Sterry v Trent Mail Order Co Plc [1998] UKEAT 977_97_2310

EAT

Sterry v Trent Mail Order Co Plc

[1998] UKEAT 977_97_2310 · 1998-10-23

JUDGE JOHN BYRT QC:

This is an appeal against a decision promulgated on 13 June 1997 of an Employment Tribunal sitting at Ashford, Kent, and by that decision the Tribunal held that the employee, Mrs Sterry was dismissed for redundancy and that such dismissal was unfair. Mrs Sterry appeals on the question of quantum of compensation only.

The facts are as follows: she was employed by the Respondents as a part time statistical clerk. The Respondents are a company that runs a mail order business and employs something like 13 employees. At first Mrs Sterry was a temporary employee and then after that she was taken on as a part time employee in the statistics department working something like 24 hours a week. She had two children and part time work suited her.

There came a time when the Respondents wanted to employ somebody in their accounts department. They advertised and then interviewed a Mr Gambon for the job. He eventually did not get employment in that department because the post had already been filled by the time he was interviewed, but they noticed that he had qualifications in the line of statistics. They considered their own requirements and thought that there was a need to increase the staffing of their statistical department. The result was, in due course, they interviewed Mr Gambon with a view to giving him a full time position in that department. Having interviewed him, they decided to employ him and that necessarily meant they would have to give Mrs Sterry notice, terminating her part time employment.

In due course, they decided and told Mr Gambon that they were going to employ him and he accepted their offer. At that point the same day, two directors of the Respondent company went and saw Mrs Sterry and told her that her job was to be terminated. Her response was in effect, "well wait a minute, I might be interested in a full time job myself, I would wish to consult my family". She took the weekend to consider the matter, came back on the Monday and told the Respondent directors that she would wish to have the full time job. At that particular stage, the Respondents were not in a position to give her the job. They had committed themselves to Mr Gambon. As a result, they told her that she would have go, and in due course she was given notice and her job was terminated.

When it came to the question of compensation, the Employment Tribunal decided she was entitled to the basic award together with something for her loss of statutory rights. When it came to consider what was just and equitable to pay her by way of a compensatory award, they decided that her past loss and future loss should be assessed on the basis of the salary she earned as a part time worker.

It is on that latter part of the award that Mrs Sterry appeals. She says that the Tribunal should have considered her future loss of wage on the basis of her having succeeded or at least on the basis of having a good chance in securing the full time employment. That is the issue which we have to decide today.

When considering this matter one looks at the decision of the Tribunal and we notice that in paragraph 13 they say this:

"We have considered these criteria, [that is relating to redundancy] and have no hesitation in finding that the dismissal was unfair. The Applicant was given no prior warning that her part-time job was at risk, and was not consulted in any way. No consideration was given to offering her alternative employment prior to 25 October 1996, by which time the Respondents were committed to employing a replacement full-time employee. [and then there follows a significant passage] Had the Applicant been consulted, and had she at an earlier stage had an opportunity to confirm that she would be prepared to work full time, this whole claim might well have been avoided."

At that particular stage, of course, the Tribunal did not give their mind to what would have been the situation had she been consulted in time.

Mr White who has appeared on behalf of Mrs Sterry has drawn our attention to the case of Red Bank Manufacturing Co. V Meadows

[1992] IRLR 209

and at paragraph 10 the Employment Appeal Tribunal says this:

"If the proper procedure had been followed, and if consultation had taken place, would it have resulted in an offer of employment? This is the question to which the Tribunal did address themselves in the earlier hearing, and to which they gave the answer that it might have done so. What the Tribunal failed to do, and what in our view they should have done, was to go on to consider first what that employment would have been, and second what wage would have been paid in respect of it."

At paragraph 13 the Tribunal go on to stated further:

"Furthermore, we think that the Industrial Tribunal should have made if clear whether or not they considered making a percentage reduction in the award to reflect the chances that the outcome might have been the same even if consultation had taken place."

We take the view that the Tribunal in this case, set about the assessment of compensation, without asking the right questions. In paragraph 18 of their decision, they correctly recite section 123(1) of the Employment Rights Act and then go on to ask themselves this question, or make a statement rather than ask a question:

"The dismissal was from part-time position and the loss in consequence of the dismissal was the loss of part-time earnings."

Well, of course, had Mrs Sterry been consulted, it is uncertain as to what the result would have been, and we suggest that this was an area of enquiry which the Tribunal did not properly address and should have done. For those reasons we think that this appeal must be allowed.

We come to a question as to what directions we should now give. Should we substitute our own views and name a figure of compensation or should the matter be remitted to this or another constituted Tribunal.

Mr White, any views about that?

We accept that this is not a case where we can substitute our own view. There are further questions for the tribunal to ask themselves. One does not know whether she would have accepted full time employment if there had not been another candidate in the field. We know that Mr Gambon became a candidate and the likely person to be appointed and we would not know whether Mrs Sterry would ultimately have been appointed if she had made known her interest in full time employment before the Respondent company had committed themselves to Mr Gambon. Those are matters which need to be explored before a correct finding can be made on compensation. Therefore we direct this matter be remitted to the same Tribunal for a consideration of these matters.