Appeal No.	 EAT/838/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 May 2000
Judgment delivered on 19 October 2000

Before
THE HONOURABLE MR JUSTICE NELSON
MR I EZEKIEL
MR R SANDERSON OBE

MR E JEDLA	APPELLANT

PROCTER & GAMBLE (HEALTH & BEAUTY CARE)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON -
ASSISTED BY HIS DAUGHTER - MS JEDLA	
For the Respondents	PAUL NICHOLLS
(of Counsel)
Instructed by:
Legal Department
Procter & Gamble UK
The Heights
Brooklands
Weybridge
Surrey
KT13 0XP	

	MR JUSTICE NELSON:	

1.	The Appellant, Emil Jedla was employed by the Respondent company Procter & Gamble (Health & Beauty Care) for nearly twenty-two years as a research scientist. On the 8th December 1995 that employment was terminated and Mr Jedla brought claims of unfair dismissal and race discrimination which were heard by the Employment Tribunal over a period of seventeen days between the 2nd September 1996 and the 18th February 1998. Mr Jedla’s complaint of race discrimination was dismissed, his claim for unfair dismissal was upheld but his entitlement to a compensatory award limited to 10% of his loss. The Tribunal expressed the hope that the matter could be concluded by agreement and so did not then hold a remedies hearing. No agreement was reached and the remedies hearing took place on the 13th August 1998.

2.	The Tribunal considered re-instatement but found that such an order would not be practicable. They found that the applicant was entitled to a basic award of £5,460 and a compensatory award, having been reduced by 90%, in the sum £3,497. They did not address the question of re-engagement in their decision which they should have done by virtue of sections 112, 113 and 116 of the Employment Rights Act 1996 and in view of the fact that the Appellant had specifically requested re-instatement or re-engagement in a letter dated the 15th June 1998 sent to the Respondent’s legal department, the Industrial Tribunal and ACAS.

The liability hearing.

3.	In a detailed analysis of the evidence the Tribunal found that Mr Jedla and Dr Gummer, his manager, were both truthful witnesses but preferred Dr Gummer’s evidence where there were differences of recollection. There was no doubt, as the Tribunal found, that Mr Jedla had produced work during his long career which was of considerable value to the Respondents. The Tribunal found that throughout his employment with the Respondent and its predecessor the Appellant had been passionate about his scientific work and had always been loyal to the Respondents. There were nevertheless over the years a number of criticisms about his work particularly in the areas of project management, leadership and communications. These criticisms, which arose after his promotion in 1990 to research manager, led to a formal written warning issued on the 22nd March 1994 regarding unsatisfactory performance. In the course of the disciplinary process Dr Gummer continued to regard the Appellant’s performance as inadequate, whilst the Appellant considered that he was being unfairly treated and wrongly appraised. Dr Gummer considered that Mr Jedla was failing to manage his project satisfactorily, that the presentation of data and review of experimental procedure was very confusing and that he was taking too long in his work. The Appellant went to see Mr Wilmshurst, Dr Gummer’s manager, to complain that his contributions were being undervalued by Dr Gummer. Mr Wilmshurst however told the applicant that he supported Dr Gummer’s assessment and that his performance was unsatisfactory. A final written warning was issued on the 4th April 1995.

4.	A disciplinary interview took place on the 25th October 1995 and on the following day Dr Gummer gave Mr Jedla a letter in which he stated that having reviewed the details of the discussion on the 25th October 1995 and all previous discussions he concluded that Mr Jedla’s performance did not meet expectations “in respect of project management, project leadership, requiring greater than expected supervision, and the validity of the data” produced in some of his projects. He therefore concluded that it was no longer appropriate for the Appellant to remain at the same level in the company but believed it possible that he could perform effectively at a lower level should a suitable position be available. He stated that he would explore this avenue and made it clear that Mr Jedla would maintain his present salary.

5.	Mr Jedla wrote to Mr Gummer on the 13th November 1995 stating that he would only be satisfied with a “win - win” solution. The letter makes it clear that Mr Jedla regarded demotion as unacceptable. He said that he was proud of his first class work and considered that he should not be demoted but promoted for his achievements. On the 24th November 1995 a further discussion took place between Mr Jedla and Dr Gummer as a result of which three potential outcomes namely promotion, staying at current level or demotion were stated.  A file memo was subsequently prepared and signed by Mr Gummer which recorded the fact that the only acceptable outcome of the process for Procter & Gamble was demotion and the only acceptable outcome for Mr Jedla was promotion. In their findings at paragraph 84 the Tribunal state:-

"This was not strictly accurate as the Applicant had said that the only acceptable alternative to staying at the same level was promotion but it appears to the Tribunal that it came to the same thing bearing in mind that Dr Gummer had made clear that the Applicant was not going to remain at the same level."

6.	On the 6th December 1995 Dr Gummer and the Appellant met. The Appellant made it clear that promotion was the only option as far as he was concerned and Dr Gummer made it clear that promotion was out of the question and said that he had not been able to find a position for the Appellant which was suitable and because of his refusal to accept any position lower than a promotional position there was no alternative but to terminate Mr Jedla’s contract from 8th December 1995.

7.	After a comprehensive review of the evidence the Tribunal stated that it was satisfied that Dr Gummer had “ample grounds for reaching the conclusions he did regarding the applicant’s performance”. (Paragraph 110). They further found that the conduct of the disciplinary and later appeal hearings had not been unfair. They did however criticise Dr Gummer for failing to offer Mr Jedla the chance to consider two posts which were available at a lower level than Mr Jedla’s then level but which had not been offered by the relevant managers as Dr Gummer had informed them that Mr Jedla would only take promotion. The Tribunal found that this failure to inform Mr Jedla that these two posts were available caused the dismissal to be unfair.

8.	They then investigated what likelihood there was that the dismissal would still have occurred. They noted in paragraph 114 that Mr Jedla’s evidence as to this was somewhat inconsistent in that he indicated that he would like to try at a lower level job but also answered to the Chairman that he would not accept demotion even though he knew that the alternative was dismissal. The Tribunal considered the applicant was unlikely to change his mind even if offered two specific posts but as that was not certain concluded there was a 90% likelihood that Mr Jedla would still have been dismissed. Hence he was awarded only 10% of any compensatory award.

The remedies hearing.

9.	At the remedies hearing on the 13th August 1998 two of the three members who had made the original decision sat on the Tribunal with a different Chairman. They noted that the Applicant made considerable efforts to find alternative employment, not limiting himself to the same senior level at which he had been previously employed. Mr Jedla told us during the course of his submissions that he thought that he had applied for jobs by about June of 1997 and even earlier to Royal Holloway College for what he described as a lowly job as microscopist. Sadly Mr Jedla suffered a stroke on the 24th March 1997 which has left him with a degree of disability on his left side. This, as the Tribunal noted, did not prevent him from making considerable efforts to rehabilitate himself by completing a course in computers, at time which must have been very distressing and difficult coming on top of all the anxiety of the Tribunal proceedings after his termination of employment. As to re-instatement the Tribunal stated at paragraph 4:-

"We considered the situation on re-instatement. It was quite clearly the case that the original Tribunal reached a number of conclusions of fact about the Applicant’s prospects of remaining at work which are reflected in the reasons of that hearing and decision. The principal plank on which the proceedings ended was a finding of only a 10% chance of successful redeployment of the Applicant. Any potential doubt which might possibly appear from an obvious construction of the reasons in that case sent and entered on 28 April 1998 was dispelled by the clear recollection of the two members who also sat on the original case, that a re-instatement order would have been totally out of the question. By this decision we confirm that we do not make a re-instatement order having considered the matter afresh and decided that a re-instatement order would not be practicable."

10.	No reference is made to re-engagement.

11.	Mr Jedla sought to appeal the decision of the Tribunal on both liability and remedy. At the preliminary hearing the only matter found to be arguable was the issue of remedy relating to the manner in which the Tribunal dealt with the question of re-engagement, and Mr Jedla expressed himself content that his appeal should be limited to that issue.

Re-engagement.

12.	It is conceded by the Respondent that the Tribunal dealing with remedy failed to comply with the mandatory requirements under sections 112 and 116 of the Employment Rights Act 1996. The Appellant had requested re-engagement as well as re-instatement in his letter of the 15th June 1998, a copy of which was sent to the Tribunal, and it has to be inferred that had the Tribunal, as they should have done under section 112, asked him, he would have requested it to make such an order.

13.	A failure to address a remedy which should be addressed should normally be dealt with by the matter being remitted to the Tribunal for it to rectify its omission and consider the question of re-engagement. Here however the Respondent submits that such a course would be futile as it is plain and obvious what the decision would and should be, it being inevitable that re-engagement would be refused.

14.	The Appellant submits that it is the duty of the Tribunal to consider the remedies of re-instatement and re-engagement and that the Employment Appeal Tribunal made this very clear in the decision of Telcom Metals Limited -v- Mr D L Henry EAT/287/87 when Mr Justice Popplewell said that it needed repeating that re-instatement and re-engagement are the primary remedies under the legislation.

15.	The failure to comply with section 112 of the Act was held not to render the decision a nullity by the Court of Appeal in Cowley -v- Manson Timber Limited [1995] IRLR 153. The Court was there considering section 68(1) of the Employment Protection (Consolidation) Act 1978 which is in the same terms as section 112 of the Employment Rights Act 1996. It was held that an order made without compliance with the section can be set aside if it appears that a failure to comply with the statutory duty leads to the possibility of injustice or unfairness being suffered by the person to whom the information should have been given.

16.	The Tribunal dealing with question of remedy found that the Appellant had made considerable efforts to find alternative employment for the first year or so after the termination of his employment. Furthermore he had not limited himself to employment at the senior level at which he had been previously employed but clearly looked for a variety of potential openings. They therefore took into account the fact that Mr Jedla showed readiness, after the termination of his employment, to take jobs which effectively were demotion compared with what he had been doing. They also took into account the terrible misfortune which befell the Appellant on the 24th March 1997 when he suffered a stroke, and noted his considerable efforts to rehabilitate himself. They were therefore aware of the Appellant’s preparedness after the termination of his employment to seek less senior posts and of his need to do so after his stroke.

17.	When a Tribunal is exercising its discretion as to whether to make an order for re-instatement or re-engagement section 116 requires it to consider re-instatement first and then if it decides against that, re-engagement. In each case the complainant’s wishes, either to be re-instated or as to the nature of the order of re-engagement, have to be taken into account together with whether it is practicable for the employer to comply with an order for re-instatement or in the case of re-engagement whether it is practicable for the employer or successor or associated employer to comply with an order for re-engagement. Where the complainant caused or contributed to some extent to the dismissal the Tribunal must also take into account whether it would be just to order his re-instatement or re-engagement.

18.	The Tribunal in this case rejected re-instatement in strong terms. The two members of the Tribunal who had sat on the liability hearing had the clear recollection that “a re-instatement order would have been totally out of the question.” The matter was considered afresh and the decision made that a re-instatement order would not be practicable. The Respondent submits that if this was the order made on the question of re-instatement it would be bound to be made on any application for re-engagement; indeed if re-instatement was totally out of the question re-engagement must have been even more so, given the fact that it would have involved the difficulty of Mr Jedla working in a demoted position.

19.	Mr Jedla and his daughter, who also assisted in making submissions to us, submitted that Mr Jedla would certainly have been prepared to have accepted demotion for the same pay as it made no sense for him to lose his life long job with no prospects, poor references and no reputation to speak of. It was submitted that it was not true that he had said to Dr Gummer that he would only accept promotion and this was borne out by the fact that in 1986 Mr Jedla had accepted demotion with the same pay. This referred to the finding at paragraph 5 of the liability decision where it was noted that after a merger in 1985 or 1986 Mr Jedla’s job title was changed to research scientist but he did not suffer loss in pay.

20.	Mr Jedla submitted that the importance of the skin lipid project that he was working on was of such importance to him and the Respondent that he was prepared to be demoted in order to carry on with this work and gain recognition for it. 

21.	Mr Jedla explained in his submissions to us that he had never said that he would only accept promotion, but had said that if Procter & Gamble offered no other solution than demotion he would consider only promotion. He confirmed that he would consider demotion as constructive dismissal and that he was told by Dr Gummer that it would be demotion at the same salary.

22.	We are satisfied that the liability decision at paragraph 84 correctly sets out the Appellant’s case as to what he then said.

23.	His account of what he told Dr Gummer is consistent with the answer to the Chairman set out in paragraph 114 of the liability decision that he would not accept demotion even though he knew that the alternative was dismissal. That decision reflected the fact that the matter was not certain, and that the Appellant might change his mind, by making a 10% compensatory award.

24.	As at the time of the liability hearing it was entirely understandable, in view of Mr Jedla’s then expressed attitude towards demotion, that a re-instatement order would have been regarded as totally out of the question as is noted in paragraph 4 of the remedy decision. By the time of the remedy hearing itself however the Appellant was plainly anxious to be either re-instated or re-engaged. The remedy tribunal therefore considered the matter afresh as at that date and decided that a re-instatement order would not be practicable.

25.	Should the answer be any different in relation to the question of re-engagement? The Appellant clearly thought that he was better than any demoted post he might be offered and had fought long and hard with the Respondent in order to prove his point that he was at least as good as the job he held. He considered that he had been discriminated against, treated unfairly and would have regarded demotion as constructive dismissal. Against that history, would the passage of time after his dismissal and the occurrence of his stroke so change the situation as to make it practicable for him to take a lesser job with the Respondent? We do not think so. We consider it inevitable that the irreconcilable differences, hostility and mistrust that existed between the Appellant and the Respondent would have persuaded the remedy tribunal to decline to make a re-engagement order in the same way as they declined to make a re-instatement order.

26.	It is of course the case that the remedy tribunal were aware of the Appellant’s preparedness to take a lesser job, and of his stroke, when they rejected a re-instatement order on the grounds that it would not be practicable. It may even be, as the Respondent submitted, that however they expressed the paragraph, the remedy tribunal had re-engagement in mind otherwise they would not have been considering the prospects of Mr Jedla accepting work in a demoted role. But any tribunal considering this matter afresh and in particular the question of re-engagement would have to look at the history of mistrust between the parties. The fact that this continues to date was well exemplified in both the Appellant’s skeleton argument and the submissions made by him and his daughter to us. It is said by or on behalf of the Appellant that the Respondent sought to manipulate the Employment Tribunal, that the Respondent intentionally misled the Tribunal in relation to discovery of the equal opportunity policy, that the proposal to demote the Appellant with the same salary was not genuine and intended only to mislead the Employment Tribunal, and that Dr Gummer had personal reasons for acting as he did caused by the Appellant’s race, Mr Jedla being of Czechoslovak origin.

27.	It was submitted on Mr Jedla’s behalf that the antipathy was only with Dr Gummer and that should not prevent one of the largest international corporations in the world being able to find employment for Mr Jedla in one of its jobs. We have considered this submission in the context of section 116(3)(b) and are clear in the view that the level of mistrust was so great that it is plain and obvious that it would not be practicable for the Appellant to be re-engaged by any part of the Respondent company or associated employer. The letter from the Respondent’s corporate legal department stating that they would oppose an application for the Appellant’s re-instatement or re-engagement was before the remedy tribunal. The evidence clearly established that Dr Gummer discussed the Appellant’s situation with his manager Mr Wilmshurst and that the Appellant went to see Mr Wilmshurst himself. Mr Wilmshurst however supported Dr Gummer’s assessment of the Appellant’s performance and was therefore on the face of it implicated in the allegation by the Appellant that the Respondent’s proposal to demote the Applicant with the same salary was not genuine and intended to mislead the Employment Tribunal. As the Court of Appeal said in Nothman -v- London Borough of Barnet [1980] IRLR 65:-

"It is only right to say that anyone who believes that they are a victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if re-instated or re-engaged."

28.	The Respondent also submits that the reason for Mr Jedla seeking a re-engagement order is to take advantage of early retirement and take the maximum advantage from his pension contributions and that such a purpose is not consistent with the statutory purpose for which re-employment orders were created. We are not however satisfied that this was the only purpose in the Appellant seeking re-engagement. We accept as the remedy tribunal did, that Mr Jedla has taken active steps to rehabilitate himself and might well be prepared to undertake some kind of work rather than do nothing.

29.	Finally Mr Jedla told us that he is still pursuing proceedings against the Respondent, there being an outstanding claim for victimisation to be heard at the Croydon Employment Tribunal in October. The continuing disputes between the Appellant and the Respondent are another factor in rendering it impracticable for re-engagement to take place.

Conclusions.

30.	Whilst the Employment Tribunal failed to follow the procedure under sections 112 and 116 of the Employment Rights Act 1996 in failing to consider the question of re-engagement, their failure has caused no possibility of injustice, unfairness or prejudice as it is inevitable that any Tribunal would have decided and would now decide that re-engagement was an inappropriate order to make. The reluctance of the Appellant, until after dismissal, to accept any demotion, the long and hard fought disciplinary procedure, the history of hostility and mistrust and the continuing proceedings for victimisation all mean that relations between the Appellant and the Respondent have long since reached the stage at which either re-instatement or re-engagement has ceased to be a realistic option. The fact that the Appellant has suffered a stroke is a matter for considerable sympathy but does not render re-engagement practicable in the circumstances of this case.

31.	The decision that re-engagement is as impracticable as re-instatement in the case of this Appellant and this Respondent is one which is plain and obvious on the facts and hence one which it is inevitable would have been and would now be made were the matter to be remitted back to the Employment Tribunal. The appeal is therefore dismissed.