1. On 6 May 2009 the Claimant raised concerns about the planned fire exit at a station. At the liability hearing the ET held that this was a protected disclosure within the meaning of section 43B(1)(d) of the Employment Rights Act 1996 ('ERA').

1. On 30 September 2009 the Respondent started consultation on redundancies. A decision was taken to make a number of Architects and Architectural Assistants redundant. They were in different pools for selection for redundancy.

1. Mr Mintikkis carried out the scoring of Architects on which their selection for redundancy was based. Of seven Architects on the team, four were to be selected for redundancy based on their scores. The Claimant was one of the four. He received a score of ten which was two points lower than the lowest scoring retained employee. He appealed his selection. The appeal was considered and dismissed by Mr McCormick.

1. By majority, the ET held that the Claimant was not dismissed for making a protected disclosure but for redundancy. However the ET held that the dismissal was unfair "with regard to the method of the scoring in the selection process and the carrying out of the appeal".

1. In the liability judgment the ET held:

(1) Mr Mintikkis used the Claimant's Performance Development Review ('PDR') which was incomplete to carry out the scoring; (paragraph 75);

(2) Mr Mintikkis gave no explanation of how he had evaluated each scoring criterion; (paragraph 75);

(3) The matters he took into account with regard to the scoring for the adaptability criterion were not the same as those set out in the guidance notes; (paragraph 76);

(4) Mr McCormick's appeal process was superficial. His only investigation was talking to Mr Mintikkis and he carried out no other analysis of how the scoring was carried out; (paragraph 77).

The ET held:

"78. For those reasons the Tribunal find that the Claimant's dismissal on grounds of redundancy [was] unfair with regard to the method of the scoring or the selection process and on the carrying out of the appeal."

1. After receipt of the liability judgment of 20 September 2010, Mr Mintikkis and Mr McCormick each rescored one different criterion for the architects within the pool. They both made further statements for the remedies hearing. In paragraph 2 of his statement for the remedies hearing Mr Mintikkis acknowledged that his approach to the criterion of Adaptability and Change Orientation had been incorrect in that it was made without reference to the guidance notes. He rescored the entire pool for that criterion by additionally applying the guidance notes rather than simply having reference to the scoring key, as he had in the scoring on which the decision to dismiss was based. The maximum score for this criterion was five. Using the guidance notes, Mr Mintikkis increased the Claimant's score by one from a total score of ten to eleven and that of one other member of the pool, D, from eleven to twelve. The result of the rescoring of the Adaptability criterion was that two architects had a score of ten, the Claimant eleven and two, twelve. Two architects scored more than twelve. It was uncertain which of those who scored twelve would be made redundant. Those scoring below twelve would be made redundant.

1. Mr McCormick rescored all the members of the pool for the absence criterion. Mr McCormick also gave a further statement after receiving the liability judgment. On the basis that the Claimant's concerns about the reference period for scoring absence were valid he would have received zero rather than minus one for this criterion. As a result of the rescoring of this one criterion by Mr McCormick the Claimant's score was increased by one to a total of eleven and that of T (not D who received the increase of one from Mr Mintikkis for the adaptability criterion) was also increased by one to eleven. Mr McCormick's table of scores took into account the rescoring he carried out but not that of Mr Mintikkis.

1. It appears that Mr Mintikkis and Mr McCormick gave evidence about their rescoring to the remedies hearing which took place on 12 October 2010. The Claimant was unrepresented. He applied for reinstatement. The ET held at paragraph 2 that:

"The Claimant was seeking reinstatement pursuant to section 113 ERA but at the Hearing accepted that as the Tribunal had found that the reason for his dismissal was redundancy, the appropriate remedy was re-engagement. The Tribunal accordingly considered the tests set out in section 115 ERA when considering this remedy."

1. By letter dated 23 December 2010 to the Regional Secretary of the London Central Employment Tribunal, solicitors for the Respondent referred to two issues the Respondent had been ordered to answer following the remedies hearing. Additionally they contended that it would be impracticable to re-employ the Claimant in any position by reason of the allegations he had made against the Respondent. These included the assertion made by the Claimant in an application for costs on 18 October 2010 in which he had alleged that the Respondent had acted vexatiously, abusively, disruptively or otherwise unreasonably. They wrote:

"It is apparent that the Claimant distrusts and entirely lacks confidence in the Respondent. In the circumstances, it is difficult to understand how the employment relationship could work (see Nothman v London Borough of Barnet (No. 2) [1980] IRLR 65). As the Claimant believes himself to be the victim of a conspiracy, the Respondent contends that it cannot be practicable for the Respondent to be expected to re-employ him."

1. The Claimant replied by letter dated 27 December 2010 to the solicitor's letter of 23 December. With regard to practicability of re-employment the Claimant referred to the fact that:

"1.4. At least one identified agency individual hired in August 2010 working to date has a status of ARB registered architect engaged to do the same job as the Claimant."

The Claimant wrote in paragraph 1.6 that the principal reason for the costs application was that the Respondent declined seven offers of a settlement proposed by him. The Claimant pointed out in paragraph 2.4 that that Mr Mintikkis accepted that he should have received an extra point for the Adaptability criterion and Mr McCormick accepted that he should have receive an extra point for the attendance criterion. In addition at paragraph 2.6 the Claimant claimed that he should have received a score of four for the Customer Focus criterion rather than the lower score he was given. The Respondent's solicitors responded to these points in a letter of 29 December 2010.

1. By letter dated 5 January 2011 the Claimant wrote that Katrin de Saint Chatrier, temporary agency staff, remained engaged in the London office of the Respondent's Rail Division Metro Unit to date despite evidence to the ET from Mr Mintikkis that her role was due to end in October 2010. He enclosed a print out of her LinkedIn CV in support of the assertion that she remained in post.

1. The judgment of the ET was sent to the parties on 14 April 2011, the reserved judgment having been considered on 21 February 2011.

1. The ET observed at paragraph 2:

"The Claimant was seeking reinstatement pursuant to Section 113 ERA but at the Hearing accepted that as the Tribunal had found that the reason for his dismissal was redundancy, the appropriate remedy was re-engagement."

One of the two potential roles for his re-engagement identified by the Claimant was that of architect on the station design team to which Katrin de Saint Chatrier had been appointed in August 2010.

1. Mr Mintikkis had given evidence at the October hearing that Miss de Saint Chatrier accepted a contract which was due to end in October 2010. He had taken on three technical assistants one of whom had left to go to Australia. The ET noted that at the liability hearing the Claimant gave evidence that the role he had carried out for the Respondent was effectively the same as a technical assistant.

1. On the evidence regarding Miss de Saint Chatrier and a post in Bangalore, the ET found in paragraph 6 that:

"…it would not be practicable for the Respondent to comply with an order for re-engagement on the basis that no suitable jobs had been identified to be offered to the Claimant (Section 116(a)(b) ERA)."

1. The ET made a total monetary award of £25,403 (including a compensatory award based on eleven months' continued employment).

1. The ET then considered and rejected the Respondent's argument for a Polkey reduction. They held:

"13. The Tribunal then considered the Respondents request for a reduction on the Polkey basis. That the Respondents argued that if they had followed a proper redundancy selection procedure the result would have been the same namely that the Claimant would have been selected for redundancy.

14. The Tribunal considered the evidence given by Mr Mintikkis and Mr McCormick to this effect and their evidence on how if they had followed a proper procedure they would have each increased the Claimant's score.

15. The Tribunal note that in doing so the Respondent did not consider the cumulative effect of Mr Mintikkis and Mr McCormick's re-scoring. The Tribunal recall that there were seven employees in the redundancy pool and four dismissals for redundancy were required. The Tribunal note that on a cumulative re-scoring the scores would have read as follows:

[S] 10, the Claimant 12, [T] 11, [D] 12, [W] 12, [C] 15, [F] 18.

16. On these revised scores [C] and [F] would not have been made redundant, [S] and [T] would definitely have been made redundant but the Claimant, [D] and [W] would have all been in a questionable category in that two of them would have had to have been made redundant. The Respondent produced no evidence as to how this 'tie breaker' situation would have been decided. As a result the Tribunal find that there is not enough information between them (sic) the Respondents Polkey reduction argument namely that if a proper procedure had been followed this would have resulted in the Claimant being selected on that basis the Tribunal declines to make any reduction in the compensatory award and the total award calculated above stands."

1. Employment Rights Act 1996.

"Section 113

An order under this section may be-

(a) an order for reinstatement (in accordance with section 114), or;

(b) an order for re-engagement (in accordance with section 115) as the Tribunal may decide.

Section 114

(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

Section 115

(1) An order for re-engagement is an order, on such terms as the Tribunal may decide, that the complainant be engaged by the employer…in employment comparable to that from which he was dismissed or other suitable employment.

Section 116

(1) In exercising its discretion under section 113 the Tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account-

(a) whether the complainant wishes to be reinstated,

(b) whether it is practicable for the employer to comply with an order for reinstatement, and…

(2) If the Tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms."

Subsection (3) contains similar provisions to subsection (1) replacing reinstatement with re-engagement.

(5) "Where in any case an employer has engaged a permanent replacement for a dismissed employee, the Tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement."

1. Mr Rogers on behalf of the Claimant contended that the ET erred in not considering reinstatement. The Claimant's principal contention was that Miss de Saint Chatrier has been engaged in October 2010 as an architect on the station design team. He had been an architect on that team. Pursuant to ERA section 116(1) the ET was first obliged to consider reinstatement.

1. Ms Darwin for the Respondent relied upon the acceptance by the Claimant before the ET that as they had found that the reason for his dismissal was redundancy the appropriate remedy was re-engagement. Relying on Jones v Governing Body of Burdett Coutts School [1999] ICR 38 the EAT should only exercise their discretion to allow a conceded point to be reopened in exceptional circumstances.

1. Mr Rogers contended that the ET erred in assessing the question of practicability at the date of dismissal rather than the date the re-engagement order would take effect. He relied on the judgment of the EAT, Underhill P and members in Great Ormond Street Hospital v Miss Patel UKEAT/0085/07/LA to contend that the ET should have looked at practicability at the time of the proposed re-engagement in the light of the fresh evidence called. He accepted that the relevant date was January 2011 when the ET had all the material on practicability of reinstatement or re-engagement.

1. On behalf of the Claimant it was contended that the ET failed to consider all the matters in ERA section 116(3)(a) and (b) and that an agency worker engaged on the same assignment for extended period is to be regarded as permanent replacement within the meaning of section 116(5) ERA. Further it was submitted that the ET failed to give reasons for their decision on practicability of reinstatement or re-engagement.

1. Mr Rogers contended that the decision of the ET had evidence that Miss de Saint Chatrier was still engaged by the Respondent in January 2011 yet they referred in paragraph 5 to Mr Mintikkis' evidence at the hearing, which at that time the Claimant was in no position to contradict, that her engagement was due to end in October 2010. In fact her engagement was continued beyond that date as was shown by the further material submitted to the ET by the Claimant in January 2011. The ET failed to address this material. They made no reference to the Claimant's letter of 5 January 2011 enclosing Miss de Saint Chatrier's CV on LinkedIn which showed that she was still working for the Respondent.

1. In his oral submissions, Mr Rogers also contended that the ET erred in failing to address the question that at the relevant time the Respondent had taken on three new architectural assistants and that they had found in the liability judgment at paragraph 8 that the Claimant was not registered as a qualified architect when he was engaged. Accordingly at that time he was in effect a technical assistant. The ET erred in failing to consider whether he could have been re-engaged in that role.

1. As for the cross-appeal, Mr Rogers contended that the Respondent misunderstood the rescoring. The second statement of Mr Mintikkis and Mr McCormick produced for the remedies hearing showed that they both would have increased the Claimant's scores each for a different criterion. Mr Mintikkis increased the score for absence from minus one to zero. Mr McCormick increased the score for adaptability from two to three. Accordingly the ET did not err in holding that the Claimant's score should have been the same as two other architects in the pool and that the Respondent had not established that the Claimant would have been selected for redundancy. If the Respondent wished to advance such an argument it was for them to adduce evidence to support it. The ET did not err in not making a Polkey reduction.

1. Mr Rogers submitted that the appeal should be allowed and the question of re-engagement remitted to the ET included the issue of trust and confidence raised by the Respondent in the conditional cross-appeal.

1. Ms Darwin for the Respondent accepted that the correct date as at which an ET should consider practicability of re-engagement is at the time of the hearing at which the decision is being considered not at the date of dismissal. She pointed out that the recent judgment of the EAT in King v Royal Bank of Canada Europe Ltd [2012] IRLR 280 at paragraph 54 to this effect was consistent with Patel.

1. Ms Darwin submitted that Miss de Saint Chatrier's role was not relevant to the consideration of practicability of re-engagement of the Claimant as she was not an employee of the Respondent but of an agency. ERA section 116(5) did not apply in these circumstances. Further it was contended that the re-engagement provisions of section 115(1) do not apply as employment on a temporary contract, as was Miss de Saint Chatrier, was not 'employment comparable' to that from which the Claimant was made redundant.

1. Ms Darwin contended that the ET would err in law if it made an order for re-engagement which would result in over manning. In Cold Drawn Tubes Ltd v Middleton [1992] IRLR 160 the EAT held on the facts of that case at paragraph 23:

"It is very difficult to see how reinstatement could become a practicable option, because it would result either in a redundancy process or in significant over manning."

As explained in Freemans plc v Flynn [1984] ICR 874 at p880 an employer does not have a duty to dismiss other employees to create the necessary space so that a dismissed employee can be re-engaged.

1. It was contended on behalf of the Respondent that the judgment of the EAT in Clancy v Cannock Chase Technical College [2001] IRLR 331 at paragraph 51 explains that the decision on 'practicability' within ERA section 116(1)(b), and 116(3)(b) is within the exclusive province of the ET. An appellant alleging perversity in such a decision faces an especially high hurdle. As explained in Port of London Authority v Payne [1994] IRLR 9 weight should be given to the commercial judgment of management.

1. There was no evidence that the Respondent had a requirement until August 2010 for employees to carry out work of the kind on which the Claimant had been engaged. It was said that the ET was not required to investigate the technical assistant role as reinstatement was not being sought. The Claimant had accepted before the ET that the remedy to be considered was re-engagement not reinstatement.

1. Even if the ET had erred in failing to give adequate reasons for their decision not to order re-engagement, on the evidence, their conclusion would have been the same.

1. It was contended that the decision of the ET not to make a Polkey reduction in the compensation awarded was based on a perverse inference of fact at paragraph 15 that on a rescoring the Claimant would have scored the same as two other architects within the pool. Ms Darwin contended that the ET failed to take into account that the witnesses said others within the pool would have to be rescored. The scores were based on six criteria. In any event Ms Darwin contended that even if the ET should have made a Polkey reduction, a 66% not a 100% reduction in the compensation awarded to the Claimant would have been appropriate having regard to the two in three chance that he would have been selected for redundancy had the rescoring been undertaken.

1. In support of the conditional cross-appeal Ms Darwin contended that the ET failed to make findings and draw conclusions on the practicability of re-engaging the Claimant in the light of the allegations he made against the Respondent in his application for costs. If the claim for re-engagement were to be remitted to the ET so too should the issue of practicability of such an order in the light of the alleged absence of trust and confidence by the Claimant in the Respondent.

1. In the light of the finding that the reason for the Claimant's dismissal was redundancy and the absence of evidence that the Respondent had engaged a new employee since his departure the concession that reinstatement would not be available to him was rightly made. Further, although the Claimant was unrepresented at the remedies hearing, applying Burdett Coutts the circumstances were not so exceptional so as to permit the withdrawal of the concession.

1. Both counsel were agreed that applying King and Patel the date at which the practicability of an order for re-engagement is to be considered is when such re-engagement would take effect which may in practice mean the date of the remedies hearing. In this case as recorded in paragraph 1 of the remedies judgment the remedies hearing on 12 October 2010 was followed by:

"…additional submissions from both parties as follows: from the Claimant dated 22nd December, 27th December 2010 and 5th January 2011 and from the Respondent dated 23rd and 29th December 2010."

In the absence of an indication to the contrary and by reason of the reference to these in the judgment the parties could legitimately assume that, if relevant, the ET would take these submissions into account in reaching their decision.

1. As a matter of principle the practicability of reinstatement or re-engagement is to be determined as at the date it is to take effect. In Patel the EAT held at paragraph 27(1):

"Practicability will have to be judged as at the date that any such reinstatement would take effect: although any such date would necessarily postdate the hearing, in practice- absent any very unusual circumstances- that will mean judging the position as at the hearing date."

1. In most cases all the evidence and argument will have been heard by the conclusion of the hearing. That was not so in this case. The ET made their decision after receiving submissions from the parties submitted following the hearing.

1. In Patel and in King the question of whether an order for reinstatement or re-engagement should be made was remitted to the ET for rehearing. In both cases the EAT directed that the practicability of such an order be considered as at the date such reinstatement or re-engagement would take effect. As was recognised by the EAT in paragraph 57 of King:

"It is true that on remission the tribunal will now have to consider the issue of re-engagement at a different date."

In our judgment a decision on practicability and justice of reinstatement or re-engagement taking into account all statutorily required considerations is to be taken when the ET has received all the material to be placed before them. In this case the last relevant submission was received in early January 2011. We accept the submission advanced by Mr Rogers on behalf of the Claimant that the date as at which the practicability of reinstatement or re-engagement was to be ascertained was early January 2011.

1. The ET based their decision that it would not be practicable for the Respondent to comply with an order for re-engagement on the evidence set out in paragraph 5. This referred to evidence given at the hearing on 12 October 2010. They did not refer to and cannot therefore be assumed to have taken into account the written evidence and submissions sent to them after that date. Materially the ET referred to Miss de Saint Chatrier taking a contract post "which commenced in August 2010 and was due to end in October 2010" (emphasis added). The Claimant thereafter adduced evidence in a submission of 5 January 2011 not referred to in the judgment to which a copy of her LinkedIn CV was attached. In her CV she wrote:

"Architect at Atkins

August 2010- Present (6 months)."

The ET therefore had material before them which showed that Miss de Saint Chatrier remained working for the Respondent in January 2011.

1. The Respondent's submissions with regard to Miss de Saint Chatrier were predicated on her not being their employee and being engaged on a temporary contract. If, as appears to have been the case, Miss de Saint Chatrier was engaged on architectural work in the team in which the Claimant had been employed, in our judgment re-engagement of the Claimant on the work carried out by her was capable of being "employment comparable to that from which he was dismissed or other suitable employment" within the meaning of ERA section 115(1).

1. If Miss de Saint Chatrier worked for the Respondent not as their employee but as an agency worker, ERA section 116(5) would not apply. However, depending upon the relevant circumstances and the possibilities for its termination, her engagement may not have been of itself an obstacle to an order for re-engagement.

1. In our judgment the ET erred by failing to consider the practicability of re-engagement of the Claimant as at January 2011. This error of law undermines the decision of the ET that it would not be practicable for the Respondent to comply with such an order.

1. The conditional cross-appeal is relevant to the issue of practicability of an order for re-engagement. The absence of confidence in a former employer is, in our judgment, capable of being a relevant factor in deciding whether re-engagement is practicable or whether discretion should be exercised to make such an order. The parties made written submissions on whether the Claimant's application for costs against the Respondent was couched in such terms as to display a lack of trust and confidence in them. This was an issue which arose after the oral remedies hearing. Since a remitted hearing to determine whether an order for re-employment should be made will depend on relevant factors at the time such order would take effect, it would be appropriate for an ET also to consider the argument on absence of trust and confidence which was advanced by the Respondent following the Claimant's costs application.

1. As for the unconditional cross-appeal, in our judgment the ET did not misunderstand the evidence of rescoring placed before them. On that evidence they did not err in concluding that on rescoring by Mr Mintikkis and Mr McCormick the Claimant would have been given twelve points. Mr Mintikkis gave an extra point for one factor, Adaptability and Change Orientation, and Mr McCormick one extra point for another factor, Attendance. On the material before them, the ET did not err in concluding that the rescoring would have resulted in an increase in the Claimant's score from ten to twelve. Two other architects in the pool scored twelve. Of the three, two would have been selected for redundancy. In the absence of any evidence from the Respondent as to how the selection for redundancy between equal scoring employees would be made the ET did not err in declining to make a Polkey reduction. It is for a Respondent seeking a Polkey reduction in compensation to put forward evidence to support such a conclusion. The Respondent adduced no evidence to show how the tie breaker selection would have been made. There was insufficient evidence before the ET for such a deduction to be made in this case. It cannot be said that because the Claimant had a two in three chance of being made redundant there should have been a reduction of 66% in the monetary award.

1. The conditional cross-appeal challenging the refusal to make a Polkey reduction in the award of compensation is dismissed.

(1) The appeal is allowed. The judgment of the ET not to make an order for re-engagement is set aside.

(2) The issue of whether an order for re-engagement of the Claimant by the Respondent should be made is remitted to the same Employment Tribunal, if practicable, for re-hearing.

(3) Whether an order for re-employment is to be made is to be judged as at the date that any such re-employment would take effect. In practice that is likely to be on the date on which the Employment Tribunal has received all the material on this issue put before them by the parties.

(4) At the re-hearing of the issue of whether an order for re-engagement should be made, the Respondent may advance the argument raised in the conditional cross-appeal that re-engagement would be impracticable by reason of alleged lack of confidence of the Claimant in the Respondent. If such an argument is to be advanced, the Respondent is to serve on the Claimant a summary of their contentions within 28 days of the order in this appeal. To this extent the conditional cross-appeal succeeds.

(5) The unconditional, Polkey, cross-appeal is dismissed.