on halfway through
paragraph 48 to say that it thought this case, “comparatively less serious than
the circumstances in Todd v Strain”.
31.
Having concluded that, it might be thought that it is a matter of
surprise that it should then in the event award exactly the same figure to Mr
Brolly, that of seven weeks pay, as was determined by this Tribunal appropriate
in the more serious circumstances of Todd v Strain. This
suggests to us an error of approach. The Tribunal has not justified why it
should go to seven weeks, the equivalent of Todd v Strain, in a
case which it accepts is less serious. It said at paragraph 50 that the focus
had to be on the punitive nature of the award and not to the extent of any loss
caused to the employees by the failure, but yet when it came to consider the
awards for Mr Brolly and Mr Langdon it awarded them different sums because of
their different personal circumstances. But both were affected employees: the
employer’s failures in general terms were the same. It concluded that it
should award different sums to each because, as it said at paragraph 54:
“The Tribunal considered each wrong set out as (a) and (b) [that is the timescale and the tie-break points
respectively] in respect of each Claimant. Mr Langdon was present at
the meeting on the Hamilton premises on 2 August 2011 and had the opportunity
to vote although he chose not to do so. The circumstances leading to the
failure as set out at (a) affected each Claimant; each being an affected
employee. The circumstances leading to the failure as set out at (b) affected
only Mr Brolly as Mr Langdon has chosen not to vote. In all these
circumstances it was considered that the appropriate compensation should not be
the same in respect of each Claimant.”
32.
The use of the word “compensation” is in our view indicative. The
Tribunal here was looking at the different circumstances of, and looking at the
impact of the employer’s default on, each Claimant. But the approach is not
compensatory, it should be punitive. In other words, the Tribunal here was
taking the wrong approach to an award. What it needed to do was to assess the
seriousness of the default of the employer. That would be the same in the case
of Mr Langdon as it would in the case of Mr Brolly because each was an affected
employee. However, the Tribunal itself had limited its opportunity to award
punitively a sum to Mr Langdon because it did not regard the sum awarded to him
as punishing the default in respect of the tie-break. It made an award against
the employer to Mr Brolly on behalf of both timescale and tie-break but in
respect of the default and timescale only to Mr Langdon.
33.
We have not been invited by any form of cross appeal to consider whether
the Tribunal should have awarded Mr Langdon a sum to represent an award in
respect of the tie-break as well and consider that no further.
34.
It seems to us that the approach which the Tribunal took in respect of
Mr Brolly therefore was wrong. It was wrong because it considered the approach
as being compensatory when it was not. It was wrong because it considered that
the circumstances requiring a punitive award were less serious than those which
had applied in Todd v Strain and yet assessed the sum in the same
amount for Mr Brolly without explaining why.
35.
Accordingly, we think that so far as the award in respect of Mr Brolly
is concerned the appeal should succeed. So far as in respect that Mr Langdon
is concerned, as we have said, the sum in respect of the matter which it
thought affected him is not obviously excessive, it cannot be said to be
perverse, it is within the broad scope of awards which a Tribunal might make
and we decline, therefore, to interfere with that. We consider ourselves to
have no power to do so.
36.
The consequence of our decision must be that we decide whether we remit
the question of appropriate award to Mr Brolly to the Tribunal or whether we
determine this matter for ourselves. We are invited by both Mr Hay and Mr
Brolly, should we be in this position, to make that determination for ourselves
and we shall do so. The first question is to recognise what the award is for.
It is not compensation; it is to punish the employer for its failure. That
requires a view as to where in the scale of seriousness the employers conduct
falls. At the top end, the 13-week end, is an employer such as that in Sweetin
where the employer simply takes no steps whatsoever to inform or consult with
anyone, whether elected or otherwise.
37.
The Tribunal in the case of Todd v Strain considered a
case in which there had been no attempt to consult with any appropriate
representative because there had been no compliance whatsoever with Regulations
13 and 14 and there had been some, but inadequate, consultation. That, it
thought, merited a sum somewhere in the middle of the range at seven weeks.
38.
The factual features which characterise this case are, it seems to us,
these. First the Tribunal found that this employer was conscious of its
obligations and sought to comply with them. It was thus concerned with an
employer who despite its best motives fell into error. Since the purpose is to
punish an award against such an employer is going to feature lightly on the
scale, because such an employer has done almost its best to do what is
necessary. Second, the Tribunal made it clear that there was full consultation
here, albeit not with elected representatives in total, for the purposes of
TUPE. This employer had two elected representatives in respect of Glasgow
about whom there is no criticism, one in respect of Hamilton in respect of whom
there is no criticism and one chosen by the employer from amongst the two
employees with the next highest votes at Hamilton. He is someone who might
well have been an appropriate representative even if he was not. To that
extent, therefore, the breaches may be seen as more to the technical end to
which reference is made in the cases rather than an egregious breach. Thirdly,
it is a matter of regret that Mr McLaren did not think to take the steps that
would have informed employees, and we were surprised to note that it was not
until the Tribunal hearing itself that the employees were aware of the tie, but
the Tribunal specifically did not criticise his motivation; it set out his
reasoning. He chose for himself, not upon the basis of any malice, of which he
was expressly acquitted, but seeking what he thought was the most practical
solution. In such circumstances the punishment, in our view, does not require
a large award. Given that in Mr Brolly’s case because of the way the Tribunal
approached matters at paragraph 54 the award falls to be made both in respect
of the timescale and the tie-break point, it must be higher than that made to
Mr Langdon in respect of whom only one of those applies. But for the reasons
we have given, it must be significantly lower than the seven weeks which
appealed to this Tribunal in Todd v Strain. Since the breaches
were to the technical end of the spectrum, for the reasons we have given this
is a case in which we, for our part, are agreed that the appropriate award of
compensation in the case of Mr Brolly will be one of three weeks pay and not
the seven weeks which the Tribunal determined. We expect that Mr Hay and Mr
Brolly will be able to agree how much that award should be. We have not
attempted any extrapolation from the wage figures we have been given.
39.
To that extent, but that extent only, this appeal is allowed.
Summary
40.
We reject the appeal in respect of liability. We reject the quantum appeal
in respect of Mr Langdon. We allow the appeal in respect of the quantum of the
award made to Mr Brolly and reduce it to one of three weeks’ pay rather than
seven.
