Hutchcraft v Edwards [1995] UKEAT 505_94_2107

EAT
Hutchcraft v Edwards
[1995] UKEAT 505_94_2107 · 1995-07-21
MR JUSTICE TUCKEY : This is an appeal from the decision of the Leicester Industrial Tribunal following a hearing on 22nd February 1994 at which they unanimously decided that the applicant Mr Edwards had been unfairly dismissed, and awarded him compensation of £5,600.00.The employer Mr Hutchcraft appealed. He raised many points of criticism of the Tribunal's award. Those points were considered by this Appeal Tribunal with Judge Hicks Q.C. in the chair on 22nd September 1994. All were rejected on the basis that they raised no point of law, apart from one, which raised what we can describe as an arguable Polkey point.The point turns upon paragraph 8 of the Tribunal's reasons, but before dealing with that we should set out shortly how the point arises. The applicant was employed in Mr Hutchcraft's small business as a car repairer. He was dismissed in August 1993 following the return of Mr Hutchcraft from holiday, on the grounds that whilst Mr Hutchcraft had been on holiday, the applicant, had worked on his own car during Mr Hutchcraft's time at the place from which the business was run in Peterborough.The Tribunal concluded that the dismissal was for conduct, but that it was unfair. In paragraph 8 of the reasons they say:
"8. The failure to even discuss the matter with the applicant must be a fundamental breach of fairness. It is not in any way a procedural breach and this must in our view inevitably makes the dismissal unfair. It will not be open for us to assess what the chances could be of the applicant retaining his employment had there been a meeting between the applicant and the respondent because, as I have said, the breach was fundamental."
On that basis they proceeded to make a basic and compensatory award without making any reduction for the possibility that had a fair procedure been followed the applicant might still have lost his job. That was the point the preliminary hearing allowed to proceed to a full hearing.Mr Hutchcraft has not appeared before us. He has submitted further written material but essentially this does not advance his case. Most of what he says is a repetition of the points which have already been rejected and therefore we need not deal with them again.But, we are still left to consider paragraph 8. The respondent is represented before us today by Mr Moorhouse from the Citizens Advice Bureau, Peterborough. He appeared for the applicant below. His submission is that this was a decision of an experienced Industrial Tribunal which included the Regional Chairman. Obviously Polkey was in the Tribunals' mind because in paragraph 8 they do in fact refer to assessing chances but the essence of their decision was, Mr Moorhouse submits, that if any such consultation had taken place it would not have resulted in the applicants dismissal. He says that because it was the applicant's case that he had not worked on his car during Mr Hutchcraft's time, there was no evidence before the Tribunal to support that fact that he had and that although he had done some work on his car outside his working hours using Mr Hutchcraft's materials it was his case that had the matter been raised with him he would have offered to pay for those materials as indeed he has subsequently done. So, had there been consultation a reasonable employer following a reasonable procedure would not have dismissed this applicant, and therefore no question of a reduction in the amount of compensation arises.We are bound to say that we think that paragraph 8 of the reasons is somewhat opaque. It does not set out reasoning of the kind which we have just alluded to, but we cannot think, that the Polkey point was overlooked. At the end of the day such a point is a question of fact for the Industrial Jury. Here the Industrial Tribunal found that no reduction need be made. Therefore although we think that their decision could have been better expressed, at the end of the day we do not think there are any grounds for interfering with it. Accordingly this appeal is dismissed.