McCracken v Peterborough Relate [1998] UKEAT 233_98_2404

EAT

McCracken v Peterborough Relate

[1998] UKEAT 233_98_2404 · 1998-04-24

JUDGE PETER CLARK :

This is an appeal by Mr McCracken against a decision of the Leicester Industrial Tribunal sitting on 26 November 1997, which upheld his complaint of unfair dismissal against his former employer, Peterborough Relate, and awarded him compensation totalling £1,134.08p, made up of a basic award of £945 together with one week's net pay of £189.08p, on the basis that had a fair procedure been carried out he would have been fairly dismissed one week later than he in fact was.

The Appellant was appointed Manager of Peterborough Relate on 15 November 1993. He was finally dismissed by a letter dated 4 June 1997 with effect from 7 June, together with one month's pay in lieu of notice.

The background to the dismissal, so the Tribunal found in their Extended Reasons dated 29 December 1997, was that on 23 August 1996 the former Chairman of the Respondent, Lynda Rowbotham, issued a formal oral warning to the Appellant. Mr Pritchard took over as Chairman in October 1996. He in turn issued a formal warning letter concerning the Appellant's performance on 12 December 1996, which was followed by a final written warning dated 22 March 1997.

Thereafter Mr Pritchard continued to receive complaints about the Appellant and on 25 April purported to dismiss him when in fact he had no power to do so. He could merely recommend dismissal to the Respondent's Trustees.

Subsequently a hearing before Trustees was convened on 19 May 1997, which the Tribunal found did not accord with the Respondent's contractual disciplinary procedure. The Appellant had not been invited to attend that meeting. Accordingly that hearing was adjourned until 9 June. Before that date the Appellant indicated that he would not attend the hearing, hence Mr Pritchard's dismissal letter of 4 June.

The Tribunal held that the dismissal was procedurally unfair because the final disciplinary hearing before Trustees on 9 June did not take place. However, on the merits of the dismissal on grounds of lack of capability the Tribunal concluded that had the matter been dealt with properly under the Respondent's procedures the Appellant would have been fairly dismissed on 9 June. Hence the declaration of unfair dismissal and award of compensation to which we have referred.

At this preliminary hearing before us today Mr McCracken has sought and we have granted leave to amend his Notice of Appeal. The further ground of appeal which he has advanced before us today is expressed as follows:

"The industrial tribunal erred in law in holding that had the matter proceeded properly to the meeting of 9 June, the trustees would undoubtedly have dismissed the Applicant (para. 24 Decision) and limiting the compensation awarded to the Applicant to one week's net pay, since the industrial tribunal had before it no evidence as to what the trustees would have decided, particularly since neither of the trustees gave any evidence before the industrial tribunal. The industrial tribunal thus reached a conclusion based on speculation and not evidence. Alternatively in reaching such a conclusion its decision was perverse."

We shall deal first with that submission. It is well settled, not least by the House of Lords decision in Polkey v A.E.Dayton Services Ltd

[1988] ICR 142

, that where a dismissal is held to be procedurally unfair, in relation to remedy it is open to an Industrial Tribunal to find that had a fair procedure been followed a fair dismissal would have taken place inevitably, in which case no compensation is awarded by way of a compensatory award, or that there was a percentage chance that a fair dismissal would have taken place, in which case the loss of the employee's chance of retaining employment is then calculated by reference to the full value of the claim, or as in this case that a fair dismissal would have taken place within a short time after the procedurally unfair dismissal.

All of these matters require a hypothetical view to be taken by the Industrial Tribunal in order to deal properly with the question of compensation.

In our judgment this Tribunal was entitled to find on the material before it first, that at the meeting of 9 June the Appellant would inevitably have been dismissed and secondly, that such dismissal would have been fair had it been carried out in a procedurally fair way.

Reverting to the original ground of appeal, Mr McCracken complains as to an interlocutory order made by the Tribunal during the course of the hearing. It appears that a statement was served on the Appellant by the Respondent of Lynda Rowbotham. When the matter came on for hearing Counsel for the Respondent indicated that he was not in a position to call that witness. He invited the Tribunal to accept her witness statement as evidence. Mr McCracken opposed such a course and, indeed, invited the Tribunal to adjourn the hearing for the purpose of that witness being called, although he did not wish to call her as his own witness; he wanted the opportunity to cross-examine her.

In the event, having read the witness statement, the Industrial Tribunal Chairman declined to admit it in evidence and further, it would seem, refused the Appellant's application for an adjournment for that witness to be called.

In our judgment those were orders which fell well within the Tribunal's discretion. We can only interfere with such orders where it is shown that the exercise of discretion was such that the order was perverse. We can see no prospect of such a finding being made by this Tribunal at a full appeal hearing.

In these circumstances, having considered both grounds of appeal, we have reached the conclusion that they raise no arguable point of law to go to a full hearing and accordingly the appeal must be dismissed at this stage.