INCO Europe Ltd v Huggins [1997] UKEAT 735_96_2104

EAT
INCO Europe Ltd v Huggins
[1997] UKEAT 735_96_2104 · 1997-04-21

JUDGE D M LEVY QC :

This appeal raises a short point. Mrs A. Huggins was employed by Inco Europe Ltd ("the Company") from 29 April 1985 until 17 November 1995. On that date when she was ill, a representative of the Company saw her and gave her a notice which effectively gave her three months' redundancy pay and such other sums as the Company thought appropriate in order to dismiss her on that date. She felt that insufficient monies had been given to her and she commenced proceedings by an Originating Application dated 28 November 1995, received by the Industrial Tribunal on 29 November 1995. This resulted in a hearing before an Industrial Tribunal on 7 May 1996.The Industrial Tribunal held, in a decision sent to the parties on 10 May 1996, that the Applicant was unfairly dismissed on the grounds of redundancy and that had a proper consultation process been adopted, the decision to dismiss would have been deferred by one month. The Tribunal therefore awarded the Applicant compensation equivalent to one month's net salary, namely £977.46. The Tribunal considered that the Applicant had not been dismissed or otherwise treated adversely by reason of her sex and the claim for sex discrimination was dismissed.Against that decision Mr Glover, who represented the Company in the Industrial Tribunal, appears before us today. His Notice of Appeal in paragraph 6 says:
"a) In awarding the Respondent compensation of £977.46 (one month's net salary) the Industrial Tribunal failed to take account of the severance payment made to her by the Appellant as required by section 74(7) of the Employment Protection (Consolidation) Act 1978. (b) The award of one month's pay (representing the period by which the Industrial Tribunal believes the respondent's dismissal would have been deferred if the Appellant had carried out a proper consultation process) is excessive. Compensation of two weeks' pay would be more appropriate."
Section 74(7) of the Employment Protection (Consolidation) Act 1978 has now been replaced by Section 123(7) of the Employment Rights Act 1976 . This reads:
"If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise) exceeds the amount of the basic award which would be payable but for section 122(4), that excess goes to reduce the amount of the compensatory award."
Section 122(4) reads:
"The amount of the basic award shall be reduced or further reduced by the amount of - (a) any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or (b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise)."
The facts as found by the Industrial Tribunal included these: (we read from the last sentence of paragraph 5 of Summary Reasons, which were converted to Extended Reasons, by a letter from the Industrial Tribunal to the parties dated 1 July 1996):
"5 ... It so happened that on 17 November Mrs Huggins was away from work, ill with a cold, but Mr Richards felt it was necessary that all those concerned [that is, in a redundancy exercise] should be notified immediately and he made an arrangement to go and see her at home, when he gave her the bad news and left her with a letter setting out the terms of her redundancy/severance package.
6. Those terms included a company severance allowance, which was calculated by reference to the employee's age and years of service, which gave her an enhanced payment of £12,066, which sum included the statutory redundancy entitlement. ..."We have not seen any contract of employment of Mrs Huggins, but we understood from what Mr Glover said to us in the course of his submissions to us this morning, that there might well have been a contract which entitled her to three months' redundancy pay. It is in that context that we understand the sentence in paragraph 6 of the Reasons of the Industrial Tribunal. If that was right, it seems to us, that if there had been a consultation which the Industrial Tribunal thought there should have been, the whole exercise would have resulted in Mrs Glover being entitled to the £977.46p to which the Industrial Tribunal held that she was.Mr Glover has referred us to the decision of the Employment Appeal Tribunal in Rushton v Harcros Timber & Building Supplies Ltd [1993] ICR 230 , where in a reserved judgment given by Judge Hague, on behalf of himself and his colleagues, the learned Judge referred to Section 74(7). He said this at page 236:
"We consider that the meaning and intent of the subsection is reasonably plain, i.e. that in the calculation of the compensatory award an employer should receive credit for any redundancy payment he makes. The manifest purpose of the subsection was to encourage employers who find it necessary to dismiss for redundancy to be generous in making ex gratia payments. It would be unfortunate if an employer in deciding whether to make an ex gratia payment, and if so deciding the amount, had to take into account the possibility of an industrial tribunal award over and above the ex gratia payment, however generous that may have been."
It seems to us that here we have no evidence an ex gratia payment of any sort was made and it seems to us that Rushton v Harcros Timber therefore has no application here. So on the first point in the grounds the appeal fails. On the second point, Mr Glover accepted that there was a finding, as indeed there is, in the Tribunal's decision as to four weeks' notice; that is found in paragraph 8 of the Reasons where there is this passage:
"We feel that a sensitive employer would have accorded a reasonable period of consultation before coming to a final decision and we find that an appropriate period in this case would have been one month."
That is a finding of fact which, on the evidence, we feel sure that an experienced Industrial Tribunal was entitled to reach. Appeals against findings of facts cannot be allowed in this Tribunal unless there is evidence to show that the finding was clearly wrong. There is no such evidence here.It seems to us that, although therefore on the ex parte procedure on 21 February 1997 this Tribunal found that there was an arguable appeal to proceed to a full hearing, on examination the grounds of appeal of the Appellants cannot be sustained.In the circumstances, we dismiss the appeal.