Rowstock Ltd & Anor v Jessemey (EHRC Intervening) UKEAT/0112/12/DM
Appeal against a decision that post termination victimisation could not be pursued because the Equality Act 2010 expressly excludes it. Cross-appeal against a failure to make any Polkey reduction in the compensation awarded. Appeal dismissed, cross-appeal allowed.
The claimant reached the age of 65 and was dismissed without the respondent following the statutory procedures in relation to age-related retirement. After his dismissal, he applied to a recruitment agency but received a very poor reference from the respondent. He claimed unfair dismissal and victimisation, on the grounds of the reference, at the ET. The ET found that the claimant had been unfairly dismissed and awarded him compensation and an award for injury to feelings. However, even though the ET found that the reference had indeed been given because of the ET proceedings, they rejected his victimisation claim because they said that s108(7) of the Equality Act 2010 expressly excluded post termination victimisation, that section reading:
"But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A."
The claimant appealed the victimisation decision, with the Equality and Human Rights Commission intervening, and the respondent appealed the remedy decision.
The EAT first rejected the victimisation appeal. They were invited to conclude that the wording of the statute must have been a mistake because the Equality Act was a restatement of the protective provisions in previous legislation, which included post termination victimisation. However, even if the wording of the section was a mistake, the addition of words to include post termination victimisation would result in an incomplete recasting of the statute. In such a situation no judicial tool was available to make available a remedy which the words used by Parliament have simply stated shall not be available. The EAT gave permission to appeal to the Court of Appeal on this point as it was of some general importance. The EAT allowed the appeal on remedy because the ET had not given adequate reasons as to why no reduction had been made.
Appeal No. UKEAT/0112/12/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On 26 September 2012
Judgment handed down on 5 March 2013
MR RECORDER LUBA QC, MR B BEYNON, MR S YEBOAH
(1) ROWSTOCK LTD; (2) MR J DAVIS (APPELLANTS)
EQUALITY & HUMAN RIGHTS COMMISSION (INTERVENER)
Transcript of Proceedings
For the Appellants
MR JOHN CROSFILL (of Counsel)
34 Shortmead Street
For the Respondent
MR PAUL ARCHER (Solicitor)
Messrs Lemon & Co
34 Regent Circus
For the Intervener
MR CHRISTOPHER MILSOM (of Counsel)
Equality & Human Rights Commission
3 More London Riverside
UNFAIR DISMISSAL – Polkey deduction
AGE DISCRIMINATION – Dismissal
VICTIMISATION – Post-employment**FACTS**
The employee was dismissed on grounds of retirement, having reached an age over 65.
A failure by the employer to follow statutory procedures in relation to age-related retirement led to findings by an Employment Tribunal of unfair dismissal and of unlawful age discrimination.
The Employment Tribunal rejected a claim for victimisation (in the form of giving an adverse reference in consequence of the unfair dismissal claim being lodged) as the Equality Act 2010 did not make a remedy available for post-employment victimisation: section 108(7).**THE APPEALS**
The employer appealed from the failure of the Employment Tribunal to make any deduction in the compensation awarded - to reflect the likelihood of the employee being fairly dismissed had the correct procedures been followed.
The employee cross-appealed from the rejection of the victimisation claim and the Equality and Human Rights Commission intervened in support of the cross–appeal.**RESULT**
Appeal allowed for want of adequate reasoning by the Employment Tribunal as to why no reduction in the compensation had been made. Assessment of compensation remitted.
Cross-appeal dismissed. The 2010 Act provides no remedy for post-employment victimisation.**MR RECORDER LUBA QC****Introduction**
- By a unanimous Judgment of an Employment Tribunal sitting at Reading (Employment Judge Hardwick and members), Mr Jessemey succeeded in a claim for unfair dismissal and unlawful discrimination (on grounds of age) brought against his former employers Rowstock Limited. However, both parties are dissatisfied with the Tribunal's judgment and have appealed to this Appeal Tribunal. Mr Jessemey appeals from the refusal of the Employment Tribunal to uphold a further claim he made arising from what he alleged was post-employment victimisation. The employers appeal from the failure of the Employment Tribunal to make any deduction from, or reduction in, the award of compensation to reflect the fact that – as they assert - even if fair procedures had been followed Mr Jessemey would inevitably, or very likely, have been dismissed a few months later than he was.
- As will shortly become clear, the appeal by Mr Jessemey raises a point of some considerable public importance such that the Equality and Human Rights Commission was granted permission to intervene in his appeal. We have been assisted by the oral and written submissions of the Commission and of both parties.
- Rowstock Ltd sells and maintains Nissan motor cars. Mr Jessemey was employed by the company as a car body repairer. His employment began on 5 March 2008. He reached the age of 65 on 17 January 2010. A year later, on 10 January 2011, a Director of the company – Mr Davis – told him that the company did not wish to employ men over 65. He was given two weeks' notice of termination of his employment. As the company did not require him to work out his notice, he was paid two weeks' in lieu and did not return to the workplace. On 8 February 2011 the company gave a very poor reference about Mr Jessemey to an employment agency, from which he had sought assistance in finding work.
- On Mr Jessemey's making of a claim for unfair dismissal, the company gave 'retirement' as the principal reason for his dismissal and conceded that it had not (by reason of alleged ignorance) complied with the statutory retirement procedures set out in the Employment Equality (Age) Regulations 2006.
- Before the Employment Tribunal, the company's case was that if it had complied with the requisite procedures Mr Jessemey would have lost his job in any event some six months later on 10 July 2011. For Mr Jessemey it was said to be wholly hypothetical that he would simply have been dismissed six months later had the correct procedures been followed.
- Mr Jessemey also claimed that the poor reference had been given because he had initiated his claim for unfair dismissal. He sought compensation for that unlawful victimisation.
- Having heard evidence and submissions for both parties, the Employment Tribunal held that the concession of the company in relation to the unfairness of the dismissal had been inevitable and that the dismissal had been manifestly and automatically unfair in that it was contrary to the Employment Rights Act 1996 section 98ZG (Judgment para [5.1]). It rejected the argument that the company 'could' have dismissed in any event by following the statutory procedures (para [5.7]) and accordingly made no reduction to the compensation payable in respect of the dismissal. As that dismissal had been by reason of 'age' the Employment Tribunal was satisfied that it amounted to an act of unlawful age discrimination and it made an award for injury to feelings.
- In respect of the reference, the Employment Tribunal found that the poor reference had indeed been given because Employment Tribunal proceedings had been pursued and, further, that the content was such that no employer would hire on such a reference (para [5.5]). However, it decided that it had no jurisdiction to give any remedy for this victimisation because of the terms of Equality Act 2010 section 108(7).
- Equality Act 2010 section 108 is the opening section of Part 8 of that Act. Part 8 is headed "Prohibited Conduct: Ancillary". Section 108 is itself entitled "Relationships that have ended". It provides:
"(1) A person (A) must not discriminate against another (B) if—
(a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and
(b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.
(2) A person (A) must not harass another (B) if—
(a) the harassment arises out of and is closely connected to a relationship which used to exist between them, and
(b) conduct of a description constituting the harassment would, if it occurred during the relationship, contravene this Act.
(3) It does not matter whether the relationship ends before or after the commencement of this section.
(4) A duty to make reasonable adjustments applies to A [if B is] placed at a substantial disadvantage as mentioned in section 20.
(5) For the purposes of subsection (4), sections 20, 21 and 22 and the applicable Schedules are to be construed as if the relationship had not ended.
(6) For the purposes of Part 9 (enforcement), a contravention of this section relates to the Part of this Act that would have been contravened if the relationship had not ended.
(7) But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A."
- As appears from the language used, the function of section 108 is to extend the reach of the Equality Act into dealings between parties who were previously in an employment or other relationship which has since ended. Expressly applied to the post-relationship context are the prohibitions on unlawful discrimination (subsection (1)) and harassment (subsection (2)). Sub-sections (4) to (6) serve to extend the reach of other parts of the statutory scheme into the post-relationship environment. But subsection (7) appears to expressly dis-apply the concept of victimisation where a relationship has ended.
- That was the construction put on the sub-section by the Employment Tribunal. It held that, by reason of section 108(7), post-employment acts of victimisation are "not rendered unlawful" by section 108 (Judgment para [5.6]).
- Mr Jessemey puts his appeal against that holding in these pithy terms:
"[He] contends that Section 108 cannot have been intended by Parliament to remove post-employment victimisation and contends that, in any event, this is rendered unlawful as discrimination for the reasons set out by the House of Lords in Rhys Harper"
- The reference there being made is to the decision in Rhys-Harper v Relaxion Group PLC which (together with the judgments in linked appeals) is cited as  UKHL 33 and reported at  ICR 867. In those cases the House of Lords was concerned with claims made under the Sex Discrimination Act 1975, Race Relations Act 1976 and Disability Discrimination 1995** in relation to acts of discrimination which had taken place after an employment relationship had ended. The decision in those cases was that, notwithstanding that the incidents of discrimination occurred after the claimants' employments had ended, the Employment Tribunal had jurisdiction to hear their claims.
- Mr Jessemey did not (though his representative Mr Archer) seek to develop this Ground of Appeal in his submissions or argument, preferring to adopt the submissions and argument put forward by the Equalities and Human Rights Commission in support of it. It was sensible of him to do so because the material we received in writing and in oral argument from Mr Milsom, instructed by the Commission, represented a tour de force, and amply developed every aspect of the point that could possibly have been deployed in support of the appeal.
- It was common ground before us that the remit of section 108 runs well beyond the context of employment. It applies to all the other former relationships – such as those arising in the provision of services, goods, and education – on which the Equality Act 2010 might bite. If the Employment Tribunal was right to hold that the Act gives no remedy for post-employment victimisation it likewise fails to offer a remedy for victimisation in any other post-relationship context to which the 2010 Act might otherwise apply. The wide applicability of section 108, together with other reasons advanced in a witness statement of Mr John Wadham, General Counsel to the Commission, amply explains the Commission's interest in the correct construction of section 108(7).
- Among those 'other reasons', was the need for consistency of approach. The witness statement drew our attention to the decision of another Employment Tribunal in Taiwo v Olagigbe **(unreported, 2389629/2011). In that case, Employment Judge Tsamados (sitting alone) had allowed a claim for post-employment victimisation to proceed. He held that the exclusory provision apparently contained in section 108(7) appeared to have been made "in error" (at ). The error, he held, appeared to have occurred because "the drafters believed that post employment victimisation was covered elsewhere in the Act" (at ). The learned judge found himself able to correct the error by inserting the words "current and/or former" before the word "employment" where it appears in section 83(2)(a) of the 2010 Act.
- Mr Milsom invites this Appeal Tribunal to take broadly the same bold approach as Judge Tsamados to statutory construction and interpretation.
- His submissions in support of such an approach took us first to the decision of the Court of Justice in Coote v Granada Hospitality Ltd  ICR 100. That had been concerned with the reach of the then 1976 Council Directive on Equal Treatment in the context of a complaint by Ms Coote that she had been victimised by her former employer (in not providing her with a reference because she had made a claim to an Employment Tribunal about her dismissal). The effect of the judgment of the Court of Justice was neatly summarised by Mr Justice Morison P in giving the judgment of this Appeal Tribunal when the Coote case was remitted for determination. He said:
"First the Court reminded national courts that there was an obligation on them, when applying national law, to interpret it, so far as possible, in accordance with the wording and purpose of a Directive so as to achieve the result pursued by the third paragraph of Article 189 of the Treaty ["a directive shall be binding, so far as the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods"].
Second, it concluded that by reason of article 6 of the Directive Member States must take such measures as are sufficiently effective to achieve the aims of the Directive and that the rights thus conferred can be effectively relied upon before the national courts by the person affected.
Third, the principle of effective judicial control laid down in Article 6:
'would be deprived of an essential part of its effectiveness if the protection it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.'
In those circumstances, the answer to the questions put by the national court must be that Article 6 of the Directive requires Member States to introduce into their national legal systems such measures as are necessary to ensure judicial protection for workers whose employer, after the employment relationship has ended, refuses to provide references as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive."
- The learned President was there quoting from  –  of the judgment of the Court of Justice. Although that case concerned the 1976 Directive no change of course, Mr Milsom submitted, had occurred on the adoption of the subsequent Equal Treatment Directive (2000/78/EC). He invited us to take the same approach to interpretation as the Court of Justice had required in Coote.
- Ample support for that approach was given, Mr Milsom urged, by the strong language in which the House of Lords had delivered their speeches in the Rhys-Harper case and in the linked appeals. It is only necessary to cite the following passage from Lord Nicholls' speech (at –) when addressing the proposition that the reach of the then anti-discrimination statutes was de-limited by the ending of the employment relationship:
"If such a hard and fast line were drawn at this point it would mean that the employee who asks for a reference before he retires from his employment is protected but the employee who asks for a reference the day after he left is not. It would mean that the employee who is dismissed with notice and whose appeal is heard before his notice expires is protected against discrimination in his recourse to the employer's appeal procedure, but the employee who is dismissed summarily and without notice is not. It would mean that retaliatory action taken by an employer before the contract of employment ends is within the scope of the legislation, but retaliatory action taken later, for instance, regarding bonus payments, is not.
This cannot have been the intention of Parliament. Dismissal is one of the matters in respect of which discrimination is expressly prohibited by the statutes. Parliament cannot have intended that this prohibition should include an appeal decision regarding dismissal if the appeal is heard before the dismissal takes effect but not if it is heard later. That would be palpably absurd. Dismissal cannot have been intended to have such an artificially limited meaning. Nor can it have been intended that reprisals may be exacted, so long as they are postponed until after the employee has been dismissed. Nor can a sensible distinction be drawn between giving a reference the day before employment ends and giving a reference the day after."
- As Mr Milsom submitted with justification, the majority in the House did not "mince their words". Among the effects of their judgment, he submitted, was the consequential amendment of each of the three principal domestic anti-discrimination statutes by SI 2003 No.1673. That, we were reminded, was legislative amendment at the behest of the same Government as was to be responsible for the introduction of the 2010 Act.
- The Commission's case was that the 2010 Act had not been intended to remove any of the protective provisions in the previous legislation. All that had occurred was a recasting. The Act had not been preceded by a White Paper or a Law Commission Report and nothing emanating from the sponsoring Government department suggested that any reduction in scope was intended.
- Victimisation was moved from being a sub-species of the various forms of discrimination into provisions which offered free-standing redress for acts of victimisation. Mr Milsom took us through the relevant provisions of the 2010 Act. He emphasised that sub-section 108(7) had emerged only in a section itself described as 'Ancillary'. It could not, on his case, have been properly placed there if its intended effect had been to remove any remedy for post-relationship victimisation.
- The contrary was, he submitted, clear from the Explanatory Notes to the 2010 Act. We were shown paragraph  which provides, in relation to section 108:
"A breach of this section triggers the same enforcement procedures as if the treatment had occurred during the relationship. However, if the treatment which is being challenged constitutes victimisation, it will be dealt with under the victimisation provisions and not under this section."
- Similar reliance was placed on the Commission's own Employment Statutory Code of Practice (on the 2010 Act) which was laid before and approved by Parliament. Particular emphasis was put on paragraphs 1.12 and 9.4.
- In sum, Mr Milsom submitted that the literal words of section 108(7) must have been enacted by what (intending no disrespect) he called a "legislative blunder" - the terms used by Mr Wadham had included "drafting error" - or what Judge Tsamados had simply described as "an error". Mr Milsom submitted in oral argument that any referral to the Court of Justice would be pointless. The inevitable outcome, if this Appeal Tribunal itself held that the literal sense of the words prevailed, would be (as Mr Crosfill accepted) a finding that the UK was out of compliance with the requirements of EU Directive(s). If this Tribunal so held, the Government would simply have to introduce an amendment to the Act to achieve compliance.
- Having reached this point in his submissions, Mr Milsom then strove to identify a means by which this Appeal Tribunal might, through a particularly broad approach to the task of statutory construction and/or interpretation, render such an amendment unnecessary.
- Before turning to those submissions, we note that Mr Crosfill – appearing for Rowstock - did not demur from the proposition that a strict interpretation of section 108(7) would mean that the UK Government was in breach of the relevant EU Directive(s). But on his argument, to which we intend no disrespect by summarising it shortly, there had been no legislative 'accident'. Mr Crosfill submitted that the 2010 Act reflected the history of the development of anti-discrimination in this country - and in the EU - in requiring a nexus between any unlawful act of a former employer and the actual relationship of employer and employee. The plain function of section 108 was to make provision for the application of some parts of the new statutory rubric of the 2010 Act to post-relationship situations. It spelled out, in terms, the circumstances in which the provisions relating to discrimination and harassment would bite in such cases. Like the body of the remainder of the Act, section 108 dealt separately with discrimination, harassment and victimisation. Where it applied, it gave rise to new causes of action and remedies for them (see sections 109-111). However, by virtue of section 108(7) no cause of action arose in respect of post-employment victimisation and no remedy was provided for it. The Employment Tribunal had been right to apply the words as they stood and to hold that the Act had enacted no remedy for post-relationship victimisation.
- We are amply satisfied that the effect of the literal words of section 108(7) is to produce a lacuna in the statutory scheme of protection from discrimination, harassment and victimisation which the UK is required by EU legislation to enact. The history from Coote to the 2010 Act demonstrates that it is highly unlikely that it was ever intended to legislate away (or fail to make provision for) any redress for post-employment victimisation.
- The more difficult question has been whether it is legitimately within the judicial function, or more specifically the power of this Appeal Tribunal, to plug the gap or eliminate the lacuna.
- We were rightly reminded by both counsel that we are not construing a consolidating Act (to which special rules of construction and interpretation might apply). As its long title indicates, the 2010 Act was introduced "…to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; [and] ….to prohibit victimisation in certain circumstances….". The emphasis in that extract is our own.
- Mr Milsom took us to the Court of Justice decision in Kucukdeveci v Swedex GMBH  IRLR 346 for the proposition that, in relation to anti-discrimination measures, national courts must strive to do all they can to interpret domestic statutory schemes in a way compatible with applicable EU Directives. Further, that if that compatibility cannot be achieved, the domestic court must dis-apply the incompatible provision. We were shown the decision of Mr Justice Underhill P in EBR Attridge LLP v Coleman  ICR 242 taking that sort of approach – stepping beyond the strict limits of domestic principles of statutory construction – in order to read words into legislation in order to achieve conformity with Community law.
- As to the correct limits of this flexible interpretive approach, both counsel relied, unsurprisingly, on different passages from the decision of the House on Lords in Ghaidan v Godin-Mendoza  2 AC 557. That case was concerned with the extent to which domestic courts are now free to take a more purposive approach to statutory construction and interpretation so as to enable domestic statutes to be read compatibly with overarching anti-discrimination provisions (such as, in that instance, Article 14 of the Human Rights Act 1998 Schedule 1).
- Tempting as it would be to adopt the approach of Judge Tsamados, and avoid the strictures of section 108(7) by reading prior employment-related provisions in the 2010 Act as including additional words extending them to the post-employment scenario, we were persuaded by Mr Crosfill's closely argued submissions that such a course would represent an incomplete recasting of the 2010 Act. As already emphasised, the reach of section 108 runs well beyond employment relationships. If some 'recasting' could be justified in respect of employment or former employment relationships, how should the Act be recast to embrace victimisation arising after, and referable to, other relationships? Even confining the judicial 'amendment' to employment relationships is not possible without creating knock-on effects. The definition of 'employer' would need modification throughout to embrace a 'former employer'. And what of the provisions relating to 'contract workers' (section 41) and 'partners' (section 44)? Would they too not need 'rewriting'?
- We are reminded of the powerful injunction in the speech of Lord Nicholls in Ghaidan at  that the judicial role is not one geared to amendment of primary statutes. His Lordship said:
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation. [emphasis added]
- Essentially we have to decide on which side of the Ghaidan** 'line' this case falls. We remind ourselves of the actual wording of section 108(7) – while remaining careful to see it in the statutory context in which it appears. The subsection says:
"(7) But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A."
- We are, in effect, being invited to hold that it means the exact reverse of what it says so that it should be understood to mean:
"(7) Conduct is also a contravention of this section in so far as it also amounts to victimisation of B by A."
- We are unanimously of the view that such a reading - or indeed any interpretation of that subsection which has the effect of creating a cause of action for post-relationship victimisation - would be an interpretation flying directly in the face of what Parliament has actually enacted in section 108 (whether for 'good' reason or 'bad' reason or through error or inadvertence). That would represent a "Rubicon which the courts may not cross" (per Lord Steyn in Ghaidan at ) and we cannot legitimately "repeal, delete, or contradict the language of the offending statute" (per Lord Millett at ). Although those words were uttered in the context of the interpretative jurisdiction in section 3 of the Human Rights Act 1998, the dicta in Ghaidan illuminate each side of the pathway containing the correct approach to the interpretation of anti-discrimination legislation, as Underhill P explained in Coleman** (even if following that pathway in that case enabled him to produce a Community law compliant result). We have been unable to hold that the pathway can be followed by us to produce such a result in the instant case.
- This is simply not a case, like Rhys-Harper, of extrapolating from a statutory scheme of protection for employees, remedies for post-employment misconduct. The instant situation is one in which express provision has been made for the post-relationship landscape but subject to an equally express exception in the case of victimisation. In such a situation no judicial tool is available to make available a remedy which the words used by Parliament have simply stated shall not be available.
- It follows that the judgment of the Employment Tribunal in rejecting Mr Jessemey's post-employment victimisation case must be upheld and his appeal (actually pursued by way of a cross-appeal) on this point must be dismissed. The only other ground of appeal that he advanced having been withdrawn with our leave, his appeal fails.
- Rowstock Ltd assert that the Employment Tribunal erred in failing to limit the compensatory award made in respect of Mr Jessemey's dismissal by reference to the familiar rule established in Polkey (Polkey v A E Dayton Services Ltd. That rule is to the effect that where a dismissal has been unfair, the Employment Tribunal can have regard to the likelihood that the employee would in any event (or may well) have been fairly dismissed. This had been Rowstock's contention before the Employment Tribunal as to the compensation payable in respect of both dismissal and discrimination.
- The first Ground of Appeal contends that the Employment Tribunal must simply have treated itself as unable to apply a Polkey approach, under the misapprehension that it had no application in a case of a dismissal rendered automatically unfair by statute or in a case of unlawful discrimination. The second Ground is that, even if they took the right approach in law, their reasoning does not adequately explain why the employer's case on Polkey** was rejected.
- The Employment Tribunal's reasoning on this point is set out in their judgment in the following terms (at para [5.7]):
"5.7 As regards compensation for unfair dismissal we reject the Respondent's argument that the Claimant could have been dismissed by adherence to the statutory procedures. We prefer the evidence of the Claimant in relation to the casual conversation with Mr Spiers that in effect there was no need to worry because there were no procedures. A letter was put in from Mr Spiers (D39) stating his version of the conversation was that he told the Claimant that the company did not engage manual workers after the age of 65. The Respondent did not field Mr Spiers to give evidence. In any event this is at odds with the assertion of Mr Davis that it was agreed that his employment would continue for a further 6 months. Indeed the Company Secretary, having been approached by the Citizen's Advice Bureau on 14 January (D32), stated "the company did not employ manual workers after the age of 65 for health and safety and quality reasons". This is at odds with any arrangement that the Claimant would stay on for 1 year only. We consider that the decision to terminate the Claimant's employment arose only around the end of 2010/2011 and the Claimant was simply given 2 week's notice. In our view the Claimant was a credible witness and we preferred his version."
- Mr Archer, for Mr Jessemey, submits that this reasoning demonstrates that the Employment Tribunal engaged with the Polkey point and decided, having regard to the specific facts of the case, that a full compensatory award should be made. Although he was prepared to concede in argument that the Employment Tribunal's reasoning on the point is "not clearly set out" he urged that its decision should not be disturbed.
- We can deal with this aspect of the appeals before us relatively shortly.
- If and in so far as the Employment Tribunal considered that Polkey had no application to this class of case, it was in error. That much is clear from the recent decision of this Appeal Tribunal in [Compass Group v Ayodele]()  IRLR 802 (in relation to automatically unfair dismissal) and of the Court of Appeal in Abbey National PLC v Chaggar  ICR 397 (in relation to discrimination).
- From the language used in the Judgment at [5.7] it is at least possible that the Employment Tribunal was correctly directing itself in accordance with those decisions but we are satisfied that, even if it was, its reasoning fails to explain why it had decided not to limit the compensation in this case by reference to the Polkey **principle.
- It had found that the reason for dismissal was retirement and that the employer had unfairly failed to adopt statutory procedures that might have enabled a fair dismissal on that very ground some six months later. It awarded compensation for a period of over 14 months.
- The starkest fact in favour of the contention that Rowstock would have dismissed in any event at the first opportunity properly available was that Mr Davis had actually decided to peremptorily dismiss Mr Jessemey even earlier than the law had permitted him to do so fairly. The critical issue was whether, but for the want of compliance with the proper process, Mr Jessemey would very likely have been dismissed six months later or whether, in the course of the procedures required by law, Mr Davis could have been dissuaded from the path he manifestly intended to take.
- In our judgment, faced with that issue, the Employment Tribunal was wrong to focus its reasoning on the credibility of the competing accounts as to what had been said to Mr Jessemey pre-dismissal. The apposite question turned on the significance of the fact of the actual dismissal itself and the reasons for it. The focus of the Employment Tribunal's reasoning should have been on whether such a dismissal could, and in the particular circumstances of this case would, have likely followed had the proper procedures been applied.
- Mr Crosfill submitted that if, as we have found, the Employment Tribunal's reasoning came up short on this point the consequence should be remission to a different Tribunal. We do not accept that submission as we see no justification for that approach. In our judgment, the proper course in this case is to remit the questions of compensation to the same Employment Tribunal and that is the order we shall make.
- For the reasons we have given, the orders we make are that the appeals of Rowstock Ltd and Mr Davis are allowed. The appeals made by Mr Jessemey are dismissed. The assessment of compensation is remitted to the same constitution of the Employment Tribunal (if that can be practicably assembled) for re-determination.
- Plainly, the section 108(7) point is one of some general importance on which there is no Court of Appeal authority. We grant permission to appeal on that point only, should Mr Jessemey wish to pursue it further.
Published: 06/03/2013 09:06