Appeal No. UKEAT/0476/11/CEA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 16 February 2012

Before
HIS HONOUR JUDGE PETER CLARK
MR C EDWARDS
MR T STANWORTH

MR T C MARKHAM	APPELLANT

BRIGHTON FOOTBALL CLUB (RFU) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR L GODFREY
(of Counsel)
Instructed by:
Messrs Edward Harte LLP Solicitors
6 Pavilion Parade
Brighton
BN2 1RA
	
For the Respondent
	No appearance or representation by or on behalf of Respondent	

SUMMARY
UNFAIR DISMISSAL
Procedural fairness/automatically unfair dismissal
S.98A(2) ERA
Polkey deduction

Having found that the Claimant’s dismissal was automatically unfair under section 98A(1) ERA the Employment Tribunal erroneously went on to consider section 98A(2) and appeared to dismiss the claim.  Appeal by Claimant allowed; applying Polkey principles EAT accepted that a fair redundancy dismissal following a proper procedure was inevitable.  EAT assessed compensation.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This is the full hearing of an appeal brought by Mr Markham, the Claimant before the Brighton Employment Tribunal, against the Reserved Judgment of a Tribunal chaired by Employment Judge John Warren, promulgated with Reasons on 24 May 2011.  By their Judgment the Tribunal found that the Claimant was automatically unfairly dismissed by the Respondent, Brighton Football Club (RFU) Ltd, but that no compensation would be awarded.  The Respondent has opted not to participate in the appeal process and has no presence before us today.

Background
2.	The Claimant commenced employment with the Respondent club as its Catering Manager on about 27 October 2005.  The club fell into financial difficulties and a redundancy process in relation to the Claimant commenced, the Tribunal found, in January 2009.  Thus the dismissal and disciplinary procedure (DDP) regime under the Employment Act 2002 and the 2004 Regulations made thereunder, since repealed, applied.  He was finally dismissed in July 2009.

3.	The Tribunal found a total failure by the Respondent to comply with each step of the DDP.  The dismissal was therefore automatically unfair under section 98A(1) of the Employment Rights Act 1996 (see paragraph 26 of their Reasons).  At that point, it seems to us, the Tribunal’s reasoning went awry.  They considered section 98A(2) ERA.  That so‑called “reverse Polkey [v A E Dayton Services Ltd [1987] IRLR 503]” provision does not apply to dismissals rendered unfair under section 98A(1) (see, for example, Kelly-Madden v Manor Surgery [2007] ICR 203, Elias P (as he then was)).  Having done so, they concluded that had a proper procedure been followed the Claimant would have been dismissed fairly for redundancy (paragraph 27).  They then went on to find (paragraph 28) that the claim failed and was dismissed, contrary to their finding at paragraph 26 and paragraph 1 of their Judgment.

The appeal
4.	Based on that erroneous and internally inconsistent position, Mr Godfrey advances the Claimant’s appeal on the basis that he was at the least entitled to a compensatory award based on the time that it would have taken for a proper procedure to be completed.  That approach, in accordance with the Polkey principle, was adopted by the EAT in Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676, Wood P.  Further, no award was made for loss of statutory rights.  Finally, Mr Godfrey points out that a successful Claimant under section 98A(1) ERA is entitled ordinarily to an uplift of between 10 and 50 per cent of his compensatory award (Employment Act 2002, section 31).

Decision and disposal
5.	We entirely accept Mr Godfrey’s submissions and allow this appeal.  The question then is how we should dispose of it.  Bearing in mind the overriding objective and the exhortation by Jacobs LJ in Buckland v Bournemouth University [2010] IRLR 445 (paragraphs 57‑58) to avoid remission to the Employment Tribunal where possible and where all necessary facts have been found, we have been addressed by Mr Godfrey on remedy.  The Respondent, as we have noted, did not see fit to take part in the appeal for financial reasons.  It would therefore, it seems to us, be in both parties’ interests if we were able to determine remedy without the need for remission to the Employment Tribunal.

6.	In our judgement, based on the facts found by the Tribunal, a proper period in which the Respondent could have completed a fair redundancy dismissal in accordance with the DDP was four weeks.  Looking at the Claimant’s schedule of loss lodged below, his net weekly wage was £320; that gives a figure of £1,280.  In addition we would award the figure claimed of £350 for loss of statutory rights.  Finally, we award a 25‑per‑cent uplift on the total compensatory award of £1,630 under section 31 EA 2002, balancing the extent of the Respondent’s failure to comply with the DDP requirements with the size and administrative resources of the club.  Thus the total award is one of £2,037.50.  We can see no grounds for interfering with the Tribunal’s finding that (following a fair procedure) a fair redundancy dismissal would have been inevitable.

7.	Accordingly the appeal is allowed, and the Claimant will receive a compensatory award of £2,037.50, with liberty to the parties to apply within 14 days of the seal date of our order.