“I cannot see how it could possibly be appropriate or realistic for me to liaise with John Jones in view of what he has done. If I can liaise with him why do I need to be removed to South Wales to do so”
“I think [briefing Mr John Jones about equipment] would [put me] at the mercy of John feeling bullied”
“Was it a fair dismissal? The respondent’s case [that in Scope] is that there was no other option available and that in the light of Dr Thornett’s resistance to the proposed move they had no alternative but to terminate her employment. We disagree. There was another alternative and, in view of the fact that the respondents were driving the situation, we think it is one which should have been pursued. It was an alternative which was not without risks. It had the potential to fail but nevertheless in our judgment a reasonable employer would have followed it as far as possible. The alternative was that the parties should continue to work as before with the claimant returning to Vranch House. She had been given a warning. It is clear that Dr Thornett was unhappy about that but nevertheless we think a reasonable employer would have taken active steps to encourage the parties to work together. It is a situation which would have required careful management and it its impossible for us to reach any conclusion as to whether in the long term it might have worked. The respondents had indicated to the claimant that they valued her services and in those circumstances we think a reasonable employer would have taken steps to explore that option. That was not done. In particular Dr Thornett made it clear that she was not aware of any proposal that she should return to Vranch House one day a week. We think that a reasonable employer at that stage would have appreciated that there might have been a misunderstanding and would set out the proposals with some clarity so that they could have been considered. The respondent’s failure to do that in our judgment renders this dismissal unfair.”
“… Nevertheless the respondents were faced with a very difficult managerial situation. The claimant made it clear that she had considerable reservations about working with Mr Jones in view of what she described as what he had done. We think that this was an unreasonable attitude for Dr Thornett to take. We think that a reasonable attitude for her to have taken would be to express the view, as had her colleagues, that they were at least prepared to try and make the situation work. We are not oblivious to the potential difficulties of that. In that she failed to do that, we think Dr Thornett’s conduct was a contributory factor in the termination of her employment and one which we think would be just and equitable to reflect in our finding and in any award of compensation should we be invited to make one.”
“We have been asked to try and reach some assessment as to how long the situation would have lasted if the respondents had encouraged the parties to try and make the arrangement work. We have not seen Mrs Jones. We have not had any opportunity of hearing any evidence from him and of course it is a highly speculative matter, but nevertheless one which is of importance to the parties. In our view we think the arrangement would have lasted about 6 months. We say that for these reasons. First of all, the respondents had expressed a desire to retain Dr Thornett’s evident skills and we think that they could and should have made substantial efforts to try and make the arrangement work. Dr Thornett was probably only going to be there one or perhaps two days a week and so not in Vranch House on a daily basis and Mr Jones had expressed a willingness to try and make it work. For those reasons that is the best assessment we can make. ”
“… Our assessment as we have already indicated is that by reason of the changes in the operation of the micro-technology unit and the attitude of landlords, we think that Dr Thornett would have been made redundant in any event at about the end of 2004 or early 2005. Having regard to the difficulties which beset the working relationship we think there is a likelihood that her employment might even have come to an end before that but 6 months is the best assessment we can make. That is the basis on which we approach the compensation in this case.”
“It [the employment tribunal] must not launch itself upon a sea of speculation … The proper approach when it recognises that speculation is involved is to accept that it cannot sensibly reconstruct the situation. In a case where the burden falls on the Respondent which seeks to limit compensation, it will have no difficulty in finding that it cannot do so; and it will do so on the basis of submissions and evidence or at least of failure of evidence. ”
“The proper approach, given the nature of the relationships including the evidence before the Tribunal about how the parties could work together, all combine to indicate that it would be wrong to place a limitation in time as to the duration of the relationship. In our judgment, the Tribunal erred when it set out upon the speculative venture. Truly, the evidence was not before it upon which it could make that judgment.”
“the employment tribunal could not sensibly recreate the world as it might have been and should not have reduced the losses.”
“Who knows what would have happened to the relationship with Colonel Wheeler’s organisation once he became aware, on this footing, that she was back running the service in the old way or on some attenuated basis?”
“There are two lessons to be drawn from these appeals. The first is that, while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision.”
“It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been.”
“[That]approach to the facts of the instant case leads us to the conclusion that on the evidence available to it, the Tribunal was entitled to conclude that in the Appellant's case, whilst both the process of selection for redundancy and the absence of consultation was unfair, it was unlikely that the Appellant would have found alternative employment with the Respondent or any of its associated companies at the conclusion of an extended period of consultation. The Tribunal was entitled to find that what the Appellant wanted was his job back, and that he was not willing to consider the alternative offered by the Respondent, which the Tribunal found was both a promotion and commanded a higher income. In short, this was not a case in which it was impossible for the Tribunal sensibly to reconstruct the world as it never was: the Tribunal was entitled to come to the conclusion that an extended period of consultation should have taken place, but that at the end of it, the Appellant would still have left the Respondent's employment.”
“Second, and more generally, the principle recognised in Polkey is not narrowly limited to the facts of that case, as the claimants sought to suggest, but is merely an example of the general application of the requirements of section 123(1). The rigid rule sought to be drawn from that case does not follow from the observations in the case and is quite inconsistent with the statutory obligation that underpinned it. By contrast, a broad principle of the type recognised in Polkey, of which the application in that case is only an example, does respect the statutory guidance.”
“The employment tribunal correctly directed itself; and brought its experience to bear on the 12 days of evidence that it had heard. It was well aware, as its analysis shows, of the difficulty and unusual nature of the task, but it did not err in law in embarking on that task.”
“the best assessment we can make”