Appeal No. EAT/376/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3 May 1995

	Before

	HIS HONOUR JUDGE C SMITH QC

	MR E HAMMOND OBE

	MR K M YOUNG

R L EDE	APPELLANT

AYLSHAM MOTOR CO LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T KIBLING
(Of Counsel)
Steele & Co.
2 The Norwich Business Park
Whiting Road
Norwich
NR4  6DJ

For the Respondents	NOT PRESENT OR 	REPRESENTED 

	HIS HONOUR JUDGE SMITH QC:   The Applicant was employed at a garage as a car valet and petrol pump attendant.  He was made redundant on 27 September 1993, by being replaced by two part-time employees, in a manner which is correctly described as  a form of "bumping" redundancy, in the Industrial Tribunal's Decision.  There is no need for me to say anything further about that.  The Tribunal held, and again everybody agrees, held quite rightly that his dismissal for redundancy was unfair, because of a failure on the part of the Respondents to consult with the Applicant concerning the position brought about by the retirement through ill-health, of the salesman Mr Roley Nash.  [I should have said that the Respondents are not here today and that the Appellant is represented by Counsel Mr Kibling, who has assisted us very greatly in the way he has presented the matter to us today.]  

	The decision of the Tribunal was to award a redundancy payment together with compensation limited to the period of time during which they assess the consultative process should have taken place, amounting to 4 weeks wages.  The point of law, in a nutshell, taken on the appeal (there were other points which are no longer pursued now) is that, in the light of the primary findings of the Tribunal, particularly in paragraphs 7 and 8 of the Decision,  the Tribunal as a matter of law, in the light of its own findings, were bound to make an assessment of the chances of the consultation, which should have taken place, resulting in the Applicant being enabled to retain his employment, perhaps with a more flexible lunch hour, so that cover could be more conveniently and efficiently arranged for him.  The submission on behalf of the Applicant is that the Tribunal, although it found as fact, I repeat, that there was a chance of consultation succeeding, failed to make a compensatory award on the proportion which the chance of consultation succeeding, expressed in percentage terms, bore to the total compensatory award which the Applicant would have received, upon the basis that the consultation was bound to result in his keeping his employment.
	In support of his submission, Counsel for the Applicant relied and, in our judgment quite rightly relied, of course, on the decision of the House of Lords in Polkey v A E Dayton Services Ltd expressing approval of the dicta of a past president of this Appeal Tribunal, Mr Justice Browne-Wilkinson, as he then was, in the case of Sillifant v Powell Duffryn Timber Limited as follows:

	"There is no need for an all or nothing decision.  If the Industrial Tribunal thinks there is a doubt whether or not an employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment"       

We have considered this matter carefully: I sit with two very experienced Members; we all agree that this submission should be upheld.  Unfortunately, the Tribunal, though having stated all the primary facts correctly, erred in not carrying on to consider what could be shortly called the "percentage" approach.  Thus the Tribunal clearly stated firstly that, in its view, consultation might or might not have been successful.  Secondly, it was not very hopeful that had proper consultation taken place, the outcome would have been very different, as it put it.  In our judgment, it appears clear from these findings, that the Tribunal believed that there was some prospect, albeit clearly less than 50%, that the requisite consultation might have had a favourable outcome from the Applicant's point of view.   In such circumstances we consider that, as I have already said, the Tribunal should then have gone on to assess the chances of consultation succeeding and made a compensatory award in accordance with the principles laid down in Sillifant, as I have referred to above.  Accordingly, for that reason, which I hope I have stated adequately, we allow the appeal and remit the case to the same Tribunal.