Jeffery v Kitchens Of Sara Lee (UK) Ltd [1992] UKEAT 42_92_0112

EAT

Jeffery v Kitchens Of Sara Lee (UK) Ltd

[1992] UKEAT 42_92_0112 · 1992-12-01

JUDGE HICKS QC :

I understand, and it is entirely my experience, that it is usual in such cases to give a slightly more extended explanation of our reasons and so I will do that. It is a Preliminary Hearing of an Appeal by Mr Jeffery against the decision of the Industrial Tribunal which, on his Application on the basis of unfair dismissal by his employers, Kitchens of Sara Lee (UK) Ltd found that he had been unfairly dismissed but made no award of compensation on the basis that there should be a discount of 100%. The basis upon which the Tribunal reached that decision is set out in the final para 17 of their Reasons which reads:

"The tribunal conclude that there was here a dismissal by reason of redundancy, or some other substantial reason, but primarily we think it must be a dismissal by reason of redundancy. We are satisfied that the respondent did treat redundancy as a sufficient reason, and that they acted reasonably in treating it as such. We are quite satisfied that they did fail, in that the applicant had the right to appeal to his managing director and that right was not allowed to him. But, it is quite plain on his evidence, as he explained to the tribunal, that what he had to say would not in any way have affected the outcome in the slightest. We are quite satisfied that it could not and would not have done that. Therefore, although strictly the applicant was denied his appeal such that this makes his dismissal unfair, nonetheless, there shall be a 100% discount according to Polkey. We so rule."

Mr Jeffery submits that they failed to consider whether the alternative employment offered to him was suitable. He says it was unsuitable in that it involved a loss of status and I think also of remuneration, but primarily of status. However, it is plain in our understanding that the Tribunal was in Mr Jeffery's favour on that point. They accepted that the alternative employment was not suitable and that there could be no defeat of his right to redundancy payment on that basis.

Secondly he submits that the Tribunal failed to consider whether the case was one within the section 81(2)(b) of the Employment Protection (Consolidation) Act, that is to say whether there was what is commonly called "a redundancy situation", but it seems to us quite plain from the paragraph which I have already read that they did consider that question and came to a conclusion and it cannot be suggested there was no evidence upon which they could do so.

He then further submitted that the employers failed to follow their own procedure, in particular in the way in which they dealt with two other cases of fellow employees, a Mr Wilkinson and a Mr Patterson, but the Tribunal in paragraph 15 went into great detail as to their findings about the treatment of Mr Wilkinson and Mr Patterson, so it is quite impossible in our judgment to argue that the Tribunal failed to consider that matter.

The last point which Mr Jeffery advances is that the Tribunal failed to consider the remedy of re-engagement, and in that regard he relies on a passage in the speech of Lord Bridge in the case of POLKEY v DAYTON LTD

[1988] ICR 142

where he says:

"The second consideration is perhaps of particular importance in redundancy cases. An industrial tribunal may conclude, as in the instant case, that the appropriate procedural steps would not have avoided the employee's dismissal as redundant. But if, as your Lordships now hold, that conclusion does not defeat his claim of unfair dismissal, the industrial tribunal, apart from any question of compensation, will also have to consider whether to make any order under section 69 of the Act of 1978. It is noteworthy that an industrial tribunal may, if it thinks fit, make an order for re-engagement under that section and in so doing exercise a very wide discretion as to the terms of the order. In a case where an industrial tribunal held that dismissal on the ground of redundancy would have been inevitable at the time when it took place even if the appropriate procedural steps had been taken, I do not, as at present advised, think this would necessarily preclude a discretionary order for re-engagement on suitable terms, if the altered circumstances considered by the tribunal at the date of the hearing were thought to justify it." (p.164A)

As we understand it what that passage in Lord Bridge's speech is saying is this. If the Industrial Tribunal find that there was dismissal for redundancy, if they find as they did here that appropriate procedural steps were not taken but would not have avoided the dismissal of redundancy, then there will be no compensation and that is a matter that Lord Bridge has already alluded to. But he goes on to say the finding of unfairness because of the procedural defect is still not just an academic question; it may lead the tribunal to consider the issue of re-engagement if by reason of altered circumstances at the time of the tribunal hearing a suitable job could be offered.

It seems to us that Lord Bridge is accepting that the finding of dismissal for redundancy necessarily entails that at the time of dismissal there was not a possibility of re-engagement, but what Lord Bridge is pointing out is that that should not preclude consideration of the question whether there is the possibility of an order for re-engagement at the date of the Industrial Tribunal hearing.

That being so, I asked Mr Jeffery whether that possibility was raised as a real possibility, a practical possibility, at the hearing of the Industrial Tribunal, and he very frankly said that he did not recall that it was, and certainly there is nothing in the Industrial Tribunal's Reasons to suggest that it was, and we conclude that that therefore was not a point which the Industrial Tribunal was asked to take into consideration or needed to take into consideration and their decision cannot be attacked on that ground as involving in an error of law.

We therefore conclude that no arguable case for any error of law on the part of the Industrial Tribunal has been raised and we order that there will no full hearing and that the Appeal be dismissed at this stage.