Kennedy v East Dorset Health Authority [1994] UKEAT 734_92_2804

EAT

Kennedy v East Dorset Health Authority

[1994] UKEAT 734_92_2804 · 1994-04-28

MR JUSTICE MORISON : I am now going to give an ex-tempore (off the top of my head) judgment and as I say in this Court when I do that for the record I reserve to myself the right to add to, alter or generally try and improve the language with which I seek to express this decision.

By an IT.1 which was received in the Industrial Tribunal on 8 January 1992, Mrs Kennedy made a complaint against her employers of 3 matters,(1) unfair dismissal,

(2) redundancy and

(3) time off. She said in answer to question 10 on that form:

"I consider that I was unfairly dismissed from the post of Community Dental Officer by East Dorset Health Authority. In fact, I was forced to accept redundancy, despite the availability of work for which I held an appropriate higher qualification and had relevant experience. I stated and recorded my desire to "act up" in the East, and applied for a new post in East and West. I was apparently not considered for the work."

That application came before an Industrial Tribunal held at Southampton and on the 28 July they heard the case and delivered a written decision which was entered in the register on 11 August 1992. Their conclusions were firstly that the Applicant had been unfairly dismissed; secondly that she should be awarded £3,156 by way of compensation and thirdly that the recoupment regulations did not apply. The essence of their decision was that whilst they were satisfied that Mrs Kennedy had not been unreasonably selected, the procedure was unfair and they rejected her contention that there was a post which she was capable of filling which was vacant in the West Dorset Community Trust.

As was her right, and not being satisfied with that decision, with great perspicacity and persistence, Mrs Kennedy applied to the Industrial Tribunal for them to review that decision and accordingly a further hearing was held before the same Tribunal. That decision is entered in the Register on 7 January 1993 and the Industrial Tribunal unanimously concluded that the Applicant was unfairly dismissed, and that decision should be confirmed, but that instead of the remedies which they had given her previously, in the light of the further material with which they had been provided, the Tribunal ordered her reinstatement on the terms set out in paragraph 14 of their decision. The essence of their conclusion in their decision was that the East Dorset Health Authority by whom she had been employed, seems to have been concerned to get rid of her at any cost; she was not a volunteer for redundancy but was compelled to take premature retirement in October 1991 while Mr Sullivan and Mr Wartnaby who had both volunteered to be made redundant were retained until 31 March 1992. Moreover both were re-employed very shortly thereafter on locum duties and the Tribunal concluded, in the light of the new evidence, that if the Applicant's redundancy had been properly handled and she was still employed in January 1992, it would then have been evident to the Respondents that there was employment for her for a further 6 months at least because Miss Smart was being seconded to the West Dorset Community Health Trust and they concluded by finding that:

"if this matter had been properly handled the applicant would still be in employment today and would continue employment until at least such time as the second senior dental officer returns from maternity leave (if indeed both do in the event return)".

Their order for reinstatement was the archetype of such order, namely:

"The applicant shall be treated as if her employment had not been interrupted and shall receive all benefits and seniority on that basis."

They ordered that the order must be complied with by 1 February 1993.

Mrs Kennedy at that time did not anticipate that her employers would refuse to comply with an order made by an Industrial Tribunal, particularly bearing in mind their status as a Health Authority. She reasonably was of the view that once a Tribunal had made such an order the employers were to be expected to comply with it.

However, they did not do so and accordingly the matter came before the Industrial Tribunal on 24 March 1993 and the Tribunal entered a further decision in the register in relation to this matter on 7 April 1993. That further decision was first of all that it was reasonably practicable for the Respondents to have complied with the order of reinstatement. Secondly they awarded the Applicant the maximum compensatory award of £10,000 and thirdly they awarded the Applicant an additional award, as they had power to do by reason of the refusal of the authority to reinstate her, of £4,100.

The essence of their decision may be found in paragraph 7 where they assess the compensatory award on the basis that the Applicant, if she had been reinstated, would have been employed until 8 June 1993 and they therefore assessed her compensation on that basis, did some calculations, made some deductions in relation to what she had been paid and various pension monies and arrived at a total loss which they assessed at £13,731.00. Bearing in mind that the maximum that they could award at that time was £10,000, it follows that there was a sum of £3,731 of loss which they had assessed which they could not award under that head. However, they did have power, as I have indicated, which they exercised to top-up the award by reason of the refusal of the authority to comply with the order for reinstatement. They rightly took account, in reaching their decision on that matter, that there was a shortfall of £3,731 which but for the limit on compensation they would have awarded her. In addition they awarded her some additional monies which, in total, amounted to £4,100 under that head.

Mrs Kennedy, with the persistence that she has demonstrated in relation to the Tribunal as I have already indicated, has appealed against the decisions of the Industrial Tribunal and rightly accepts before us that effectively the appeal against the first decision has been overtaken by the review hearing which was held; and the fact that she succeeded in full in her complaint of unfair dismissal, since the order for reinstatement is the most favourable order that an employee can achieve when a complaint of unfair dismissal has been found proved. Accordingly, we have had to ask ourselves the question whether the Tribunal have erred in law in any way in relation to the way they handled the question of compensation once the employers had refused to comply with the reinstatement order which had previously been made.

This Appeal Tribunal can, as Mrs Kennedy knows, only deal with points of law. The purpose of this hearing is to enable Mrs Kennedy to persuade us that there is a point of law to be raised in relation to the appeal to which I have referred and to be fair to her, she accepts that there is a hurdle for her to overcome in this respect but whether or not she does accept it, it seems to us having read the papers with great care in this case, and listened to what she has said, that in relation to her complaint of unfair dismissal and redundancy there is no ground in law for overturning the Tribunal's decision on compensation.

We believe that the real nub of her complaint before us is that it has emerged, she says, that her employers have been discriminating against her on the grounds of her sex. If that is so, and we make no comment one way or the other about it because we simply do not know what the facts are, then she may have a remedy under the Sex Discrimination Act. We should make it absolutely clear that all that the Industrial Tribunal has dealt with so far and all we have dealt with today, is her complaint of unfair dismissal and redundancy and for the reasons I have given there is no arguable point of law in relation to that. It is not for this Tribunal to give advice to people but if I might respectfully say so, it may be that Mrs Kennedy should consult with the Equal Opportunities Commission and ascertain whether it is open to her to make a complaint of sex discrimination, bearing in mind both the time limit provisions and the fact that she has fundamentally succeeded in her claim for unfair dismissal. We simply do not know whether such a claim would be possible and if so whether it would be justified and we do not wish in any way to give any kind of indication either positively or negatively on that point but we wish to make it plain that we have been dealing with a quite different matter today.