ABB Industrial Systems Ltd v Carpenter [1996] UKEAT 417_96_2510

EAT
ABB Industrial Systems Ltd v Carpenter
[1996] UKEAT 417_96_2510 · 1996-10-25

JUDGE BYRT QC :

This is an appeal from the decision of an industrial tribunal sitting at Bedford. They unanimously held that the Applicant at that time, a Mr Carpenter, had been unfairly dismissed. They made a finding about that on 30 May 1995. At a remedies hearing on 10 July they ordered that he be reinstated by 1 September. The Respondents, the employers, have failed to reinstate Mr Carpenter as required by the decision of the Industrial Tribunal and, accordingly, at a further remedies hearing on 24 November they awarded Mr Carpenter compensation amounting to £11,000 and made an additional award of £5,330 compensation as a result of the employers' failure to reinstate him.The employers now appeal the last part of the order only. Effectively, they challenge the order of reinstatement made on 10 July.The facts of this case are shortly as follows: Mr Carpenter was employed by the employers, now the Appellants, as an NHC qualified engineer for some 25 years, that was until he was dismissed in December 1994. It is common ground that the dismissal was for redundancy and that it was in circumstances where a genuine redundancy situation existed. The issue before the Tribunal on liability was as to whether that dismissal was fair or unfair.The Industrial Tribunal found the dismissal to have been unfair on two grounds; one was they found that the employers should have established a pool of potential candidates from which to make a selection for redundancy and they failed to do that and, secondly, they failed to involve Mr Carpenter in any process of consultation before his dismissal.Mr Carpenter had latterly worked in the equipment rack engineering system. That is a section that consisted of some five staff engineers, three of them being design engineers who also processed contract orders. Two of them, including Mr Carpenter, did engineering work but also processed tenders. There was evidence on liability of Mr Walby who was manager of the department in which they were concerned. There was some 44 staff in that department. He referred to a fall off in work and said that as a result it was decided that there had to be some contraction. Accordingly, it was decided that the tendering section of this panel engineer section should be taken over by the three engineers, part of whose responsibility until then was in processing the contracts. Mr Carpenter was told that his job was disappearing. Mr Carpenter, it was said, could not understand that . He said that he had knowledge and skills which were superior to those of the three engineers who had been retained and the Industrial Tribunal found that the employers should have established a pool. The Appellants had their own compulsory redundancy procedures but the Tribunal decided they had applied it wrongly in that Mr Carpenter's job had not ceased to exist and, accordingly, as I have said, they found that the dismissal was unfair.Having established liability in favour of Mr Carpenter in the May, they proceeded to the remedies hearing on 10 July and Mr Carpenter opted for reinstatement. The Appellants' case relating to what happened on 10 July is that it was not practicable to reinstate Mr Carpenter. If they did so, they would have been over-staffed. Computerization had increased since he had left in the December before and there was a likelihood there would have to be further reductions in staff rather than an ability to take on somebody else like Mr Carpenter. The net result would be they would once more have to go through the redundancy selection process over again. Their evidence was that since Mr Carpenter had left 12 vacancies had arisen, 4 of them had been withdrawn, leaving just 8 and the evidence was that Mr Carpenter was not suitable for any of those vacancies. He was a specialist engineer and his job specification did not coincide with any that of any of the vacancies.In cross examination, the employers admitted that the three engineers who had absorbed Mr Carpenter's job were still there and that he, Mr Carpenter, was capable of replacing at least two out of the three of those engineers.The Industrial Tribunal considered the application of section 69(5) of the Employment Protection (Consolidation) Act 1978 governing its discretion whether to order reinstatement and they noted that the section required them to take into account three specific matters. It was satisfied with about two of them straightaway. Subsection (5)(a) refers to the employee's wish to be reinstated. Subsection (5)(c) raises the issue as to whether he had contributed in any way to his dismissal and the Tribunal were satisfied that he had not done so. The sole issue, therefore, remaining was that referred to in subsection (5)(b) which was whether it was practicable for the employer to comply with an order of reinstatement.The Industrial Tribunal directed itself to the case of Cold Drawn Tubes Ltd v Middleton [1992] IRLR 160 where it was stressed that reinstatement cannot be a practicable option where it would result in redundancies or significant over-manning. Later in the authority it said:
"... the Industrial Tribunal should look at all the circumstances and take a broad commonsense view, rather than trying to analyse in too much detail the application of the word 'practicable'."
Despite those directions, the Industrial Tribunal ordered the reinstatement on 10 July 1995 and it was to take place by 1 September 1995. In paragraph 64 of their reasons, the Industrial Tribunal stated that it was not their duty to make a final determination whether it was practicable for the employer to reinstate. It was a factor to be taken into account. In so stating they mirrored the wording of s.69(6) and furthermore relied on two Employment Appeal Tribunal authorities, the case of Freemans PLC v Flynn [1984] IRLR 486 and Timex Corporation v Thomson [1981] IRLR 522 .In the Freemans case, it was said that under s.69(6), practicability of compliance with an order, is described as a consideration which, amongst others, the Tribunal has to take into account and later on it says:
"... at that earlier stage ...[that is, stage 1] the Tribunal is not required to make any definite finding that it would be practicable to comply with such an order;"
In directing their attention to those authorities the Industrial Tribunal believed that those decisions were supported by what was said in the Port of London Authority v Payne & Others [1994] IRLR 9 . C loser inspection of that authority suggests that that may not be quite so. Looking at that authority, it is said that, in the earlier Employment Appeal Tribunal decisions, including the Timex case and the Flynn case, the Employment Appeal Tribunals have failed to stress sufficiently that some determination has to be made at stage 1. At paragraph 42 of the report, Neill LJ says:
"... at stage 1, that is, before an order for re-engagement is made, the Industrial Tribunal must make a determination on the evidence before it whether it is practicable for the employer to comply with an order for re-engagement."
I should say at this particular point, it is accepted by everybody in this case, that the principles applying to re-engagement apply equally to re-instatement. The judgment of

Lord Justice Neill continues:

"The language of s.70(1) seems to me to be only consistent with a requirement that at stage 1 a determination as to practicability has to be made. But the determination that is made at stage 1 is a provisional determination or assessment. It is not a final determination in the sense that it creates an estoppel ..."
The Industrial Tribunal sets out its decision in their reasons relating to re-instatement in paragraphs 66, 67 and 68 and I will quickly refer to those. Paragraph 66 says:
"66. I set out the law in detail concerning the making of the order to reinstate as whatever the position on 10 July 1995, when the Tribunal made that order, we are certain that by the time the period for reinstatement had ended, 1 September 1995, it was practicable for the respondent to reinstate the applicant.
67. Thus at the hearing on 10 July 1995 we took into account the consideration of whether it was practicable to reinstate the applicant and we made an order that the applicant be reinstated on the same terms and conditions as before and that such reinstatement take place by 1 September 1995.68. We made that order taking into account the evidence about the company's structure and the vacancies it had advertised in the period immediately preceding our decision."Suffice it to say that the employers did not reinstate Mr Carpenter before 1 September or at all and, accordingly, there was the second remedies hearing on 24 November 1995. On that occasion, by reason of s.71(2) the burden of proving such matters as had to be proved relating to practicability or rather the impracticability of re-instatement, fell upon the employer.The evidence was as follows, that between 10 July and 1 September the employers had, in fact, engaged a contract engineer through an agency. The reason why it had done so was stated to be that a Mr Hudson, who had been one of the three engineers that had remained in Mr Carpenter's section, had gone sick in the July and, accordingly, this new contract engineer was only a temporary appointment covering the period of Mr Hudson's illness. Mr Hudson came back on 18 September and yet, notwithstanding that, by 24 November the replacement contract engineer was still in employment with the employers. The Industrial Tribunal took the view that the employers had deliberately chosen to disobey its orders made on 10 July, and furthermore, by reason of the fact that this additional information had only been brought out in the cross-examination of the employers' main witness, they took the view that there had been a deliberate concealment of the employment of that additional engineer in the August. Accordingly, taking into account all the appropriate factors that it should take, it awarded the maximum additional compensation on the basis of Mr Carpenter's earnings of £5,330.In his submission to us, Mr Bowers, who appeared on behalf of the employers, drew this Tribunal's attention to the limited scope of the Industrial Tribunal's consideration because Mr Carpenter merely sought reinstatement rather than re-engagement. When he came to consider the passage in the reasons in which is stated the employers' reasons relating the practicability of reinstatement, his submission was that, taking paragraphs 66, 67 and 68, it might be suggested that the Industrial Tribunal had not made the appropriate determination that was required by the Port of London Authority case about the question of practicability, albeit on a provisional basis. He said that in effect it is difficult to know whether they had or had not, because of the short statement of the factors they had taken into account set out in paragraph 68. Paragraph 68, I repeat, states:
"We made that order [of 10 July] taking into account the evidence about the company's structure and the vacancies it had advertised in the period immediately preceding our decision."
He says that there is insufficient findings or statement of the facts that they found to enable the employers to know why they had that order made against them and the reasons are insufficient, he says, to enable a review tribunal, such as this, to be satisfied that the Industrial Tribunal had directed itself properly according to law, having regard to appropriate findings of fact. He said that, having regard to the decision in Meek v City of Birmingham [1987] IRLR 250 that was a substantive criticism of the Industrial Tribunal's reasons in this case.Thereafter, he went on and submitted further that there were grounds for alleging that the Industrial Tribunal had come to a perverse decision. The Chairman's notes of the evidence, given before the Industrial Tribunal, had been secured relating to the hearing on 10 July, specifically relating to the issue of practicability and it consisted entirely of the evidence of Mr Heap. He says that the notes of the evidence of Mr Heap disclose no grounds upon which the Industrial Tribunal could have come to the decision, albeit on a provisional basis, that it was practicable for the employers here to reinstate Mr Carpenter.Mr Carpenter himself at that hearing did not give evidence and, accordingly, Mr Bowers was able to submit that there was no evidence which contradicted in any particular the evidence, given by Mr Heap.Mr Carpenter has attended here to argue his case on his own behalf, supported also by his Father and together they stressed the deep suspicion that must surround the evidence of Mr Heap, having regard to the Industrial Tribunal's reaction to his evidence on 24 November. They urged us to accept that the employment in August of a contract engineer suggested that the need for such an additional engineer was foreseeable on 10 July but Mr Carpenter senior and his son who have argued this matter with commendable realism, appreciated the difficulty of arguing the nexus between those two events.Our view is that the decision of this Industrial Tribunal is very carefully and precisely put together. We are, however, concerned about the inadequacy of the reasons, given for the conclusions of the Tribunal as set out in paragraphs 66 to 68. We are of the view that there are insufficient particulars stated in those paragraphs to enable the employers in this case to know why the Tribunal came to their determination that it was practicable to reinstate Mr Carpenter. We are also of the view that it is difficult for us to be satisfied that they approached this question of practicability applying the right law. We could remit this case to the same Industrial Tribunal, for them to give further and better particulars of the reasons they have given. We have also, in fact, considered the issue raised by Mr Bowers to the effect that the Industrial Tribunal's decision is perverse, having regard to the absence of evidence which would, in any event, justify the decision they came to.We, however, do note that paragraph 68 suggests that the Industrial Tribunal took a number of other factors into account, apart from the oral evidence of Mr Heap and quite plainly it took account of documentation which was before it as a tribunal and which is not before us. Mr Bowers, quite properly, says that if it is to be contended that there was further evidence contained in the documentation which would have enabled Mr Carpenter to have persuaded this Tribunal that they had evidence before it upon which they could have come to the conclusion they did about practicability, the duty was upon Mr Carpenter to produce that documentation. We accept that that is a proper submission to make in an ideal world but we think it has to be put into the context about what a tribunal is all about. It is the boast of a tribunal system like this that it should be accessible to litigants in person from all walks of life, and against that, we have also to consider the implications of the failure of Mr Carpenter to produce the documentation that I referred to. Mr Bowers' submission is that, in the absence of such documentation, the inevitable decision of this Tribunal is that that of the Industrial Tribunal was perverse. We are loath to come to that decision because a lay litigant, acting in person, may through ignorance or inadvertence have overlooked the duty to this Tribunal that I have already referred to.Accordingly, we have decided to remit this case to the same Tribunal with directions that they state, with greater particularity, the basis of their decision relating to the practicability of re-instatement on 10 July. They must indicate precisely the law that they applied, the factors they took into account, so that the employers and this Tribunal can be satisfied that they applied the correct law and that the that they found and took into account were justified on the documentation and the evidence which was before them. To that extent, we allow this appeal.[At this point, there were further representations about whether the case should be remitted to the same or different tribunal. The EAT withdrew and further considered the matter. On return, it amended its direction.]We are of the view that this matter should go back to a differently constituted Tribunal. We can well understand Mr Carpenter feeling aggrieved about that requirement but we think anybody who has to consider this case afresh must focus their attention on the position as at 10 July and the present Tribunal would be at some difficulty in focusing upon that issue without having regard to their knowledge about what has happened since 10 July.We think this case must go back to a differently constituted Tribunal for a rehearing of the evidence on practicability and that that evidence must be limited to the evidence, including documentary evidence, which was in existence at 10 July so that the new Tribunal can replicate as accurately as possible the position in which the original Tribunal heard this matter on 10 July, the parties to be at liberty to be represented at such a hearing in the usual way. That is our direction.