Appeal No. EAT/1173/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	               On 4 March 2002
Judgment delivered on 25 March 2001

Before
MR COMMISSIONER HOWELL QC
MR J HOUGHAM CBE
MRS T A MARSLAND

MR P CAVE	APPELLANT

BORAX EUROPE LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

MR COMMISSIONER HOWELL QC

1	In this appeal before us for preliminary hearing, Mr Peter Cave is seeking to have set aside as erroneous in law the Decision of the London South Employment Tribunal contained in Summary Reasons which were sent to the parties on 16 August 2001, after a hearing and further consideration spread over a total of six days in July 2001.  Although the Reasons document before us at pages 7 - 12 of the appeal file is identified as a statement of “Summary Reasons” only and Mr Cave has failed to obtain a statement of Extended Reasons in accordance with the usual requirements, the Summary document in fact sets out the reasons for the Tribunal’s Decision clearly and in considerable detail.  After consultation with the President of the EAT a Registrar’s direction has been given by letter dated 12 February 2002 at the interlocutory stage of this appeal, waiving any defect in there not being a more extended Statement of Reasons; and accordingly the appeal has been permitted to proceed on the basis that the summary Statement constitutes the record of the Tribunal’s Reasons for this purpose.

2	Mr Cave’s proceedings before the Tribunal were for unfair dismissal against his former employers, Borax Europe Ltd, by whom he had been employed from 1 January 1999 until 30 April 2000 as a European Logistics Specialist.  His Originating Application dated 26 July 2000 had alleged unfair dismissal in being wrongly or unfairly selected for alleged redundancy, and further, that his dismissal had been unfair in breach of the Public Interest Disclosure Act 1998.  An additional claim of breach of contract was subsequently withdrawn before the full Tribunal hearing.  As recorded by the Tribunal in paragraph 1 of their Statement of Reasons,  following clarification at an earlier directions hearing the issues for them to consider were (1) whether the Applicant’s dismissal on the ground of alleged redundancy or the reorganisation of the department in which he worked had been unfair for the purposes of section 98 Employment Rights Act 1996, and further or alternatively (2) whether he had established a case of unfair dismissal under section 103A of that Act on the ground of his having been dismissed because he had made a protected disclosure.  The particular disclosures Mr Cave was relying on were identified in paragraph 1 of the Tribunal’s Reasons; they consisted of various occasions when he claimed to have drawn deficiencies in health and safety procedures to the attention of his line manager or others on behalf of the Respondents.  

3	Dealing with those claims first, the Tribunal recorded that the Applicant had (with one exception) failed to prove the disclosures he was relying on had in fact been made at all. The exception was one instance in the summer of 1998 when he raised a concern about men working at height in the company’s Rotterdam site, in circumstances he perceived to be unsafe.  As to that, the Tribunal expressed doubt whether the provisions of section 103A could apply at all to disclosures which preceded the introduction of the new legislation by the Public Interest Disclosure Act 1998 and thus had not been “protected” at the time they were made. In any event however the Tribunal went on to find expressly as a fact that they were satisfied that this disclosure had had no connection whatsoever with the subsequent dismissal of the Applicant, by the three months’ notice that was given to him in early 2000.  They reinforced this by recording further that they were entirely satisfied that his dismissal was wholly unconnected with any activity pursued, or concern raised, by him relating to matters of health and safety, in compliance with statutory regulation or any associated topic. They therefore dismissed the claim under section 103A.  

4	As regards the claim for unfair dismissal under section 98, the tribunal recorded a further finding of fact that the reason for the Applicant’s dismissal was that he was redundant. This was because the Respondents intended to reorganise the distribution and operations department, by deleting his role and that of another employee (described as a logistical analyst) and replacing both with a single position to be filled by an employee operating at a lower level of responsibility and salary than the Applicant.  They added a further finding that even if they were wrong in holding the Applicant to have been redundant, the Respondents had demonstrated, in this reorganisation of the department, some other substantial reason of a kind such as to justify dismissal.  They therefore held that the Respondents had discharged the burden of establishing a potentially fair reason for the dismissal.  Nevertheless they held that the actual way the dismissal had been carried out was unfair: the Applicant’s line manager had failed to undertake a proper assessment of the needs of the business and the case for preserving the Applicant’s employment instead of that of the other employee concerned. The dismissal was also unfair in the manner of its handling as the Respondents had failed to enter into meaningful consultation with the Applicant. 

5	The Tribunal thus held the complaint of unfair dismissal under section 98 of the Employment Rights Act 1996 to be well founded, and then proceeded at the same hearing (as they recorded, with the agreement of the parties) to consider whether he was entitled to any financial compensation for it.  Having done so they held, for reasons they explained, that had the correct processes of assessment, consideration and consultation been carried out by the Respondents, the result at the end of the day would have had to have been exactly the same. It would have been the Applicant’s post that had to go, and he would not have remained in employment with the Respondents at all beyond the date when his actual three months’ notice period expired on 30 April 2000.  They concluded that:
“(11) ………….All of these considerations persuade us to a very high standard of proof that the unfair dismissal occasioned no monetary loss to the Applicant.  Not only has he suffered no out of pocket losses, he is also not entitled to any conventional award for loss of statutory rights (which we would otherwise grant in the sum of perhaps £200) because, but for the unfair dismissal, he would have lost those rights in any event without being entitled to compensation therefor.  In the circumstances, we would assess any compensatory award at nil.
(12)  Since the Applicant received a statutory redundancy payment, he is not entitled to any basic award.
(13)  For all the above reasons, the Applicant is not entitled to any compensation in respect of his unfair dismissal.”

6	Having thus determined the issues on unfair dismissal and compensation in the way they did, the Tribunal adjourned to a further date the one outstanding question of whether the Applicant was entitled to an Order for reinstatement.  That had been the primary remedy which he had originally sought but so far as this appeal is concerned, nothing turns on that now.

7	The appeal by Mr Cave’s Notice of Appeal dated 22 September 2001 is based on numerous grounds set out by him in an attached document, and amplified in oral submissions on the appeal hearing before us with the aid of a helpful Skeleton Argument refining and summarising the points on which he now sought to rely.  As he explained to us the point he was seeking to establish by pursuing this appeal was the one of principle that he had never been truly redundant at all and his actual dismissal had been for quite different reasons.  Some or all of these had been the subject of other litigation in which he had been involved against the same company in the High Court.  His first contention was accordingly that the Tribunal had erred in the conclusions they had reached about this, in rejecting his evidence and accepting that of the Respondents, which had included additional material only introduced at a late stage of the proceedings before the Tribunal.  We were not persuaded that this gave rise to a sufficiently arguable issue of law to warrant our directing it to proceed to a full hearing.  The assessment of the weight of the evidence is of course a matter for the Tribunal of fact to determine; and we were not satisfied that the detailed points urged by Mr Cave under this head showed either that the Tribunal’s finding of fact as to redundancy was unjustified having regard to the evidence before them, or that there had been any defect in the way the evidence on any relevant issue had been dealt with. In this context we have also taken account of what was said in Mr Cave’s later application to the Tribunal for the Decision to be reviewed at that level, and the Tribunal Chairman’s Decision with Extended Reasons dated 15 November 2001 rejecting that application, which to some extent goes over similar grounds.

8	For similar reasons we reject Mr Cave’s second main point, which was that the Tribunal had been wrong to make any finding of fact on the question of “some other substantial reason” which he contended was not an issue properly before them at all.  This was an issue expressly pleaded in the alternative in the Respondents’ Notice of Appearance dated 18 August 2000 at page 56: and as recorded by the Chairman in his Review Decision at page 41, the Applicant’s contention that this issue had been removed from the proceedings at the interlocutory stage is simply not made out. In any event the primary finding of fact against him was that the reorganisation had amounted to a true redundancy.  

9	Thirdly Mr Cave said that the Tribunal had misdirected themselves and misapplied the legal principles in Polkey -v- Dayton Services Ltd [1988] ICR 142 in the way they dealt with the compensation issue.  Again this repeats a submission made to the Tribunal Chairman on the review application and again, in our judgment, it discloses no error of law.  The decision that the Applicant had failed to establish that he had actually suffered any financial loss at all from the procedural failures identified by the Tribunal, with the result that he was entitled to no compensation beyond the statutory redundancy payment and three months notice he had already received, was in our judgment, one open to the Tribunal to reach on the facts they found.  It was not necessary to give detailed consideration to the Applicant’s statement of claimed losses in order to reach that conclusion.  

10	The principal point he made to us was that what is commonly referred to a “Polkey reduction” can only properly be carried out by starting with the actual losses claimed by the Applicant and then reducing them by a “discount” percentage so as to reflect the chances and uncertainties of the position, so as to arrive at an award of a lower (but still positive) figure.  In our judgment that is not a correct reading of the principles laid down by the House of Lords in Polkey itself, since as the judgment of Lord Bridge at page 163 D - H makes clear, it will often be the case that if the Tribunal is satisfied that whatever appropriate procedural steps should have been taken would not in fact have affected the outcome, the employee though unfairly dismissed will recover no compensation in excess of his redundancy payment.  It is always for the applicant to satisfy the Tribunal on the balance of probabilities that the unfairness of which he complains has in fact given rise to some loss for which he ought to be compensated.  The well known observation of Mr Justice Browne-Wilkinson quoted by Lord Bridge at page 163H that in a case of genuine doubt as to the probable outcome
“There is no need   for an all or nothing decision”
(our emphasis) does not in any way preclude the Tribunal from arriving at such a decision if they find the facts justify it.  That was the case here, and in our judgment, the Tribunal were justified in awarding no compensation when satisfied, as they put it, “to a very high standard of proof”, that the unfair dismissal had occasioned no monetary loss to the Applicant at all, for reasons they clearly explained.

11	Fourthly, Mr Cave said the Tribunal had misdirected themselves in law on the “protected disclosure” question, either in their interpretation of section 103A of the 1996 Act or in not taking account of other similar disclosures he said he had mentioned in his evidence.  Again we have not been persuaded there is any arguable point of law here. The protected disclosures to be relied on had been clearly identified in the interlocutory Order of the Tribunal as recorded in paragraph 1 of the Reasons for the Decision, and the reason the claim under section 103A was rejected was, as recorded very clearly in paragraph 4 (1) - (5) of the Statement of Reasons of 16 August 2001, the combination of the failure to prove the making of the alleged disclosures and failure to prove any causal connection between any disclosure and dismissal.  These were matters for the Tribunal on the facts.  

12	A number of further detailed criticisms were made by Mr Cave of the Tribunal’s treatment of his and the Respondents’ evidence but again in our judgment all of these fall within the established principle that it is not for the Appeal Tribunal to interfere with the factual findings of the Employment Tribunal which has seen and heard the evidence, in particular where the Tribunal has conducted such an extensive and comprehensive enquiry into the factual evidence as (we are quite satisfied, from all the material before us) took place here.

13	Finally we were not satisfied that any of the procedural criticisms Mr Cave pursued against the Tribunal, to a considerable extent repeating points already made to the Tribunal Chairman and rightly rejected by him on the application for review, gave rise to any arguable error of law.  It is not of course an error of law for a Tribunal’s Statement of Reasons (even had they been in extended form) to have failed to deal expressly with every single point or potential discrepancy in the evidence, and we decline to infer any error of law from the detailed matters Mr Cave sought to call in question.  It does not, of course, make the Tribunal’s Decision erroneous in law that Mr Cave now has additional material from his High Court proceedings which he claims to be relevant and wishes to have a chance of producing in evidence at the tribunal, as at one point his argument suggested.  

14	For those reasons, this appeal is unanimously dismissed, and we also refuse Mr Cave’s application for leave to appeal to the Court of Appeal as we are not satisfied any arguable point of law has been shown.