Appeal No.	 EAT/756/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 January 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
MR D J JENKINS MBE

G COSTA & CO LTD	APPELLANTS

MISS HLAD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M WEST
(Senior Advocate)
Peninsula Business Services Ltd
Stamford House
361-365 Chapel Street
Manchester
M3 5JY	
For the Respondent	MS C CARPENTER
(Solicitor)
Kent Law Clinic
Eliot College
The University of Kent
Canterbury
Kent
CT2 7NS

	JUDGE PETER CLARK:   Miss Hlad, the applicant, brought a complaint of unfair dismissal and sex discrimination against her former employer, G Costa & Co Ltd [“the Company”], which came before the Ashford Industrial Tribunal on 4th April 1996. In a reserved decision with extended reasons dated 5th June 1996 the tribunal dismissed her complaint of sex discrimination but upheld the complaint of unfair dismissal, adjourning the question of remedies to a further hearing. Against the unfair dismissal decision the employer now appeals; there is no cross-appeal against the tribunal’s finding on sex discrimination, although there is a cross-appeal by the applicant against a finding by the tribunal in relation to the unfair dismissal complaint. In the event we have not found it necessary to adjudicate on that cross-appeal. We are concerned in this appeal therefore solely with the issue of unfair dismissal.

	The background is that the applicant commenced employment with the Company in 1981 as a junior clerk in its Warehouse Administration Department at Aylesford in Kent. The Company’s head office, including its Sales and Accounts Departments, was in Peckham, South London. The Company’s business is that of importing and distributing ethnic food.

	In 1991 the applicant took maternity leave, and upon her return to work was appointed senior clerk. Below her were two junior clerks, Miss Vinden and Miss Wyatt.

	In December 1994 the Board decided that the Head Office function should be moved from Peckham to Aylesford in order to save costs. To avoid duplication of work, redundancies were envisaged.

	In May 1995 it was decided that two post in the Aylesford Warehouse Administration Department would be made redundant, those of senior clerk (the applicant’s post) and one of the junior clerk positions. 

	Eleven redundancies were also declared among the Peckham staff, being those who did not wish to transfer to Aylesford. Accordingly staff would have to be recruited at Aylesford, including two customer service assistants.

	On 15th May Mr Miner, the Logistics Director, interviewed each member of the Warehouse Administration Department staff individually. He told the applicant that her functions would be transferred to other staff or discontinued. Her post was to be made redundant. He said that it was open to her to apply for other jobs as and when they became available. She was given written notice of dismissal to take effect on 4th August 1995.

	On 23rd May the applicant wrote to Mr Miner in these terms:

“I would appreciate your response to a question that has come to mind since our meeting, to ask why I was not considered for a lower paid position within the company, without any consultation. As in the circumstances I would have been willing to accept.”

There was then a short meeting between Mr Miner and the applicant on 29th May, when he told her again that she should make application for an alternative position within the Company; and that she would have to compete with other candidates for such positions, both from within and outside the Company.

	Miss Vinden, one of the two junior clerks, was re-deployed to a position as customer services assistant in July, without making any application for that position, and without prior experience of the work.

	The applicant did apply for the position of receptionist/telephonist. That application was processed and her application was rejected. It seems on the evidence, on the basis that she was older than the benchmark age of 30 which had been considered appropriate  by the Customer Services manager, Miss Maughan, who was interviewing for that post.

	The applicant was due to leave the employment on 28th July. But during her last week of work she deleted some files from the computer system. Mr Miner took the view that this had been done deliberately, and that was accepted by the applicant, although she said that she had done it properly rather than mischievously. It seems that he spoke to her about that matter on 27th July and asked her to leave immediately which she did; but it is accepted, for the purposes of this appeal, that she was not then being summarily dismissed by reason of conduct, but her original notice was allowed to expire for the reason originally given, that is redundancy.

	The Industrial Tribunal found that the reason for dismissal was redundancy, but that the dismissal was unfair. In particular, it found that there was no selection process as between the three clerks in the applicant’s department; no prior consultation with the applicant, and no attempt to find her alternative employment; she was simply left to apply for vacancies in competition with other internal and external candidates. The tribunal contrasted the position of Miss Vinden who was re-deployed to the position of customer services assistant, without having to apply for that job. In all the circumstances the tribunal concluded that the Company had not acted reasonably in treating redundancy as a sufficient reason for dismissal.

	They concluded by adjourning the question of remedies for unfair dismissal to 10th July 1996. In paragraph 39 they say this:

“... In view of Mr Smith’s final submission on behalf of the Respondent, we think that we should state here that if the Tribunal is to consider the question of compensation rather than a re-employment order we shall not be considering a reduction in the compensatory award under the provisions of section 74(1) of the Employment Protection (Consolidation) Act 1978. The Applicant’s deletion of files from the computer in the last week of her employment does not, in our view, render it just and equitable to reduce the compensation. Whilst it is more likely than not that that deletion was not accidental, the disruption caused to the Respondent’s business was minimal because of the backup. Bearing in mind our finding that the Respondent had acted unreasonably in selection the Applicant for redundancy, in failing to offer her alternative employment and in the carrying out of the dismissal, some hard feeling on the part of the Applicant is understandable. In addition, we would not be prepared to reduce the compensatory award on the basis that the outcome would have been the same even if there had been a fair procedure. It is clear in this case that a major part of our finding of unfair dismissal is based upon the willingness of the Applicant to accept a lower paid job, and the unwillingness of the Respondent to consider her for such a position. This was a substantive, rather than a procedural unfairness, and, in any event, there was good chance that had the Applicant been consulted and reasonably considered for alternative employment, she would not have been dismissed.”

	The Notice of Appeal took three points. At the outset of the hearing before us Mr West, who did not appear below, conceded that he could not pursue an argument that the tribunal had erred in failing to find that, notwithstanding the original redundancy notice, the applicant had been dismissed on 27th July by reason of her misconduct in deleting certain files from the computer system, or alternatively; that such conduct had contributed to her dismissal under what was then section 74(6) of the 1978 Act. The reason for that concession, properly made in our view, was that on the facts her employment had not been summarily terminated on 27th July; she had merely been told that she need not attend for duty thereafter. Thus the effective date of termination, 28th July, and the reason for dismissal, redundancy, were as set out in the original notice of dismissal.

	That left him with two point to argue. The first was that in making no reduction in the compensatory award under the just and equitable ground in what was section 74(1) of the 1978 Act on the basis that she had deleted the files the Industrial Tribunal reached a perverse conclusion. Secondly, he submitted that in holding that it was not prepared to reduce the compensatory award on the basis that the outcome would have been the same even if there had been a fair procedure, the Industrial Tribunal was prematurely deciding the question as to whether the applicant’s loss of a chance of retaining employment should be reflected in percentage reduction in the compensatory award under the Polkey principle.

	As to the first point we are unable to say that the tribunal’s conclusion was perverse. We have referred to the tribunal’s findings at paragraph 19 and 39 of the reasons. It plainly did not strike the tribunal as being a case where the conduct complained of on 27th July would have itself resulted in a fair dismissal. Indeed, this employer did not dismiss for that reason, as it could have done during the operation of the redundancy notice period.

	As to the second point, we accept Ms Carpenter’s submission, she having attended the first Industrial Tribunal hearing, that Mr Smith, then appearing for the employer, had submitted that this was a “no difference case”, so that a nil compensation award should follow. That submission was rejected by the tribunal for what we regard as good and cogent reasons.

	Further, we have seen the tribunal’s second decision dated 23rd July 1996, following the remedies hearing held on 10th July. It is clear that on that occasion Mr Smith further submitted that a percentage reduction ought to be made on the basis that the applicant had lost the chance of continued employment with the Company, and that in any event such continued employment would have been in a lower paid job. The tribunal considered and rejected both submissions and compensated the applicant on the basis of her pre-dismissal earnings as a senior clerk.

	During the course of this hearing Mr West applied for leave to appeal the remedies decision out of time. We refused that application. No good grounds for failing to serve a Notice of Appeal within 42 days of the promulgation of that decision were advanced. Accordingly, we are not required to consider the tribunal’s reasoning which led them to their conclusions on remedies.

	In all the circumstances we must dismiss this appeal.