Humphreys v Fina Plc [1995] UKEAT 487_94_1007

EAT
Humphreys v Fina Plc
[1995] UKEAT 487_94_1007 · 1995-07-10

JUDGE BUTTER Q.C. :

Mr Humphreys was employed as a property manager from March 1987 until 31st October 1992. On 15th October 1992 he was told to attend a meeting on 19th. He was told that there was re-organisation of the property department, and that he would be retiring and be replaced by Mr Chadderton the then Network Development Manager.On 19th October 1992 a meeting took place. Mr Humphreys was told he was to be made redundant as from the end of October 1992. He implemented the grievance procedure but the decision remained unaltered.Mr Humphreys maintained that there had been a complete failure to consult, and that his position of property manager was not in fact redundant.He made an application to the Industrial Tribunal at London (South). He claimed that he had been unfairly dismissed, and he sought reinstatement not compensation.The hearing was due to take place on 6th October 1993. Two days before that the respondents solicitors wrote, and Mr Humphreys saw the letter on 7th October 1993, to the effect that:
"The Respondents admit that on 31st October 1992 the Applicant was unfairly dismissed ..."
There was a reference to the hearing being for the assessment of quantum and it was said that the hearing on the issue of liability would no longer be appropriate.That letter, although understandable, was unfortunate in the sense that Mr Humphreys regarded it as an unconditional admission of liability. He may indeed have thought that he would therefore be entitled to reinstatement and not just to compensation, although it is true the letter to which I have just referred mentioned quantum .Regrettably the Notes of Evidence at the hearing have gone missing. This is a real pity in the present case because what happened before the Tribunal is of importance, and there is a conflict of recollection as to what occurred. This may well add to Mr Humphreys' sense of grievance.What seems to have happened is that in view of the admission made by the respondents as employers, Counsel on their behalf opened. A witness was called to give evidence, and was cross-examined. At some stage the Tribunal read Mr Humphreys' statement. He wanted to read it aloud, but the Tribunal expressed the wish to read it to themselves. No criticism should necessarily be directed at this, but it is said that the Tribunal when reading his statement showed no signs of cross-referring to his bundle. Mr Humphreys was cross-examined, and it may then be he was given at that stage an opportunity of adding something further. But Counsel for the employers concluded with detailed submissions.There is a conflict of recollection and indeed evidence, because we have affidavits before us, as to what happened then. It seems to us quite likely that Mr Humphreys did ask to address the Tribunal further, and was told in effect that it was now too late. This on our assessment did not constitute a breach of the rules, or, I may add, a failure to provide natural justice. On the basis that the onus was regarded as being the employers', it would be counsel for the employers who would address the Tribunal at the end. All the same, this was an added sense of grievance for Mr Humphreys. This was added to yet further, when there was a regrettable mistake, when (see page 38 of our bundle) a letter was written a few days later saying that there was insufficient time at the hearing on 6th October, it had therefore been adjourned to 24th November 1993. There was a reference to this being "in chambers", and then at the top right hand side "FOR INFORMATION ONLY. NO NEED TO ATTEND". All this was most confusing and ought not to have occurred. Mr Humphreys, in fact, went along on 24th November 1993, and was told that a case was being dealt with "in chambers", he could not go in.It seems that what really happened was, that this was simply the day when the members were meeting to give further consideration to the case, but all the same this added, as I have already indicated, to Mr Humphreys' confusion and no doubt sense of grievance.The decision when ultimately promulgated said that he had been unfairly dismissed. £10,000 compensation. A review was refused.Today Mr Humphreys has appeared in person, as indeed he did before the Tribunal, and we would wish to pay tribute to him for the clarity and courtesy of the arguments which he has presented to us. He raises three main points.He says first of all, there was a duty on the part of the Tribunal to explain to the applicant himself the nature of the remedies of reinstatement and re-engagement. Secondly, that he was denied the request to make a final submission, a point which I have already dealt with. And thirdly, that new evidence has become available, which was not available at the time, which is relevant and he says of importance on the issue of reinstatement.There is a cross-appeal by the respondents, who say that the Industrial Tribunal erred in law and did not make any reduction in the compensatory award to take account of the possibility that the applicant would have been dismissed even if there had been a fair consultation.I turn to deal with the first point raised by Mr Humphreys. Section 68(1) says:
"(1) Where on a complaint under section 67 an industrial tribunal finds that the grounds of the complaint are well-founded, it shall explain to the complainant what orders for reinstatement and re-engagement may be made under section 69 and in what circumstances they may be made, and shall ask him whether he wishes the tribunal to make such an order, and if he does express such a wish the tribunal may make an order under section 69."
There was according to the information before us a failure by the Tribunal to comply with those requirements. This is a matter of concern to the Tribunal today. There is a clear duty on the part of Industrial Tribunals to comply with statutory requirements, and there is Court of Appeal authority for the proposition that those requirements in the section to which I have referred are indeed mandatory. We have considered the case of Pirelli General Cable Works Ltd v Murray [1979] IRLR 190 . The facts are different, but the position there is made plain. On the other hand we have also had to consider the case Cowley v Manson Timber Limited [1995] ICR 367 , a much more recent decision. And there it is plain from the passages to which we have been referred, that we have to consider the question as to whether if there has been such a breach it has produced a result which is unjust and unfair in the circumstances, and whether there has been a prejudice against the person who is complaining.It is clear from the reasons given by the Tribunal that the matter of reinstatement was considered. I need not go through paragraphs 2, 3 or 4 of the reasons given. But it is probably helpful if I turn specifically to the conclusion at paragraph 5:
" The Tribunal find that there was a redundancy situation in that the two jobs had been merged into one by the re-organisation. The dismissal was unfair in that the employers had failed to consult with the Applicant who might in fact have taken the job offered to Mr Chadderton. It was not practicable for the company to reinstate or re-engage the Applicant given the recession in the Industry and the lack of recruitment throughout the company and the parent company. We have considered [ the Chairman goes on to say ] the effect of Polkey on compensation and whether it would be just and equitable to award full compensation. We are unable to say the Applicant would have been dismissed had consultation taken place and therefore make no reduction.
I should say that in paragraph 4, there are references to three cases Polkey vAE Dayton Services, Cold Drawn Tubes v Middleton and Port of London Authority v Payne. It is plain to this Tribunal that the question of reinstatement was given active consideration.Mr Humphreys disagrees. But there was in our judgment, evidence before the Tribunal to reach its conclusion. Although we bear in mind, that he was not represented, although we bear in mind that he had asked for reinstatement and not for compensation, we have considered all the circumstances, and whilst expressing some concern, in the end do not believe that there was unfairness or prejudice against him. We do not therefore think there is a substantial point to that ground of appeal.So far as the question of new evidence is concerned, clearly that, consisting as it does of the article relating to the retail site exchange, could not have been produced, in the sense that the article itself was produced later. The information contained in it might well have been made available to the Tribunal if Mr Humphreys had been aware of that. We think again that the situation was unfortunate because he went to the Tribunal understanding it was quantum only, or he may have thought reinstatement only, I am not sure. But certainly it would be understandable if he had not made sure he had various witnesses to attend that hearing whose evidence he might well regard as being relevant principally to liability. We do not base our decision on this particular point. In relation to what is an important hurdle which any person seeking to adduce new evidence must surmount, it is important to bear in mind, it is not just whether the evidence is relevant, which we are prepared to say it was, but whether it is evidence of a kind that would probably have had an important influence on the result of the case. See Wileman v Minilec Engineering Ltd [1988] ICR 318 following the well-known case of Ladd v Marshall [1954] 1WLR 1489 . In the end we are not persuaded that the appellant has survived that second hurdle. We are not persuaded that the evidence would have an important influence on the result of the case.In the result, and for these reasons it follows in our unanimous view that the appeal fails and is dismissed. In these circumstances it is not necessary for us to deal with the cross-appeal which it has been said will not be pursued if the substantive appeal is dismissed.