Appeal No.	EAT/1304/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 January 1998

Before
HIS HONOUR JUDGE C SMITH QC
LORD DAVIES OF COITY CBE
MISS S M WILSON

MR H JONES	APPELLANT

MR D FURLONG	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R HOWARD
(Representative)

	

	JUDGE C SMITH QC:     This is an application by Mr Howard, on behalf of Mr Jones, for leave to proceed to a full hearing of his appeal and I am going to give a short judgment in it, just to try and indicate why we have allowed the matter to proceed to a full hearing.  As I say, it is his application for leave to proceed to a full hearing. 

	We have had a very helpful argument from Mr Howard on what is a difficult area of the law.  It is against the decision of an Industrial Tribunal held at Liverpool on 1 August 1997.  By a unanimous decision the Industrial Tribunal held that the Applicant, Mr Jones, had been unfairly dismissed on 27 March 1997, on the grounds of redundancy because there had been a lack of consultation.

	It is for that reason that it was held, unanimously by the Industrial Tribunal, that Mr Jones had been unfairly dismissed.  But then the Industrial Tribunal went on, by a majority, to hold that he would have still have been dismissed fairly, even if proper consultation had taken place, so that no award of compensation at all fell to be made.

	The point of law that the Appellant wishes to take is that the Industrial Tribunal did not take into account matters which they should have taken into account, in following the approach laid down in Polkey v A E Dayton Services Ltd [1987] IRLR 503 House of Lords, when they had to decide the difficult question of whether proper consultation would have made any difference.  This is always a difficult matter for Industrial Tribunals because they have to look at the matter in the light of what would have happened, in a hypothetical situation, if the employer had consulted properly.

	There are a number of factors there, which Mr Howard says were in evidence before the Industrial Tribunal, which are not referred to.  One is the fact that Mr Jones had been a chargehand and was, in that way, senior to the others.  The next point is that the others of those who were to be considered for redundancy, out of a team of four employers, had had warnings, whereas he had not and then there was the point that, although Mr Furlong, the employer, sought to say that the others did not like working with Mr Jones, there was no support for that contention from those other employees.  

	So that in those circumstances, in our judgment, it is arguable that the Industrial Tribunal may have failed to take into account all the factors they should have taken into account, and that had they taken those factors into account, then they might have concluded that the minority view was the only correct one; that it was not wholly impossible, as the minority put it, that Mr Furlong could have been persuaded by Mr Jones that he was not the right man to be selected, had Mr Jones been given the opportunity of raising with him the issues that he raised with us.

	Accordingly, we take the view that in a case where the result of applying the Polkey test to compensation is that that compensation has been reduced to nil, so that it is a hard case, it is arguable that the Industrial Tribunal should take particularly carefully into account all relevant factors and weigh them up with particular care, and that they may have not have done so.

	It may be here, and we put it no higher than that, that the majority of the Industrial Tribunal failed to take into account matters which they should have taken into account in making the decision they did and accordingly, on that basis, we allow the appeal to go forward to a full hearing.

	We carefully considered whether the Chairman’s Notes of Evidence are necessary.  We note that Mr Howard has submitted to us that he thinks they are, but we do not agree with that.  At this stage, at any rate, we make no order for the Chairman’s Notes of Evidence, but we do give leave for the matter to proceed to a full hearing.  

	We give leave for the Notice of Appeal to be amended in the terms set out in the Appellant’s PHD form.  We will allow it to be amended in those terms.  We strongly recommend that, if at all possible, and it is no criticism of Mr Howard, that Mr Jones be able to have the advantage of legal representation at the hearing of his appeal.