Appeal No. UKEAT/0154/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 June 2010

Before

HIS HONOUR JUDGE REID QC

MS J L P DRAKE CBE

DR B V FITZGERALD MBE LLD FRSA

MR G HILL (APPELLANT)

G & R POLLARD ENGINEERING LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JAMES HATT (of Counsel)

Instructed by:
NLS
Sussex House
2 Birch Drive
Burford
Oxon
OX18 4XH

For the Respondent
MR R G GREEN (Solicitor)
Messrs Harrison Clark LLP
5 Deansway
Worcester
Worcestershire
WR1 2JG

PRACTICE AND PROCEDURE

Bias, misconduct and procedural irregularity

Appellate jurisdiction/reasons/Burns-Barke

Respondent constructively dismissed Appellant. The Employment Tribunal awarded compensation but in doing so it (1) limited the award for future loss of earnings to 31 December 2009; (2) reduced the award by 70 per cent to reflect Appellant's contribution to his dismissal; and (c) awarded a 10 per cent uplift pursuant to s.31 of the Employment Act 2002. The manner of calculating the future loss of earnings did not appear from the judgment. Held: the judgment was not Meek compliant and the case should be remitted to the same Tribunal for further consideration.

1. This is an appeal by the Claimant below, Mr Hill, from the decision of the Employment Tribunal held at Bristol on 16 November 2009. The decision appears to have been signed and sent to the parties in early 2010. By his claim Mr Hill claimed that he had been unfairly constructively dismissed from his post as a foreman with the Respondent engineering company and the Tribunal upheld that claim. The appeal arises out of the award that the Tribunal then made.

1. The Tribunal awarded a basic award of £4,200.00. That is not in dispute. It awarded loss of earnings to 31 December 2009, a date which is now past of course, in the sum of £3,600.00. That is in dispute. Loss of statutory rights £330.00 was fixed at and is not in dispute. Similarly the loss of bonus which the Claimant would have received (£350.00,) is not in dispute. The Tribunal made an award of a 10% uplift for failure to follow the statutory procedures in accordance with section 31 of the Employment Act 2002. It then deducted 70% pursuant to the provisions of the Employment Rights Act 1996 on the basis that the employee was to that extent a contributor to his own misfortune. Those latter two figures are also the subject of the dispute.

1. The appeal is essentially based on the absence of any adequate reasons given in the Employment Tribunal's judgment. It has to be said that the judgment is remarkably scant on reasoning in relation to quantum. There were findings with a certain amount of detail to the effect that the Respondent employer's finding of gross misconduct could not be justified on the terms of their employee handbook, that the penalty the employer sought to impose was outside the range of reasonable sanctions, and that as a result of these two matters which, in effect, resulted in his demotion from the foreman in charge of the night shift to an ordinary worker on the day shift that gave rise to the Claimant's right to treat himself as constructively and unfairly dismissed. The Tribunal also made findings of fact as to the failure to follow the statutory dismissal and disciplinary and grievance procedures.

1. The difficulty that we have, first of all, in relation to the loss of earnings is that there appear to be no calculations set out in the judgment or in the reasons which justify the figure which was produced. We have had the advantage of the submissions of Mr Green, who was the solicitor appearing for the Respondent below, who has helpfully tried to explain to us how certain of the figures were arrived at.

1. It has to be said that although we have no doubt that the notes that he took at the time in somewhat scribbled form as to what went on at the actual hearing are, so far as they go, accurate, they are not particularly helpful in showing why it was the figure of £3,600.00 was picked on. There are some figures which were apparently given showing what the hourly rates for day payment with the Claimant's former employer, i.e. the Respondent, were and the rates with his current employers, and also some figures in relation to nights. Quite why that is then reduced to apparently a figure of £2,000.00 and then to "+ £1,600.00 second six months, £3,600.00" is not apparent.

1. The first difficulty, it seems to us, that arises out of this is that we do not know why the rates that were selected were those which were selected. It is apparent that the new employer was an employer who did not run a night shift and, to that extent, therefore, the Claimant's earnings were reduced. We do not know whether the calculation is made on the basis that, as we were told, it was Mr Green's instructions - it does not appear whether or not it was in evidence - the employer had since ceased its night shift. We do not know whether it was on the basis that the Tribunal took the view that a proper disciplinary decision would have resulted in demotion from nights to days and a consequent loss of wages or whether it is possible they thought that there might be in the future night work available with a new employer.

1. So the basis of the figures remains entirely unclear. Further, the period of the award also remains unclear. Mr Green said there is always a degree of uncertainty with any projection in to the future. That is undoubtedly true but that is one of the things that Employment Tribunals have to do on a regular basis. They were not doing much in the way of projection into the future in any event in this particular case since the hearing apparently took place on 16 November 2009. The decision was initially published in January 2010 and the reasons deal with a lot of earnings up to the end of December 2009.

1. We take the view that this is a classic example, so far as this element is concerned, of a decision which is not Meek compliant - to use the jargon which is frequently used arising from Meek v City of Birmingham District Council [1987] IRLR 250. A party is entitled to know why a particular conclusion has been come to and one cannot say in relation to the £3,600.00 loss of earnings that this is the position.

1. So far as the 10% uplift under section 31 of the Employment Act is concerned, Mr Green was on the stronger ground when he pointed out that under the Act the starting point is a 10% uplift and it is then within the discretion of the Tribunal in the appropriate circumstances to award an uplift. Again, we had no indication - clearly there were submissions - that there should have been a greater uplift and equally clearly there were findings of fact that there had been what appears to be a wholesale disregard for the statutory provisions. The Tribunal has not given any explanation as to why it thought fit to stay with the 10%. Again, it seems to us, this is not Meek compliant.

1. Finally there is the question of the 70% reduction because of the way in which the Claimant contributed to his own downfall. There it has to be noted that section 123(6) of the Employment Rights Act 1996 provides that:

"Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant –[I stress those words] - it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

1. What was said here was that that must be perverse, it is certainly not explained, because the behaviour of the employer had been extremely reprehensible. Clearly it had been reprehensible. There was, at any rate, one forged document produced at the Tribunal, another document was produced which seems contemporaneous and certainly never received and extremely unlikely to have been sent to the Claimant, and there were notes of the defective disciplinary process which, at best, had to be regarded with considerable scepticism. In those circumstances it could well be properly said that the employer behaved extremely badly. That is not something which falls within section 123(6).

1. The question there is whether the Tribunal finds the dismissal was to any extent caused or contributed to by any action of the complainant, i.e. the employee. It may very well be that there was good and justifiable reason in the mind of the Tribunal which led it to fix on 70%. The trouble is it has not expressed what that reason or those reasons were in the decision which it reached. The decision in our judgment is so lacking in reasoning and clarity that the matter has to be sent back.

1. We have considered whether it should go back to a fresh Tribunal or to the same Tribunal. We see no reason to think that the same Tribunal could not, given a further opportunity, produce a properly reasoned decision dealing in particular with the way in which it reaches whatever figure it may, on reconsideration, think is appropriate for loss of wages, looking not only at the rate but also at the period, and dealing with both the 70% deduction and the absence of anything more than a 10% uplift.

1. We take the view that the proper course - it may be that some matters in the heat of the moment were not dealt with last time as fully as they might have been - is to remit the matter to the same Tribunal and direct that the Tribunal, with the benefit of such further evidence, and/or submissions as the parties may wish to make, reconsider the awards that they have made in respect of loss of earnings in respect of the section 31 of the Employment Act 2002 and in respect of section 123 of the Employment Rights Act 1996.

1. So far as the other matters are concerned those were not in dispute and we see no reason why those should be revisited. With the aid of any further evidence and, of course, to a certain extent now time having moved on, they will be in a better position to know what has happened and what is likely to happen in the future in relation to employment, we believe that the Tribunal can then reconsider the matter and come to a properly and fully reasoned conclusion. The appeal will, therefore, be allowed and the matter be remitted on those terms to the original Tribunal.