Appeal No.	EAT/1096/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 1998

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MACKIE OBE
MR A D TUFFIN CBE

MRS C HOWE	APPELLANT

DAVEY HOMES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR J STARK
(of Counsel)
Instructed by:
Mr R Lewis
Solicitor
Royal College of Nursing
67-69 Harborne Court
Harborne Road
Edgbaston
Birmingham
B15 3BU	

	JUDGE PETER CLARK:		This is an appeal by the applicant before the Exeter Employment Tribunal, Mrs Howe, against that tribunal’s decision following a hearing held on 6th July 1998, by a majority (including the Chairman: Mr B E Walton) to award her compensation limited to one week’s pay in respect of her unfair dismissal by the respondent, Davey Homes Ltd.

	The facts were that the appellant commenced employment with the respondent as a nurse on 2nd May 1994. She was dismissed by reason of redundancy, so the tribunal found, on 16th February 1998.

	The respondent company ran two homes, Gotton Manor (the Main House) and the nearby Coach House. Prior to 1998 the Main House had about 30 residents (with a maximum of 36). It had dual registration for 14 resident and 22 nursing patients. The Coach House was a nursing establishment which had 27 beds.

	At the relevant time the Main House had three full-time members of staff, the matron, the assistant matron and Mr Weddell, a registered general nurse. The Coach House had as day nurses Mr Wass, another lady who was pregnant and the appellant. The business was run by Mr Davey.

	By 1998 the respondent was running into financial difficulties, mainly because there were too few patients for the Coach House. Mr Davey succeeded in changing the registration for both homes so that the Coach House became all residential and the Main House had 30 nursing places and three residential. As a result, the requirement for nursing staff diminished. The Coach House required none. Mr Davey was faced with a surplus of nursing staff. Of the Coach House staff he concluded that Mrs Wass, who had previous hotel management experience, should manage the home; the second lady left to have her baby; that left only the appellant of the Coach House nursing staff. She could only be retained in the business at the expense of Mr Weddell. However, Mr Davey concluded that Mr Weddell should be retained, first, because he was very popular with the residents and patients, and secondly because, including breaks in service, he had started his employment before the appellant.

	Mr Davey offered the appellant alternative work on a part-time basis. That was not acceptable to her. She was dismissed.

	The tribunal found that the reason for dismissal was redundancy. As to the fairness of the dismissal, the appellant contended expressly that her selection was unfair; there was a lack of consultation and a lack of an offer of alternative employment. The tribunal concluded unanimously that there had been no consultation, and that the dismissal was, for that limited reason, unfair.

	The tribunal then parted company. The majority concluded that had proper consultation taken place, it would only have delayed the dismissal by a few days. Accordingly, the only loss suffered by the appellant was one week’s pay, she having received a redundancy payment equivalent to the basic award entitlement.

	The minority member took a different view. She did not believe that the outcome, dismissal, was inevitable had consultation taken place. She would have made a further award of compensation, which was not quantified.

	The majority view prevailed and a compensatory award limited to one week’s pay was made.

	In advancing this appeal against that award, Mr Stark has raised in his skeleton argument a point not adverted to in the Notice of Appeal, namely that the tribunal did not entertain submissions on remedy at the close of the hearing on fairness. We have asked him whether he wishes to make that a ground of appeal, in which case, the steps required under paragraph 9 of our Practice Direction have not yet taken place. He indicated that he did not.

	Turning to the grounds of appeal, the main submission made is that the tribunal below, by its majority decision, erred in not considering the question of loss suffered by the appellant as a result of the unfair dismissal on the Polkey “loss of a chance” basis. We cannot agree with that submission. It is clear from the minority member’s dissenting opinion that the question whether or not the result would inevitably have been the same or, alternatively, might have been the same, in which case the loss of a chance principle comes into play, was canvassed. On that issue the tribunal were split. We are satisfied that as a matter of principle, an Employment Tribunal in an appropriate case is entitled to conclude that the result would have been the same, subject to the length of the proper consultation period. See Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676.

	Mr Stark then submits that this was not an appropriate case in which it was open to the majority to find that dismissal would have been inevitable following a proper consultation period. He submits, correctly, that consultation is not to be looked at in a vacuum. The purpose of consultation is to consider such matters as the proper selection criteria, the application of those criteria to the complainant and the question of alternative employment. He submits that on the facts of this case, the tribunal were bound to conclude that proper consultation would or might have made a difference to the outcome, bearing in mind the possibility that Mr Weddell could have been selected for dismissal instead of the appellant; the selection criteria might have been different; Mr Weddell might have volunteered for redundancy; the appellant might have accepted an offer of alternative employment; or that some action short of dismissal might have been taken in her case.

	It seems to us that all these were matters which, in so far as they were canvassed below, were considered by the tribunal in reaching their respective majority and minority conclusions.

	Mr Stark’s final point is that the decision was perverse.

	We reject that submission. It seems to us that the tribunal properly took into account all relevant factors, and reached a conclusion which was a permissible conclusion, as a matter of law and on the facts as found by the tribunal. In these circumstances, we have concluded that this appeal raises no arguable point of law to go forward to a full hearing, and accordingly, it must be dismissed at this stage.