MR D J CLANCY v CANNOCK CHASSE TECHNICAL COLLEGE [1999] UKEAT 265_99_0907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 265_99_0907Case No Appeal No. EAT/265/99 EAT/293/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D J CLANCYAPPELLANTCANNOCK CHASSE TECHNICAL COLLEGERESPONDENT
Before
Mr Justice MorisonDate 9 July 1999
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE MORISON: This is an appeal against a remedies decision of an Employment Tribunal which was promulgated on 14 January 1999. The point on the appeal which is raised by Mr Clancy can only be properly understood if reference is made to the decision of the Employment Tribunal earlier in relation to the unfair dismissal complaint which he had brought. The Tribunal concluded that he had been unfairly dismissed and they did so in what can be described as trenchant terms.[2]They found some of the evidence given by the principal of the college, by whom he had been employed, as extraordinary and not to be believed. A document was produced which was also described as extraordinary. It was a document, said the Tribunal, "which we think can only have been prepared by an employer who is either dishonest, or at least aware of the procedures which had been adopted thus far were completely unrelated to the proper procedures which ought to have been followed, or were open to misinterpretation" and they found that there was a belated attempt by the college to reverse the process and make it appear that proper procedures had been followed by requiring the Applicant to sign a particular document.[3]They expressly disbelieved Dr Parker's evidence that he had carried out a provisional assessment of the redundancy situation. They concluded that Mr Clancy and his trade union had never seen the matrix "which is supposed to have cost him his job or even his own marking assessment". They concluded that the review appeal which was carried out internally bore all the hallmarks of a cursory review without a thorough investigation and was not the kind of case where an appeal could possibly correct any errors which had occurred at a previous hearing.[4]They referred to the fact that after the dismissal allegedly for redundancy there had been a number of advertisements placed in the press for jobs which Mr Clancy would say he was qualified to do. Their conclusion on the evidence was that the employers targeted for redundancy employees who were working on old contracts wherever this was consistent with the need for skills required for the continuing function of the college. They supported their finding by a number of specific matters set out in paragraph 3.4 and they went on to say at 3.4.9 that:
"If the Respondents had been dealing with the Applicant in a bona fide manner, we think Dr Parker would have had no difficulty at all on 17 July in finding Mr Clancy something, however part-time, to satisfy his remaining on the books and qualifying for his early retirement at age 50. Dr Parker would have known of the general range and diversity of the Applicant and his ability to teach in areas which transcended the College disciplines. He would have known of the annual round of advertisements and part-time appointments. He could easily have promised something, if not necessarily being specific at the time, discussing actual hours available at the re-instated notice period. The fact that this was not considered leads us to believe that Dr Parker was not dealing with the applicant in good faith."
[5]They concluded that the employers conduct was so far adrift of the reasonable standards of industrial behaviour envisaged in the Compair Maxam case that no reasonable employer would have reached the decision which they did. There had been no consultation - Dr Parker was driven to the length of subterfuge. There was no sufficient or realistic consideration of alternative employment. Only perfunctory attention was given to the need to consider alternative employment available.[6]The Tribunal concluded that those were serious procedural defects in the manner in which the Respondents handled things which amount in the circumstances, so the Tribunal said, to a breach not only of normal standards of Industrial Relations but also statutory provisions relating specifically to this Respondent and its employees. For all the reasons that they set out in their decision they consider the decision to dismiss to have been unreasonable and unfair and they listed the matter for a remedies hearing.[7]In the light of those findings, specifically in relation to the findings in relation to the opportunities for alternative employment, it seems to us not unreasonable that Mr Clancy may have been approaching the remedies hearing on the assumption that the Tribunal would be inclined to make a re-instatement or re-engagement order. What actually happened at the remedies hearing was that he ended up with £9,900 worth of compensation for unfair dismissal but the Tribunal declined to make an order for re-instatement or re-engagement.[8]The reasoning process of the Tribunal in refusing re-instatement or re-engagement could be said arguably to conflict with the reasoning which has led the Tribunal to uphold his complaint of unfair dismissal in the first place. Secondly the deduction of 75% to reflect what is sometimes called the " Polkey factor" is arguably out of line with their previous findings. It is important that Tribunals bear in mind their responsibilities under the statute dealing with re-instatement or re-engagement, and one of the issues which will arise for determination at an inter-partes hearing will be to consider whether this Tribunal has done so.[9]Accordingly, the arguable points as they seem to us are the approach of the Employment Tribunal to the question of re-instatement or re-engagement whether having regard to their findings made on the liability issue their decision on remedy could not be described as perverse, applying the "my-goodness-me" test. In any event, their decision on the Polkey reduction appears to provoke arguably an "oh-my-goodness" response as well, having regard to their findings on the first occasion. Those are matters which do need to be looked at further.[10]This is an ex-parte hearing. We remind ourselves therefore that we have not yet heard from the Respondents and we wish to make it perfectly clear that by giving leave for this matter to proceed to a full hearing we are not seeking to give an indication one way or the other as to the outcome of the appeal. It is sufficient for present purposes to say that those points are arguable and need to be considered with care at a time when the Respondents are here to answer the complaints. I take the view that this is an important matter because it involves the proper approach of Tribunals to re-instatement and re-engagement not least in the light of the Timex decision and therefore I would respectfully mark it as Category P, to indicate that it will come before the President for the time being, which will not be me, and his colleagues. The hearing I think will take a day because it will require an examination of both decisions with a great deal of care and I think those are the only directions I need to give other than, as at present advised, I see no reason at all why there should be Notes of Evidence and I will include within the directions that I give at this time that Notes of Evidence are not required.[11]The Respondents have not asked for the Notes of Evidence in their PHD form for which we are grateful. They have indicated that they might wish to file a cross-appeal but only if the Applicant is successful. They should have regard to the time limits for making appeals, or cross-appeals, before considering whether to do so. We shall have to wait until they have had an opportunity to consider this judgment and what answer they need to put in, in due course.[12]I do not think it necessary that the Notice of Appeal should be amended because I hope that it will be quite evident from the terms of this judgment what the issues are. If there is any difficulty about that, the Respondents can make an application and a Judge will then consider the matter at a directions hearing.