MR J WHELAN v MRS S D MOORE [2002] UKEAT 1459_01_2905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1459_01_2905Case No Appeal No. EAT/1459/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J WHELANAPPELLANTMRS S D MOORERESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMR A E R MANNERSMS B SWITZERDate 29 May 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MISS RECORDER SLADE QC This is the Preliminary Hearing of an appeal by Mr Whelan against the decision of an Employment Tribunal, that he pay Mrs Moore compensation for unfair dismissal in the sum of £3,586.32. Mr Whelan has indicated to this Employment Appeal Tribunal that he will not be attending today. Accordingly we consider the matter on the papers before us.[2]Mrs Moore commenced employment on 1 May 1995 with Bow Draper. She was employed by them as a cleaner at a firm called DC Cookes in Coventry. The Appellant, a painter and decorator, won a cleaning contract to carry out cleaning work at DC Cookes, with effect from 1 July 2000. It was contended before the Employment Tribunal that there was a transfer of undertaking to Mr Whelan when that occurred there was a statutory notation, although it was not put in those terms by the Employment Tribunal, of Mrs Moore's contract on the occurrence of that event.[3]On 29 July 2000 Mrs Moore was dismissed. The employer, Mr Whelan, contended that Mrs Moore was dismissed because her work was unsatisfactory. The Employment Tribunal held that it was not satisfied that Mr Whelan had established that Mrs Moore was incapable of performing her work.[4]The Tribunal considered, in paragraph 21 of its decision, whether Mr Whelan's decision to terminate Mrs Moore's contract was associated with the transfer of the undertaking and concluded that it was not. The Tribunal continued in paragraph 22 of its decision:
"The Respondent has sought to suggest that the reason for deciding to dismiss the Applicant was because of the way in which she did her work. The Tribunal is not satisfied that the Respondent has adduced any evidence to support a contention that the Applicant's work was below an acceptable standard."
[5]And further on: "The Respondent has not established that the Applicant either was incapable alternatively unable or unwilling to carry out the cleaning duties for which she was employed. Accordingly, the Tribunal has concluded that the Respondent has failed to establish a fair reason, or indeed any reason, for terminating the Applicant's contract of employment.[6]The Employment Tribunal went on to consider whether, if it was mistaken in its view and that there was a fair reason for terminating the contract, Mr Whelan established that the dismissal was fair in all the circumstances. It concluded, in paragraph 23 of its decision that the Respondent did not follow any procedure before dismissing and that he simply told Mrs Moore that she was dismissed. In the circumstances it held that the dismissal was an unfair dismissal.[7]The Tribunal proceeded to make an award of compensation. It made a compensatory award on the basis of loss of earnings for the period from 29 July 2000-30 July 2001, i.e. a full year. Mr Whelan, in his Notice of Appeal, contends that the Tribunal erred in law in awarding compensation over a full year's period when there had been evidence before the Tribunal that he had lost the cleaning contract and that the cleaning contract was taken on by another company which brought in their own cleaners. He contends that, therefore Mrs Moore would, in any event, have been made redundant in or about January 2001.[8]The Tribunal do not appear to have considered those facts in their decision. Since a Tribunal is obliged to consider a compensatory award on the basis of loss, as a result of the unfair dismissal, in our judgment it is arguable that the Tribunal erred in law, in failing to consider whether the Applicant, Mrs Moore, would have lost her employment, in any event, in January 2001 and therefore should not have been awarded compensation from this employer, Mr Whelan, in respect of a period beyond that date.[9]Even if there had been a further transfer of an undertaking on a new company coming in to take over the cleaning contract, on the evidence which is contained in the documents before us and including the statement of Mr Whelan, which was read out before the Employment Tribunal, if the new owners brought in their own cleaners, the Tribunal should have considered whether, even if there had been a transfer of undertaking, Mrs Moore would have been fairly dismissed for an economic, technical or organisational reason.[10]Accordingly, we permit this appeal to proceed, so that at the full hearing of the appeal the question of whether the Tribunal erred in law in its assessment of compensation can be considered. We consider that this appeal should occupy the Employment Appeal Tribunal for no longer than 1 hour, we give that listing direction. Category C.