Robinson v S D V UK Ltd [1995] UKEAT 198_94_1605

EAT
Robinson v S D V UK Ltd
[1995] UKEAT 198_94_1605 · 1995-05-16

JUDGE SMITH Q.C. :

This is an appeal by the Appellant Mr Robinson the applicant employee before the Industrial Tribunal against the decision of an Industrial Tribunal sitting at Manchester made on 3rd December 1993 finding that the applicant employee, the appellant before us, had been unfairly dismissed by reason of redundancy, on the grounds that there had been no consultation, but ultimately awarding him, only, and I say that advisedly because of the matter we have to consider, £29.18 compensation for unfair dismissal.The Tribunal, importantly, in our judgment, for reasons which will appear, declined to review its decision when the matter came before it on application for review, allegedly in the interests of justice, when the same matter now raised on appeal before us was specifically brought to the attention of the Industrial Tribunal as we understand the papers before us. I say the papers before us, because the Appellant is unable to appear in person or by representative before us today. And Mr Date who appears for the Respondents did not appear either at the Industrial Tribunal hearing or at the review, I believe I am right in saying.The Appellant does not appear before us, I repeat, either in person or by representative for perfectly good reasons. But we have of course carefully considered the grounds set out in his Notice of Appeal, together with this skeleton argument submitted on his behalf by a Mr Rippon of the Wilmslow Citizens Advice Bureau. As I said a moment ago, Mr Date, of Counsel, has appeared on behalf of the Respondents. We have had the benefit of hearing his helpful argument.The point taken on Appeal is that, in the light of its own decision, so to speak, the Industrial Tribunal erred in deducting a sum paid and received by the Appellant in lieu of notice from the sum awarded by the Industrial Tribunal by way of compensation arising from the unfair dismissal on the grounds of redundancy resulting from the lack of consultation. The point that is taken is that no such deduction should have been made in the light of the Tribunal's findings.I will come to that in a moment, but let me just give the background to the necessary extent, the full background of the matter is fully set out in the full reasons given by the Industrial Tribunal to which reference should be made for the details of the matter. But in outline, and it is only an outline, the Appellant had been employed as a driver since 1975 in the airfreight business, which ultimately became that of the Respondents, they having taken over the business or purchased the business, I think in 1992 or thereabouts, in Manchester.The facts found by the Industrial Tribunal on the evidence before them demonstrate that the Manchester operation had begun to run at a loss by early 1993 and a decision was then taken by management that redundancies had to be made from amongst the small number of employees working at the Manchester operation.As a result, on 15th March 1993, the Appellant was informed that he was being made redundant and was dismissed on the grounds of redundancy on that date.The Industrial Tribunal found, quite correctly, that there should have been consultation, but that there was none. However, the Industrial Tribunal also found that had there been consultation there was no chance that the Appellant would have been retained. Because they found that there was no consultation they reached a finding that there had been an unfair dismissal on the grounds of redundancy.The Industrial Tribunal then went on to state as follows in paragraph 12 of the full reasons.:
"... We find that there was a nil chance of the applicant having been retained even had there been warning and consultation. We consider, however, that had he been warned and consulted he would have remained in employment for a further 12 weeks. We award accordingly."
The Industrial Tribunal then in paragraph 13 proceeded to make their compensatory award, under Section 74 of the 1978 Act, of course.They proceeded first to award 12 times the applicant's average weekly wage being 12 weeks totalling £2,830.68. This clearly reflected a period which they had referred to in their findings immediately above. However, they then had regard to the payment which had been made to the to the Appellant in lieu of notice which was a payment of £3,203.82 representing 17 weeks basic pay, net pay, as we understand it. And they purported to deduct that second payment I have mentioned, that is to say the payment in lieu of notice, from the award they had made, so as to produce a negative figure, so to speak, they deducted the £3,203.82 from the £2,830.68 reaching a minus figure of £373.10. Then they award £200.00 for loss of statutory industrial rights with the result that the balance they finally awarded after taking into account an award in relation to the pension scheme, was £29.18.It is clear, in our judgment, from the review hearing, in relation to this decision that they purported to make this a deduction in reliance upon the Court of Appeal decision in Babcock FATA Ltd v Addison [1987] IRLR 17. Thus they refused a review on the basis that in making the deduction, they were applying the principle laid down by the Court of Appeal in that case. That principle being, stating it very shortly, that the Court of Appeal held that"In the absence of agreement, express or implied, to the contrary effect the respondent employer is to be given credit for all payments that he has made to the employee on account of claim for wages and other benefits".That is a citation from part of the judgment of Ralph-Gibson LJ in that Court of Appeal. So that is plainly what the Industrial Tribunal purported to follow in making the deduction. That is the principle upon which they understood themselves expressly to be proceeding.It is argued by the Appellant that no such credit should have been given to the Respondent Employers and no such deduction made here. Because, it is submitted, on the findings of the Industrial Tribunal, which I have already referred to in particular to the sentence I read being the penultimate sentence in paragraph 12 of their decision, the period for consultation was intended by the Industrial Tribunal to have the effect of delaying the implementation of the dismissal, and thus, it is submitted, should have resulted in an award for a period before dismissal, or notice of dismissal, and, thus, not referable to the seventeen week period of notice. It is argued that this is the plain meaning of the penultimate sentence as I say of the Industrial Tribunal's reasoning in paragraph 12 of its decision. But against that submission, Mr Date, Counsel for the Respondent Employer submits that although he accepts that there is a certain degree of ambiguity in the Industrial Tribunal's decision, between the way the finding about the lack of consultation is expressed on the one hand, and the effect of that on the one hand, and the deduction of the 17 weeks on the other, pursuant to the Babcock decision, nevertheless it is his submission that such ambiguity can and should plainly be resolved by interpreting the Industrial Tribunal decision as meaning, either that the consultation here would have taken place prior to the dismissal in March, or, alternatively, (and this is really the strength of the Respondents argument, in our judgment) that the Industrial Tribunal plainly contemplated that the twelve week period of consultation would take place during the statutory notice period, and in that way have the effect of enabling the Appellant to remain in employment under notice during the pendency of notice for the 12 week period to which he was statutory entitled under Section 49 of the 1978 Act.On this interpretation of its decision and this way of looking at the decision, then it is apparent that once the Industrial Tribunal came to consider the calculation of the compensatory payment in paragraph 13 of its reasoning, it was obliged, following the Babcock decision, to give the Employer credit for the £3,203.87 received by the Appellant by way of a payment in lieu of notice. On this analysis, the deduction was perfectly properly made. That in essence is the submission that is made, as we understood it, by Mr Date.Having considered the matter carefully, we consider that Mr Date's submission is a fair and reasonable interpretation of the Industrial Tribunal's decision.The period of consultation of 12 twelve weeks standing as a period of consultation is exceptionally long, and, in our judgment, is much more easily construed as a reference to the minimum statutory notice period of 12 weeks in all the circumstances. In addition, one of the members in the Employment Tribunal is aware that it is quite common practice in industry, and is recognised as being a perfectly reasonable industrial practice in some circumstances for consultation to take place under protective notices. There is apparently nothing unusual about that. So that is another reason why we lean towards interpreting the Industrial Tribunal's decision in the way the Respondents submit that it should be interpreted.Finally, the decision of the Industrial Tribunal itself not to allow a review when the very matter was raised before them, in our judgment, only serves to endorse this interpretation of their decision. It was plainly how they themselves interpreted their own decision when the matter was brought specifically to their attention on a review and when they specifically refused the review, on the ground that they believed that they had properly applied the Babcock decision.Accordingly, for those reasons, we have unanimously concluded that this appeal must be dismissed. We are pleased to note that a proper and full redundancy payment was made to the Appellant, and that it appears that the Respondents have been fair in the amount they paid to the Appellant by way of monies in lieu of notice by giving him 17 weeks notice payment.