United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0233/15/DM

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 8 January 2016

 

 

 

Before

HIS HONOUR JUDGE HAND QC

(SITTING ALONE)

 

 

 

 

MS L GEORGE                                                                                                        APPELLANT

 

 

 

 

 

LONDON BOROUGH OF BRENT                                                                    RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MS LINDA GEORGE (The Appellant in Person)
For the Respondent	MR EDWARD KEMP (of Counsel) Instructed by: London Borough of Brent Legal Services The Civic Centre Engineers Way Wembley Middlesex HA9 0FJ

 

 

SUMMARY

UNFAIR DISMISSAL - Reasonableness of dismissal

 

The summary of the approach to compensation at paragraph 54 of the Judgment of a division of this Tribunal presided over by Elias J in Software 2000 Ltd v Andrews [2007] ICR 825, whilst impeccable at the time, now needs to be treated with some caution, at least in so far as it includes in the sequential approach it summarises a stage referring to the repealed section 98A(2) of the Employment Rights Act 1996.  Also, being an analysis of compensation consequent upon a finding of unfair dismissal it is certainly not any guide to the fairness or unfairness of dismissal in terms of section 98(4) of the Employment Rights Act.  The Employment Tribunal, having directed itself in terms of paragraph 54 without any apparent recognition that some of it depended on a statutory concept no longer in force, thus erred in law and the matter would be remitted to the same Tribunal with appropriate directions.

 

HIS HONOUR JUDGE HAND QC

 

1.                  This is an appeal from the Judgment of an Employment Tribunal comprising Employment Judge Liddington, Mr Bone and Mr Bhatti sitting at Watford on 13 November 2014.  The Employment Tribunal decided that the Appellant had not been unfairly dismissed in a Judgment and Reasons sent to the parties on 15 December 2014.  At this Full Hearing of her appeal the Appellant has represented herself, and the Respondent has been represented by Mr Kemp of counsel, who appeared below.  This is a case with a considerable history, and Mr Kemp has also appeared for the Respondent at some if not all of the previous hearings both in this Tribunal and in the Employment Tribunal.

 

2.                  The hearing on 13 November 2014 had been remitted to the Employment Tribunal by a division of this Tribunal presided over by HHJ David Richardson, after hearing an appeal on 27 May 2014 against a previous decision of an Employment Tribunal with the same constitution.  The terms of the rescission were accurately reproduced by the Employment Tribunal at paragraph 2 of the Judgment and Reasons (see pages 1 and 2 of the appeal bundle).  The issues to be considered were, firstly, whether the Appellant was entitled to a trial period and, secondly, whether the dismissal had been fair or unfair in terms of section 98(4) of the Employment Rights Act 1996 (“ERA”).  The evidence was to be restricted to:

“… the issue of entitlement to the trial period, the value of the trial period to the claimant, the reasons why no trial period was offered and, applying the Polkey [v A E Dayton Services Ltd [1987] IRLR 503] principles, what chance if any there was that if the respondent had acted fairly there would still have been a dismissal and of course questions as to compensation.”

 

3.                  At the hearing on 13 November 2014 the Respondent conceded that the Appellant had a contractual entitlement to a four-week trial period pursuant to paragraph 6.1 of the Respondent’s managing change policy and procedure (see paragraphs 7 and 14 of the Written Reasons).  At the hearing today the Appellant has also referred me to paragraphs 9.1 and 9.2 of the same procedure.  Therefore, as the Employment Tribunal recognised, at paragraph 7 of the Reasons, the hearing was to be:

“7. … concentrated on the fairness of the dismissal and specifically issues surrounding the trial period.”

 

4.                  Having regard to the terms of the remission, it is entirely understandable that the Employment Tribunal did not repeat all of the background facts it had found at the previous hearing.  I must, however, sketch in some of these for the purposes of this appeal.  The Appellant had been employed as a Library Manager by the Respondent since 5 June 2003.  She was one of six such managers, and, like each of her colleagues, she managed two of the Respondent’s then 12 libraries.  In common with many public institutions the Respondent suffered significant cuts in its funding in 2011 and was obliged to close six of its libraries.  It also felt itself obliged to restructure its library management by reducing the number of Library Managers from six to two.  These two would be in charge of three libraries each.  Consequently, like her fellow managers, the Appellant was obliged to compete with her five colleagues for one of the two new Library Manager posts.  Unhappily, she was unsuccessful, and she became subject to the Respondent’s redundancy procedures. 

 

5.                  These provided a redeployment procedure involving a job search for suitable alternative employment.  The Appellant underwent this procedure.  As a result she was offered a job as a Customer Service Officer (“CSO”) by a letter dated 2 December 2011.  As the Employment Tribunal had found in the previous hearing (see paragraph 11 of its previous Judgment and Reasons at page 26 of the appeal bundle), it was proposed that the Appellant would be located primarily at Kilburn.  The new post was to take effect on 9 January 2012.  It was at a lower grade but was to be ring-fenced so that her rate of pay would be maintained for a period of 12 months.  As the Employment Tribunal found at paragraphs 12 and 13 of the Reasons, the terms and conditions of employment attached to the new post included a mobility clause.  This had been the position with her existing post, and she had been moved in 2009 from the library at Kilburn to the Town Hall library.

 

6.                  On 4 November 2011, before she was in receipt of the offer letter, the Appellant had a meeting with Ms Agarwal, the Library Services Manager, who told her that on the advice of the HR Department the Appellant would not be offered a four-week trial period in the CSO post.  This was subsequently confirmed at a further meeting on 17 November 2011 and also in writing by an email of that date.  At the previous hearing before the Employment Tribunal in 2012 it had been asserted that a trial period would only apply when the new post was in a different service, and this appears again at paragraph 14 of the Judgment and Reasons where there is a reference back to paragraph 30 of the previous Judgment and Reasons.

 

7.                  As I have already said, during the hearing on 13 November 2014 the Respondent conceded that the refusal of a trial period was erroneous and in breach of contract.  The Employment Tribunal, having described these matters at paragraphs 14 and 15 of the Reasons, do not say anything more about the Respondent’s point of view in relation to the trial period.  Thereafter, the Employment Tribunal concentrates on the Appellant’s conduct.  Having been invited by the email referred to above to contact HR if she had any queries about what she had been told about the trial period, the Employment Tribunal then find at paragraph 16 of the Reasons that the Appellant never raised the issue of a trial period either with HR or her trade union and, one might presume, with anybody else, nor did she ever raise any difficulties or issues that she had with her understanding of the effect that any trial period or refusal of it might have on her entitlement to a redundancy payment.

8.                  On 7 December 2011 the Appellant sent an email to Ms Agarwal indicating that because of what she described as “health challenges” she would like to be based at the Town Hall because she “would find moving very unsettling” (see paragraph 18 of the Reasons).  As I understand it, before any reply was received to the email of 7 December 2011, on 9 December 2011 the Appellant refused the CSO post “due to on-going associated problems”.  In the course of her oral submissions the Appellant accepted that throughout this period she was either on leave or absent on a certificated illness.  Her employment terminated on 10 February 2012 upon the expiry of notice.  As she was entitled to do, she appealed against her dismissal by reason of redundancy, but that appeal was unsuccessful.  The appeal was dealt with on paper, but the Appellant explicitly told me that she was not complaining about that.

 

9.                  In the appeal letter the Appellant gave an explanation as to the “associated problems” previously referred to in her communication of 9 December 2011.  These associated problems were (see paragraph 21 of the Reasons,):

“21. … the wording of the redundancy letter, breaches of confidentiality, the selection process for the Library Manager positions and historical “unfair working arrangements” in the Library Service. …”

 

10.              She also explained in some detail why she wished to work at the Town Hall.  This was because she had a swollen ankle, which affected her mobility (see paragraph 22 of the Reasons).  The Employment Tribunal found that at the end of 2011 there was no evidence of her being unfit to work in the Kilburn library.  The Appellant was signed off work due to stress, but there was no evidence of any physical incapability at that time.  Also, the Employment Tribunal noted that the Appellant said nothing in the appeal letter about the fact that she had been refused a trial period (see also paragraph 21 of the Reasons).

 

11.              The Employment Tribunal gave itself a direction as to unfair dismissal by quoting in full the terms of section 98(4) ERA (see paragraph 24 of the Reasons).  Then, at paragraph 25 of the Reasons the Employment Tribunal addressed the main authority upon which the Appellant had relied at the Employment Tribunal and upon which she has relied today before me, namely Elliot v Richard Stump [1987] ICR 579, [1987] IRLR 215.  The Employment Tribunal concluded that the “case [turned] upon its own facts” and did not mean “that the failure to offer a trial period makes a dismissal automatically unfair”.

 

12.              The Appellant before me has consistently and steadfastly maintained that the failure to offer her a trial period, being both a breach of contract and a breach of the terms of section 138(3) ERA, something accepted by the Employment Tribunal at paragraph 27.1 of the Reasons, automatically rendered the dismissal unfair.  This is not really open to her, because no ground of appeal raising that issue is to be found in the further amended grounds of appeal (see page 8 of the appeal bundle).  This in turn is not surprising, because it was rejected as a proposition by Langstaff J, the then President, when considering this matter pursuant to Rule 3(10) (see paragraph 17 of his Judgment on that matter at page 69 of the appeal bundle).  For those reasons, the appeal cannot be put in that way but, in any event, I conclude that even if this argument was open it would be bound to fail.  Whilst the fact that a dismissal was in breach of contract would undoubtedly be one of the “circumstances” to be considered in arriving at a conclusion in relation to section 98(4) ERA and might be a very important circumstance, in my view the Employment Tribunal was quite correct to conclude that it would not, of itself, render a dismissal automatically unfair.  I take the same view as to section 138(3) ERA, which, is an exception to the general rule established by section 138(1) that there is no dismissal where the contract is renewed or the otherwise redundant employee is re-engaged on a different contract.

 

13.              The Employment Tribunal then referred itself to the well known Judgment of a division of this Tribunal presided over by Elias J, the then President, in Software 2000 Ltd v Andrews and Ors [2007] ICR 825, [2007] IRLR 568.  It is this reference that has caused all the difficulty in this case and resulted in this appeal.  The Employment Tribunal introduced the case with these words, which might be described as a preamble (see paragraph 26 of the Reasons):

“26. In Software 2000 Ltd … it was held that the exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel. …”

and then said there were the five following possible outcomes:

“(1) The evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction, though the mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

(2) The employer may show that if fair procedures had been complied with, the dismissal would have occurred when it did in any event.  The dismissal will then be fair in accordance with s.98(a)(2).

(3) The tribunal may decide there was a chance of dismissal but it was less than 50% in which case compensation should be reduced.

(4) The tribunal may decide that employment would have continued, but only for a limited period.

(5) The tribunal may decide that employment may have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can be effectively be ignored.”

 

14.              The preamble and those five sub-paragraphs can all be distilled from various parts of paragraph 54 of the Judgment in Software 2000.  Paragraph 54 is itself a summary - indeed, it is entitled “Summary” - and it follows a careful and lucid (as would be expected in any judgment of Elias J) analysis of a number of previous authorities, all of which in one way or another relate to the assessment of compensation.  Indeed, Software 2000 is a case really about the assessment of compensation.  The introductory remarks - or preamble, as I have called it - by the Employment Tribunal appear to me to be derived from sub-paragraph 6 of paragraph 54 at page 836F-G of the Judgment in Software 2000 as reported in the ICR report.  The paragraph that the Employment Tribunal has numbered (1) appears to me to be derived from sub-paragraph 3 at paragraph 54 page 836D.  The paragraph that the Employment Tribunal has numbered (2) appears to be derived from sub-paragraph 7(a) page 836H.  The paragraphs that the Employment Tribunal has numbered (3), (4) and (5) are clearly derived from sub-paragraphs 7(b), (c) and (d) (see pages 836H-837A of the ICR report).

 

15.              The difficulty with all this is that the reference to section 98A(2) in paragraph 54 is a reference to a section of the ERA that was in force between 2003 and 2009 (and thus “live” at the time of the Software 2000 appeal) but had been repealed and not been in force for some years before the second Tribunal decision, which is the subject of the appeal.  Thus, the guidance in Software 2000, whilst impeccable at the time, now needs to be treated with some caution, at least in so far as it includes in the sequential approach it summarises a stage referring to the repealed section 98A(2) of the ERA.  Also, being an analysis of compensation consequent upon a finding of unfair dismissal it is certainly not any guide to the fairness or unfairness of dismissal in terms of section 98(4) of the ERA and the real issue on this appeal, in terms of the further amended grounds of appeal upon which it proceeds, is the extent to which that reference might have distorted the analysis of the Employment Tribunal.  Most obviously it is at paragraph 27.6 of the Reasons that the analysis has been influenced by section 98A(2); this reads:

“27.6. In summary, we find that even if the respondent had offered a trial period as part of its offer on 2 December 2011 (the remaining terms of the offer being the same), the claimant would not have accepted.  That being the case, dismissal would have occurred in any event and, therefore, the dismissal was fair.”

 

16.              Having given itself the direction set out above at paragraphs 13 and 14 of this Judgment, the Employment Tribunal at paragraph 27 of the Reasons reached a series of conclusions in sub-paragraphs 27.2 to 27.6.  Paragraph 27 is indeed headed “Conclusions”, and these amount to what may be described as a series of inferential conclusions.  As is often the case, Employment Tribunals sometimes ascribe findings of fact to one section of a Judgment but in an analysis, usually in the last part of the Reasons and often headed “Conclusions”, they are also making what might be described as secondary findings of fact, often described as the drawing of inferential conclusions.  This is so in the instant case.

 

17.              The Appellant takes issue with either the primary factual findings upon which the inferential conclusions are based or indeed takes issue with some of the inferential conclusions in paragraphs 27.2 to 27.6, arguing that they are not based on any primary factual finding at all.  Apart from there being no basis in the further amended grounds of appeal for pursuing such an argument, it seems to me that all of these findings in paragraphs 27.2 to 27.6 - however one describes them, whether conclusions or inferences - can be identified as rooted in the previous findings of fact made by the Employment Tribunal.  Moreover, it is clear that the Employment Tribunal formed an adverse view of the reliability and credibility of the Appellant (see, for example, paragraphs 8 to 11 of the Reasons).  As an appellate Tribunal charged only with scrutinising decisions to see whether they have within them an error of law, I have no function in relation to the findings of fact.  I have explained this to the Appellant, but she is understandably distressed by some of the findings and, I fear, does not accept my functions are so restricted.  Nevertheless, it is for those reasons that I do not think I can explore that aspect of the appeal as the Appellant would wish me to do.

 

18.              Another matter that has crossed my mind is whether or not the Employment Tribunal at paragraphs 27.2 to 27.6 have taken a somewhat monocular view of what needs to be addressed in terms of section 98(4) ERA.  It might also be worth reiterating that HHJ David Richardson had directed in the second part of his directions as to remission that (paragraph 43):

“43. … in the light of whatever conclusion it reaches in relation to the trial period, it should revisit its conclusion on the question of section 98(4). …”

 

19.              To my mind, the Employment Tribunal seems to focus a great deal, if not exclusively, upon the Appellant’s position in answering the question as to whether a redeployment without a trial period was a significant circumstance of the case to be taken into account under section 98(4).  The focus appears to me to be on whether it did matter or should have mattered to the Appellant and not whether the Respondent had a reasonable explanation for, or had acted reasonably in, refusing a trial period and what significance that might have in the overall context, but, again, section 98(4), of itself, is not the subject of the further amended grounds of appeal.  Indeed, the Appellant concentrated a large part of her submissions on what she described as “automatically unfair dismissal” and I was unable to get her to concentrate on the further amended grounds of appeal.  These focus upon whether the Employment Tribunal has erred by considering section 98(4) in terms of the repealed section 98A(2) (see page 8 of the appeal bundle).

 

20.              I accept Mr Kemp’s submission that the Employment Tribunal at various points in its Judgment and Reasons has given a clear indication of an appreciation that the breach of contract issue was but one of a number of circumstances to be considered; see, for example, the Judgment at paragraph 1; the recitation of the terms of remission at paragraph 2 of the Reasons; paragraph 24 of the Reasons, where there is a reference to looking at the procedure in the round; and paragraph 25 where the Employment Tribunal describe the breach of contract as:

“25. … one factor, albeit an important one, for the tribunal to take into account when considering the fairness or unfairness of a dismissal for redundancy.”

 

21.              Therefore, having considered Mr Kemp’s submissions, the terms of the further amended grounds of appeal and the parts of the Employment Tribunal’s Judgment and Written Reasons that I have just referred to, I do not think it would be right for me to explore this any further.  Moreover, Mr Kemp’s submission was that there would be no error in the Employment Tribunal analysing the matter from the point of view of the Appellant, that being the most relevant of the circumstances in the case.  I am somewhat hesitant as to whether that is necessarily correct, but it does seem to me obvious that the reason stated by Ms McKenzie in the first hearing and reiterated by the Employment Tribunal at paragraph 14 of the Reasons in relation to the second hearing, as to why the trial period was not offered, namely because the Appellant was not being transferred into a different part of the Respondent’s services but was remaining in the library service, when coupled with the factual findings made by the Employment Tribunal, makes the inference that the trial period was not offered to her because the Respondent thought it would serve no useful purpose, an obvious inference.

 

22.              But I do not regard it as the only possibly inference and, in that sense I do not think it is inevitable.  Whilst I would be tempted to draw such an inference were I to think I, myself, could investigate this aspect of the case, on reflection I take the view that whether it would be right for me to be drawing any kind of inference on an appeal is a matter that is at best doubtful and very likely it is not open to me.  In any event, as I have said, I do not think I should address this point, having regard to the restrictive nature of the terms of the further amended grounds of appeal and because that is not how the Appellant has put the appeal either in the terms of her skeleton argument or her oral submissions.

 

23.              Mr Kemp’s primary argument was that the reference to section 98A(2) can have caused no harm to the analytical process in this case because consideration of the structure of that section illustrates that there is a sequence that means that there must be a conclusion of a finding of unfair dismissal pursuant to section 98(4) before section 98A(2) can come into play.  Attractive though I found this submission at first sight, on reflection I am not convinced that it necessarily provides the key to this case.  Section 98A had the section heading “Procedural fairness” and had a subheading “Other dismissals”.  Subsection (1) set out a basis upon which an employee should be regarded as unfairly dismissed.  These were essentially procedural matters; I need not set them out here.  Subsection (2), it is quite right to say, is subject to subsection (1).  It provided that:

“… failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

 

24.              It seems to me a number of things emerge from considering section 98A.  Firstly, it was section 98A(1) that provided for an automatically unfair dismissal on a failure of procedure.  Section 98A(2) provided an exception to that by directing the Employment Tribunal not to regard a failure of procedure by itself as making an employer’s action unreasonable providing the employer showed he would have decided to dismiss the employee if he had followed the procedure.  I accept that for most intents and purposes that would amount to the end of the matter, but I think Parliament has been careful not to couch that in totally conclusive terminology.  I derive that from the use of the words “as by itself”.  In other words, there must be potential for consideration under section 98(4) as to whether the dismissal is fair or unfair even if it can be shown that there would have been dismissal if the procedure had been followed.

 

25.              Moreover, and perhaps more importantly, it seems to me clear from looking at the statutory scheme that section 98A was a distinct set of dismissal procedures.  It related back to and might have formed a part of section 98(4) through the medium of subsection (2), but if subsection (2) did not apply, there would be an automatically unfair dismissal under subsection (1), which, therefore formed a discrete part of the dismissal regime.  It is worth pointing out that what if sometimes described as “ordinary” unfair dismissal, i.e. section 98(4), was, broadly speaking, how unfair dismissal started out in the Industrial Relations Act 1971.  The ERA 1996 amounted to a very considerable historical development so far as the statutory regime was concerned.  By 2006 a whole variety of additional types of dismissal had been added

 

26.              Therefore, I am of the view that the sequential argument advanced by Mr Kemp is nothing like as powerful as I thought it was at first sight.  It does not seem to me at all necessary for an Employment Tribunal to have gone through section 98 before considering the provisions of section 98A, but of course the question in this case is whether his submission that this is what the Employment Tribunal did here can be correct.  Mr Kemp referred to the first two sentences of paragraph 27.2:

“27.2. Was that breach sufficient, on the facts as found by the tribunal, to make the dismissal unfair?  We find that it was not. …”

 

27.              He submitted that amounts to a separate and prior finding of “ordinary” unfair dismissal under section 98(4).  What follows, submitted Mr Kemp, is a reasoned justification of that finding.  There is then, in his submission, a separate finding at paragraph 27.6 (set out above at paragraph 15 of this Judgement).  I cannot accept that submission.  Firstly, it seems to me that the summary of paragraph 54 of Software 2000 and paragraph 54 of Software 2000 itself would not necessarily reveal any sequential relationship between sections 98 and 98A.  Secondly, the third sentence of paragraph 27.2 reads:

“27.2. … The claimant did not resign because, as she now alleges, she did not have the opportunity to try out the CSO job. …”

 

This is very difficult to understand.  It does not seem to me that I can be as confident as Mr Kemp when he says that the Employment Tribunal has simply used the wrong word when it has used the word “resign”.  Indeed, to my mind, the use of the word “resign” may equally be an indication that there the Employment Tribunal is analysing the nature of the breach.  If it was analysing the nature of the breach, it seems to me unlikely that it had already made a finding under section 98(4).  What follows must relate as much to an analysis of the character of the breach as it does to the fairness of dismissal.

 

28.              Thirdly, and most importantly, I find it impossible to reconcile the last sentence of paragraph 27.6 with the argument that there has already been a finding of unfair dismissal at paragraph 27.2; the former having been made pursuant to section 98(4) and the latter also pursuant to section 98(4) but by some sort of analogy to the by then repealed section 98A(2).  In my judgment, the words “that being the case” and the word “therefore” mean that the whole of what has preceded that sentence in paragraph 27.6 is an analysis of a proposition that finds its fulfilment in that last sentence of paragraph 27.6.  It is, in other words, a repetition of the first and second sentences of paragraph 27.2, but it is a repetition of the same concept not an introduction of a different and yet further concept.  I reiterate that the summary of parts of paragraph 54 of Software 2000, whilst in a sense it may be an accurate distillation of aspects of it, is not a proper guide as to how the Employment Tribunal should approach the question of the fairness or unfairness of dismissal under section 98(4).  As I have endeavoured to point out, much of the summary relates to compensation, as indeed does the Software 2000 case itself.  The Employment Tribunal was not concerned at this stage of the analysis with compensation; it was concerned with the fairness or unfairness of the dismissal.

 

29.              Therefore, and with very considerable reluctance, I have come to the conclusion, despite the clear and succinct submissions of Mr Kemp, this Tribunal has erred in its application of section 98(4) to the facts of this case by reaching a conclusion at paragraph 27.6 of the Reasons that confused the thought process in relation to the repealed section 98A(2) with that to be undertaken in relation to section 98(4).

30.              What, then, is to be done about that?  I take the view that this is an error that may well have affected the result.  I have endeavoured in the course of this Judgment to point out that there may be a number of ways in which this matter can be looked at that might ultimately mean that the outcome is inevitably the same, but it does not seem to me that I can, consistent with at paragraph 21 of the Judgment of Laws LJ in Jafri v Lincoln College [2014] ICR 920 myself reach such a conclusion.  I do not accept the submission that I am able to conclude necessarily what the outcome of this case would have been.  When I say that, it may be rather overblown to say I must refuse to respond to the siren call, but, tempting though it is to think along the lines that that there is an obvious inference to be drawn that the breach in this case might not have been of such a character as to make the dismissal unfair, it seems to me I should resist the temptation of drawing that inference myself on the basis that it is the only and obvious inference to be drawn.  Ultimately I think that overstates it.  Accordingly, the matter must go back to the Employment Tribunal with appropriate directions for the reconsideration of this aspect of the case.

 

31.              The Appellant, on the other hand, argued that I should find that the dismissal was unfair.  But equally I cannot reach that conclusion without making factual findings of my own, another temptation I must resist.  If the matter went back, as it would have to do on compensation in any event, as she conceded, the Appellant submitted that it should go back to a differently constituted Employment Tribunal.  Mr Kemp submitted that the matter should go back to the same Employment Tribunal.  I accept, looking at the familiar authority of Sinclair Roche & Temperley v Heard [2004] IRLR 763 and at paragraph 46 of the Judgment of the then President, Burton J, that this was a significant error made by the Employment Tribunal.  Obviously, this is a case where there would be a second bite of the cherry.

 

32.              These are factors that support the Appellant’s submission, but against that, and in my judgment completely outweighing them, is the question of proportionality.  This is a matter that now goes back to the Employment Tribunal for the third time in respect of issues that occurred at the end of 2011 and the beginning of 2012, where there has now been all the findings that are necessary and no need to call further evidence.

 

33.              In my judgment, the balance is tipped firmly in favour of the same Employment Tribunal now reconsidering on my direction whether the breach of contract that has been admitted as a circumstance made this dismissal fair or unfair, an analysis to be undertaken only by reference to and within the terms of section 98(4), although, I will direct that, if so advised, the parties can call evidence on the issue of why no trial period was offered to the Appellant, and the Appellant may call evidence as to why it would have been important to her for a trial period to be offered.  Subject to that, no further evidence can be called.

 

34.              So, this matter will be remitted to the Employment Tribunal with the same constitution as that which made the decision subject to the appeal to reconsider whether or not this was a fair or unfair dismissal in terms of section 98(4) and in particular whether the breach of contract of refusing to offer a trial period, as a circumstance relating only to section 98(4) was a significant circumstance so far as the determination of whether the dismissal was fair or unfair when looked at from the point of view of the employer’s reason for not offering a trial period and the employee’s position in relation to the offering of the trial period, the parties being at liberty to call further evidence confined only to the question of the failure to offer a trial period.

 

35.              The Employment Tribunal considered that the failure to offer a trial period was not only a breach of contract but also a breach of a statutory right (see paragraph 27.1 of the Written Reasons).  Whether the concept of there being a breach of statutory right - and if so, what that statutory right might be - adds anything to the breach of contract matter is, to my mind, open to question, but when considering the trial period the Employment Tribunal on the remission should consider not only the trial period from the point of view of a contractual right but from the point of view of any statutory right, insofar as that makes any difference.