Appeal No. EAT/281/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21 October 1994

	Before

	HIS HONOUR JUDGE BULL QC

	MR S M SPRINGER MBE

	DR P D WICKENS OBE

ATLAS WRIGHT (LONDON) LTD	APPELLANTS

MR J R KAY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M THOMSON
(Solicitor)
Messrs Eversheds Alexander    Tatham (Solicitors)
London Scottish House
24 Mount Street
Manchester M2 3DB

For the Respondent	MR J R KAY
(in person)

	JUDGE BULL QC:  This is an appeal by Atlas Wright (London) Ltd against the decision of the Industrial Tribunal sitting at Ashford in Kent on 20 January 1994 by which it awarded to Mr Jeffery Kay compensation for unfair dismissal in the sum of £11,000.  The full reasons were sent to the parties on 1 February 1994.

	Mr Kay was one of four contract engineers employed by the Appellants in the design installation of computer suites.  On 13 April 1993 he was dismissed as the Industrial Tribunal found, upon the ground of redundancy.  The reasoning of the Industrial Tribunal was in this form:

		"16.	The Tribunal found Mr Kay an impressive and truthful witness.  We accept his evidence, and find it to represent the facts of the case.  In particular, we find the following facts:-

			1.	Although the letter of 7 April said that consultation would take place, we find that it did not take place.  We accept Mr Kay's evidence about the meeting with Mr Dobbs on 13 April.

			2.	A redundancy situation existed, and we find as a fact that the reason for Mr Kay's dismissal was redundancy.

			3.	We accept that the criteria set out at page 12 of the respondents' bundle were applied.

			4.	There is no evidence to show how those criteria were applied between Mr Kay and his colleagues, or to show why Mr Kay was selected for redundancy rather than both of his colleagues who were retained.

		17.	In the circumstances, it is the unanimous decision of the Tribunal that, although the reason for dismissal was redundancy, the respondents did not act fairly in treating that redundancy as a reason for dismissing Mr Kay.  It follows that his dismissal was unfair."

	The Industrial Tribunal set out in its reasons that before them the employers did not call any witness and at paragraph 14 they set out their view of Mr Kay.  They point out that he was cross-examined by Mr Thomson who, again, appears on this appeal on behalf of the employers, but in the opinion of the Industrial Tribunal:

		"... we do not think that it is necessary to set out details of the cross-examination.  Mr Thomson did not shake Mr Kay's evidence at all." 

	Before us, Mr Thomson, who has pursued this matter on behalf of the employers with tenacity, attacks the finding of the Industrial Tribunal on three main grounds.  First, he cites to us the well-known passage in the case of Polkey v A E Dayton Services Ltd [1988] ICR 142, from the speech of the Lord Chancellor at page 153 at E to F:

		"If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code.  Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair.  Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."

	Mr Thompson contends that the Industrial Tribunal made insufficient findings of fact to justify their decision.  However, it is to be noted that the employer called no witness before the Tribunal, and whilst that is not a necessary precondition for a finding that consulation would useless, we cannot see any basis for an argument, such as Mr Thompson addressed to us, that the Industrial Tribunal erred in its finding upon this aspect of the case. 

	Whilst failure to observe the requirement of the code relating to consultation or warning will not necessarily render the dismissal unfair, in the circumstances of this case the onus was upon the employer to demonstrate the basis for the submission of why it might have been utterly useless for him to follow the second stage of the process outlined in the case of Polkey v A E Dayton Services Ltd.  This the employers manifestly failed to do.  It is our unanimous view that there is no substance in the first round of criticism.

	The second ground of criticism advanced by Mr Thomson in his notice of appeal relates to the quantum of the award.  He says that the award of compensation was one which upon the findings of fact no reasonable tribunal properly directly itself could have made.  Again, we remind ourselves of the words of Lord Donaldson, Master of the Rolls, in the case of Piggott Brothers & Co Ltd v Jackson and others:

		"It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any  evidence or a clear self-misdirection in law by the Industrial Tribunal.  If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'." 

	In our judgment it cannot be said that the award here was unsupported by any evidence.  Indeed, there was evidence before the Tribunal upon which they could have reached the conclusion which they did.  That is a matter of fact for the Industrial Tribunal sitting as an industrial jury to determine.  Whatever, therefore, might have been the decision of this appellate tribunal, had we been sitting at first instance, we have to consider this matter upon the evidence before the Industrial Tribunal.  This finding cannot be attacked upon the ground that it was not a permissible option.  It cannot be attacked upon the grounds that there was a self-misdirection in law.  It therefore follows that, so far as this ground is concerned, we likewise find that it is without substance.

	The third ground upon which Mr Thomson suggests that the Industrial Tribunal erred in law, is that it misdirected itself in applying the incorrect limit when calculating the award which was made.

	The Industrial Tribunal finds the fact that the Appellant was dismissed on 13 April.  The date of dismissal has, of course, to be calculated in accordance with s.55(5) of the Employment Protection (Consolidation) Act 1978.  Section 55 provides that:

		"Where the contract of employment is terminated by the employer and the notice required by section 49 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (4)) then, for the purposes of sections 54(2), 64(1)(a), 64A and 73(3) and paragraph 8(3) of Schedule 14, the later date shall be treated as the effective date of termination in relation to the dismissal."

	It is agreed by the parties that Mr Kay is entitled to four weeks' notice in respect of his dismissal and we find that the effective date of termination in relation to this dismissal is, therefore, the addition of four weeks to the date of 13 April, bringing that date to 13 May 1993.  

	The limit upon compensation is set by s.75(1), which reads:

		"The amount of compensation awarded to a person under section 71(1) or of a compensatory award to a person calculated in accordance with section 74 shall [with an exception that does not apply in this case] not exceed [a specified figure is set out].

	The Secretary of State, by subsection (2) is given the power to order the increase in a limit as, from time to time, increased under the subsection and there are procedures laid down of the way in which this should be carried out.

	The limit was increased by the Unfair Dismissal (Increase of Compensation Limit) Order of 1993, the effect of which was to bring about an increase from the previous limit of £10,000, which applied from 1 April 1991 (see Statutory Instrument 1991/466) to a sum of £11,000 but s.1 of the Unfair Dismissal (Increase of Compensation Limit) Order of 1993 provides that it shall come into force on 1 June 1993.

	We regret that we cannot take into account matters other than those provided by statute in computing the date upon which we must act.  The date, and there is agreement between the parties on this, in its computation under the Act, is of course 13 May 1993.  It follows that the appropriate ceiling at that stage, it being a date before 1 June 1993, was one of £10,000 and not £11,000.  Accordingly, we are obliged to have regard to the maximum compensatory award at the appropriate date and allow this appeal only to the extent that the award is reduced to the sum of £10,000.  The prescribed and non-prescribed elements will, in consequence, have to be adjusted.  

	It follows that this appeal is allowed only in so far as the maximum amount to be awarded is the sum of £10,000 and not £11,000.