Appeal No. UKEAT/0582/11/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
9 May 2012
Before
HIS
HONOUR JUDGE PETER CLARK
MR D BLEIMAN
MR J R RIVERS CBE
COUNTRYWIDE
FREIGHT GROUP LTD APPELLANT
MR
A HOBBS RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Polkey deduction
Employer appeal allowed by consent against Employment Tribunal
finding of no Polkey deduction based on the balance of probabilities.
Case remitted to same ET to determine percentage chance that
Claimant would have remained in employment following a fair procedure.
HIS HONOUR JUDGE PETER
CLARK
1.
This case has been proceeding in the Cardiff Employment Tribunal. The
parties are Mr Hobbs, Claimant, and Countrywide Freight Group Ltd, Respondent.
2.
The Claimant was employed by the Respondent, latterly as a Depot
Supervisor at their depot in Llandrindod Wells from 1996 until his
dismissal by reason of redundancy effective on 13 August 2010. He
presented a complaint of unfair dismissal to the Employment Tribunal.
3.
That claim was resisted by the Respondent and came on for hearing before
an Employment Tribunal chaired by Employment Judge Collier, sitting with
Mr P N Westwood and Mr A S Screen on 16 and
17 June 2011. By a Judgment with Reasons promulgated on
27 July 2011 that Tribunal upheld the complaint. They found the
dismissal to be procedurally unfair in the absence of meaningful consultation
or a proper selection for redundancy procedure.
4.
The Tribunal then considered the Polkey (Polkey v A.E. Dayton Services Limited
[1988] ICR 142) question and concluded at paragraph 21 that on the balance
of probabilities the Claimant would have retained employment if a proper
procedure had been followed. They went on to assess the compensatory award, on
a full loss basis, in the total sum of £16,024.54.
5.
Against the Polkey finding, but not the finding of unfair
dismissal, the Respondent appealed. The appeal was put on two bases; first,
that the Tribunal’s approach, applying the balance of probabilities test to the
Polkey question, was wrong in law. Secondly, they raised a
perversity argument.
6.
The appeal was considered by Underhill P on the paper sift and, by
an order dated 11 November 11, the appeal was permitted to proceed to
a full hearing, for which directions were given.
7.
Pursuant to those directions, the Claimant filed an answer conceding the
first ground of appeal, but challenging the second ground.
8.
The matter was referred to Langstaff P who directed, by a letter
dated 26 January 2012, that the appeal would be allowed on the first
ground, accompanied by short reasons, and the matter remitted to the same
Tribunal for further consideration of the Polkey question. For
that purpose the matter would remain in the list for a short hearing at which
the parties need not attend unless objection to that course was taken. There
is no objection and the matter now comes before this division for disposal. We
have had the benefit of a skeleton argument lodged on behalf of the Respondent,
which we have taken into account.
9.
It seems to us that that course is consistent with paragraph 15.3
EAT Practice Direction, which makes clear that the EAT will not allow an appeal
and remit for rehearing by consent of the parties without itself determining
whether there are good grounds for making that consent order.
10.
We accept that there are good grounds. It will be recalled that the
effect of the House of Lords’ decision in Polkey was to overrule
the principle in British Labour Pump v Byrne
[1979] ICR 347 (EAT) that if, on the balance of probabilities, a fair procedure
would have resulted in dismissal anyway, that dismissal was fair and to approve
the approach which Browne‑Wilkinson J would have taken in Sillifant v Powell Duffryn Timber Ltd
[1983] IRLR 91, had he not felt constrained by the Court of Appeal’s decision
in Wass v Binns [1982] ICR 486 to follow the Byrne
principle, that is to find the dismissal procedurally unfair but to adjust the
compensatory award to allow for the chance, expressed as a percentage, that the
employee would have retained his employment following a fair procedure.
11.
It is that question which we remit to Judge Collier’s Tribunal for
reconsideration. The loss of the chance of the Claimant retaining his
employment following a fair procedure will fall in the spectrum 0-100%,
alternatively, it may be that he would inevitably have lost his employment at
some later date had a fair procedure been followed; see Mining Supplies
(Longwall) Ltd v Baker [1988] ICR 676. The correct approach to the Polkey
question is set out by Elias P in Software 2000 Ltd v Andrews
[2007] ICR 825, paragraph 54; see also Virgin Media Ltd v Seddington
& Eland (UKEAT/0539/08/DM 31 March 2009),
paragraph 13, per Underhill P.
12.
Finally, as the President provisionally directed in the letter of
26 January 2012, it will be for the Employment Tribunal to determine,
following argument, whether or not further evidence on the Polkey
question will be admitted at the remitted hearing.
13.
The appeal is allowed on that basis.
