MR J STANDIVAN v ST MARY’S WRESTWOOD EDUCATIONAL TRUST LTD [1999] UKEAT 466_99_1507

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 466_99_1507Case No Appeal No. EAT/466/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J STANDIVANAPPELLANTST MARY’S WRESTWOOD EDUCATIONAL TRUST LTDRESPONDENT
Before
His Honour Judge Harold WilsonLord Gladwin of CleeDate 15 July 1999
[1]APPEARANCES For the Appellant MR B J HARWOOD (of Counsel) Messrs Fynmores Solicitors 10-12 Parkhurst Road Bexhill on Sea East Sussex TN40 1DF JUDGE WILSON: This preliminary hearing has concerned a question of law arising out of the way in which the Tribunal decided the question of quantum, having found that the Appellant had been unfairly dismissed by the Respondent's school. He had been employed there for some seven years and sustained a road accident injury in May 1998, which necessitated his being off work until he was certified fit to return on 23 October 1998. In the meantime he had been dismissed. Initially during his absence, he had been challenged about whether he was malingering. He satisfied the authorities that he was not, but the Principal of the school told him that he was personally redundant, his duties having been spread amongst others. There was no discussion although other staff had matters discussed with them. There was no scheme of redundancy, and as I have said, he was never notified.[2]In finding that that was unfair, and that therefore the dismissal was unfair, when it came to quantum the Tribunal said that:
"the redundancy payment would of course subsume the basic award. Our attention was therefore drawn to the question of a compensatory award. In looking at this, we took into account that the school was a relatively small employer and needed to make significant financial decisions within a short timescale. The other significant factor was that Mr Standivan was on sick leave, in fact, medically certificated until 23 October 1998. Clearly he could give no assurance to his employers in June when he could return, because in July he was signed off for a further three month period. We concluded that given the school's financial position, it was on balance, unlikely that the Respondent could have allowed further time off for Mr Standivan to recover when it was planning new cleaning duties with a reduced quota of staff. In all the circumstances therefore, we found that it was just and equitable to make an award of one month's salary. We concluded that this would reflect the period of time during which Mr Standivan should have been properly consulted and we arrived at that amount of time given that consultation with other staff took place between 2 and 29 June. Secondly, that if Mr Standivan had been in an appropriate pool of workers, then consideration of that pool might have taken slightly longer than it did in fact take."
[3]We have come to the conclusion that the matter should go forward for full argument on the question whether the Employment Tribunal erred in law in not approaching the question of calculation of compensation on the basis of the percentage chance of dismissal after consultation if there had been a consultation. Accordingly, on that point alone, the matter will go forward, Category C, time estimate two hours.