APPEARANCES
| For the Appellant |
Mr M Gullick
(of Counsel)
Ms M B Calvy
Archers Solicitors
No 215 Waterhouse Business Centre
2 Cromar Way
Great Warley
Chelmsford |
| For the Respondent |
Mr M Purchase
(of Counsel)
EEF Legal Services
Broadway House
Tothill Street
London
SW1H 9NQ |
SUMMARY
Practice and Procedure – 2002 Act and pre-action requirements
Unfair dismissal – Reason for dismissal including substantial other reason / constructive dismissal
On the Claimant's appeal, No error of law occurred when the Employment Tribunal uplifted the Claimant's compensation for unfair dismissal by 30% for serious failure by the Respondent to follow the statutory procedures. The Employment Tribunal correctly held the reason was redundancy.
HIS HONOUR JUDGE McMULLEN QC
- This case raises three points relating to unfair dismissal: the reason for the dismissal; whether there should have been a reduction of compensation following the principles in Polkey v AE Dayton Services Ltd [1987] IRLR 503, the Polkey point; and thirdly, whether the uplift in compensation awarded by the Tribunal for an automatically unfair dismissal should have been 50 per cent as claimed by the Claimant or 30 per cent as awarded by the Tribunal. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent
- At the outset it is worth noting that the Claimant succeeded in his claim of unfair dismissal, both on ordinary lines, and because it was automatically unfair, as the statutory procedure was not followed. He succeeded in obtaining a 30 per cent increase in his compensation.
Introduction
- It is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting at Stratford East, registered with reasons on 18 December 2006. The Chairman was Miss S Leslie. The Claimant is represented by Mr Mathew Gullick of Counsel and the Respondent by Mr Mathew Purchase of Counsel, having been represented by a consultant at the Employment Tribunal.
- We have determined two preliminary issues. The first relates to the admission of new evidence. Neither party relied on it, after we gave permission for it to be introduced. The second relates to the ability of the Claimant to argue in respect of additional reasons provided by the Employment Tribunal on 31 July 2007 following a request by Burton J. Having heard the argument before making our decision, we decided that it is correct to allow the point to be argued in accordance with an amended notice and thus all three points are live before us.
- The Claimant contended that he had been unfairly dismissed. The Respondent accepted that it had dismissed him, and conceded that it had not followed any steps in the statutory dismissal procedure regime set up by the 2002 Employment Act and the 2004 Regulations made pursuant to it, and so the unfair dismissal claim was automatically upheld.
- Notwithstanding the Claimant's success under the automatic unfair dismissal provisions, the Tribunal went on to consider ordinary unfair dismissal. A reduction in accordance with Polkey would not be permitted under the former, it is said, but the Tribunal applied it in respect of ordinary unfair dismissal and so there is a financial value in the appeal. The Claimant appeals against the judgment on the three grounds we have set out above.
- Directions sending this appeal to a full hearing were given at a Rule 3 (10) hearing by Burton J. He was dealing with an application arising out of a direction given by Wilkie J that only one of the grounds, the Polkey point, should proceed to a hearing. Burton J reluctantly allowed the reason for dismissal point to be argued; reluctantly because the case was going forward anyway and not be much additional time would be spent on arguing this point, although he acknowledged that is not the test and each ground of appeal must be sifted analytically.
- As to the uplift point, he requested further reasons from the Employment Tribunal, which have been forthcoming and for which we thank the Chairman. The matter did not return to Burton J as it ought to have done once the reasons were in. So, there has formally been no sift of this matter, but all of that has now been cured by this three-person EAT deciding to hear the point.
The issues
- The Tribunal set out the essential issues. Burton J gave a very full judgment at the Rule 3 hearing. Since this is now the third judicial consideration of the Claimant's appeal, it is expedient and proportionate that we adopt the work done by previous judges. As will become apparent, we agree with them. Burton J said this:
2. The Appellant, Mr Butler, was judged by the Employment Tribunal at Stratford to have been automatically unfairly dismissed as a result of failure by the Respondents, G R Carr (Essex) Ltd, to comply with the relevant procedures in respect of a dismissal, as they asserted, for redundancy of the Appellant as a Supervisor, one of two Supervisors, the other, a Mr Brown, being in the Basildon shop,. In paragraph 19, the Tribunal records:
"As Mr Brown had considerable more experience than the Claimant as well as much longer service, Mr Gilliland decided that the Claimant should be made redundant."
That said, there was no proper procedure followed through and Mr Gilliland "gave only cursory consideration to the question of the pool".
3. The Employment Tribunal, albeit it concluded that there was unfair dismissal on that basis, held that the dismissal was on grounds of redundancy; and that by application of the Polkey test, had a fair procedure been gone through, on the balance of probabilities even though the Appellant would have lost his job as a Supervisor, he would have been likely to have been offered, and it was held would have accepted, the job of a pipe fitter, albeit there would have then have been the risk of redundancy of that job in early course. In those circumstances, the Tribunal concluded that Polkey applied; and that, given that since February 2006 (see paragraph 40) the Respondent's complement of pipe fitters at the Basildon shop had reduced from six to two, on that basis there would have been a one in three chance that the Appellant would have been made redundant by the time of the Employment Tribunal hearing on 28 November 2006, even if a fair procedure had been carried out resulting in his acceptance of a pipe fitter job. The Tribunal therefore would have awarded a compensation for unfair dismissal, but reduced by reference to that one in three chance under Polkey.
….
6. I shall take the three points, now renewed before me, in turn.
7. The case as set out by the Respondents in their evidence was that there was a reduction in workload. Mr Gullick submits that if they had established that reduction in workload then it would, no doubt, have followed that there was a reduction in need for employees; but he submits that the Respondents did not establish that reduction in workload - indeed that the evidence would have been to the contrary - and that without the reduction in workload on which the Respondent's factual basis relied, the Tribunal was not entitled to accept that there was a redundancy ground for reducing the number of Supervisors to two.
8. The thinking of the Tribunal is quite clear from these passages of its judgment:
(1)..
"19 It was the Respondent's case that in or around October 2005 the company's workload had reduced to such an extent that Mr Stephen Gilliland (Managing Director) came to the decision that the company no longer required two supervisors at the Basildon shop."
(2)
"21 …The Claimant told us (in the context of evidence about his efforts to mitigate his loss) he would be happy to accept a fitter's job if a supervisor or foreman role was not available. In the circumstances, we are satisfied he would have accepted a pipe fitter's role had he been offered it."
Into that I insert from paragraph 40 the statement that
"Since February 2006 the Respondent's compliment [sic] of pipe fitters at the Basildon shop has reduced from six to two."
showing a continual reduction in the workforce.
(3)
"23. On 6 January 2006, the claimant attended a further meeting with Mr Gilliland, Mr Riley and another director. At this meeting, the Claimant was advised that there was sufficient work to extend his employment for a short period.
24. The Claimant's employment terminated on 24 February 2006."
(4)
"25. The Claimant asserts that:
i) his job still exists;
ii) he was dismissed because of a personality clash with Mr Gilliland; and,
iii) there has been no down turn in work at the Basildon shop."
I have no doubt that that case was put forward vigorously on his behalf by Mr Gullick of Counsel, who appeared for him, but the Tribunal made findings in relation to it:
"26. The Claimant accepts in his witness statement that he has no direct knowledge of the current arrangements at the Basildon shop. In the circumstances, we accept Mr Gilliland's evidence that the Claimant's duties have been subsumed by Mr Brown and there are no longer two supervisors at the Basildon shop."
The Tribunal then deals with the second matter referred to in paragraph 25 as having been part of the Claimant's case, namely the alleged improper or inappropriate reason for dismissal of a non-redundancy, being the alleged personality clash. And in paragraph 27 that is rejected on the facts by the Tribunal who conclude:
"we do not consider the Claimant was selected for redundancy on this basis."
(5)
"28. We do not consider it is necessary for the Respondent to establish a downturn in work at the Basildon shop in order to be able to prove there was a genuine redundancy situation. Irrespective of any downturn in work, we are satisfied there was no longer a requirement for two supervisors at the Basildon shop and that Mr Gilliland acted out of genuine motives."
(6)
"30 …was there a genuine redundancy situation within the meaning of section 139 of the Employment Rights Act 1996? We answer this question in the affirmative. We have found that the Claimant's duties have been subsumed by Mr Brown and that there are no longer two supervisors in the Basildon shop. We are satisfied therefore that by 24 February 2006 the Respondent's business no longer required two supervisors in the Basildon shop. Further, we are satisfied that the Claimant's dismissal was wholly or mainly attributable to this state of affairs. In particular, we are satisfied Mr Gilliland acted out of genuine motive and not because of any alleged personality clash between the two men."
9. So the Tribunal did not accept a downturn in work, which had been challenged by the Appellant. It did reject the alleged personality clash, and therefore ruled out any non-economic or inappropriate motive. And it simply drew the conclusion that there was a redundancy situation by virtue of the fact that there was a reduction in the workforce, and accepted the fact that the position of the Appellant was indeed in practice made redundant - i.e. superfluous in the sense that there was at the outset of this period a position of two supervisors and at the end of the period only one - without any suggestion of sham or improper motive.
10. On the face of it that is a perfectly appropriately logical conclusion for a Tribunal with two lay members on it to come to. There is no need for a downturn in work to be established, a reduction in the workforce of itself can be sufficient for redundancy if the Tribunal so decide.
- Burton J dismissed an application in relation to one of the grounds, which was taken no further, and then went on to describe his approach to the uplift. That was the subject of an order under the Burns/Barke procedure and has resulted in the Tribunal vouchsafing further reasons. So, in the above extracts, Burton J has utilised two of the very important tools introduced under his presidency, that is an analytic approach to Rule 3 cases and the seeking of further reasons for a Tribunal's judgment where they are
jejune.
The law
- The relevant provisions of the legislation are found in section 98, Employment Rights Act 1996 which provides for a reason for dismissal, which includes redundancy as being potentially fair, and section 98(4), which deals with fairness. We gratefully adopt the statement of the law given by the Employment Tribunal and as now relevant to the appeal
11. It is for the Respondent to establish firstly, the factual reason for dismissal and secondly that the reason, or the principle reason was for redundancy.
12. Redundancy is defined in section 139 Employment Rights Act 1996 as follows:
"an employee who dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –
(a) The fact that his employer has ceased or intends to cease
(i) to carry on the business for the purposes of which the employee was so employed, or
(ii) to carry on that business for the purposes of which the employee was so employed, or
(b) the fact that the requirements of that business:
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer
have ceased or diminished or are expected to diminish."
13. According to the House of Lords in Murray & another v Foyle Meats Ltd [1999] ICR 827 the language of the section asks two questions of fact. The first is whether the requirements of the employer's business for employees to carry out work of a particular kind have diminished. The second is whether the dismissal is wholly or mainly attributable to that state of affairs. This is a question of causation.
14. Assuming we are satisfied the Claimant was dismissed by reason of redundancy, we must then consider whether the Respondent acted reasonably in dismissing him for this reason. In Polkey v A E Dayton Services [1987] IRLR 503 HL, Lord Bridge laid down guidelines which a reasonable employer might be expected to follow in making a redundancy dismissal. He said that: '… in the case of redundancy, the employer will normally not act reasonable unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation'."
- Section 98A deals with automatic unfairness where statutory dismissal procedures have not been followed, and section 123 deals with the award of compensation. Section 123(1) provides as follows:
"(1) Subject to the provisions of this section and sections 124 and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
- When a Tribunal determines that there has been a failure to follow the statutory procedures, the Employment Act 2002 section 31 imposes obligations upon it, for it provides as follows:
"31(1) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that –
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were begun, and
(c) the non- completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent."
The facts
- Burton J has outlined the principal facts to which we will add the following. The Claimant was employed by the Respondent from 16 May 1998 to 24 February 2006 as a supervisor. The Tribunal said this:
"The Respondent is a small company engaged in the fabrication and erection of structural steel pipework. It employs approximately 54 people, 22 of who, are based at the steel company's shop in Basildon where the fabrication is carried out.
The claimant was employed by the Respondent as a supervisor at the Basildon shop. His employment commenced on 16 May 1998. The Claimant was one of two supervisors at the Basildon shop who between them supervised a team of pipe fitters, platers and other trades. The Claimant mainly supervised the pipe fitters while the other supervisor, Mr Brown, mainly supervised the platers."
- The Tribunal concluded that the Claimant was dismissed, following several reprieves by extending the written notice of dismissal, that there was a genuine redundancy situation and that the Claimant was dismissed for redundancy. The Tribunal said that it was not necessary for the Respondent to establish a downturn in the work of the Basildon shop. It therefore found that the reason for dismissal had been discharged by the Respondent.
- It then considered whether it had abided by the section 31 procedures and held that it breached every one of the three steps. The dismissal was automatically unfair. It appears that the same result was achieved in respect of what might be described as ordinary unfair dismissal under section 98(4). The Tribunal therefore went on to consider what the remedy would be, and in doing so it was addressed in terms on Polkey. The Tribunal made a number of findings:
"If Mr Gilliland had given proper consideration to the question of the pool and alternative employment, would the Claimant have been retained? The clear implication of Mr Gilliland's oral evidence was that either a vacancy for a pipe fitter existed or he would have been prepared to 'bump' one of the pipe fitters in order to retain the Claimant. Either way, we are satisfied the Claimant would have accepted such a role.
Since February 2006 the Respondent's complement of pipe fitters at the Basildon shop has reduced from six to two. On this basis, there would have been a one in three chance the Claimant would have been made redundant by now if he had accepted such a role."
- It then held that the Claimant had failed to mitigate his loss and capped those losses at a date when he failed to mitigate his loss, and he then set up in business on his own. It adjusted the uplift so that it awarded him 30 per cent uplift. It considered the future loss of earnings in jobs which he might have done and left open one matter since it did not have the relevant information. It set out the principles hoping that the parties would come together and agree them. Sadly, none of that has been forthcoming.
Discussion
- We will take the three points and give our views and conclusions on them in sequence.
The reason for dismissal
- The first issue relates to the reason for dismissal. It is contended that the Respondent had failed to discharge the duty to prove that the reason for dismissal was redundancy. The consequence of such a finding is that there would be automatic unfair dismissal, not this time for failure to carry out the statutory procedures but for failing to prove a potentially fair reason. There may be little utility in holding on to an un-appealed and conceded unfair dismissal under section 98A and seeking to challenge a finding under section 98(1), but we are asked to consider it nevertheless.
- The starting point must be the judgment of the House of Lords in Murray & Another v Foyle Meats Ltd (Northern Ireland) [1999] IRLR 562 (HL) set out by the Employment Tribunal. That was essentially an approval of Safeway Stores Plc v Burrell [1997] IRLR 200 EAT. Given the findings by the Tribunal that the Claimant was one of two supervisors, the Claimant's duties had been taken over by the other, Mr Brown, there was no need at the date of the dismissal for two supervisors; there were no longer two supervisors. The finding by the Tribunal is unimpeachable. Those circumstances constituted a redundancy situation within section 139 and the employer discharged the duty upon it under section 98(1).
- As Burton J was careful to point out, a decision of the Employment Tribunal relating what is now section 98(1) and 98(2) is very unlikely to be disturbed. The authorities all point to that conclusion. See Ladbroke Courage Holidays Ltd v Asten [1981] IRLR 59, Orr v Vaughan [1981] IRLR 63, and Grootcon (UK)Ltd v Keld [1984] IRLR 303 EAT
- We respectfully agree with Burton J in his provisional approach to this at the Rule 3 hearing, but now reinforced, having heard full argument by both counsel, that Grootcon is most unlikely to be followed today. The question of whether an employer has put forward sufficient material to discharge the burden of proof under section 98(1) and 98(2) is one of fact.
- There was material before the Employment Tribunal. We reject the contention that it was insufficient because there was no documentary material. As Mr Gullick was in due course constrained to accept, there was evidence, albeit he contends insufficient. Once there is evidence, it is open to the Tribunal to place weight upon it; such weight obviously being the lighter if it is purely oral than if it is all documentary. It is a matter of fact for it to decide.
- We therefore reject the contention that the Tribunal erred or reached a perverse conclusion in upholding the evidence relating to section 98(1). The dismissal was by reason of redundancy. The very high threshold imposed upon appeals on perversity by such judgments as Yeboah v Crofton [2002] IRLR 634 CA has not been surmounted in this case.
The Polkey reduction
- Mr Gullick's argument descends into four parts. There was insufficient evidence to enable the Tribunal to embark upon the Polkey exercise; its conclusions as to the likelihood of the Claimant being dismissed were perverse; it should not have adjourned the rate of pay of a pipe-fitter issue; and it failed to take account of the lack of a fair procedure when looking at the Claimant's experience.
- It is important to set in context the general principles now in place for determining whether there should be a Polkey reduction. These are set out by Elias J, President, in Software 2000 Ltd v Andrews & Ors [2007] IRLR 568 EAT:
"18(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.
(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to reply. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future).
(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.
(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.
(5) An appellate court must be wary about interfering with the tribunal's assessment that the exercise is too speculative. However, it must interfere if the tribunal has not directed itself properly and has taken too narrow a view of its role.
(6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a tribunal considers some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely."
- The Tribunal was bound to consider the Polkey exercise. It was not inappropriate: see the judgment of Pill LJ in Scope v Thornett [2006] EWCA (Civ) 1600. Inevitably following that judgment, there is bound to be some degree of impression and, as Pill LJ said, speculation, in constructing what would have happened when things did not happen that way. The Tribunal had the obligation to undertake the Polkey exercise, and in simple arithmetic, it is easy to understand how it reached the conclusions which it did. Two supervisors went down to one. Of the six fitters supervised, they went down to two by the time of the relevant circumstances. That arithmetic may be crude but it is the best the Tribunal could do on the material which was available to it making assessments as to the future.
- The Tribunal could not be said to have acted perversely, for again the overwhelming case required by Yeboah v Crofton [2002] IRLR 634 CA is not met here. It accepted the evidence of Mr Gilliland as to the relative numbers of supervisors and fitters. It cannot be criticised for leaving over the issue of the rate of pay. This was a matter which could be resolved by negotiation, and it did not fail to discharge its duty to the parties by failing to conclude this matter. It set out the basic principles to fix the amount.
- The Employment Tribunal plainly had material before it, upon which it could make judgments as to when and what the Claimant could obtain by way of work with the Respondent. It had before it the period of time during which the Claimant was under threat of dismissal, some four months, and since the contention before us is that a four-week period of consultation should have been allowed, that is subsumed within the four months. Since the documentary evidence before the Employment Tribunal included several notices of termination, each one extended, this ground of appeal is dismissed.
- The conclusion we have reached bears out Burton J's pessimism about this case and his acknowledgment that he was letting this aspect go forward simply because other parts of it were.
The uplift point
- As we have said, we have allowed this point to be fully argued and ventilated before us. The contention is that the Tribunal erred in law in imposing on the Respondent a 30 per cent uplift, when the only correct solution was 50 per cent or, according to Mr Gullick, possibly 45 per cent.
- Why should a Claimant who has achieved the satisfaction of a judgment in his favour, and an award of an uplift, wish to take issue with it? The answer has been skilfully crafted by Mr Gullick. It is contended that the Tribunal failed to apply the statutory provisions correctly, in that the correct starting point is to begin at 50 per cent and work down, in accordance with evidence produced by the Respondent of mitigation, if there were any. Otherwise, for a serious default in failing to carry out all three of the statutory steps, an uplift of the maximum is the only one permissible.
- In our judgment, that seriously misses the purpose and wording of the relevant regulations. It will be recalled that the regulations provide a discretion. This is the reason for the use of the word "may". The range is actually between 0 per cent and 50 per cent, although anything less than 10 per cent must be exceptional. On a scale of 0 to 50 the Tribunal has placed this case at 30, therefore well inside the top zone.
- The matters to be considered are unlimited. The Tribunal must do what it considers just and equitable, and what must be considered are all the circumstances. That is a formula, which is found in the relevant sections of the Employment Rights Act. First it is found in section 98(4) itself, which deals with fairness and liability. There, the use of the words, "in the circumstances", not "all the circumstances", is qualified by matters including the size and administrative resources of the Respondent.
- The second illustration of that phrase is section 123 itself where the compensatory award is set out. That is replicated in section 31 of the Employment Act 2002, such amount as "the Tribunal considers just and equitable in all the circumstances", but section 31 goes on to limit matters which it must have regard to.
- Those two analogues indicate to us that when Parliament came to consider the uplift in the context of both the finding of unfair dismissal under section 98 and an award under section 123, it did not impose words of limitation. Thus the discretion of the Tribunal, which of course must be exercised judicially, is not limited by any matter.
- We have been referred to three authorities from the industry of Counsel dealing with what the approach of an Employment Tribunal should be to the assessment of the uplift. They are CEX Ltd v Lewis [2007] UKEAT 0013_07_1008, a judgment of HHJ Burke QC and Members, Metrobus Ltd v Cook [2007] UKEAT 0490_06_0901, a judgment of myself with Members, and Aptuit (Edinburgh) Ltd v Kennedy UKEATS 00576, a judgment of Lady Smith and members.
- In these three cases, there was reference to the uplift; 10 per cent in CEX, which was upheld, 40 per cent in Metrobus, which was upheld, and 40 per cent in Aptuit, which was sent back to the Employment Tribunal.
- Mr Gullick asks us to give guidance to Employment Tribunals as to the correct approach. He does so on the basis that certain factors, such as a serious or blatant and deliberate disregard of the procedures, have formed part of one tribunal's thinking, and been upheld, whereas in Aptuit matters outside the failure to complete the statutory procedure should not have been taken in to account.
- Important as it may be for a Employment Tribunals to have guidance, this is not the case in which to do it because it is not necessary. When the Tribunal was asked to provide its reasons, it said this:
"In this case, the Tribunal has found that the Respondent had no regard to the statutory dismissal procedure. We take the view therefore that this was a significant and serious breach of the statutory procedure. In our view, this places the adjustment in the top half of the range ie 30% - 50%. In determining where in the top half of the range the adjustment should be set we consider it is just and equitable to take into account whether the breach was blatant or wilful. There was no evidence before us that the failure to comply with the procedure was blatant or wilful in the sense that the Respondent's Managing Director had deliberately decided to flout to procedure. In the circumstances, we consider it would be just and equitable to set the adjustment at 30%."
- The Tribunal pitched its award in the top half of the range. Where precisely in the top half, that is between 30 and 50 using a scale of 10 to 50, it puts it, is a matter of fact, we hold. The Tribunal has considered the starting point for this as being a significant and serious breach of the statutory procedure. That depiction is correct. All three steps were disregarded. When there has been such a serious breach, it is apt for a Tribunal to place the uplift in the top half of the bracket and the Tribunal's finding as to that is also correct.
- Whereabouts within the top bracket must be a matter for the discretion, exercised justly and equitably, of the Employment Tribunal. Here, the Tribunal considered whether the breach was wilful or blatant. It decided it was not a deliberate of the Respondent decision to flout the statutory regime. It therefore pitched it at the bottom end. Had it been blatant or wilful, it would have gone up.
- The circumstances are unlimited and in this case it has paid attention, apparently, to only one. That is not an error. The time for an examination of what the bracket is has not yet arrived since it is not necessary to decide it in this case. All that is necessary is for us to look at the reasons and to decide whether or not they fit within section 31; they do.
- HHJ Burke QC in CEX drew some support for the principles in section 31 from the approach of tribunals to cases of contribution for unfair dismissal, where percentage figures are rarely disturbed since they are matters of fact. Plainly, if a Tribunal decides that a claimant was 75 per cent at fault and contributed to his dismissal, and the correct approach is 25 percent, that may be more susceptible to an appeal, but otherwise these are matters of fact.
- Similarly, in the assessment of compensation in discrimination cases, where an approach based on Chief Constable of West Yorkshire Police v Vento [2002] EWCA (Civ) 1871 is usually correct, the allocation to a particular band may give rise to a question of law if the Tribunal has placed the injury to feelings in the top band rather than the bottom band. But, where in the band it places the award must be a matter for its judgment.
- We accept the force of what Peter Gibson LJ said in Susie Radin Ltd v GMB & Ors [2004] ICR 893 at paragraph 34, that it is impermissible to construe specific provisions in an Act implementing an EU directive by reference to what are perceived to be principles contained in other legislation. That case was dealing with what might have been a parallel, that of a protective award. The Court of Appeal decided that where there had been a breach, the correct approach was to start at the maximum protective award of compensation of 90 days' pay, and to work downwards. However, that relates to a differently worded statute, which requires a tribunal to pay attention to the seriousness of the employer's default, whereas section 31 is without qualification.
- Thus for those reasons, the placing by the Employment Tribunal of the award at 30 per cent does not give rise to a question of law. It has given its reason. As Burton J observed by reference to our judgment in Metrobus, even a short reason is sufficient for us to see what its thinking was.
Disposal
- We agree with Wilkie J on the reason for dismissal, and the uplift points. We think if the Burns/Barke reasons had come back to Burton J, he too would have dismissed the uplift point. For those reasons, the three grounds of appeal are dismissed. We would like to thank both counsel for their very helpful submissions today and we hope the Claimant will take satisfaction from the fact that his claim has been vindicated by awards of unfair dismissal and automatic unfair dismissal, and uplifts in the top half of the statutory bracket. He has 21 days to say whether he accepts the figure put forward by the Respondent, and if not, why not. If the parties cannot agree within 21 days from today, they should apply for a hearing at the Employment Tribunal.
