Appeal No. EAT/22/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 February 1995

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR E HAMMOND OBE

	MR A D SCOTT

BAILEY & SONS (PLUMBERS AND DECORATORS) LTD	APPELLANTS

MR M C CARTER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR S C BOWEN
(Director)
Federation of Master Builders
4 Brooklands Avenue
Cambridge
CB2 2BB

For the Respondent	MR R J WRENN
(Solicitor)
Messrs Burnhams
1 High Street
Wellingborough
NN8 4HS

	JUDGE LEVY QC:   Mr Carter was employed by Bailey & Sons (Plumbers and Decorators) Ltd ("the Company") for some years prior to events which took place on 30 January 1992.  On that occasion he was, we think, summarily and as the Industrial Tribunal found, unfairly dismissed.  He commenced proceedings in the Industrial Tribunal on 10 February 1992, and in those proceedings he claimed it was an unfair dismissal because the Company dismissed him to avoid making him redundant.  The latter would have led to him being entitled to greater compensation.  

	A Notice of Appearance was entered by the Company on 27 February 1992 and there was a hearing before a Bedford Industrial Tribunal on 11 March 1993.  The Decision of the Tribunal was sent out to the parties on 5 May 1993.  That Decision has been provided for us by Mr Wrenn, who appeared before the employer below, as he has today.  

	The unanimous decision of the Tribunal was that Mr Carter had been unfairly dismissed.  The parties were invited to settle the matter of remedy between them, and if they were unable to do so to apply to the Tribunal.  

	It is necessary at this stage to set out only that the Tribunal found (in paragraph 10 of its Full Reasons) that they were satisfied that the reason of the Company for dismissing Mr Carter was conduct, and they found there had been a flagrant breach of the proper procedures if he was to be dismissed on that ground.  

	Subsequently, there was the remedy hearing which was held on 15 November 1993, and the decision was sent to the parties on 14 December 1993.  In the remedy hearing, there was no quarrel about the basic award, but the compensation award has been the subject of this appeal.

	At the remedy hearing it is clear, on the notes of evidence which we had, that Mr Bailey gave evidence for the Company which was not challenged.  His evidence was to the effect that, if Mr Carter had not been dismissed he would have been laid off for a period up to six months.  He was not cross-examined.  

	Mr Wrenn appeared for Mr Carter in the Industrial Tribunal and appears for him today.  As recorded on page 21 of our bundle, one submission he made in his closing speech was this:- 

		"The `last in, first out' rule usually applied in redundancy cases should also apply in the case of lay off.  On Mr Bailey's evidence there would clearly have been grounds late for bringing an unfair dismissal claim.  In describing how the applicant would have been selected for redundancy Mr Bailey chose commercial reasons and not the law which requires a fair selection procedure in cases of lay off and redundancy. ....".

	That is a submission which Mr Wrenn has accepted today has no foundation in law, but it seems to have had some affect on the Tribunal's decision because this is what we find in paragraph 6 of the Full Reasons:

		"6  Had there been a need to lay off employees for any significant period between the 30 January 1992 and the 20 March 1992, we are not satisfied that the applicant would have been the automatic choice.  Mr Doyle had half the service of the applicant and unlike the applicant was engaged on jobbing work.  Had the applicant still been employed we think it more likely that the respondent would have chosen to lay off Mr Doyle than the applicant.  We find that the applicant would have been laid off as planned on the 30 January 1992 had he remained in employment and we find that the period of lay-off would have been 2 weeks.  ....".

	The Tribunal then made its calculations of compensation based on that finding.  Mr Bowen attacks that finding as being one which was made without proper findings of fact, and indeed contrary to the evidence.  We think there is much in what Mr Bowen says, certainly where we find that Mr Bailey's evidence was not the subject of any cross-examination, which it should have been to justify the submission which was made.

	We are mindful of the approach on to appeals from Remedy Hearings which was reaffirmed by EAT headed by Phillips J., in Fougère  v  Phoenix Motor Co Ltd [1976] ICR 495.  At page 497; there is a passage in the judgment which reads:

		".... it needs to be known that the appeal tribunal will not interfere with awards of compensation, unless the error is shown to be something which could be described as more than trifling.  The reason for that is a practical one:  industrial tribunals have to work in practical conditions, and they are obliged to assess the amount of compensation quickly - and fairly of course - but they are bound of necessity to operate in a somewhat rough and ready way, and to paint the picture with a broad brush.  It is in everbody's interest that that should be the case.  It may mean that sometimes an employee will get a bit less than he might have expected; it may mean that sometimes an employer will have to pay a little more than he had expected.  But, if the compensation were to be worked out accurately to the very last halfpenny, it would require prolonged hearings, elaborate interlocutory procedures and all sorts of refinements which would be wholly out of place in a procedure which is meant to be quick, open to the unrepresented, and simple.  Of course, if there is a serious error and that can be shown, then the appeal tribunal will interfere.  But it will not do so in respect of trifling amounts or unimportant errors. ....". 

	Having heard from Mr Bowen and Mr Wrenn today, we are satisfied that what happened below, was not a trifling amount or an unimportant error.  There was a failure properly to consider whether, on the evidence before them, the facts we have set out in paragraph 6 could properly be found.  The Tribunal was not asked to, and did not consider whether, if Mr Bowen had stayed in the employment and been laid off in the way that the Director suggested, whether he might have had a different claim than that in which he was successful before the Tribunal.

	We think, in the circumstances, the appropriate step for us to take is to allow this appeal and to remit this matter to the Industrial Tribunal who heard it, if possible, for further consideration.  It will be up to the Industrial Tribunal to decide whether they wish there to be further submissions or whether to allow further evidence on a further hearing.  To that extent, this appeal succeeds.