Whitbread Plc (t/a Whitbread Berni Inns) v Holder [1994] UKEAT 531_94_1511

EAT
Whitbread Plc (t/a Whitbread Berni Inns) v Holder
[1994] UKEAT 531_94_1511 · 1994-11-15
MR JUSTICE HOLLAND : We now come to the further submissions made by Mr Bowers on behalf of the Appellants, which submissions are based by way of premise upon the findings already made by this Tribunal with respect to liability. He invites us to remit to the Industrial Tribunal for reconsideration the assessments of compensation, relating to all four of the individuals concerned on three grounds. He also invites us to remit one such of compensation on a further ground, that is, the calculation with respect to Miss Barrington.We can deal with the invitation very quickly; there simply is nothing in the point at all. It reflects the fact that, having lost her employment in Cheltenham and being unable find any further employment, she returned to her home, which is apparently in Newark, and thereby gave up the flat that she was renting in Cheltenham. It suggested that the saving to her of that rent is a figure that should be down to the credit of Whitbreads. One has only to say that in plain terms to realise that this is absolute nonsense. If there is any credit, it is to be set against the potential that she had for claiming the rent from Whitbreads as being a loss following from the dismissal. In fairness to Mr Bowers, the point was not pressed with vigour.We then turn to the points relating to all four and as to these, they are really only two are pressed with vigour today. The first is what is being described as the Polkey vAE Dayton Services Limited point. Mr Bowers centres his submissions upon a passage in the decision of this Tribunal, reported as Wolseley Centres Ltd v. Simmons [1994] ICR 503 at page 508, and it was stated:
"... the tribunal must ask whether if the employer had followed the proper procedures and acted fairly the employee would not have been dismissed..."
In may cases, the answer will be uncertain, in which situation the Tribunal must make a percentage assessment of the likelihood of the employee being retained, which must then be reflected in the compensatory award. As to this, the problem for this Tribunal is to ascertain what in the particular circumstances in this case could conceivably be identified as "the proper procedures". We would have no difficulty in following this submission, had we and the Tribunal below been able to find that there was a redundancy, but had then found that proper procedures had not been followed so that it was unreasonable to rely upon that redundancy. Then there would have been issue which could and should have been examined by the Tribunal to make an appropriate assessment of compensation pursuant to Section 74. In the event, however, there are not any "proper procedures" that have been identified and despite pressure, Mr Bowers understandably, is not able to identify any. The position here is that we have employees who were in regular employment and who were dismissed quite wrongly, whereas if they had not been dismissed, they would have remained in the same employment and from that point onwards, the approach to the compensation seems in the Judgment of this Tribunal to be beyond any particular criticism.One then, however, comes to his further point which has caused this Tribunal greater concern. It is apparent that, when calculating the compensation due to each of the applicants, the approach was as follows; as picked up in the passage dealing with Mrs Flattery:
"...She received 6 weeks pay in lieu of notice and therefore we take her loss of earnings from 13 November 1993 to date, that is 10 weeks..."
Says Mr Bowers, the computation should have been from 2 October 1993, that is, the date on which she was dismissed; and against that computation, itself based on net income, the gross 6 weeks pay should have been set-off. There then, he points out, is an apparent(?) overpayment to Mrs Flattery. As to whether he is right in principle in his submission, this Tribunal is provisionally divided; we say provisionally because we have not had the opportunity to have a full argument about it, examining such authority as there is, having regard to the time of day, yet further we are conscious that we may not have the full facts found by the Tribunal. That said, if it is any comfort to Mr Bowers, two members of the Tribunal are prepared to envisage that he may be right as a matter of principle; the third member disagrees.We are content to put the matter in this way because the only option that would be open to us to resolve this matter would be first to have the matter remitted to the Industrial Tribunal. As to that, this Tribunal is totally unwilling to contemplate taking that course in the particular circumstances of this case, that is in a case in which the amounts of money are modest. It would be totally unfair to the applicants to have this minimal issue resolved by way of a further Hearing after yet further delay. In that regard, we take comfort from a similar approach adopted by the Tribunal in Fougere v. Phoenix Motor Co. Ltd. [1977] 1 AER, pp 237.In summary, therefore, our position on the fourth matter is this; we are as yet unable to say that there was an error of Law; although there may have been; but in any event we are totally unprepared to have further delay in this matter in sorting this issue out both factually and legally, having regard to the very modest amounts that are involved and the consequent impact upon the time and financial resources of these applicants. It seems to this Tribunal and here we speak in totally and indeed we speak in unity that this is a point to be raised next time that this matter ever comes before an Industrial Tribunal, if (which it is difficult to contemplate) this problem arises again. If this matter is again, before a Tribunal, then there can be the proper investigation of facts and the proper submissions can be made in reliance upon authority and the matter can be resolved, it may well be in favour of the Appellants. The advantage we see that Mr Bowers has, is that we are making quite plain that the calculation adopted in this particular case, cannot possibly constitute any authority for the future.