Appeal No.	EAT/1120/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 December 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR R H PHIPPS
MR R SANDERSON OBE

MS D CHERN	APPELLANT

SMITH BERNAL ADMINISTRATION LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE PETER CLARK:     By an Originating Application to the Central Office of Industrial Tribunals on 2nd August 1996 the appellant claimed compensation for unfair dismissal against her former employer, Smith Bernal Administration Ltd, the respondent.

	She holds a law degree and is qualified, although not admitted, as a solicitor. On 30th March 1994 she commenced employment as a proof-reader with John Larking (Verbatim Reporters) who then held a court reporting contract with the Lord Chancellor’s Department covering cases heard in the Royal Courts of Justice.

	In December 1995 Lord Chancellor’s Department invited tenders for a future contract for court reporting in the Court of Appeal. The respondent was the successful tenderer and was awarded the contract commencing on 1st April 1996.

	Thereafter the appellant continued working for the respondent, it being conceded that the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 applied. Accordingly she had sufficient continuous service to found her complaint of unfair dismissal following her dismissal by the respondent effective on 31st May 1996.

	Her complaint came before an Industrial Tribunal sitting at Stratford on 14th March and 22nd May 1997. The tribunal decision promulgated with full reasons on 13th June 1997, was that the application be dismissed. Against that decision she now appeals.

	In summary, the tribunal found that following the respondent taking over as the appellant’s employer they reached the conclusion that only one proof-reader was required; they had two, the appellant and a Mrs Loram, the manager of the proof-reading team. They decided to make one of those ladies redundant. Having monitored the performance of both, they concluded that Mrs Loram worked faster than the appellant, and she had managerial and computer skills not possessed by the appellant. They selected the appellant for redundancy.

	The tribunal held that the reason for dismissal was redundancy; that the selection criteria were reasonable and the selection process fairly carried out; there was no alternative employment available for the appellant, but that the respondent had not engaged in proper consultation with the appellant and that rendered the dismissal unfair (reasons, paragraph 14).

	However, so far as compensation was concerned, that is the appellant’s preferred remedy, they concluded that proper consultation would have made no difference to the outcome and that in those circumstances it would be just and equitable to make no compensatory award. The appellant had received the equivalent of a basic award in the form of a redundancy payment. She therefore received no compensation.

	On that basis the Industrial Tribunal dismissed the application (reasons, paragraph 16). For the avoidance of doubt, we think that the proper form of order was that the appellant was unfairly dismissed, but that no compensation would be awarded.

	In this appeal Ms Chern, who has carried out a good deal of legal research into her case, makes two principal submissions.

	The first is based on what we regard as a misconception as to the effect of the House of Lords decision in Polkey v A E Dayton Services Ltd [1987] ICR 142, as applied in the later cases of Heron v Citylink Nottingham [1993] IRLR 443 and John Brown Engineering Ltd v Brown [1997] IRLR 90, and to some extent foreshadowed in the earlier case of Freud v Bentalls [1982] IRLR 443. The principle emerging from those authorities is that the fact that lack of consultation in redundancy dismissal cases would make no difference to the outcome will not normally be a ground for finding that the dismissal is fair (disapproving the principle in British Labour Pump v Byrne [1979] ICR 347), unless it can be shown that consultation would have been a futile or useless exercise.

	In this case the tribunal found that a lack of consultation did render the dismissal unfair. It did not find that consultation would have been futile or useless.

	Ms Chern seeks to argue that those authorities preclude the tribunal from ordering no compensation in this case. That is wrong. It is open to an Industrial Tribunal in an appropriate case, having found the dismissal unfair on the grounds of lack of consultation, to go on to find that it is just and equitable to award no compensation in circumstances where proper consultation would have made no difference to the result.

	Ms Chern’s second point relates to the tribunal’s finding as to her selection for redundancy. In our judgment the tribunal was quite entitled to conclude on the evidence and facts as found that for the reasons given the respondent acted reasonably in retaining Mrs Loram and dismissing the appellant by reason of redundancy.

	In these circumstances we have reached the conclusion that this appeal discloses no arguable point of law and accordingly it must be dismissed.

	Leave to appeal refused.