Appeal No.	EAT/1285/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 2000

Before
MR RECORDER BURKE QC 
MRS D M PALMER 
MS B SWITZER
.

MS MANJU JHA	APPELLANT

THE COMMISSIONERS OF INLAND REVENUE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(of Counsel)
Instructed by: 
Messrs Christian Fisher
42 Museum Street
Bloomsbury
London WC1A 1LY	

MR RECORDER BURKE QC

1	This is the preliminary hearing of an appeal by the Appellant, Mrs Jha, against the decision of the Employment Tribunal sitting at London North, chaired by Mrs Markus, that decision having been promulgated with extended reasons on 13 September 1999.  The Tribunal decided that her employers, the Commissioners of Inland Revenue, had unfairly dismissed the Appellant.  They declined to order reengagement or reinstatement and awarded her a sum that ought to be £2,420.00 but is expressed in their decision as a somewhat lower sum by way of compensation, that being made up of a basic award, less a reduction of 50% for contributory fault; there was no order for a compensatory award in circumstances to which we shall come.  

2	The Notice of Appeal originally put before this appeal Tribunal contained 21 grounds lettered from A to U.  Before us today the Appellant has been represented by Ms Monaghan who has put the matter to us briskly, succinctly and with considerable force.  While not formally abandoning grounds A to U, she has concentrated on a further 9 grounds.  Those grounds, V-DD, she has drafted into a proposed amended Notice of Appeal; I say “proposed” amended Notice of Appeal, because as yet there is no formal leave for those amendments to be made, so far as we are aware; and we do not know whether the amended notice has been served on the Respondents.  

3	The first point we wish to make is that the grounds, which we have been considering and which have been the subject of argument by Ms Monaghan on behalf of the Appellant, are those new grounds, which she has put into the proposed amended Notice of Appeal.  We are content to indicate now that we propose to allow this appeal to go to a full hearing on those grounds.  We do not propose to allow this appeal to go forward to a full hearing on grounds A-U, which substantially are included within and certainly, to a large extent, overlap the new grounds added by Ms.Monaghan.  We will deal later with how the Notice of Appeal can be tidied up into a more helpful form.  We make absolutely no criticism of the Appellant for the way in which she drafted her own grounds of appeal. We are not suggesting that none of those grounds are arguable, but if the new grounds cover the ground, there is no point at our looking at the old ones. 

4	Mrs Jha was employed as a Revenue Executive. From about 1994, after 20 years of employment; she was off sick for a long period.  There was a trial return to work in May 1997, which failed in circumstances which were in dispute before the Tribunal.  The Tribunal made findings about that dispute but the resolution is immaterial for present purposes.  She then went off work again and never returned to work.  She was dismissed by letter of 19 September 1997 with effect from 30 November of that year, and several months later, there was an appeal which did not succeed. 

5	The Tribunal’s finding of unfairness was based on the Respondent’s failure to consult her about her pending dismissal, that dismissal not having been expressed as being in the air when she went back to work in May 1997 for two half days or in the period between that return to work and the giving of the notice of the eventual dismissal.  The appeal is directed to a number of different but to some extent interlocking aspects of the Tribunal’s decision as to remedies.  Grounds V-X in the proposed amended Notice of Appeal relate to reengagement, there not having been any arguments addressed to us on the issue of reinstatement. 

6	The Appellant said at the Tribunal that she was seeking reinstatement or reengagement.  The Tribunal correctly considered first whether it should make either order before moving on to alternative remedies.  At paragraph 22 page 10 of its decision the Tribunal said this:
22. “We find that it is not practicable for the employer to comply with an order for reinstatement.  The Applicant has not been at work for around five years.  We have been told that there have been changes in computerisation and in the tax system.  The Applicant could not return to her former job, she would need to undergo training and induction as if she were a new employee.  It would not be possible for the Respondent to treat the Applicant in all respects as if she had not been dismissed.”            
The Tribunal in that passage were plainly considering, as they were bound to do under the relevant statutory provisions, the issue of practicability in deciding whether or not to make an order for reinstatement. Ms Monaghan argues that in that section of its decision the Tribunal has not addressed the issue of practicability as to reengagement as opposed to reinstatement and that  nowhere else do they consider the issue of practicability, in the context of an order for reengagement, as opposed to reinstatement.

7	Alternatively, she says if the Tribunal at that point in its decision was considering the practicability of reengagement, then the last two sentences of the extract which I have read are wholly inappropriate for the consideration of reengagement, as opposed to reinstatement, because reengagement would not involve any return to her former job and whether or not it was possible for the Respondent’s to treat her as if she had not been dismissed in all respects would be an immaterial consideration. 

8	The Tribunal, in the context of reinstatement or reengagement, considered, as they were bound to do under statute, the question of the Appellant’s conduct. Ms Monaghan submits that the reasons that the Tribunal gave for rejecting reinstatement or reengagement on the basis of the Appellant’s conduct are unsatisfactory, both in law and in fact.  In so far as the Tribunal was critical of the Appellant’s conduct in failing to contact the Respondents between May 1997 and the dismissal, that criticism, says Ms Monaghan is not borne out by the facts.  It was not the obligation of the Appellant to contact the Respondents, but the obligation was the other way round, as indeed the finding of unfair dismissal based on a failure to consult during that period demonstrates.  In so far as the Tribunal took into account by way of conduct, as they appear to have done, what occurred in relation to the appeal process, months after the dismissal, then says Ms Monaghan, that is not permitted in law under the terms of s.116 (1) (c) of the 1996 Act, so far as reinstatement is concerned, and more importantly, s.116 (3) (c) in relation to reengagement.  All of these grounds appear to us to be arguable.

9	The argument as to the criticisms made by the Tribunal of  the Appellant’s failure to keep in contact with her employers comes preciously close to an argument that we should substitute our view of the facts for the view taken by the Tribunal.  But we regard there as being enough in the argument to enable it to be classified as arguable, having regard to the findings of fact in this case, taken as a whole.  So far as the s. 116 (1) (c) and s.116 (3) (c) point is concerned, we believe that there may well be some authority, albeit unreported, on the question as to whether a Tribunal can look at conduct of an employee, in relation to a post-dismissal appeal process. If there is not any such authority then a) it is surprising after all these years that there is not and b) perhaps there should be.  In any event it is in our view a point which is arguable and ought to be the subject of a decision.  The Appeal Tribunal which hears the full appeal may or may not wish to consider whether it is sensible that an employee can rely in support of an unfair dismissal case, on the conduct of an employer in relation to an appeal after dismissal; but if Ms Monaghan’s argument is correct the employer cannot rely on the employee’s conduct in relation to an appeal which takes place after dismissal; but it is certainly not for us to express any views about any possible injustice or conflict which may thus arise.  

10	The second group of arguments, which come together in grounds Y and Z of the proposed amended Notice of Appeal, relate to the approach taken by this Tribunal to the Polkey exercise, which it necessarily had to carry out, namely whether had the employers’ properly consulted with the employee the dismissal would not have occurred, whether there were chances that it would not have occurred, or whether it definitely would have occurred in the sense that there was no chance that it would not have occurred.  

11	The Tribunal says about that in paragraph 26: 

“it is our view that in the light of this information, the Respondent, properly consulting with the Applicant, would on the balance of probabilities have dismissed the Applicant in any event, and that dismissal would have been fair”.

Ms Monaghan submits, that, in that passage, it is clear that the Tribunal was not making an assessment of the chances that, with consultation at an adequate level, there would not have been a dismissal, but were looking at the matter in a black and white frame, as if it was only open to them to find that there either would or would not have been a dismissal, had there been appropriate consultation.  There is some indication that the Tribunal may not have been looking at the matter in that way, for instance at the bottom of the same page, page 12 of its judgment of its decision, the Tribunal says:
“In any event and for the sake of completeness we make clear that, if we had allowed some room for doubt as for whether a fair procedure would have made any difference.” 
This perhaps arguably indicates, that although the words I previously read out do not seem so to say, they had in fact weighed up the chances and had decided that there was no chance that a fair consultation would have prevented a dismissal; but looking at the decision overall, we regard Ms Monaghan’s point in this area as arguable.  

12	It is also arguable that, in so far as the Tribunal set out its reasoning for the conclusion that I have recited, firstly it relied on a letter written by the Appellant on 19 August 1997 which it may well have misinterpreted and could well be argued not to have been capable of being interpreted strongly against the Appellant as the Tribunal thought was appropriate.  Secondly, the Tribunal in the relevant passage at the top of page 12 seems to take the view that, because the letter indicated that there was no point in discussing matters at that stage when the employee did not know of her pending dismissal, once she knew of her pending dismissal, consultation would not have a made a difference because she still would have continued not to communicate.  That appears to us to be an approach to the facts which may well not stand up to examination even bearing in mind the very restricted parameters within which a factual finding or approach to the facts can be examined in this Tribunal.

13	The next constellation of points relates to the Tribunal’s finding that the employee was guilty of contributory fault to the extent of a 50% reduction in her basic award and, if they had made one, in her compensatory award.  This issue raises the same issues as those which we have already referred to when dealing with the conduct point under the heading of reengagement and reinstatement, s.122 (2) and s.123 (6) of the Act are not entirely in the same terms, as s.116 (1) and s.116 (3); but the same point arises and in our judgment it is an arguable point. 

14	Fourthly, the Industrial Tribunal found, at page 12 of its decision, that the Applicant had failed to mitigate her loss in particular up to October 1998.  It appears to have concluded from that, that if the effects of the failure to mitigate were added to the 50% reduction for contributory fault, there would have been no compensatory award, if they had made a compensatory award i.e. if they had not reached the conclusion which they reached upon the Polkey exercise to what we have referred above. As Ms Monaghan points out, however, there does not appear from the decision to have been any assessment of what work the Applicant would have obtained if she had not failed to mitigate her loss, over what period she would have had that work and what she would have earned if she had that work; and it is, in our view, plainly arguable that, without any examination of those matters and findings on those matters, the Tribunal may well have erred in reaching the conclusion they did as to the effects of a failure to mitigate.  There is also a further point as to the way in which they have used the failure to mitigate which they have found to exist by looking at the effects of that after they had reduced the award by 50%. Ms Monaghan submits that it should be the other way around.  In certain circumstances that may make no difference and in certain circumstances it may make a difference, the point is arguable.  

15	Finally it is pointed out that, although in paragraph 26, page 11 of the decision, the Tribunal appears to have calculated the award at £2,420.00, in its actual decision on page 1 it sets out the total award at £2,310.00.  That is something, which if there were no effective appeal, could have been dealt with by the slip rule.  But it is put as a ground in Ms Monaghan’s notice that some mistake was made; no doubt the parties, without any argument, can correct that error when this appeal comes on for hearing.  

16	In the result of those grounds alone and for those reasons, this case will go to a full hearing.  We give leave to amend and submit a new Notice of Appeal within 14 days. Please delete the original paragraphs altogether and limit it to those which we have been dealing with and in respect of which we have given leave.  It will then be much simpler for whoever it is who has to deal with this appeal.  Category C, ½ a day.