Appeal No.	 EAT/424/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
 THE HONOURABLE MR JUSTICE LINDSAY
LORD GLADWIN OF CLEE CBE JP
MR R N STRAKER

HELEN McMULLEN	APPELLANT

HAYES MANOR SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A WOLANSKI
(of Counsel)
Instructed by:
Ms Anna Barlow
Acton Law Shop
102 High Street
Acton
London
W3 6QX	
For the Respondents	MR D L REES
Employment Law Adviser
Jasmine House
Kingston Stert
Nr Chinnor
Oxfordshire
OX9 4NL

	

	MR JUSTICE LINDSAY:		We have before us the full hearing of an appeal by Ms Helen McMullen in the case McMullen against the Hayes Manor School. The decision of Industrial Tribunal at London (North), under the chairmanship of Mr D J Latham, was promulgated on 23rd January 1998 and was in these terms:

“The unanimous decision of the Tribunal is that:
(i)	The Applicant’s claim under the provisions of the Sex Discrimination Act 1975 being withdrawn, is dismissed.
	(ii)	The Applicant’s for unfair dismissal fails.”

	We need to set out something of the background and for that we will use the facts as found by the Industrial Tribunal.

	Ms McMullen’s career as a teacher began in 1984. She joined the teaching staff of the Hayes Manor School on 1st September 1992. It is quite a large school; it had some 735 pupils. She was not only a teacher but one of those described also as a ‘Head of Year’. There were at the time when she joined seven ‘heads of year’ at the school. Heads of year had, in addition to conventional teaching duties, also what were called ‘pastoral rôles’. They received higher remuneration than otherwise they would by reason of that added rôle.

	Ms McMullen at schools she had earlier attended had taught both English and Drama. When she joined the Hayes Manor School there were two other drama teachers but they later resigned. She thus became the only drama teacher and hence the Head of Drama. That also entitled her to some additional allowance.

	It is not entirely clear from the papers before us how much she taught English at the Hayes Manor School, but, if she did, it was only a relatively small part of her overall duties because drama was her métier.

	On 10th July 1995 she was told that her position as Head of Drama would be redundant from 31st August 1995. Drama, she was told, was coming off the curriculum from September 1995. She therefore lost her additional allowance as being Head of Drama.

	There were some discussions as to quite what her duties would be in the academic year from September 1995 to August 1996. She continued in her teaching role, but chiefly in duties related to covering for absent colleagues and this led to her being required to teach subjects other than her own basic subjects. But she was still a Head of Year.

	In Spring 1996 a proposed re-organisation of teaching at the school began to be discussed with the staff. Ms McMullen took part in those decisions. She pressed hard for the re-introduction of drama into the curriculum. She campaigned for that for some time. She had, in effect, refused to accept the decision, which had been a final decision, that drama should be left out of the curriculum. But amongst the new proposals now discussed was a reduction in the number of Heads of Year. The proposed reduction, as it eventually emerged, was from seven, as there had been, to four. She was aware of this proposal and she was present when it was discussed.

	From 23rd April 1996 Ms McMullen and the management knew that the seven Heads of Year posts would cease to exist from the end of the Summer Term of 1996.

	These changes were due, at least in part, to the school being then in considerable budget deficit. There had also been a Ofsted inspection and a Coopers & Lybrand management consultancy report. All these three together had contributed to the need for changes, which were fully explained to staff.

	In July 1996 all seven of the existing Heads of Year were invited to apply for the four new headships, which were now described as ‘Heads of School’. The erstwhile Heads of Year were applying for the jobs of Head of Lower School, Head of Middle School, Head of Upper School and Head of Sixth Form. Interviews took place, and Ms McMullen was found to be one of the two least suitable candidates.

	On 17th July 1996 she was telephoned to be told that she had not been successful in getting a Headship of School. She then spoke to the Deputy Headmistress and on 19th July 1996 she was told by that Deputy that the Governors had decided that there was no job for her at all at the school from December 1996. That, it transpired, had not been a decision of the Governors but was a recommendation of the Head Master.

	On 23rd July 1996 the Head Master wrote to her a letter, of which we have an extract in the extended reasons of the Industrial Tribunal which it is worth setting out:

“I am sorry that you were unsuccessful in the interviews for the new pastoral posts held at the school last week. In view of the fact that the restricting of the pastoral system makes posts of Head of Year redundant, and that the school curriculum can be delivered without a teaching commitment from you, I regret that I have no alternative but to recommend termination of your employment on grounds of redundancy. Redundancy will take effect on 31 December 1996 and you would normally be required to attend school as normal until the end of the autumn term. However, having discussed the situation with the Chair of the Governors Personnel Committee, I can give you an assurance that the governors would be prepared in this case to grant you early release with immediate effect. This would give you the period from September to December, on full pay, to find another post - which you would be quite free to take up within that period, if necessary.”

The letter concluded by saying that Ms McMullen was entitled to make representations as to her redundancy to the Governors. She indicated that she wished to avail herself of that opportunity.

	In September 1996, when the new academic year began, she did not attend, but she continued to be paid as the Head Master’s letter had indicated that she would be.

	There were some difficulties in convening a meeting with Governors. In fact there was one meeting that was conducted that transpired to have been conducted before an improperly convened board. But it seems that her employment continued in the meantime, in the sense at any rate that she continued to be paid, although she was not being required to attend at the School. 

	The second meeting of Governors, that is to say the one not improperly convened, was held on 21st January 1997. At that meeting she reverted to her campaign as to the re-introduction of drama. The Governors decision is not, in terms, put in front of us, but it presumably was that she should be dismissed.

	Ms McMullen then appealed. Her appeal was heard on 25th February 1997. The appeal upheld the decision of the Governors, although again we do not have its precise terms in front of us.

	Ms McMullen’s employment terminated eventually on 30th April 1997. It is not altogether clear that she was paid down to that date, but that seems to be the likely factual position.

	On 17th June 1997 Ms McMullen presented her IT1 for unfair dismissal and for sex discrimination. She claimed to have been unfairly selected for redundancy. The School responded by pointing out that her application for one of the new headships of school had failed and that alternative employment, they said, was investigated without success.

	Although the Industrial Tribunal was critical of the School in several respects, it held, as we have indicated, that the only claim that she had persisted in, the claim for unfair dismissal, failed.

	The Notice of Appeal, lodged on Ms McMullen’s behalf by Mr Wolanski, raises two broad points. The first is that the tribunal’s decision that the respondent’s dismissal was not unfair was perverse having regard to findings of fact that it made; and, secondly, that in determining the fairness of the dismissal, the tribunal misapplied or misconstrued the principle established by the House of Lords in Polkey v A E Dayton Services Ltd [1987] IRLR 503, in that it held that because taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, the dismissal was not unfair.

	We invited the parties to concentrate on the Polkey aspect of the case and it is to that case that we now turn. In fact, consistent with the Practice Direction, I shall refer to Polkey by reference to its form in the Industrial Case Reports at [1988] ICR 142. The speech of Lord Mackay of Clashfern attracted the support of all other of their Lordships sitting with him. Apart from Lord Mackay, only Lord Bridge gave a judgment that goes beyond the mere concurrence. None of the other four judges in terms concurs with Lord Bridge.

	At page 153 in the speech of Lord Mackay one finds this:

	“This appeal raises an important question in the law of unfair dismissal. Where an industrial tribunal has found that the reason for an applicant’s dismissal was a reason of a kind such as could justify the dismissal and has found that there has been a failure to consult or warn the applicant in accordance with the code of practice, should the tribunal consider whether, if the employee had been consulted or warned before the dismissal was decided upon, he would nevertheless have been dismissed? ...”

Then his Lordship turned to the legislation and a little further down he says this, between E and F:

	“If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.”

Lord Mackay turned to look at the particular decided cases that were then, in 1988, before their Lordships. He described the heresy, as it transpired to be known, as the British Labour Pump principle, and in doing so he adopted the description of that heresy given by Browne-Wilkinson J in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 which was as follows:

“even if, judged in the light of the circumstances known at the time of dismissal, the employer’s decision was not reasonable because of some failure to follow a fair procedure yet the dismissal can be held fair if, on the facts proved before the industrial tribunal, the industrial tribunal comes to the conclusion that the employer could reasonably have decided to dismiss if he had followed a fair procedure.”

	In the Sillifant case Browne-Wilkinson J had dealt at some length with that British Labour Pump principle and what he said, and it is quoted by Lord Mackay at page 156 in Polkey is this:

“In our judgment, apart from the authority to which we are about to refer, the correct approach to such a case would be as follows. The only test of the fairness of a dismissal is the reasonableness of the employer’s decision to dismiss judged at the time at which the dismissal takes effect. An industrial tribunal is not bound to hold that any procedural failure by the employer renders the dismissal unfair. It is one of the factors to be weighed by the industrial tribunal in deciding whether or not the dismissal was reasonable within section 57(3). The weight to be attached to such procedural failure should depend upon the circumstances known to the employer at the time of dismissal, not on the actual consequence of such failure. Thus in the case of a failure to give an opportunity to explain, except in the rare case where a reasonable employer could properly take the view on the facts known to him at the time of dismissal that no explanation or mitigation would alter his decision to dismiss, an industrial tribunal would be likely to hold that the lack of equity inherent in the failure would render the dismissal unfair. But there may be cases where the offence is so heinous and the facts so manifestly clear that a reasonable employer could, on the facts known to him at the time of dismissal, take the view that whatever explanation the employee advanced it would make no difference ...”

That analysis was adopted by Lord Mackay at the top of page 157 in Polkey. So the British Labour Pump principle was overruled. The Industrial Tribunal in that particular case had asked itself the wrong question. What Lord Mackay said at page 162 was this:

	“The notes of evidence available to your Lordships are necessarily only a brief summary and the tribunal’s findings do not deal exhaustively with all matters that appear to have been raised in the evidence; in particular they do not deal with the evidence that appears to have related to an appeal by the appellant to the employers to rescind the dismissal. In these circumstances I consider that no adequate basis exists for your Lordships to determine whether this dismissal was fair or unfair. The industrial tribunal asked themselves the wrong question when they applied the British Labour Pump principle. It is not apparent what their answer would have been if they had asked themselves the correct question. ...”

	In Lord Bridge’s speech he gives specific examples of  “procedural” steps which are likely to be thought to be necessary if a dismissal is to be regarded as fair. He says at 162 G:

“Thus, in the case of incapacity, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to amend his ways and show that he can do the job; in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation; in the case of redundancy, [our emphasis, as this is the case we are deciding] the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”

That is of particular relevance here, because here the Industrial Tribunal were satisfied that the reason for dismissal was redundancy.

	Lord Bridge’s speech, translated into the context before us, suggests that normally a dismissal would not be regarded as a reasonable steps on the employer’s part unless first of all there had been a fair basis for selection put into use and, secondly, that reasonable steps had been taken to avoid or minimise the redundancy by way of redeployment within the School.

	Lord Bridge considered next the consequences of a failure to do what should be done. He continues at page 163:

“If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile [our emphasis], could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under section 57(3) may be satisfied.”

Lord Bridge supposes an employer who not only could  reasonably, but does in fact arrive at a conclusion, not later than at the time of dismissal, that the omitted procedural step could reasonably be dispensed with. That seems to follow from that last sentence of the quotation.

	Lord Mackay earlier, at page 153F, had used the word ‘could’. With our emphasis, he reads as follows:

	“If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code.”

There is, therefore, as it would seem, something of a difference of emphasis between Lord Bridge and Lord Mackay. In the passage I have already cited from Browne-Wilkinson J in Sillifant, there is the reference, now with our emphasis, as follows:

 “But there may be cases where the offence is so heinous and the facts so manifestly clear that a reasonable employer could, on the facts known to him at the time of dismissal, take the view that whatever explanation the employee advanced it would make no difference.” 

Again, that seems to look at a possible position rather than necessarily to an actual position. So the majority view in Polkey is thus that a procedural step otherwise desirable and the omission of which would normally be indicative of unfairness on the employer’s part may be omitted without the omission itself signifying unfairness if the employer at the time of dismissal could  reasonably have concluded that the taking of that step would make no difference to the decision to dismiss and that, therefore, its taking could be dispensed with. But one nonetheless has to remember the force of the language that Lord Mackay used; he was talking about a case where the taking of the omitted step would be “utterly useless”. Lord Bridge spoke of its being “futile”. A common thread is that whether the employer could  have reasonably so concluded is a matter for the Industrial Tribunal on the facts before it in the particular case.

	The most relevant procedural step in the case before us is consultation with a view to avoiding or minimising redundancy by way of redeployment within the organisation. The wisdom of having such consultation is long-established and can best perhaps be seen in the decision of Browne-Wilkinson J and the two members sitting with him in the EAT in the decision Freud v Bentalls Ltd [1982] IRLR 443, where at 446 in paragraph 14 one finds this:

“... In the particular sphere of redundancy, good industrial relations practice in the ordinary case requires consultation with the redundant employee so that the employer may find out whether the needs of the business can be met in some way other than by dismissal and, if not, what other steps the employer can take to ameliorate the blow to the employee. In some cases (though not this one) the employee may be able to suggest some re-organisation which will obviate the need for dismissal; in virtually all cases the employer if he consults will find out what steps he can take to find the employee alternative employment either within the company or outside it. For example, in present day conditions when so many people are unemployed many employees facing redundancy by reason of the disappearance of their existing job are prepared to take other jobs of lower status and commanding less pay. Only by consulting the employee can the employer discover whether such an option is open in any given case. Therefore good industrial relations practice requires that, unless there are special circumstances which render such consultation impossible or unnecessary, a fair employer will consult with the employee before dismissing him.
	We must emphasise that we are not saying that good industrial relations practice invariably requires such consultation. There may well be circumstances (for example a catastrophic cash flow problem making it essential to take immediate steps to reduce the wages bill) which render consultation impracticable. We are only saying that we would expect a reasonable employer, if he has not consulted the employee prior to dismissal for redundancy in any given case, to be able to show some special reason why he had not done so.”

	In the particular case of Ms McMullen it is in terms found by the Industrial Tribunal that there was no consultation at all in relation to alternative employment. What they say in their paragraph 7 is this:

“... What has not taken place, however, is any consultation with regard to alternative employment, particularly say in the English department ...”

It is to be remembered that the time for possible consultation here was spread over a long period. Consultation could have begun as early as 17th July 1996; it could have occurred at any stage down to final dismissal on 30th April 1997. Mr Rees for the School before us would describe the formal convened meeting of 21st July as consultation. It is not, we are bound to say, what we would have in mind as a consultation process. It was so formal a convened meeting that the Industrial Tribunal held that Ms McMullen had regarded it as a second appeal hearing. Indeed, quite what consultation there had been even on other subjects is not altogether easy to understand. The Industrial Tribunal in their paragraph 7 say this:

“It is clear to the Tribunal on the finding of the facts set out above, that consultation with regard to the situation as a whole took place in spring and early summer of 1996 and the Applicant was certainly part of that. ...”

But that consultation, if that is the correct noun, was at a very general stage; it was not consultation in the sense that it was related particularly to Ms McMullen but rather was of a general character - whether the Heads of Year officers should be changed into Heads of School and if so, why, and what number of Heads of School should emerge and so on. That was discussion of a far more general nature than could be described fairly as consultation with a particular member in relation to his or her redundancy.

	For all that, there are scattered about in the extended reasons reference to what may or may not be indicative of the pointlessness of consultation of the proper kind, namely consultation having regard to the particular needs of the employee in relation to the employer. Thus, for example, at page 8 of the Industrial Tribunal’s extended reasons at paragraph (l) it says:

“... She did not make any specific suggestions as to an alternative teaching role and although there was no responsibility on her part so to do, in the Tribunal’s view, it emphasised that her concern throughout was only principally that of the removal of the drama department. ...”

At (m) the tribunal said:

“The Respondents gave evidence, which the Tribunal accepts, that they also had before them the situation in the summer of 1996, when they had to reduce the teaching staffing of the English department, and, therefore, although they considered the Applicant for transfer into the English department, notwithstanding her high qualifications in that regard, they did not consider that any suitable vacancy was available for her. This was not an issue that was challenged by the Applicant at the hearing on 21 January 1997, nor so far as the Tribunal can tell, at any of the hearings or discussions that took place.”

 Then in paragraph 7, which had the sentence:

“What has not taken place, however, is any consultation with regard to alternative employment, particularly say in the English department,”

the tribunal continued:

“although the Tribunal are satisfied that such consultation which should have taken place immediately after the decision on 17 July 1996, when the Applicant had not obtained one of the Heads of School posts, would have made no difference, as the Applicant was still concentrating on the drama position and in any event, on the evidence from the Tribunal [which should have said “on the evidence to the Tribunal”], which the Tribunal accepts, it would have made no difference as there was no full and proper vacancy, although no consideration was given it but [I intervene to suggest that the word ‘but’ should not be there] in consultation with the Applicant. Therefore, with regard to alternative employment, the Tribunal are satisfied that consideration was given although the Applicant was not properly consulted on the matter.”

At paragraph 8 the tribunal say this:

“The Tribunal would criticise the Respondents for the way they dealt with the matter in that when the decision was made on 17 July 1997 that the Applicant had not been successful in achieving one of the new posts as Head of School, the Respondents should have immediately entered into a consultation process ...”

Do those findings amount to a finding by the Industrial Tribunal that consultation as to alternative employment could here be omitted and dispensed with on the ground that the facts before the employer at the time of dismissal were such that the employer could reasonably have concluded that it would have made no difference to the dismissal, that it would have been utterly useless or futile? Reverting to those quotations from the Industrial Tribunal’s extended reasons, the one in which it is spoken of that Ms McMullen had not herself suggested an alternative, we agree with the Industrial Tribunal that it was not her responsibility to suggest alternatives. If she had done so, it might have strengthened her position, but her failing to do so does not weaken her position. In any event, the most convenient opportunity for a discussion of alternatives would have been some across the table discussion which, it seems, did not take place on the subject. One would perhaps less expect it to occur in the formal situation of a convened meeting before the Governors or their representatives. True it is that there was some consideration in her absence of a transfer of her into the English department and a conclusion that there was no suitable vacancy, but in the context that would seem to be only a conclusion that there was no suitable vacancy for her in that department. That would not necessarily have exhausted the range of possibilities. She was not at the time in the English department. There does not seem to have appeared in the reasoning of the Industrial Tribunal down to that point that there was nowhere for her anywhere in the school. But then a puzzle emerges with these reasons; different parts of the passages quoted would seem to point in different directions. The Industrial Tribunal says that consultation would have made no difference, that there was “no full and proper vacancy”, that Ms McMullen was still concentrating on drama. That points in one direction. But then they go to say that consultation should have taken place, that Ms McMullen was not properly consulted. The tribunal says the School should have immediately have entered into a consultation process as to alternative employment and the Industrial Tribunal criticised the School for not doing so, and they hoped that the School would learn from the criticism which they subjected it to. It is a puzzle, because if, on the facts, consultation as to alternative employment had truly been held to be futile and utterly useless and therefore could reasonably be dispensed with, then there was no need for a consultation process and there could hardly have been criticism of the School for not embarking upon it. Further doubts emerge when one goes back to the reasoning of the Industrial Tribunal in their paragraph 7:

“... the Tribunal are satisfied that such consultation which should have taken place immediately after the decision on 17 July 1996, when the Applicant had not obtained one of the Heads of School posts, would have made no difference, as the Applicant was still concentrating on the drama position and in any event, on the evidence from the Tribunal, which the Tribunal accepts, it would have made no difference as there was no full and proper vacancy, although no consideration was given it in consultation with the Applicant.”

So that two specific reasons appear to be given for the conclusion. Firstly, that Ms McMullen was still concentrating on the drama position; and secondly, that there was no full and proper vacancy. Bearing in mind that the onus is on the employer, as was indicated in the passage in the Freud case, to prove special reasons, can it be said that those two reasons for the Industrial Tribunal holding as it did are acceptable reasons such that consultation with Ms McMullen as to alternative employment could have been dispensed with as being utterly useless or futile? On balance, we would answer that question with a negative. Had Ms McMullen been consulted, it might have perhaps become progressively clearer to her in discussion that drama was irretrievably closed down. She might, if she had been consulted, have softened her preference for drama and shown flexibility and readiness to work in other departments of the school. What ideas might have come up had she been consulted? What might the School’s response have been to her showing flexibility and a willingness to perhaps even endure some demotion rather than being unemployed? And what does “full and proper vacancy” mean? Presumably something other than any vacancy; if there had been no vacancy whatsoever, that would have been the obvious thing to say and there would have been no need to add “full and proper”.  Were there, then, some vacancies? If there were, might she have been willing to take one of them, however demeaning, if it had become clear in consultation that it was that or nothing? Does the word ‘full’ suggest that there were part-time vacancies that existed or were to come into existence? Had that been made clear to her, what might her reaction have been? Were there, perhaps, vacancies in departments other than English? We can see from the decision that the English department was being reduced, or certainly not enlarged, and that there was no room for her by way of a transfer to that department, but, of course, she had already for some time been teaching outside the English department, teaching by way of back-up for other teachers, and who is to know what the result might have been if vacancies or possibilities in other departments than English had been thoroughly explored.

	We fully recognise that a word by word study in detail of an Industrial Tribunal’s decision is to be discouraged, but here we have no Chairman’s notes. We have no clear and express finding that it was reasonable for the employer to dispense with consultation on the footing that consultation as to alternative employment would have been futile or useless, and we have a Notice of Appeal that specifically raises this particular point. In effect, we have no alternative but closely to study the Industrial Tribunal’s extended reasons; we have no other material, and the reasoning is puzzling, as we have explained. The two “special reasons” to use the language of Freud v Bentalls, seem, on examination and baldly stated as they are, not to amount to acceptable and good reasons not to have consulted over the long period during which consultation was possible. With some reluctance we conclude that Lord Mackay’s test in the Polkey case is not satisfied. There was no acceptable reason given by the Industrial Tribunal for a holding that the employer could here have reasonably concluded that consultation as to alternative employment would have made no difference and could be dispensed with. If one applies Lord Bridge’s test, which is that not only whether that could have been decided but that it had been decided, then there is no finding at all to that effect either. It may be that this why the Industrial Tribunal turned to criticise the employer. We regard this as an error in law involved in the dismissal of the claim for unfair dismissal. 

	Mr Wolanski for the appellant, Ms McMullen, invites us to say that the decision should not only be set aside but that we should go straight to a decision that Ms McMullen was unfairly dismissed. As was the case in the Polkey case and as is seen from the quotation from Lord Mackay’s speech  that we have read out, we do not feel that we have a sufficient view of such facts as may be relevant to enable us so to conclude. Accordingly we shall set aside the decision of the Industrial Tribunal but instead remit  the matter to a fresh tribunal. 

	In a sense that is all that needs to be said about the case, but there is an aspect I would wish to draw attention to. When I say ‘I’ this is particularly my concern rather than necessarily also the concern of those sitting with me. But it seems to me that there is a procedural consideration of general application such that it may be right to draw it to the attention of the legislature and the rule-making body. In doing so we say nothing at all that is intended to circumscribe in any way the future conduct of this case. It will be for the Industrial Tribunal that hears the rest of the case to determine it on the evidence and the arguments as put in front of it. But it may be, and this is merely a possibility and nothing more, that the fresh Industrial Tribunal, even were it to hold that the dismissal of Ms McMullen had been unfair, would go on also at the remedy or quantification stage to hold that there is no case for reinstatement or re-engagement and that even if the most reasonable consultation had taken place as to alternative employment, Ms McMullen would nonetheless have had a very high chance - let us say just for an example, and it is only an example, say an 85% chance - that she would have been dismissed in any event. The result of that, on one aspect of the Polkey case, would be that her compensation would be reduced by 85%. Now were that to happen -and we make it clear that we are not saying either that it should or should not, that is entirely a matter for the Industrial Tribunal that comes on to hear that case - then it would, looking back, be seen that this appeal and the remission had in practical terms been dealing only with the remnant of 15% of the possible compensation. Given the delays in time and the cost involved, the parties, had only they known that from the outset, could have seen that the game might not be worth the candle. There are even cases where at the compensation stage the tribunals have reduced effective compensation to zero on the basis that there was a 100% chance that the employee would have been dismissed if only a correct procedure had been adopted. One can therefore have cases where in monetary terms the appeal and the remission may be dealing with cases that have no monetary consequences at all. Those are cases where reinstatement and re-engagement are for obvious reasons not applicable. 

	In civil litigation it is common enough for a judge to hold that a defendant is not liable to the plaintiff in damages, but for him to go on to say something on the lines of “but even were I wrong as to that” and then he goes on to say what he would have found the damages to have been had damages been payable. Quite often he will go on to say that the damages would have only been nominal or a relatively small sum. That is a very convenient formulation. The plaintiff in such a case can see at a glance whether an appeal against the dismissal was likely to be worthwhile. He can see whether he has to put quantum in issue as well as liability on the appeal. The appellate court hearing the appeal in such a case can deal, if necessary, with liability and quantum together in one hearing, and the parties are given by the judge an independent view of possible quantum at issue, even if the plaintiff succeeds as to liability, and the fact that an independent view of the figure has been given very commonly makes settlement negotiations far more realistic and focused than otherwise they would be. That convenient “but even if we were wrong as to that” approach, is not encountered in Industrial Tribunal cases. I have asked Counsel before me whether either of them has come across it and neither has, and we have no experience of encountering it that we can call to mind. The form of the legislation possibly excludes it because s. 112(1), the remedies section, applies only where the grounds of the complaint have been held to be well-founded. A finding of no unfair dismissal, therefore provides a buffer to the proceedings; the proceedings then go no further. It has the consequence, as we have mentioned, that one can have appeals and remissions to a second or subsequent Industrial Tribunal which, if only the parties had seen clearly what was likely to be the next forthcoming outcome at the remedies stage, would have been seen to be close to be close to pointless. Equally, one can have appeals and remissions which if only the parties had seen what was likely to emerge at the compensation stage, would have been compromised using the first tribunal’s view of likely compensation as a focus point for negotiations. There is no necessity for a tribunal in every case where it has held there to be no unfair dismissal to go on to hold what it would have given by way of compensation had it been wrong on the first point. But the case where the dismissal is held to be unfair despite a procedural omission on the ground that on the particular facts the step omitted could fairly be dispensed with is a paradigm example of where the Industrial Tribunal could conveniently be given a discretion notwithstanding the future of the claim as to liability, to move on to hear argument and to hear evidence so that it could go on, in some binding way, to say what it would have held to have been the appropriate compensation if it had held that the dismissal had been unfair. Such a finding has a prospect at least of saving court time and saving the parties the delays, the costs and the anxieties of a renewed hearing. The parties, of course, would have to know what was in store but quite often at the end of the liability hearing the first Industrial Tribunal could, with very little extra expenditure of time, very little further evidence and very little further argument, move conveniently on to remedy, and certainly could move on to remedy more conveniently than would be done by way of an appeal and  a remission to a different Industrial Tribunal perhaps months or years later. 

	Assuming (and the form of s.112 and the habitual practice in Industrial Tribunals suggest that this assumption is well-founded) that Industrial Tribunals at the moment have no discretion to go on to discuss what they would have held to have been the compensation if only they had held that the dismissal had been unfair, we do invite the attention of the legislature to what may well prove to be a useful economy measure saving both time, worry and costs. But that is an observation of a most general character.

	Coming back to the particular case, as indicated earlier, we allow the appeal. We set aside the judgment below and we remit the matter to a fresh tribunal.