Appeal No. EAT/560/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16th November 1994

		Judgment delivered
		On 4th July 1995

	Before

	HIS HONOUR JUDGE J BULL QC

	MRS R CHAPMAN

	MS S R CORBY

MR B HICKS	APPELLANT

ROBERT WALLACE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P OLDHAM
(of Counsel)
Messrs Dawbarns
Solicitors
1 & 2 York Row
Wisbech
Cambridgeshire PE13 1EA

For the Respondent	NO APPEARANCE BY OR 	ON BEHALF OF RESPONDENT

HIS HONOUR JUDGE J BULL QC         This is an appeal by Mr Barry Hicks against that part of the decision of the Industrial Tribunal sitting at Bury St Edmunds on 20th January 1993 by which it reduced by 50% its award to him of compensation for what they found to have been his unfair dismissal.  Summary reasons were sent to the parties on 9th March 1993 and full reasons on 13th May 1993.

	Mr Hicks was a carpenter employed by the Respondent in his business as a general builder in and around Wisbech.  In common with many other builders the severity of the economic depression in 1992 so drastically reduced the amount of work available that the Respondent called a meeting of all his employees to suggest the adoption of either a three-day week or that there should be a lay off for six weeks.  At paragraph 3(f) of the full reasons the Tribunal found:-
		"The applicant responded to this suggestion by saying: "3 days money will not pay 5 days bills". ... As a result of this conversation the respondent, reasonably in our opinion, formed the opinion that the applicant was not prepared to work a 3-day week."
On 9th March 1992 the Appellant received a letter terminating his employment with effect from Friday 15th May 1992.

	Failure to consult with the individuals considered for redundancy made the Appellant's selection in the judgment of the Industrial Tribunal unfair and they so found.  In this they were undoubtedly correct.  Having reached that decision, they went on to consider whether the Applicant's dismissal was in any extent caused or contributed to by his own actions.  In his concise and clear argument to us Mr Oldham has drawn our attention to the decision of the Court of Appeal in Nelson v. British Broadcasting Corporation No.2) [1979] IRLR 346 in which that Court held that in determining whether to make a reduction upon the grounds of contributory fault, an Industrial Tribunal must make three findings: first, there must be a finding that there was conduct on the part of the employee in connection with his unfair dismissal which was culpable or blameworthy.  Secondly, there must be a finding that the matters to which the complaint relates were caused or contributed to some extent by action that was culpable or blameworthy.  Thirdly, there must be a finding that it is just and equitable to reduce the assessment of the complainant's loss to a specified extent.  Mr Oldham criticises the Tribunal's decision upon the basis of the internal inconsistencies in its reasons and its failure to make findings of fact which might allow it to go on and reach conclusions of contributory fault.  Of critical importance, he submits, paragraph 3(f) of their reasons.  Blameworthiness should, he argues have been predicated upon the finding that the Appellant had refused to work a three-day week, for there is in truth no finding of this nature.  There is merely a finding that the Respondent believed that because of the remark that "three days money will not pay five days bills" the Appellant had refused to work a three-day week.
However, the Appellant was neither given the offer by his employers of working a three-day week, nor the option of redundancy and was thus never in a position to reject either option.

	A further element of contributory fault is set out in paragraph 8(b):
		"... The applicant's refusal to agree to this coupled with his failure himself to speak to the respondent must have caused or contributed to his selection for redundancy in these circumstances. ..."
Mr Oldham contends that the onus to consult is upon the employer and thus if there was any failure by the Appellant to speak to his employer such action cannot be blameworthy in this context, and in support of this he draws our attention to the well known case of Polkey v. A E Dayton Services [1987] ICR 142.

	We accept the force of these submissions and are constrained to find that this decision cannot be allowed to stand.  We therefore substitute for the award made by this Industrial Tribunal of a 50% reduction by way of contribution, a finding that there should be no contribution to reduce the compensatory award.  We make no order for costs save for legal aid taxation of the Appellant's costs.