MR G DERRY v BHC AEROVOX LTD [2002] UKEAT 0558_01_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0558_01_0810Case No Appeal No. EAT/0558/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G DERRYAPPELLANTBHC AEROVOX LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr D J JenkinsDate 8 October 2002
[1]APPEARANCES For the Appellant MR A HODGE (of Counsel) Messrs Battens with Pool & Co 23 Market Street Crewkerne Somerset TA18 7JU For the Respondent MISS A THOMAS (of Counsel) Messrs Lovells Solicitors 65 Holborn Viaduct London EC1A 2DY HIS HONOUR JUDGE PETER CLARK This is an appeal by Mr Derry, the Applicant before the Southampton Employment Tribunal, against that Tribunal's award of compensation for unfair dismissal by his former employer, BHC Aerovox Ltd, by a decision with Extended Reasons promulgated on 9 March 2001.[2]The Appellant commenced his employment with the Respondent on 16 May 1983. At the time of his dismissal by reason of redundancy on 31 July 2002 he had attained the position of Chief Quality Controller, reporting to the Quality Manager, Mr Wright.[3]Due to financial problems the Respondent wished to shed staff. The post of Chief Quality Controller was identified for redundancy. The duties of that post were to be distributed amongst existing staff including Mr Wright.[4]On Friday 21 July 2000, without prior warning, the Appellant was called in to see Mr Wright and was told that his job was at risk. He was formally dismissed the following Tuesday, dismissal to take effect on 31 July with twelve weeks pay in lieu of notice and a statutory redundancy payment.[5]The Tribunal found that the Respondent failed to consult adequately with the Appellant and that his dismissal was accordingly unfair. They then proceeded to consider the question of compensation. They found:(1) That a proper consultation period would have been three weeks and not five days and that his employment would then have been extended by that period.(2) That had such consultation taken place it was highly unlikely that he would have been able to save his job from redundancy.(3) He would not have accepted an offer of alternative employment during that notional consultation period.(4) Consequently his loss was limited to three weeks pay, less that representing the actual consultation period.[6]In this appeal, Mr Hodge, on behalf of the Appellant, takes the following points. First, he submits that the Tribunal fell into error in failing to make a finding as to when consultation ought to have commenced, it having been agreed on behalf of the Applicant below that consultation ought to have started in January 2002. As to that, we think that Miss Thomas is correct in submitting that the Tribunal accepted the Respondent's case that consultation properly began on 21 July; the flaw in the Respondent's approach was to limit consultation thereafter to a period of five days when three weeks was, in the view of the Tribunal, the appropriate length of time.[7]Secondly, he challenges the Tribunal's finding that three weeks would have been an adequate consultation period. That is a finding of fact with which we cannot and should not interfere.[8]Thirdly, he submits that a longer consultation period would have allowed the Appellant a fuller opportunity to come up with options to avoid losing his employment. We cannot accept that submission. Reading the Tribunal's reasons as a whole, they found that there was no real prospect, either of the Appellant retaining his old job, nor of him accepting alternative employment with the Respondent.[9]Fourthly, he focuses on the Tribunal's finding at paragraph 27 of their reasons that it was "highly unlikely" that the Appellant would have been able to save his job from redundancy. Mr Hodge submits that that finding, as expressed, gives rise to a chance that the Appellant would have kept his job and as such that chance ought to have been translated into percentage terms, following the guidance of the House of Lords in Polkey vAE Dayton Services Ltd [1987] IRLR 503 . We have been referred by Miss Thomas to that passage in the speech of Lord Bridge of Harwich (paragraph 30) where his Lordship approved a passage in the judgment of Browne-Wilkinson (P) in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR, 91, 96 where he said:
"There is no need for an "all or nothing" decision. If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."
Mr Hodge submits that in that passage the word 'should' ought to be substituted for the word 'can'. We do not propose to rewrite that part of the judgment in Sillifant which has been expressly approved by the House of Lords. Employment Tribunals have a wide discretion under the just and equitable provision in Section 123(1) of the Employment Rights Act 1996 to make an appropriate compensatory award – see Elkouil v Coney Island Ltd [2002] IRLR 174 , paragraph 11. It is clear to us on the facts of this case that this Tribunal concluded that proper consultation would have made no difference to the outcome; the Appellant would, at the end of a proper consultation period, have lost his employment.[10]In these circumstances we can see no error of approach in law by this Tribunal. They found that the selection pool consisted solely of one post, that of Chief Quality Controller; redundancy lay where it fell; the Appellant did not wish to take the alternative employment offered; at the end of a proper consultation period the outcome would have been the same. Consequently, compensation was limited to the balance of the proper consultation period as found. Accordingly, we shall dismiss this appeal.