The claimant was made redundant following a scoring exercise conducted with her and her 5 colleagues. The employees were scored on a selection matrix containing 4 criteria: work performance, skills and competencies, disciplinary record and attendance. The claimant appealed against her dismissal and lost. The Tribunal found that she had been unfairly dismissed. They found no flaw in the consultation process carried out by the respondent, nor in the pool of staff used for selection. There was also no criticism of the selection criteria used. However, the respondent was found to have acted unfairly in relation to the scores attributed to the claimant in respect of her work performance and skills and competencies, and the internal appeal did not remedy those defects. In these circumstances the claimant’s dismissal fell outside the range of reasonable responses and was unfair. The Tribunal could not answer the question of any Polkey reduction because they felt unable to assess the percentage chance that the claimant would have been dismissed in any event. Nor did the Tribunal give any reasons why they dismissed the respondent’s argument that the claimant had failed to mitigate her loss.

The three grounds of appeal were based on 1) fairness; 2) Polkey and 3) mitigation. The EAT dismissed the respondent’s argument that the Tribunal’s conclusions on fairness were inadequately reasoned and that they had fallen into the trap of substituting their view for that of the respondent. However, the Tribunal should have decided on the basis of the evidence before them the chance that the claimant would have been dismissed anyway, but for the procedural failings. On the issue of mitigation, the EAT found that the Tribunal’s reasons were not Meek compliant. The case was remitted to the same ET to decide the latter two issues.

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Appeal No. UKEAT/0323/10/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 March 2011

Before

HIS HONOUR JUDGE PETER CLARK

MR J MALLENDER

MRS L TINSLEY

DLA PIPER UK MANAGEMENT SERVICES LTD (APPELLANT)

MS J CODYRE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR G MANSFIELD (of Counsel)
Instructed by:
Messrs DLA Piper UK LLP
3 Noble Street
London
EC2V 7EE

For the Respondent MR N TOMS (of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Transport House
50-52 New Road
Dagenham
Essex
RM9 6YS

**SUMMARY**

UNFAIR DISMISSAL

Reasonableness of dismissal

Mitigation of loss

Polkey deduction

Finding of unfair dismissal by reason of redundancy upheld; the Polkey issue remitted to Employment Tribunal for reconsideration, together with Employment Tribunal determination of mitigation of loss issue.

**HIS HONOUR JUDGE PETER CLARK**

1. The parties before the London Central Employment Tribunal in this matter were Ms Codyre, Claimant, and DLA Piper UK Management Services Ltd, Respondent. We have before us for full hearing an appeal by the Respondent against the judgment of an Employment Tribunal chaired by Employment Judge Lewzey, promulgated on 23 February 2010, upholding the Claimant's complaint of unfair dismissal and awarding her compensation totalling £29,093.42. Written reasons for that judgment were promulgated on 30 March.

**Background**

1. The Respondent employs staff working for the well-known solicitors, DLA Piper. The Claimant commenced her employment with the Respondent as a legal secretary on 27 May 2003. In the first part of 2009 the Respondent carried out a redundancy exercise. Some 170 jobs were at risk. The Claimant was notified that her job was at risk by a letter dated 10 February, she having been on holiday that day and thus missed an announcement of the risk of redundancies at a meeting held on that day.

1. There were six secretaries in the department in which the Claimant worked. Of that pool of employees, two were to lose their jobs. Each of the six secretaries was scored on a selection matrix containing four criteria: work performance, skills and competencies, disciplinary record and attendance record. On the first round of scoring the Claimant came bottom with a total of 55 points. Second bottom was an employee we shall describe as LW with 58. The next above her scored 60 points. The bottom two marks were subsequently revised to 57 for the Claimant and 59 for LW. That did not take them above the bar and, following consultation, both were dismissed. The Claimant appealed unsuccessfully against her dismissal internally. Dismissal took effect on 9 April. She presented her complaint to the Tribunal on 3 July 2009.

**The Tribunal Decision**

1. The Tribunal found that the reason for the Claimant's dismissal was redundancy, a potentially fair reason. In considering fairness under section 98(4) of the Employment Rights Act 1996, the Tribunal found no flaw in the consultation process carried out by the Respondent, nor in the pool of staff used for selection. There was also no criticism of the selection criteria used.

1. Where the Respondent fell down, so the Tribunal found, was in relation to the scores attributed to the Claimant in respect of the heads of (1) work performance and (2) skills and competencies, in relation to which the Claimant was scored, following revision, 15 and 17 out of 20 respectively.

1. Pausing there, we note that at paragraph 18 of their reasons the Tribunal direct themselves as to the law. In particular, they remind themselves that it is not for them to substitute their view as to whether the Claimant ought to have been selected for redundancy for that of the employer, the Iceland Frozen Food principle, and secondly, drawing on the longstanding guidance of this appeal tribunal, Browne-Wilkinson J, President presiding, in Williams v Compair Maxam Ltd [1982] ICR 156. Of particular relevance in the present case is the principle that the employer will seek to ensure that the selection is made fairly in accordance with the chosen selection criteria which should, so far as possible, be capable of objective checking.

1. The Tribunal found that in relation to work performance and skills and competencies, the Respondent failed to act fairly for the reasons set out at paragraphs 20 to 22. Further, the internal appeal did not remedy those defects which arose at the dismissal stage. In these circumstances, the Claimant's dismissal fell outside the range of reasonable responses and was unfair.

1. Turning to remedy, the Tribunal considered the Polkey question raised by the Respondent, that is to say, what were the chances of the Claimant retaining her employment had a fair process been followed. At paragraph 24 they held, since it was not for the Tribunal to carry out a re-scoring exercise, they could not assess a percentage chance that the Claimant would have been dismissed in any event and thus declined to make any Polkey deduction. Finally, no reference is made in the Tribunal's reasons to an argument raised by the Respondent that the Claimant had failed to mitigate her loss following dismissal.

**The Appeal**

1. Three grounds of appeal are raised before us. They may be conveniently headlined as (1) fairness; (2) Polkey and (3) mitigation. We shall consider each in turn.

**Fairness**

1. Mr Mansfield puts this part of the appeal in three ways: that the Tribunal's conclusions on fairness (paragraphs 20 to 22) are inadequately reasoned; that they have, contrary to their correct self-direction, nevertheless fallen into the trap of substituting their view for that of the Respondent and finally that their conclusion was perverse. Having considered the rival submissions of counsel on this aspect of the appeal, we prefer those of Mr Toms. We are not persuaded that the Tribunal substituted their view for that of the employer. They did not embark on a re-scoring exercise (compare on the facts Semple Fraser LLP v Daly . The Tribunal, it seems to us, approached the matter in accordance with the judgment of Waite LJ inBritish Aerospace v Green [1995] IRLR 433 at paragraph 13(1). They properly considered the fairness of the application of unexceptionable criteria by the Respondent and found it wanting for the reasons adequately given at paragraph 22. The internal appeal to Mr Burton did not correct the defects identified in the earlier dismissal decision by Mr Allen. Their conclusion is not perverse in the sense explained by Mummery LJ in Yeboah v Crofton [2002] IRLR 634. Accordingly, this ground of appeal fails and is dismissed.

**Polkey**

1. Here we take a different view favourable to the submissions advanced by Mr Mansfield. It is perhaps unfortunate that the valuable guidance given by Elias J, President, in Software 2000 Ltd v Andrews [2007] IRLR 568, particularly at paragraph 54, was not expressly drawn to the attention of the Employment Tribunal by counsel, not Mr Mansfield or Mr Toms, appearing below.

1. At paragraph 24, the Tribunal do not find that the Polkey exercise of reconstruction in this case will be so riddled with uncertainty that no sensible prediction as to the possible outcome, if a fair procedure had been followed, could be made, as in the case, for example, of King v Eaton Ltd (No 2) [1998] IRLR 686 (CS). Rather, they disengaged from carrying out the necessarily speculative Polkey exercise on the basis that it was not for them to re-score the six candidates for selection. True it is that they could not be expected to carry out that task, but the Respondent had scored all six, having revised the scores for two including the Claimant. The Tribunal was not required to arrive at a final hypothetical score for the candidates, rather to determine on the basis of the evidence before them what were the chances of the Claimant retaining her job but for the procedural failings identified by the Tribunal in reaching their finding of unfair dismissal.

1. In our judgment, this is a case in which the Tribunal took too narrow a view of their role on this aspect of the case. That was a material misdirection in law. The question then arises as to what we should do with the case, having identified that misdirection. The appeal will be allowed. It would not be appropriate for us to embark on the Polkey exercise afresh. We think that that must be carried out by the Employment Tribunal. Mr Mansfield suggests that the matter be remitted to a fresh Tribunal. We do not believe that to be necessary or proportionate. We agree with Mr Toms that the case on this aspect ought to return to the same Tribunal for reconsideration in light of our earlier observations.

**Mitigation**

1. Mr Toms realistically recognises that the mitigation issue was raised on behalf of the Respondent below and was simply not dealt with by the Tribunal in their reasons. He submits that there was ample evidence before the Tribunal in terms of the Claimant's efforts to find new employment following dismissal to justify a finding that the Respondent had not established, the burden being on them, that the Claimant had failed to mitigate her loss. That may or may not be so, but that is a judgment for the Employment Tribunal to make and, on the face of their reasons, they have not done so. It is an issue on which an express ruling, with reasons, was required by ET rule 30(6). See by analogy the EAT decision in Portsea Island Mutual Co-operative Society v Reece [1980] ICR 260 in relation to the need to expressly determine the issue of contributory conduct in an unfair dismissal case. In this respect we agree with Mr Mansfield that the tribunal reasons are not Meek compliant.

**Disposal**

1. It follows that this appeal succeeds in part. The issues of whether a Polkey deduction is appropriate and, if so, how much and that of mitigation of loss will be remitted to the same Tribunal, if practicable, for reconsideration. No further evidence will be necessary. The remitted hearing will proceed on submissions based on the evidence led originally. For the avoidance of doubt, the remedy award is not set aside. It may or may not be varied by the Tribunal following the consideration of the two specific issues which we have identified.