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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Robert Half Ltd (Rhl) v. Daly [2000] UKEAT 541_99_1303 (13 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/541_99_1303.html Cite as: [2000] UKEAT 541_99_1303 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE COLLINS CBE
MR L D COWAN
MR G H WRIGHT MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | Mr D Tatton Brown (of Counsel) Instructed by: Messrs Collins Benson Goldhill Solicitors 26/28 Great Portland Street London W1N 5AD |
For the Respondent | Mr M K Galberg (of Counsel) |
JUDGE COLLINS:
."In deciding the level of compensation we did so on the balance of probabilities."
And Mr Tatton Brown then asks us to look at paragraph 6 (c) containing the conclusions:
"We have considered whether there should be a reduction of the award because of the "Polkey effect". In view of our findings above, we concluded that Mr. Daly would have been able to generate sufficient billings so as to satisfy the Respondent. Accordingly, we do not consider that the decision in Polkey v A E Dayton Services Ltd (1998) ICR 142 applies in this case and there should be no reduction."
"The assessment of the compensatory award in this kind of case involves a two stage process. First, the Tribunal must ask itself whether if the employer had followed the proper procedures and acted fairly, the employee would not have been dismissed. If the answer to that question is reasonably clear, one way or the other, there is no difficulty. But in many cases, the answer will be uncertain, in which situation in order to give proper effect to section 74 (1) of the Act of 1978 and the dictum of Browne- Wilkinson J set out above, the Tribunal must as the second stage of the process make a percentage assessment of the likely hood of the employee being retained which must be then reflected in the compensatory award."
"There is no need for an all or nothing decision. If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment".
"Having considered the testimony from Mr. Daly and that of the Respondent's witnesses, together with our own experience and judgment of normal working conditions, we find that Mr. Daly would have been able to have generated further billings if he had been allowed to continue employment under reasonable conditions. In particular, we take account of the fact that when Mr. Daly was working in Southampton his performance was deemed to be acceptable."
We refer again to paragraph 6(c) which I have already read out. And it seems to us that looking at those passages in relation to the dictum of Browne-Wilkinson J., the tribunal having decided that the respondent should not have been dismissed and should have had a chance of proving himself over a 3 month period, they went on to decide in all the circumstances that he would have retained his position. It would have been open to them to say that they were not satisfied that he would have retained his position and make an appropriate deduction, but the language used by them makes it clear that they had no doubt about it. Although it has been submitted that it was irrational for them to have no doubt, since the decision being made was essentially a speculative one, it seems to us that it would be inappropriate for us to interfere with a judgment which they made after having seen the witnesses and examined the whole history.
"Mr. Daly was offered employment with Alderwick Consulting in a similar capacity to that carried out with the Respondent on 19 October. He took up this offer and presently is paid £26,000 per annum. This will be reviewed on 31 July 1999. We find that his new salary is less than that which he would have enjoyed with the Respondent had they not dismissed him. We are determined that his loss should be calculated up to 31 July 1999 based, as before, on his earnings for the tax year 1997/8."
COSTS