Thomas Mosedale & Sons Ltd v Jones [1999] UKEAT 1212_98_1502

EAT

Thomas Mosedale & Sons Ltd v Jones

[1999] UKEAT 1212_98_1502 · 1999-02-15

JUDGE PETER CLARK:

By a decision with Extended Reasons dated 17 July 1998 an Employment Tribunal sitting at Manchester upheld the Applicant's, Mrs Jones' complaint of unfair dismissal by reason of redundancy, and declared that there was a 50% chance that she would have been dismissed had the Respondent Company acted fairly ("the Polkey deduction"), following a hearing held on 13 May 1998 (the liability decision).

At a remedies hearing held on 26 June 1998, the Tribunal assessed the Applicant's gross compensatory loss at £10,644, halved it in view of the Polkey deduction, and awarded her £5,322 compensation for unfair dismissal. Her statutory redundancy payment extinguished the basic award. That remedies decision, with summary reasons, was also promulgated on 17 July 1998.

By a Notice of Appeal dated 25 August 1998 the Company challenged only the amount of the Polkey deduction on the grounds that the Tribunal's finding that the Applicant had a 50% chance of retaining her employment had the Company acted fairly was "contrary to the evidence".

In the liability decision the Tribunal found that the Applicant, who had been employed by the Company as a wages and office administrator from September 1998 until her dismissal by reason of redundancy on 30 January 1998, was unfairly dismissed because there had been no prior consultation about her selection for redundancy and no discussion about possible alternative employment, although it was the Company's evidence apparently accepted by the Tribunal that none was available.

The Tribunal concluded that one out of three employees had to be made redundant. Effectively the choice was between the Applicant and Susan Croston. The latter was a trained typist; the Applicant was not. Most of the typing was in fact done by the third employee, Nickie Bloor.

They found that had proper consultation taken place, and objective selection criteria been used, the Applicant had a 50% chance of being retained as against Susan Croston.

In this appeal, Mr Gruffydd submits in line with the grounds of appeal, first that the Employment Tribunal erred in making a finding of fact which was contrary to the evidence and which was a finding material to their ultimate conclusion on the Polkey deduction. The specific finding appears at paragraph 4(2) of the Liability Decision where the Tribunal found:

"(ii) The applicant and Susan Croston were capable of and did carry out all the same duties, although Susan Croston was a qualified typist, whereas the applicant was not. However, the applicant could and did type when required, and the respondent's requirements for typing were small up until a few months before the applicant was made redundant. The third administrative/office employee, Nickie Bloor, did most of the typing that was required."

Mr Gruffydd has referred us, in the absence of the Chairman's notes of evidence at this stage to a note prepared by the solicitor who appeared on behalf of the Company below. The note of the Applicant's evidence in chief, includes this evidence, "can't remember being asked to type, I did say that I would be able to struggle through a letter given time, Nickie Bloor did most of the Company letter typing".

As to cross-examination, we have been given some manuscript notes which Mr Gruffydd has endeavoured to interpret for us. His submission is that in cross-examination the Applicant agreed that she could not type.

His alternative submission is that even if the question of that finding of fact is set aside, the Tribunal nevertheless erred in applying a subjective test when considering what would or might have happened had a fair procedure been followed. He submits that the Tribunal were wrong to reject this employers absolute acquirement in the retained employees, that they should be able to type.

We have considered those submissions with some care and consider whether it is necessary to obtain the Chairman's notes of evidence in order to properly deal with this appeal. We think not.

It seems to us that there was evidence before the Tribunal that the Applicant was able to type, although plainly not with the skill displayed by the other two employees. However, we think that the Tribunal correctly asked itself what a reasonable employer would have done having carried out a proper consultation procedure. Among the factors which the Tribunal considered a reasonable employer would have taken into account, was whether there was a volunteer for redundancy. Whether a job share might have been agreed. Further that in comparing Mrs Croston and the Applicant, the employer would have objectively weighed up on the one hand Mrs Croston's ability to type and on the other hand the Applicant's greater experience and service.

All of these matters led the Tribunal to conclude, and we think this finding is unassailable, that with reallocation of work and some retraining, it would have been possible for any two of the three employees to carry out the employers future requirements.

The question of the appropriate Polkey deduction in any case, is essentially a matter of judgement for the Employment Tribunal. It cannot be a precise science. Having considered the appeal in the round we have come to the conclusion that there are no grounds in law for interfering with the Tribunal's conclusion, although a different Tribunal might have reached a different finding, and in these circumstances, we consider there is no arguable point of law to go forward to a full appeal hearing and the appeal must be dismissed.