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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Finlay v Governors of Fettes Trust [2004] UKEAT 0086_03_3006 (30 June 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0086_03_3006.html Cite as: [2004] UKEAT 0086_03_3006, [2004] UKEAT 86_3_3006

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APPEARANCES

 

For the Appellant	Mr C Phillips, Solicitor Of- Messrs Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ
For the Respondents	Mrs J Bell, Solicitor Of- Messrs Anderson Strathern Solicitors 48 Castle Street EDINBURGH EH2 3LX

SUMMARY UNFAIR DISMISSAL Issue of reinstatement or re-engagement or compensation
 
LORD JOHNSTON:
1. This is an appeal at the instance of the appellant employee in respect of the conclusions of the Employment Tribunal sitting in Edinburgh with regard to the remedies to which she was entitled consequent to a finding of unfair dismissal which was established by the same Tribunal at a previous hearing.
2. The decision of the Tribunal in relation to remedy concerned itself only with compensation and the issue before us related to whether or not the appellant was entitled to reinstatement or re-engagement.
3. Historically, the appellant, who represented herself, did raise the issue of reinstatement or re-engagement at the Tribunal, apparently at the first hearing and in subsequent correspondence but did not raise the matter again at the remedies hearing, it seems upon the basis that she was told by the Chairman that the matter had already been considered. Be that as it may, she thereafter requested a review with a view to addressing the issue of reinstatement and re-engagement.
4. The position adopted by Mr Phillips, on behalf of the appellant, was simply that the Tribunal had failed properly to address the issues raised by section 112 of the Employment Rights Act 1996 in respect of informing the applicant of her entitlement to remedy, and, in particular, to reinstatement or re-engagement but, in any event, had failed adequately to address the issue in its findings, and, in particular, should have granted a review so that the matter could be properly investigated. He accepted that a failure under section 112 did not render the decision a nullity but rather depended upon the issue of prejudice (Cowley v Mansion Timber Ltd [1995] IRLR 153, Constantine v McGregor Cory Ltd [2000] ICR 938).
5. The Chairman gave his reasons for refusing a review in a letter dated 22 August 2003 in the following terms:-

"1. The matter of reinstatement was not explored at the hearing. Indeed, on your originating application, your preferred remedy was stated to be "compensation".

2. The matter of reinstatement was not referred to in the submissions of the respondent or in your own submission at the conclusion of the evidence.

3. In any event, this is not a case in which it would have been appropriate to order reinstatement. The hearing took place in January 2003, the dismissal took place at the end of July 2001. The time gap extended to 18 months. Furthermore, the relationships as they were at the time of dismissal between yourself and certain persons in the College were not conducive to any continuing happy working relationship.

4. Reinstatement can only occur where the job being done before dismissal is still in existence at the time the order is made. In this connection the Chairman would refer you to the Tribunal's decision promulgated on 17 July 2003."

6. Mr Phillips argued that the question of reinstatement or re-engagement raised a number of issues in general terms relating to practicability, working relationships, passage of time and the like, all of which required to be considered, and, if positive arguments were being advanced by the employer against reinstatement or re-engagement, the employee should be given adequate opportunity to rebut them. This is not what had happened in this case, not least by the refusal to grant a review. In any event, his client was prejudiced by the fact that she had a continuing loss of earnings beyond which was allowed for in the compensation award by reason of the fact that she had not been reinstated or re-engaged.
7. Mrs Bell, appearing for the respondents, submitted that the Tribunal had performed its obligation under section 112 since the matter of reinstatement or re-engagement was before it at the instance of the applicant at the original hearing. Furthermore, she submitted that, properly understood, the Chairman had adequately addressed the question of working relationships and the passage of time, and, had, accordingly, determined that reinstatement or re-engagement was not practicable. The matter should therefore be allowed to stand. She referred us in this respect to Meridian v Gomersall [1997] ICR 597 and Enessy Co SA v Minoprio and Minoprio [1978] IRLR 489.
8. Looking at this matter across the board, we are clearly of the view that the issue of reinstatement or re-engagement was not adequately investigated by the Tribunal at the first hearing nor at the second hearing, and, that, accordingly, the refusal of the Chairman to grant a review, compounded what was effectively an error of law. We have little doubt the Chairman appears to have concluded that the working relationships between the parties had so deteriorated that reinstatement or re-engagement was not appropriate but the matter should have been addressed in much greater depth, which a review would have presumably been able to achieve. The reasons given by the Chairman for not granting a review are, in our view, inadequate, and, in any event, pre-emptive inasmuch as he should have heard the parties before determining that a review had no prospects of success. Applications for review can be an extremely useful way of clarifying points at issue after a decision has been made and this is a clear case where circumstances demanded it, not least, where the applicant was representing herself.
9. On this simple ground we consider the issue of remedy requires to be re-investigated, both as to the final levels of compensation as well as the issue of reinstatement or re-engagement. We offer no view upon the evidence as to whether or not such is practicable in either context but the matter must be properly investigated.
10. Although the Tribunal has already expressed a view to some extent, we do not consider that this precludes it from undertaking a review of the whole matter. We will therefore remit this matter back to the same Tribunal for a full consideration of all questions of remedy, namely, reinstatement, re-engagement and/or compensation.
11. On this basis this appeal is allowed and the case remitted back to the same Tribunal to proceed as accords. We will, as a matter of procedural position, quash the decision of the Tribunal in relation to the issue of remedy, leaving it to make any further order as it thinks fit.