King v Royal Bank of Canada Europe Ltd UKEAT/0333/10/DM

Appeal against i) a ruling by the ET that, although the dismissal of the claimant was automatically unfair, the dismissal was by reason of redundancy and not by reason of sex discrimination and ii) the level of compensation awarded. Appeal allowed in part.

The claimant worked as a team and transaction manager in the respondent's capital markets global infrastructure finance department and a significant part of her job was to implement a database for use in the department. In July 2008, the claimant questioned whether a performance appraisal upon her had been countersigned by her manager and why no objectives for the current year had been set by him. A few days later, the claimant was called to a meeting without knowing the purpose in advance, and was told that there were concerns about her work and her role was redundant, being put on garden leave with immediate effect. The claimant asked for a letter telling her the reason for dismissal but all she was given was a draft compromise agreement. She was given no right of appeal. She brought claims of unfair dismissal and sex discrimination, and sought to be reinstated or reengaged with the respondent. The ET upheld her claim of unfair dismissal, saying that it amounted to automatic unfair dismissal, but held that redundancy was indeed the reason for her dismissal. It found that the respondent's decision to axe the database project justified the redundancy, even though the claimant was not told at the meeting that this was the reason. The ET also accepted the respondent's evidence that there was no suitable alternative employment for the claimant. The ET dismissed her claim of sex discrimination. The ET awarded the claimant 2 months pay for compensation. The claimant appealed.

The EAT upheld the appeal in part. It ruled that the ET had failed to apply s112 of the ERA 1996 and in particular had failed to consider re-engagement. In its approach to compensation, the ET erred by in effect considering only vacancies at the time of the claimant's peremptory dismissal and not vacancies over the period during which the respondent ought to have carried out fair procedures, including consultation about alternative employment. It also erred by failing to resolve a key dispute as to what was said at the meeting, the claimant maintaining that if the real reason for dismissal was redundancy, the respondent would have told her at the meeting that the database project was going to be axed.

Appeal No. UKEAT/0333/10/DM



At the Tribunal

On 2 June 2011

Judgment handed down on 18 October 2011





Transcript of Proceedings



For the Appellant
MS D KING (The Appellant in Person)

For the Respondent
MR M SHERIDAN (of Counsel)

Instructed by:
Barlow Lyde & Gilbert LLP Solicitors
Beaufort House
15 St Botolph Street






Appeal allowed in part.

The Employment Tribunal erred in law:

(1) In failing to apply section 112 of the Employment Rights Act 1996 and in particular in failing to consider re-engagement;

(2) In its approach to compensation, in effect considering only vacancies at the time of the Claimant's peremptory dismissal and not vacancies over the period during which the Respondent ought to have carried out fair procedures, including consultation about alternative employment;

(3) In failing to resolve a key dispute as to what was said to the Claimant at the meeting when she was dismissed.

  1. This is an appeal by Ms Debbie King ("the Claimant") against part of a judgment of the Employment Tribunal sitting in London Central (Employment Judge Sigsworth presiding) dated 8 February 2010. The Claimant had been dismissed by Royal Bank of Canada Europe Limited ("the Respondent"). It was not disputed that the dismissal was unfair; the Tribunal upheld this claim but awarded her compensation only, and restricted it to a basic award and 2 months net pay. The Tribunal also dismissed a claim of sex discrimination. The Claimant appeals against these aspects of the Tribunal's decision.
**The procedural position**
  1. It is necessary at the outset to say a word about the way in which the appeal arrived before the Appeal Tribunal for its full hearing.
  1. The Claimant's original Notice of Appeal was lodged on 23 March 2010 before the Tribunal gave written reasons for its judgment. It contained six grounds of appeal. On 28 June 2010 an order was made directing a preliminary hearing; that order recognised that the Claimant might wish to amend her grounds of appeal in the light of the written reasons which had by then been received and directed her to lodge and serve any proposed amendments within 14 days of the seal date of the order. The Claimant sought to add two additional grounds.
  1. The preliminary hearing took place on 20 October 2010. At this hearing the Claimant was represented under the Employment Law Appeals Advisory Scheme ("ELAAS") by counsel, Mr Hignett. Further arguments were raised. The Appeal Tribunal rejected some grounds, but considered that others were arguable and gave permission to amend the Notice of Appeal for reasons which it set out in a judgment, the transcript of which is within our papers. A proposed amended Notice of Appeal was subsequently approved (except in respect of two grounds). In short there were seven grounds, overlapping to some extent, on which the Claimant relied by the time of the full hearing of the appeal.
  1. When the Appeal Tribunal grants permission to amend a Notice of Appeal at a preliminary hearing where only the appellant is represented, the respondent has a right to apply to revoke or vary that order. The Appeal Tribunal's standard form of order recognises that right and draws it to the attention of the respondent.
  1. In this case the Respondent has applied to vary or discharge the proposed amended grounds, arguing that permission to amend ought not to have been granted in any respect, having regard to the overriding objective applicable to the Employment Appeal Tribunal and the guidance given in Khudados v Leggate [2005] IRLR 540. By order dated 22 March 2011 it was ordered that the Respondent's application to vary or discharge the order be adjourned to the full hearing to be dealt with at the outset.
  1. Whether it is convenient, at a full hearing, to deal with an application to vary or discharge at the outset will vary depending on the subject matter of the appeal. In this case both parties were fully prepared to argue the merits of the appeal; and the merits of the appeal are a relevant (though by no means conclusive) consideration when considering whether to permit amendment of the Notice of Appeal. For these reasons it seemed to us sensible – and was agreed by the parties – that we should hear argument on the merits of the appeal and on the question of amendment together, and to reach a decision on all aspects of the appeal after hearing all the argument the parties wished to put forward on both the merits and on amendment.
  1. This judgment will take the following form. We will first set out the background to the Claimant's dismissal and describe the circumstances in which it took place. We will then turn to the proceedings before the Tribunal and the reasons given by the Tribunal for its decision. We will then address two issues which it is convenient to discuss before turning to individual grounds of appeal: these are (1) the Respondent's then practice of dismissing employees without any form of consultation or process and (2) the general principles which the Appeal Tribunal applies when granting permission to amend.
  1. We will then turn to the individual grounds of appeal. Two grounds of appeal (one relating to remedies, one relating to an application for a witness order) depend to a greater or lesser extent on findings as to the procedure adopted by the Tribunal below; we will consider these first, and then turn to other grounds of appeal which challenge the reasoning of the Tribunal. We will identify the extent (if any) to which a ground was in the original Notice of Appeal and the extent to which it depends on amendment. Where a ground depends to a greater or lesser extent on amendment we will consider whether it is appropriate to grant permission to amend.
**The dismissal and its background**
  1. The Respondent is the European arm of a global bank providing a range of banking services to commercial and private clients, including investment banking, corporate finance, insurance and wealth management services.
  1. The Claimant was employed by the Respondent as a team and transaction manager in the Respondent's capital markets global infrastructure finance department. Her employment commenced on 4 December 2006. Initially her line manager was Mr Patrick Holland. With effect from December 2007 her line manager became Mr Stephen Fleming, the business manager for debt capital markets and global infrastructure.
  1. It was common ground between the Claimant and the Respondent that a significant part of the Claimant's time was spent on a specific project – the implementation of a global infrastructure finance project with an external provider, Sales Force. Essentially this involved the creation of a database for use in the department. The Claimant said that 50% of her time was involved in this project; the Respondent's estimate was 75%; and the Tribunal found (partly by adding in a proportion of time which the Claimant put down to general enquiries) that the amount was between two-thirds and three-quarters. This project was due for completion in December 2007; it was not complete by July 2008.
  1. Although the Tribunal did not record this fact in its reasons, it is common ground that in July 2008 the Claimant was questioning whether a performance appraisal upon her had been countersigned by Mr Fleming and why no objectives for the current year had been set by him. On 22 July 2008 the Claimant requested a meeting with human resources. The meeting took place on 24 July 2008. In the meantime Mr Fleming met with human resources on 23 July 2008.
  1. It was on 30 July 2008 that the Claimant was dismissed. The process was brutal - we shall have more to say about it later in this judgment. There was a dispute as to what occurred at that meeting; but certain features are common ground, and we will set them out now.
  1. Mr Fleming called the Claimant to a meeting at short notice. She was not told the purpose in advance. She found two members of the human resources department there – Ms Brusati and Ms Woods. In the course of the meeting she was told her role was redundant. She was put on garden leave. She was not given any letter of explanation. She was not afforded any right of appeal. She was given a draft compromise agreement and asked to go to solicitors, evidently in the expectation that a compromise agreement would be negotiated. When she asked for a written explanation she was only told that she was "redundant". She did not sign the compromise agreement. She brought the claim with which we are concerned.
**The Tribunal's reasons**
  1. By her claim form the Claimant brought claims of unfair dismissal and sex discrimination, alleging in particular that the dismissal was an act of sex discrimination. (There were other claims, but we are not concerned with those today.) In her claim form the Claimant sought reinstatement.
  1. In its response form the Respondent admitted that the dismissal was automatically unfair by virtue of section 98A(1) of the Employment Rights Act 1996 because it had not followed the statutory dismissal and disciplinary procedure. It asserted, however, that the dismissal was for a fair reason, namely redundancy, and that there were no suitable vacancies within the Respondent's organisation. It denied sex discrimination.
  1. The hearing before the Tribunal took place over 4 days on 25 and 26 January and 3 and 4 February 2010. The Claimant represented herself. The Respondent was represented by counsel. Evidence was given by the Claimant, by Mr Fleming, by Mr Hughes (head of human resources) and by Mr Bell, who was at the relevant time Mr Fleming's superior. Neither of the human resources personnel present on 30 July (Ms Brusati and Ms Woods) gave evidence.
  1. The Tribunal held that redundancy was indeed the reason for the Claimant's dismissal. It found that a decision was taken to axe the global infrastructure finance project in July and that other aspects of her work had dwindled. The key paragraphs of the Tribunal's findings of fact are the following.

"12.3 A decision was made in about July 2008 to axe the project. There were sound strategic reasons for this, we find. Mr Fleming raised questions about its effectiveness, given the vast volume of information that needed to be collated and continually updated and the internal resource commitment required to do this. Things changed in between 2007 and 2008 in terms of the market place. The Respondent's staff were not working on so many deals and the volume of work was falling away. The work on the spreadsheets was being done by the teams themselves. It was deemed not necessary any longer for a large Excel spreadsheet to be sent to the US, and the US deals could be put on one spreadsheet. It was noted that in 2009, after the Claimant left, they did not in the US close a single transaction. The solution to the problem, according to Mr Fleming, was not a database but to send less information and not to distribute it to all and sundry. Mr Bell said he was getting the information on paper so that the database was just duplication. The US came under Mr Bell's control and so was not operating separately and therefore that erased the communication issue that was one of the reasons why the project had been set up in the first place. There was a costs issue, and a need to cut costs because of the global downturn. The £50,000 licence for the use of the software and so on was due for renewal towards the end of 2008, we are not entirely sure of the precise date. There was also the cost of training by Sales Force of the Respondent's staff. This was going to cost £13,000 a year with superior staff training an additional £2,000-£4,000 per person for a 3 day course. Further, the project was behind schedule as we have already indicated. So, a business decision was taken to axe it. Mr Fleming looked into the position, and went to see Mr Bell who authorised the decision. It was clear to Mr Bell that the level of work and costs involved in the project were far greater than any benefit that the Respondent would gain from it.

12.4 We find as a fact that the majority of the work that the Claimant undertook was on the project. We also find that other aspects of her work dwindled. The weekly telephone calls were abandoned in favour of specific ad hoc calls. The audit work was non existent in the foreseeable future. The gathering and circulation of press articles was no longer required by the Respondent. There was insufficient work for a team and transaction manager and therefore a redundancy situation arose. The Claimant was in a pool of one, and therefore no selection criteria were necessary or appropriate. We are quite satisfied that the Sales Force project was cancelled and we have seen emails which confirm that. Mr Duncan Spanner of Sales Force wrote to Mr Fleming on 16 September 2008 querying the situation. Mr Fleming wrote back three days later confirming a telephone conversation they had just had, and informing Mr Spanner that the Respondent would not be renewing the Sales Force licences that October and would consequently cease to use the product."

  1. The Tribunal, after noting and condemning the Respondent's employment practice to which we have referred, found that the Claimant was dismissed with no warning and no consultation. It went on to find:

"12.6 As with all redundant staff, the Claimant was put on garden leave immediately. The Claimant's redundancy was the first of many to follow during the latter months of 2008 and into 2009. In fact, twenty people from the infrastructure platform have been made redundant in that time and many more company wide. Twenty four others left the infrastructure platform for other reasons, mainly resigning to leave the company altogether so that could be regarded as natural wastage. A few, but not many, were redeployed to other areas of the business."

  1. On the question of alternative vacancies, the Tribunal found the following facts.

"12.7 The Claimant's garden leave ended on 26 August 2008. Even before that her departure was announced on the internal intranet or other communications system on 8 August 2008. Also a list of vacancies in her particular case was not produced until 11 August, updating the previous list produced by HR in May and July 2008, which had been produced for other people being made redundant in other parts of the business. Mr Fleming told us that he did not see this list of vacancies at the time. Nor was it shown to the Claimant. He went through the list of vacancies in the Tribunal before us. The capital markets roles in the top half of the list were skilled roles and individuals required product knowledge and a strong client base. The lower paid jobs in the second part of the list still required accountancy qualifications and/or experience and knowledge of equities, bonds and investment strategies and so on. Mr Hughes also had reviewed that list and the July list subsequent to the Claimant's dismissal. He was comfortable that there were no vacancies in the vacancy lists for which the Claimant was suitable. The Claimant has not adduced any evidence to the contrary. Nor did she cross examine the Respondent's witnesses about this to any meaningful extent. The Claimant has made assertions but has not produced evidence as to why she says that she was suitable for these jobs, such as evidence of her skills and qualifications. We have to accept, therefore, the Respondent's evidence that there was no suitable alternative employment for the Claimant."

  1. The Tribunal dealt within paragraphs 12.11 and 12.12 with the sex discrimination claim. The Claimant relied on a number of matters which occurred while she was at work as evidence of discrimination. The Tribunal considered those matters in turn and found no evidence in support of her case in any of those matters. It said that it heard "no evidence from the Claimant in support of her contention that her dismissal was on the grounds of her sex". It found that 15 out of 20 who were made redundant in the infrastructure platform were men.
  1. As to sex discrimination, the Tribunal's conclusion was as follows.

"13.1 Sex discrimination. The Claimant has not established to our satisfaction a prima facie or stage 1 case for a discriminatory dismissal. She similarly has not adduced any or sufficient evidence of a connection between her dismissal and her gender. She does not get past stage 1. If we are wrong about this and she has established a prima facie case (which we find she has not) and the burden switches to the Respondent, then we are quite satisfied that the Respondent has provided a full explanation that the dismissal was on grounds of redundancy."

  1. On the question of unfair dismissal, the Tribunal continued:

"13.2 The Respondent has established the reason for dismissal and that it was for redundancy. It is conceded by them that the dismissal was automatically unfair for breach of section 98A(1) and the statutory procedure. The Claimant's case is that not only was the dismissal procedurally unfair but it was also substantively unfair. We conclude that there was a clear redundancy situation in her case. She was the only person in her position and therefore no pool or selection criteria was required. We are quite satisfied on the evidence of the Respondent, and the commensurate lack of evidence on the part of the Claimant, that there was no suitable alternative job for her. Therefore, the decision to make her redundant was one that a reasonable employer could reach within the band of reasonable responses and there is no substantive unfairness at the end of the day.

13.3 What impact does that procedural unfairness have on remedy? We conclude that in order to carry out and complete a fair process it would have taken the Respondent two months from 30 July 2009 [sic] to a date by which the Claimant could have been given notice of termination of employment. This would have enabled warning, proper consultation, discussion of vacancies with the Claimant, the Claimant's application for vacancies if she chose to make any, the rejection of those applications for unsuitability, a final meeting, an appeal and so on. In other words, we conclude that the Claimant is entitled to two months net loss of earnings which, according to the pay slips that we have seen, was £2,931.35 per month. That sum is subject to an uplift of 50% for a complete failure to follow the statutory DDP, and there is absolutely no mitigation that the Respondent can advance on this. The Claimant is entitled to a basic award of 4 weeks pay, under section 120 of the Employment Rights Act, as amended, because the dismissal was automatically unfair. That is a sum of £1,320."

**The Respondent's dismissal practice**
  1. The Tribunal heard evidence from Mr Hughes, the Respondent's head of human resources, that the Respondent then adopted what the Tribunal termed "a process apparently common in the banking industry ... a very limited procedure" when dismissing employees. He said that the procedure adopted normally involved inviting the employee to a meeting, explaining the reasons for the termination of their employment, putting them on gardening leave with immediate effect and not giving them the right of appeal. He said employees were offered a compensation package in return for signing a compromise agreement. He said the Respondent had since changed its practice.
  1. Mr Hughes gave as the reason for adopting this practice the potential risk of damage to the business from a disgruntled employee who remained in the office and continued to carry out day to day work.
  1. The Tribunal said that it condemned the practice. We agree; and we wish to set out some reasons why the practice was unacceptable and remains unacceptable.
  1. Firstly, an employee has a right, afforded by Part X of the Employment Rights Act 1996, not to be unfairly dismissed. Unfair dismissal is in the nature of a statutory tort. The practice adopted by the Respondent at the time of the Claimant's dismissal was not a fair practice. It denied any form of consultation, hearing or appeal to an employee. It is wholly unacceptable for any employer to adopt such a practice as a matter of policy. Any organisation with a professional management – including a board of directors and a human resources department – ought to ensure that the letter and spirit of the law is obeyed, not flouted. It is no more acceptable to break the law in this area than it would be in any other area of the Respondent's business.
  1. The risk to the business of a disgruntled employee does not require an employer to set aside basic principles of fairness. Many employees pose no such risk. Where such a risk is assessed to exist, an employer can put measures in place which do not require dispensing with consultation, a hearing and an appeal.
  1. Secondly, fair dismissal procedures entail a degree of transparency in the taking of decisions. The Code of Practice on Employment issued in 2011 under the provisions of the Equality Act 2006 commends such procedures (see paragraph 17.91). A manager who is not required to be transparent in the taking of a decision (because he or she will not have to justify it at a hearing or an appeal) may be the more likely to take a rushed and poor decision – indeed a decision based on prejudices or misunderstandings of one kind or another. All the more so if the manager expects the matter to be dealt with by a compromise agreement, so that he or she will not have to justify the decision later to an employment tribunal. An employment tribunal can and should keep these considerations in mind if it is called on to review such a decision.
**Leave to amend** **the Notice of Appeal**
  1. In Khudados v Leggate [2005] IRLR 540 the Appeal Tribunal considered the principles which were applicable when deciding whether to grant permission to amend the Notice of Appeal. The following points are established by that judgment: see in particular paragraphs 79 to 87.
  1. Firstly, the starting point in considering applications to amend the notice of appeal is the overriding objective which appears both in the EAT Practice Direction and the Employment Appeal Tribunal Rules 1993 (as amended with effect from 1 October 2004). Rule 2A provides:

"(1) The overriding objective of these Rules is to enable the Appeal Tribunal to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the importance and complexity of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) The parties shall assist the Appeal Tribunal to further the overriding objective."

  1. Secondly, the Appeal Tribunal's Practice Direction must be kept in mind. The relevant provision of the current Practice Direction is paragraph 2.7, which provides:

"A party cannot reserve a right to amend, alter or add, to a Notice of Appeal or a respondent's Answer. Any application for permission to amend must be made as soon as practicable and must be accompanied by a draft of the amended Notice of Appeal or amended Answer which makes clear the precise amendments for which permission is sought."

  1. Thirdly, the strict principles applicable to extensions of time for presenting notices of appeal (most recently summarised and applied by the Court of Appeal in Jurkowska v Hlmad are not applicable, although there remains an interest in achieving closure and finality of litigation to be kept in mind.
  1. Fourthly, the merits of the proposed amendment are relevant.
  1. Fifthly, the Appeal Tribunal said the following:

"86. The EAT has a broad and generous discretion in applying its Rules and Practices so as to achieve the overriding objective of dealing with cases justly. We consider that, without wishing to set out an exhaustive list of considerations, the following are among the matters to be taken into account in determining whether or not an amendment should be allowed.

(a) Whether the applicant is in breach of the Rules or Practice Directions; in our opinion compliance with the requirement in para. 2(6) of the Practice Direction that an application for permission to amend a notice of appeal be made as soon as the need for amendment is known, is of considerable importance. The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals.

(b) Any extension of time is an indulgence and the EAT is entitled to a full honest and acceptable explanation for any delay or failure to comply with the Rules or Practice Direction, as Mummery J observed in Abdelghafar.

(c) The extent to which, if any, the proposed amendment if allowed would cause any delay. Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including witness statements and notes of evidence. Such amendments if allowed are bound to cause delay and extra expense. The latter class of amendments should be contrasted with the first. In many cases in the first category the party against whom permission to amend is sought will be in no worse position than if the amended grounds had been included in the original notice of appeal.

(d) Whether allowing the amendment will cause prejudice to the opposite party, and whether refusing the amendment will cause prejudice to the applicant by depriving him of fairly arguable grounds of appeal. We recognise that a party cannot be prejudiced in point of law simply because an argument is raised by way of amendment that saves what would otherwise be an unsustainable appeal. We also would suggest that the prejudice caused by refusing permission to amend to an applicant who seeks permission to amend by adding fairly arguable grounds, but who has failed in a significant way to comply with the Rules or Practice Direction, or who has delayed excessively, is likely to carry less weight than in the case of an applicant who has not delayed and has acted in accordance with the Rules and Practice Direction.

(e) In some cases it may be necessary to consider the merits of the proposed amendments, assuming they can be demonstrated to cross the appropriate thresholds we have mentioned earlier; that is to say as a general rule they must raise a point of law which gives the appeal a reasonable prospect of success at a full hearing.

(f) Regard must be had to the public interest in ensuring that business in the EAT is conducted expeditiously and that its resources are used efficiently."

  1. The facts of Khudados were very different to those in the present case. In Khudados the appellant's notice of appeal was drafted by leading and junior counsel. Some months later no less the appellant sought to amend the notice of appeal to add no less than 26 pages of further grounds devoted to arguments of perversity ranging widely over the Tribunal's decision. The application resulted in an adjournment of a preliminary hearing. The Appeal Tribunal was told that the need to amend was appreciated at the date of presentation of the original notice of appeal; but neither the opposite party nor the Appeal Tribunal was told that any application was to be made. The application to amend was refused.
  1. The present case is of a different character. The Claimant prepared her own Notice of Appeal; she did not have legal advisers; she told us, and we have no reason to doubt, that she could not afford legal advice. There is available to litigants in person at preliminary hearings, and certain other interlocutory hearings, assistance from the Employment Law Appeals Advisory Scheme ("ELAAS"). The Claimant took advantage of this scheme. As the judgment of His Honour Judge Hand QC shows, those points presently argued which were not in the original Notice of Appeal were advanced on her behalf by Mr Hignett, who appeared for her under the auspices of ELAAS. We accept that, as the Claimant told us, the application for permission to amend was made with the advice of Mr Hignett. The Appeal Tribunal was persuaded that the grounds were arguable.
  1. In his submissions on behalf of the Respondent Mr Sheridan submitted that the Claimant ought to have obtained legal advice prior to service of the Notice of Appeal or at least prior to the preliminary hearing. He did not argue that she could afford legal advice; rather he submitted that she ought to have found some unpaid source of legal expertise such as the Bar Pro Bono Unit. Therefore, he submitted, she was guilty of delay; and did not comply with the Practice Direction.
  1. Further Mr Sheridan submitted that the prejudice to the Respondent by reason of the amendment of the claim was considerable. The case had already been delayed (he submitted) prior to the Tribunal hearing. Further delay of any kind was undesirable and unfair to the Respondent.
  1. We will keep these arguments in mind as we consider individual grounds of appeal; but speaking generally they do not to our mind carry the same weight that they carried in Khudados.
  1. It is of course always desirable that a litigant in person should obtain legal advice from any available source; but pro bono advice relating to grounds of appeal in employment cases (particularly cases of some length and complexity) is not easy to find. Legal aid may be granted by the Community Legal Service, but it is in our experience very much the exception rather than the rule. Hence the great value of ELAAS to litigants in person who appeal to the Appeal Tribunal. In our experience it is not at all unusual for representatives appearing under the auspices of ELAAS to identify arguable points in an appeal; and it is not unusual for permission to amend to be given which focus argument on grounds which they have advanced. The interests of justice are served by the availability of pro bono advice and representation; and it is generally in the interests of justice that an appellant who has brought an appeal in time should be able, with legal assistance, to focus the appeal on relevant and arguable grounds. Such an approach accords with the overriding objective.
  1. In the ordinary run of such cases, we think the prejudice to a respondent who is required to meet arguable grounds of appeal identified in this way is outweighed by the prejudice which would be sustained by an appellant refused permission to argue such grounds. In such a case the respondent has always been notified that an appeal is under consideration; it will have been listed for a preliminary hearing (or a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993) with the respondent's knowledge; and the respondent's proper interest in the finality of litigation is not engaged in the same way as it is engaged by a late notice of appeal.
  1. Each case – indeed each individual ground of appeal – however must be considered on its own merits, applying the principles laid down in Khudados. We keep in mind that it is for the appellant to justify the grant of permission to amend; this principle does not alter merely because the respondent (who had no opportunity at any earlier stage to object to the grant of leave) applies to set it aside.
  1. We will first consider a ground of appeal relating to reinstatement and re-engagement. This is a ground for which permission to amend was granted; we must therefore consider both the substance of the ground and whether permission to amend should be granted.
  1. The Claimant's case is straightforward. She says that she asked for reinstatement in her claim form; she confirmed that she was seeking re-engagement in her witness statement; she prepared for the hearing on the basis that she wished to be re-employed by the Respondent; although she won her case of unfair dismissal the Tribunal did not comply with section 112 of the Employment Rights Act 1996 by explaining the orders and asking her whether she wished to be reinstated or re-engaged; and that it did not deal with the issue in its reasons. She points out that at her last appraisal (prior to Mr Fleming becoming her manager) she was ranked 4/5 for performance and 5/5 for teamwork. She says her request for re-employment was to be taken seriously.
  1. Section 112(1) and (2) of the Employment Rights Act 1996 provide as follows:

"(1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are well-founded.

(2) The tribunal shall –

(a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and

(b) ask him whether he wishes the tribunal to make such an order."

  1. The orders under section 113 are an order for reinstatement under section 114 or an order for re-engagement under section 115. It is not necessary to set these provisions out in full in this judgment; but we note that in each case the Employment Tribunal is required to consider whether it is practicable for the employer to comply (see section 116(1)(b) and (2)(b)).
  1. It is conceded by the Respondent that the Tribunal did not give the explanation required by section 112. The Employment Judge, when asked for his comments on this point, was unable to say whether he had given the explanation. He said, however, that he noted the Claimant as saying at the very start of her evidence that she was seeking re-engagement or reinstatement with the Respondent.
  1. The Employment Judge also said the following:

"The question of re-instatement did not arise, as the Claimant's post was redundant, as we concluded. The question of re-engagement likewise did not arise, as there was no suitable alternative post for the Claimant, as we found on the evidence."

  1. On behalf of the Respondent Mr Sheridan made the following submissions.

(a) Failure to comply with the requirements of section 112(2) does not make the Tribunal's decision a nullity, but rather renders the decision voidable depending on whether the failure led to the possibility of injustice and unfairness: Cowley v Manson Timber Ltd [1995] ICR 367. In this case it was plain to the Tribunal from the Claimant's claim form, witness statement and stance at the hearing that she was seeking reinstatement and re-engagement; the Tribunal was well aware of this.

(b) No employment tribunal properly directing itself in law would have ordered re-engagement, given the deterioration in the relationship between the Claimant and the Respondent. He relies on the Claimant's continuing belief that she was subject to unlawful discrimination and to her belief that the Respondents were trying to ruin her financially and had arranged for private investigators to follow her and may have sought to influence a judge. He refers to Nothman v London Borough of Barnet (No 2) where Ormrod LJ said that an employee who believes he has been a victim of conspiracy is not likely to be a satisfactory employee if reinstated or re-engaged.

(c) It would not be right to grant permission to amend the Notice of Appeal, which would permit the question of reinstatement or re-engagement to be revisited yet again, long after the matter ought to have been closed.

  1. On this part of the case, our conclusions are as follows.
  1. Given the importance which the Claimant attached to the question of re-employment, we think that the Tribunal's failure to deal with this issue is a striking omission. We are satisfied that the Tribunal did not comply with the requirements of section 112(2). Moreover there is no mention of reinstatement or re-engagement in the Tribunal's summary of the law which it was applying; the Tribunal passed straight from the substantive law of unfair dismissal to the issue of compensation; and in its reasons it did not apply the law relating to reinstatement or re-engagement at all.
  1. The Employment Judge said that the Tribunal found that there was no alternative employment. But the Tribunal dealt with this issue only as regards the time of dismissal not as regards the time of the hearing, which would be the relevant time for considering the question of re-engagement. The Respondent is a substantial organisation. While there were redundancies in 2008 – and quite possibly retrenchment thereafter, given the economic climate – it does not follow that there were no suitable vacancies at the time of the hearing. Some members of the team within which the Claimant was employed were (the Tribunal found) redeployed. Most large organisations undertake some recruitment even in difficult times; and it might be thought that an employee who has been unfairly dismissed should be considered for re-engagement if there was a job opportunity.
  1. Although at the beginning of the hearing the Tribunal was reminded by the Claimant that she sought re-engagement, we can only conclude from its reasons (and from the failure to comply with section 112) that the Tribunal overlooked the matter by the end of the hearing. Compliance with section 112 is a valuable discipline for the purpose of ensuring that important issues relating to reinstatement and re-engagement are not overlooked. In this case the Tribunal's failure to comply with section 112 and its failure to deal with the issue go hand in hand. This is not a case like Cowley where it can be said that failure to comply with section 112 has caused the Claimant no prejudice.
  1. We reject Mr Sheridan's argument that no reasonable tribunal, directing itself properly in accordance with the law, would have found that it was practicable to order re-engagement. There are no findings by the Tribunal on this question; it is an issue which (if it was raised) the Tribunal ought to have considered and about which it should have made careful findings. In this case it is hardly surprising that the Claimant was aggrieved about the circumstances of her dismissal, and suspicious about the motives for it: the Respondent's failure to adopt any fair procedure (especially when the decision to dismiss was taken shortly after she complained that her performance appraisal had not been completed) was liable to give rise to a sense of injustice and suspicion. It does not follow that it is not practicable to re-engage her. Nor do views expressed by an inexperienced litigant in person in the heat of litigation necessarily lead to this conclusion.
  1. In our judgment the Tribunal erred in law in failing to address the question of re-engagement. The Claimant, not being a lawyer, did not identify this error in her original Notice of Appeal. It was identified by the ELAAS representative. In our judgment, applying the Khudados guidelines, it was and is right to grant permission to amend. It is true that on remission the Tribunal will now have to consider the issue of re-engagement at a different date; but any prejudice to the Respondent it is of less weight than the prejudice the Claimant would suffer if we were not to accede to her application and correct what we regard as a plain error of law.
**Witness order**
  1. It is next convenient to consider a ground of appeal relating to an application for a witness order. This ground was in the original Notice of Appeal. The Claimant contends that the Tribunal erred by failing to grant a witness order in respect of Isabella Brusati, a human resources manager who attended the meeting on 30 July and was responsible for dismissing her. She says that if Ms Brusati had attended she would have given evidence contrary to that of Mr Fleming relating to the meeting on 30 July and would have supported her case that the procedure for dismissal adopted by the Respondent was wholly unfair.
  1. Statements concerning this issue were ordered by the Appeal Tribunal and provision made for cross examination if necessary at the hearing of the appeal. In fact, however, the facts concerning the application for a witness order were not to any material extent in dispute before us.
  1. The Claimant made a written application for a witness order in respect of Ms Brusati on 19 March 2009, handing it to the Employment Judge's clerk. The Employment Judge's order did not deal with that application. We do not find that to be in itself surprising, for witness statements had not been exchanged by that stage, and the application would have been regarded as premature.
  1. The Claimant mentioned the application for a witness order at the start of the full hearing in January 2010. The Employment Judge noted "Witness order for C's witness?". However the Claimant did not make an application there and then for an order. As she told us, she sought to contact the witness directly. She did not raise the question of a witness order again.
  1. In those circumstances we do not think that the Employment Tribunal erred in law in any way. In March 2009 the application was premature. Although the Claimant mentioned the application on the first day of the full hearing she did not renew the application and the Tribunal did not err in law in failing to deal with it.
**The meeting on 30 July**
  1. We now turn to consider a ground of appeal relating to the meeting on 30 July 2008. The thrust of this point (as explained by His Honour Judge Hand QC both in his judgment at the preliminary hearing and in a subsequent note) is that the Tribunal failed to deal adequately with the meeting of the 30 July, setting out the competing factual contentions as to what happened and indicating how they had been resolved by the Tribunal.
  1. This ground was not within the original Notice of Appeal. It was one of the additional points identified at the preliminary hearing (see paragraphs 33-36 of the judgment of His Honour Judge Hand QC). It became ground 9 in the amended Notice of Appeal.
  1. The Claimant's account of what occurred at that meeting may be taken from her witness statement.

"When we arrived at the meeting room for the midday catch-up, to my surprise both Ms Brusati and Ms Wood (Human Resources) were in the room, seated.

I asked as to the nature of the meeting. No one replied.

My manager Steven then made an allegation. He said that Senior Management (the Operating Committee) (including in the UK Messrs Bell, Tucker, Clement and Fleming himself) had alleged concerns about my work. At no time during my employment have I had any reason to believe that there were any concerns about my performance. When I asked my manager to substantiate his allegation he refused.

In face of an unfounded allegation, I asked Isabella if we could go to the conclusion of the meeting and work backwards as I was still unclear as to the nature of the meeting. She presented me with a compromise agreement from her notebook. Out of the blue and on the spot I was told I was now redundant. I asked for a proper letter explaining all this. I was told I would not be getting a letter and the compromise agreement would be all I would be receiving. Furthermore, I was told that I was now on garden leave with immediate effect."

  1. The only witness for the Respondent who was present at that meeting was Mr Fleming. His account of his participation in the meeting was as follows.

"Before the meeting with Debbie, I prepared a crib sheet of what I wanted to say (a copy of which I did not retain). When the meeting started, I tried to explain the background to the redundancy to Debbie, but she cut across me and asked me to get to the point. Isabella then stepped in and gave Debbie the Compromise Agreement, explaining that she was being made redundant."

  1. The Claimant's submissions were as follows. She did not accept at the Tribunal hearing that redundancy was the true reason for dismissal. She pointed out that the dismissal followed shortly after she raised, with the human resources department, her concerns that her appraisal had not been completed and her objectives had not been set. She drew two points from her account of the meeting on 30 July. Firstly, Mr Fleming did not mention the cancellation of the project: it would have been the obvious thing to mention if she was in reality redundant by reason of its cancellation. Secondly, he began by saying that senior members of management had concerns about her work. Why begin in this way if the true reason for dismissal was redundancy? It was, she submitted, important for the Tribunal to reach conclusions of primary fact about what happened at the meeting. Until it had drawn those conclusions of fact it could not sensibly reach a conclusion as to why she had been dismissed and whether there was any discriminatory element to her dismissal. She took us to key documents concerning this point – notes of the meeting on 30 July and notes of earlier meetings on 23 July and 24 July which set the context for it.
  1. On behalf of the Respondent Mr Sheridan submitted that, whereas he cross-examined the Claimant about her account of the meeting, the Claimant did not cross-examine Mr Fleming about this point and did not suggest in her closing submissions that concerns about her performance were the real reason for dismissal. Therefore, he submitted, the case which the Claimant now seeks to advance was no part of her case before the Tribunal; and the Tribunal did not err in law in failing to deal with this aspect of the case. The Claimant ought not to be permitted to advance before the Appeal Tribunal a case which was not advanced below, not least because it would require fresh findings of fact to be made.
  1. The Claimant was inclined to accept that she had not put her account of what happened on 30 July to Mr Fleming in cross examination. She said that she was a litigant in person, doing her best to ask the correct questions; and that she had forgotten notes which she made of the questions which she intended to put to Mr Fleming. She said, however, that she had adhered to her case when she was cross examined; and that she had never withdrawn or resiled from her account of the meeting of 30 July.
  1. On this part of the case we broadly prefer the submissions of the Claimant. Our reasons are as follows.
  1. In our judgment it is plain that the Claimant put in issue whether redundancy was the real reason for her dismissal; and she specifically raised the question whether her dismissal was because of unstated management concerns. In her claim form, completed at a time when the Respondent had given her no explanation of her redundancy at all, she stated that her dismissal was not attributable wholly or in part to any redundancy situation. She set out her version of what happened on 30 July. In her witness statement she repeated both these matters; and she specifically stated:

"To further compound the matter, at my dismissal meeting, Steven advised me that Senior Management (Infrastructure Operating Committee) had raised concerns about my work. I must make the assumption that I was discriminated against by Steven and his co-committee members ...."

  1. Although there was, as we have said, a proper account of the meeting in the claim form, neither the response form nor the witness statement of Mr Fleming specifically denied that he had told the Claimant that senior management had alleged concerns about her work. This is perhaps not surprising, for Ms Wood's note of the meeting on 30 July began


"Role reduction ?resources for platform.*

Concerns from various people

Concern was either end in IT role supporting project"

  1. In these circumstances it seems plain to us that the Tribunal ought to have dealt expressly with the Claimant's case on this issue. She had set it out clearly in her claim form and her witness statement. She adhered to her account in her evidence. Her account derived some support from Ms Wood's contemporaneous note of meeting. There was an important dispute about the matter – all the more important because of the Respondent's wholesale failure to follow any reasonable procedure, as a result of which the Claimant was told virtually nothing at the time about the reason for dismissal. What Mr Fleming said at the meeting on 30 July was the only contemporaneous information which the Claimant was given about the reason for her dismissal. Whether her account was true was relevant as to whether the reason for her dismissal was truly redundancy and whether the timing of her dismissal or her treatment on dismissal was influenced by considerations of a more personal or even discriminatory nature. A Tribunal is not required to deal with every dispute of fact which may arise in the course of a hearing; but a Tribunal is required to address and consider disputes of fact which are of real importance to its conclusions. What Mr Fleming said on 30 July was, in our judgment, of real importance to its conclusions.
  1. The Tribunal's task was certainly made more difficult because the Claimant did not put her case to Mr Fleming by questioning him on the matter. But we do not think that a dispute necessarily ceases to be an issue in the case because a party – particularly a litigant in person – omits to cross examine about it.
  1. It seems to us that, once granted that an issue of importance has been fairly and squarely raised by a litigant (as in this case), failure to cross examine about that issue will usually be relevant to a tribunal in two ways.
  1. Firstly, it may be implicit in the failure to cross examine that the issue is no longer pursued. Whether this conclusion can be drawn will depend on all the circumstances. The conclusion may be easier to draw if a litigant is represented than if a litigant is in person, unaccustomed to the rules of cross examination or to the orderly preparation of cross examination. In this case it would have been quite impossible for the Tribunal to draw that conclusion. The Claimant's case about the meeting on 30 July was raised squarely and plainly by the claim form and witness statement; and she adhered to it when she was cross examined.
  1. Secondly, it may be unfair to the opposite party to reach an adverse conclusion on an issue where it has not been raised in cross examination. If so, the Tribunal ought not to reach a conclusion adverse to the opposite party without raising the matter, hearing submissions and if necessary recalling the relevant witness. In this case the Respondent was plainly alive to the issue and had cross examined the Claimant about it. We see that the failure of the Claimant to cross-examine Mr Fleming may have placed the Tribunal in difficulty; but it is the kind of difficulty which tribunals often have to deal with. If the Tribunal was minded to decide the facts against the Claimant, it would have been free to do so. If it was minded to decide them in favour of the Claimant, it may well be that it would have been necessary to raise the matter with the Respondent and afford the Respondent an opportunity of dealing with it. In fact, however, the Tribunal made no findings. Contrary to Mr Sheridan's submissions, we do not think that the Claimant's failure to ask questions about the matter justified the Tribunal in failing to make findings concerning it.
  1. Further we consider, applying Khudados principles, that the grant of permission to amend the Notice of Appeal was justified. We have dealt in general terms already with the circumstances in which permission to amend was sought and with the question of prejudice. The considerations which we have identified apply, in our judgment, to the application for permission to amend concerning this ground. The injustice to the Claimant in refusing permission to argue the point outweighs any injustice to the Respondent in permitting the point to be argued. It is true that it will require re-consideration of an important factual issue long after the events in question; but the taking of the point by way of amendment to the Notice of Appeal is not the cause of most that delay, and the balance of the delay is not attributable to the Claimant.
**Alternative employment**
  1. The Claimant's next grounds relate to the Tribunal's findings concerning suitable alternative employment. She argues that the Employment Tribunal "misdirected itself in law in relation to the duty of an employer to provide sufficient information as to suitable alternative employment prior to redundancy". She argues that the Tribunal effectively placed the burden of proof upon her to establish that there was suitable alternative employment with the Respondent, whereas the burden of proof ought to have been the opposite. The first of these grounds was always in the Notice of Appeal. The second was added by way of amendment.
  1. During the course of argument we noted that the Respondent appeared to have produced to the Tribunal, and the Tribunal appeared to have considered, only a single set of vacancies produced on 11 August. We put it to Mr Sheridan that on any view this seemed inadequate: the Tribunal found that a period of two months was required for consideration and discussion of vacancies; yet apparently found that there was no chance of alternative work based only on a snapshot on 11 August. It seems inconceivable that an organisation such as the Respondent will have had no vacancies arising or expected by the end of September. Mr Sheridan submitted that this was not within the present grounds of appeal and that he was taken by surprise by the point. We said that we would give him an opportunity to put in supplemental submissions as to whether the matter was within the present grounds of appeal; whether permission to amend should be granted; and how he would respond to the point. With our permission the parties put in supplementary submissions after the hearing.
  1. Mr Sheridan has made the following submissions on the question of alternative employment.

(1) The Employment Tribunal correctly directed itself by reference to Software 2000 Ltd v Andrews [2007] IRLR 569; see paragraph 5 of its reasons. He took us also to the decision of the Appeal Tribunal in Virgin Media v Seddington [2009] UKEAT/0539/08/DM at paragraph 15.

(2) The Respondent's case before the Tribunal was that, had a fair process been followed, there would have been a short consultation period during which the Claimant would have had the opportunity to apply for any of the vacancies on the 11 August list, but that in fact the vacancies were not suitable. The Employment Tribunal heard lengthy and cogent evidence from the Respondent's witnesses as to why the Claimant was not suitable for any of the vacancies, and was entitled to accept that evidence; its conclusion was not perverse.

(3) It was for the Claimant to contend that, had a fair procedure been followed, it would have been obliged to provide her with any vacancy lists produced after 11 August 2008 and consider her for those vacancies. She did not put forward this contention. It was not for the Tribunal to put the case for her: see [Muschett v HM Prison Service]() [2010] IRLR 451. If and only if she raised the issue would the Respondent be obliged to disclose any subsequent vacancy list.

(4) In so far as this is her argument on appeal, it is a new argument, not raised below, which ought not to be permitted on appeal save in exceptional circumstances: see Jones v Governing Body of Burdett Coutts School [1998] IRLR 521. The fact that the Claimant represented herself did not amount to an exceptional circumstance.

(5) In any event this argument is not covered by the Notice of Appeal and the Claimant ought not to be given permission to amend further. He submitted that the Respondent was prejudiced by the late raising of the argument, not least because the Respondent had not retained vacancy lists from 2008.

(6) In any event, he submitted, it was implicit in the Tribunal's reasoning that it considered the prospect that any suitable alternative vacancies would arise over the period from August to October 2008 and discounted that prospect. He pointed out that the Tribunal found the Claimant's role to be primarily administrative; and that the roles in the August 2008 vacancy list were primarily client-facing roles of a different character.

  1. The fundamental task of the Tribunal, in awarding compensation for unfair dismissal, was summarised by the Appeal Tribunal in the judgment of Elias P in Software 2000 Ltd v Andrews as follows:

"(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

(5) An appellate court must be wary about interfering with the tribunal's assessment that the exercise is too speculative. However, it must interfere if the tribunal has not directed itself properly and has taken too narrow a view of its role."

  1. Where (as in this case) the question is whether there was suitable alternative employment which the employer ought to have offered the employee, it is important that Tribunals should be realistic about what an employer can be expected to prove. This, we think, is the message of Virgin Media v Seddington in which Underhill J said (paragraph 15):

"But more significant is the fact that the Tribunal regarded the burden of proof as being on the company. That approach would be reasonable in a case, such as King v Eaton, of unfair selection for redundancy (or of a procedurally unfair dismissal for misconduct): in such a case the question is what the employer himself would have done if a fair process had been followed, and it is appropriate that the burden of showing that he would, or might, have dismissed anyway should be on him. But, as we have already observed (see para. 9 (1) above), this case is not of that kind: the issue which determines loss is whether the Claimants would have found, and accepted, alternative employment. As to that, we do not think that the burden can be regarded as being at all points on the employer. The burden may indeed be on him to raise the issue (if the employee has not) – that is, to assert that there was no suitable employment that the employee could or would have taken – and he will also have to provide appropriate evidential support for that assertion: the basic facts about alternative employment will be within his knowledge and not – at least not always or not completely – within the employee's. But if he raises a prima facie case to that effect, it must, it seems to us, be for the employee to say what job, or kind of job, he believes was available and to give evidence to the effect that he would taken such a job: that, after all, is something which is primarily within his knowledge. To the extent that any uncertainty about the position is the result of the absence of evidence which the burden was on the employee to supply, then it would be unfair for that uncertainty to be deployed against the employer."

  1. In this case, as we have seen, it was admitted that the dismissal was unfair. It is, however, important to keep in mind that an employer, prior to dismissing an employee for redundancy, is expected to consult an employee on the question of alternative employment and to take reasonable steps to offer an employee alternative employment. The Tribunal recognised this basic principle in paragraph 13.3 of its reasons, when it set at 2 months the period for which it awarded compensation, saying that the period was to allow for "warning, proper consultation, discussion of vacancies with the Claimant, the Claimant's application for vacancies if she chose to make any, the rejection of those applications for unsuitability, a final meeting, an appeal and so on". It is very common for vacancies to arise during a period of consultation: if it was reasonable for such a vacancy to be offered to an employee it would of course be no answer for an employer to say that the vacancy did not exist at the start of the period of consultation. It follows that a Tribunal, when assessing compensation for an unfair dismissal which peremptorily made no allowance for such a period of consultation, must take account of the chance that suitable alternative employment might arise for the employee at any point during the period.
  1. Drawing the threads together, it seems to us that it was for the Respondent to produce evidence as to what vacancies existed during the period over which it ought to have consulted the Claimant. These were "the basic facts about alternative employment" (see Virgin Media above) which were within the Respondent's knowledge but outside the knowledge of the Claimant who, as we have seen, was placed on gardening leave at the outset and not even shown the August vacancy list. Both parties would then be in a position to adduce evidence about the suitability of those vacancies; and it is in practice unlikely that anything would turn on the burden of proof. We do not accept Mr Sheridan's submission that it was for the Claimant to adduce evidence or make specific submissions as to vacancies after 11 August; on the contrary it was for the Respondent to produce evidence about what vacancies arose if it wished to limit the Claimant's period of loss on the basis that she would not have been employed in the long term. Nor do we accept Mr Sheridan's submission that the Claimant is seeking to raise a new point which was not argued below. It was her case that her loss of earnings should not be limited to a short period; as Software 2000 and Virgin Media show it was for the Respondent to adduce relevant evidence as to vacancies if it wished to make this point good.
  1. In this case the Respondent relied on a list of vacancies, produced on 11 August but not shown at any time to the Claimant or for that matter to Mr Fleming. The Tribunal found that the Claimant was not suitable for any of those vacancies; and it seems to us that this was a question of fact for the Tribunal. We do not think the Tribunal can be said to have erred in law in its findings on that matter; or that the Tribunal placed any burden of proof on the Claimant. On the contrary; the Tribunal accepted the evidence of the Respondent's witness on the matter.
  1. For the reasons we have given, however, we do not consider that the Tribunal should have restricted itself to considering a list of vacancies as at 11 August 2009. As a matter of law the Tribunal ought to have considered the chance of a vacancy arising over the whole period in question. The Respondent's peremptory dismissal of the Claimant deprived the Claimant of the period of consultation which any reasonable employer would have afforded; consultation should have included vacancies over the whole period, not merely vacancies existing at the outset. We do not accept that it is implicit in the Tribunal's findings that no suitable vacancy existed after 11 August; it seems to us that the Tribunal restricted itself to considering the August vacancy list without considering whether any subsequent vacancy might have arisen. It is not fanciful to suppose that there may have been subsequent vacancies suitable for the Claimant. As the Tribunal found, some other employees who were redundant were redeployed; and the Claimant had banking qualifications as well as skills of an administrative nature.
  1. Having considered the Khudados principles, we take the view that it is just and proper to grant permission to amend to take this point. We do not propose to repeat what we have said earlier in relation to other grounds of appeal; but we will concentrate on two particular points which are specific to the question of alternative employment.
  1. We will accept, for the purposes of this appeal, that the Respondent has not kept vacancy lists from 2008. This is not, however, a point which carries great weight with us. The Respondent, having accepted in its response that the dismissal was unfair on procedural grounds, should have put before the Tribunal evidence as to vacancies over the whole period when proper procedures would have been carried out. It was not satisfactory to put forward a list which was no more than a snapshot in early August, taking no account of any consultation period. Moreover even if the Respondent has not kept vacancy lists it ought to be able to show what posts were filled in the latter part of 2008; and if any of these were suitable for the Claimant why she was not told of them or offered them.
  1. We accept that the point concerning alternative employment over the consultation period crystallised in the course of the appeal hearing before us. The question of alternative employment was, however, always an issue for consideration at the appeal; Mr Sheridan had dealt with the key authorities in his skeleton argument and submissions; and we think that it is appropriate to grant permission to appeal to enable the Claimant to argue it.
**The two month period**
  1. The Claimant submitted that the Employment Tribunal erred in adopting the approach in Polkey v A E Dayton Services [1987] IRLR 503 **at all, given the seriousness of the Respondent's breaches of employment law, her work experience and her professional banking qualifications – as well as the fact that the organisation providing the software for the global infrastructure finance project was still working for the Respondent.
  1. We reject this submission. Once granted the Tribunal's finding that there was a genuine redundancy, it was not an error of law to apply the principles in Polkey. The Tribunal's selection of the 2 month period did not involve any error of law in itself.
  1. The Claimant argues that the Employment Tribunal ought to have taken into account her entitlement to a bonus in its assessment of compensation. She relies on the decision in Rutherford v Seymour Pierce [2010] IRLR 606. However, unlike the contract under discussion in Rutherford, the Claimant's contract expressly stated that in order to receive a bonus employees must be in employment on the payment date. On the Tribunal's findings, the Claimant would have been fairly dismissed on 30 September, prior to the payment date – indeed, on information supplied by the Claimant, prior to the date as at which the bonus was calculated. Accordingly, on the Tribunal's findings, if the Claimant had been fairly dismissed she would not have been entitled to a bonus: see Commerzbank AG v Keen [2007] IRLR 132 at paragraphs 73 et seq. As an independent point, the Claimant's argument on the question of bonus has no substance.
  1. It follows from our conclusions, set out above, that the appeal will be allowed in part.
  1. Since the Appeal Tribunal deals only with questions of law, and is not a fact-finding body, the case must be remitted for decision. On remission, the Tribunal's first task will be to make findings as to what occurred at the meeting on 30 July. If, as a result of these findings, the Tribunal further concludes that the dismissal or its timing was influenced by concerns personal to the Claimant (such as, for example, concerns about her performance never brought to her attentions) it may need to revisit the conclusion that (1) the dismissal was only unfair on procedural grounds and (2) the dismissal was not an act of sex discrimination. If these conclusions are revisited and altered, then of course all questions of remedy and compensation will need to be reconsidered.
  1. If, however, the Tribunal after making findings as to what occurred at the meeting on 30 July, finds in favour of the Respondent that the dismissal was indeed genuinely on the grounds of redundancy by reason of the cancellation of the project, independent of any concerns personal to the Claimant, then it will still need to consider (1) remedies, and (2) if the Tribunal decides to award compensation, in what sum, having regard to any chance that there would have been suitable alternative employment for the Claimant over the whole of the appropriate consultation period.
  1. This leads us to the final question – whether the proceedings should be remitted to the same or to a different Tribunal. The Appeal Tribunal, in deciding this question, takes into account criteria set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763. Mr Sheridan submitted that the proceedings should be remitted to the same Tribunal. The Claimant was more guarded, saying that she would be in favour of remittal to the same Tribunal if it would result in a speedier resolution of the matter. While a hearing might be shorter in front of the same Tribunal, we do not think there is any guarantee that the overall resolution would be speedier; this will depend on availability of the different participants both on the Tribunal and on each side. It seems to us that it would be unsatisfactory for the same Tribunal to hear the matter on remission; it would, we think, now be unsatisfactory for that Tribunal to consider what occurred at the meeting on 30 July and whether re-engagement is practicable when it did not consider those issues at the appropriate time. We think that the interests of justice are best served by remission to a different Tribunal.

Published: 23/10/2011 10:54

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