Appeal No.	 EAT/1377/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 1999

Before
HIS HONOUR JUDGE D PUGSLEY
MS B SWITZER
MISS D WHITTINGHAM

MISS E BROWN	APPELLANT

GOULDENS SOLICITORS	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	MR A MOORE
OF COUNSEL
(BAR PRO BONO UNIT)	
For the Respondent	MR R MARTIN
(SOLICITOR)
GOULDENS
22 TUDOR STREET
LONDON
EC4Y 0JJ	

		JUDGE D PUGSLEY:		This is an appeal from a decision of the London North Tribunal which reached a decision on the 9th October 1998.  Their decision was that the Applicant was unfairly dismissed. The Applicant does not receive any compensation as the unfairness is due to the Respondents not following the proper procedures. We reflect the fact in assessing the compensation and we find there was 100% chance that is the proper procedures had been followed, the Applicant would have been dismissed. 

2.	We wish to pay  tribute to the comprehensive and clear terms of this decision.  We note that this decision was promulgated on the 21st October 1998 and the hearing having been on 9th October.  In general terms, the decision carefully reviewed all the evidence and we come to the conclusion that the Applicant made it very clear that she was not going to have any part at all in being interviewed, and she put, as we know, a note saying in general terms that she was not prepared to be interviewed.  The notice set out at page 54. “I reserve my rights of no comments thank you.”

3.	The crucial findings of fact at this Tribunal are set out at paragraph 15:- 

“We find the reasons for the dismissal was the Applicant’s capability of conduct, but the principal reason relates to the capability of the employee performing the work of the kind of which she was employed to do.  This is potentially a fair reason for dismissal.” 
And at paragraph 19 the Tribunal stated:-

“The applicant had a history during her employment of being a very difficult employee and not being able to accept instructions or criticism.  Therefore, the partners for whom she worked eventually complained about her work and refused to have her any longer as a secretary.  It appears to us that Ms Savill tried every way to accommodate the Applicant and keep on her employment and the Applicant progressively became more difficult and unco-operative. “

4.	The Tribunal say this at paragraph 20:-

However it is clear from Mr Pearce’s evidence that although he considered the relationship of mutual trust and confidence had it retrievably broken down, he did not give himself any time to investigate as to why that had happened or give the Applicant time to consider her position and warn her that her employment was likely to terminate.

“The meeting which intended to be a consultation meeting turned into a disciplinary meeting which the Applicant was dismissed.   She was not given an opportunity to be accompanied by a friend or representative and neither in the letter of dismissal is it pointed to her, she had a right to appeal.  We referred to the Respondent’s disciplinary conduct and grievance procedure and maintain it allows any employee to be given the chance to appeal.  This was not pointed out to the Applicant at the time of the dismissal.”

The Tribunal continue at paragraph 21:-

“Therefore, following the reasoning and principals set out Polkey v A E Dayton Services we find the dismissal unfair for procedural reasons having considered all the circumstances of the case when assessing the compensation we have reduced the normal amount of compensation by 100% which represents the chance that Ms Brown would have lost her employment if Mr Pearce has taken the appropriate steps in dealing with this matter. “

5.	This case came before Mr Justice Holland on a preliminary hearing sitting together with Mr Tuffin and Mr Hodgkins.    In his judgement, a copy of which the parties have, Mr Justice Holland points out that the grounds of appeal of the Applicant’s own composition were lengthy, covering some pages of our bundle. It then went on to say Mr Sendall who appealed under the ELAAS scheme has identified two points of law which merit and inter-parties hearing,  that is a hearing which the Response will be represented, so this Tribunal may have the benefit of arguments on both sides.  

6.	The judgment went on to say this:-   

“The point that principally concerns us is a point taken in paragraph of his skeleton argument and that is; as to a failure to make any basic award.  He points out the Tribunal did not in terms address itself at all to this matter and he puts forward a plainly arguable case that by reference to section 122(2) Employment Rights Act 1996; the scope for reducing that award simply did not arise.   We say no more about the argument.  We have identified it is plainly a matter to be resolved following an inter-parties hearing. “

7.	Holland J then went on to say at paragraph A, page 2 (in bundle):- 
“We further give leave with respect to what is essentially a second point, and this is his argument that had proper procedures been followed so as to make any dismissal fair, nonetheless, these would have inevitably taken time in the event his client was deprived of the compensation that might otherwise have been due to her.  He develops a point in various stages in this skeleton argument.  He will forgive us if we regard this as a secondary to his first point, but nevertheless we agree that this arguable that merits consideration inter-parties hearing and thus it is on the basis those two essential points that we have reached the decision already recorded in this judgement.”

8.	It is right that we say that we, as a Tribunal, are concerned with the growing legalism.  It has recently been reasserted in the house of lords by Lord Hoffman in Polaska v Polaskia 1999 All ER 632 there are many reasons why appeal courts should be careful before reversing decisions at first instance.   One is that the Tribunal at first instance has unique opportunity of observing the parties.  The second is quite simply, however much time is taking in drafting the decision with hindsight it can always be seen that things could be drafted somewhat better.  It is naive to think that because something is not mentioned, it did not necessarily go through the Tribunal mind and we deprecate the ever increasing tendency to comb through a decision to see if some possible misdirection can be found when the decision overall is clear.

9.	This was a robust decision with clear findings of fact.   However, on the first issue to of the Tribunal not dealing with the basic award, we do think that this is an issue where the Tribunal on our reading did not actually deal with the matter.   We do not attach criticism because we bear in mind that the Applicant was underrepresented and Mr Martin, who appears for the Respondent for whose efforts we are genuinely grateful indicated that the issues the applicant wished to raise were perhaps not in the normal course of events that might have been raised by a professional advocate.

10.	The issue for our determination is whether or not we can say (a) that the question of basic award was considered in the judgement although it is not mentioned and (b) whether it really is any point at all in sending this case back to the original tribunal since on any reading of the matter, says Mr Martin, the Tribunal is bound on those authorities to take the view that the same deduction would be made in both cases.  

11.	It is a powerful argument, we want to make this clear as to part of that argument we think it is open for Mr Martin to renew his basis before the Employment Tribunal.  Our decision on that matter is simply this.  We consider that there is a difference in the statutory wording of the basic award and the compensatory award.  We consider that the compensatory award provisions are drafted in a sufficiently different way than the basic award and bearing in mind that this was a case where although their were elements of conduct in paragraph 15 the Tribunal really can say this is a capability dismissal, we think this matter should be remitted to the Tribunal.  

12.	We cannot accept Mr Martin’s view that it would be for the perverse for the Tribunal to reach a different view as to the reduction on the basic award than it would on the compensatory award.   Having said that we want to make it very clear that Mr Martin is perfectly free to argue before that Tribunal it should be the same.   We cannot go as far as he does in saying it will be perverse.  

13.	On the second issue different considerations apply.  Clearly, this is an experienced tribunal chairman and experienced members.  We accept that the applicant was not herself represented, she represented herself.   Mr Martin, whose word we accept on this has no recollection this point was ever raised.   We think that there is abundant evidence before us in the findings of the tribunal that the Applicant had a history of being difficult, not being able to accept instructions or criticisms.  The way in which she dealt with the matter when called to have a consultation and the document set out at page 54, clearly in our view indicate that this was someone who was going to be very difficult to persuade that there might be any point she had to take seriously on the allegations made against her.   We do not consider it is necessary for a Tribunal to set out all possible considerations as to remedy.  We do not consider it an error of law for the Tribunal to make such an award.

14.	In summary then, we remit the issue as the extent to which there should now be an evaluation of what, if any discount should be made, in the calculation of the basic award to the same Tribunal.  We would not be doing duty to either of the parties if we do not ask the parties to at least consider whether at this stage they may now make some attempts to compromise this issue.   We say, quite simply, we believe that we were getting to a point where at times points and issues are taken which out of all proportional to the amount litigated.  

15.	On any view of the matter, the amount of basic award cannot be high.  We therefore do earnestly ask the parties to at least consider that the issue should be one that is capable of resolution between them.  Of course, that is a matter for them.   We allow the appeal and direct the case be remitted to the same tribunal for consideration of the simple issue of what if any basic award should be awarded to the Appellant.    As we indicate we do not allow the second ground of appeal:  to do so would be to assume that the Tribunal did not consider it or that it is incumbent for a tribunal to consider a point not raised by a party.  The circumstances in which a compensatory award can be made for the time a disciplinary procedure would have taken is very much a matter for the discretion of the tribunal.