M Y CARTONS LTD v MR C H PARDEY [2002] UKEAT 555_01_0402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 555_01_0402Case No Appeal No. EAT/555/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
M Y CARTONS LTDAPPELLANTMR C H PARDEYRESPONDENT
Before
Mr Justice LindsayDate 4 February 2002
[1]APPEARANCES For the Appellant MR ANDREW BURNS (of Counsel) Instructed By: Messrs Eversheds Solicitors London Scottish House 24 Mount Street Manchester M2 3DB MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of a preliminary hearing, the appeal of MY Cartons Ltd in the matter Mr C.H. Pardey against MY Cartons. Today, Mr Burns has appeared for the Appellant company.[2]On 30 June 2000 an IT1 was received from Mr Pardey directed at that time to a company called Bonar Imca Ltd. He said that he had been employed from March 1993 to 7 April 2000. He had been told on 31 March 2000 that his job was to be redundant from 7 April. Other jobs in the company, he said, had become available. He had applied for them unsuccessfully. His chief complaint was that there had been a total lack of consultation in the redundancy process; in particular there had been a failure on the company's part to consider adequately possibilities of redeployment.[3]On 18 July 2000 the Respondent company, by then called MY Cartons Ltd, put in its IT3. They claimed that Mr Pardey had been dismissed for redundancy. It had been a genuine redundancy and comprehensive selection procedure had been followed, they said. Mr Pardey had not appealed, as he could have done, against the redundancy; that is what their response was.[4]On 19 February 2001 there was a hearing at Leeds. That is what the front sheet of their Decision says but it looks elsewhere, in fact, as if there was a two-day Decision, one running on to 20 February 2000 but, at all events, the hearing was then or thereabouts. On 6 March the Decision was sent to the parties. It was unanimous and, so far as relevant, it was that the complaint of unfair dismissal succeeded and it continued:
"In respect thereof the Respondent is ordered to pay the Applicant compensation in the sum of £47,175. "
[5]On 12 April a Notice of Appeal was received. It raises three grounds; first of all, the Employment Tribunal's handling of the Polkey reduction, secondly, the handling of a particular form of alternative employment which the company says should have been left out of account as the opportunity only came after the dismissal, and, thirdly, a point on pension loss; the Tribunal's figure was said to be perverse.[6]Taking those, one by one, the redundancy procedure was described by the Tribunal as sloppy and faulty. The Tribunal said:
"The Tribunal had to decide whether or the not the Applicant would have gone in any case if the procedure had been carried out properly."
And, it continued:
"Because of these matters [after reciting a number of matters] the Tribunal is not convinced that a fair procedure would have resulted in the Applicant being made redundant."
[7]On that basis it made no reduction in the amount of loss calculated as payable to Mr Pardey and he got the full amount of loss for the computed ten and a half month period that had occurred down to the hearing and then for a further six months to 20 August 2001.[8]The Notice of Appeal asserts that the Tribunal should have put in, in effect, a percentage figure, reflecting the likelihood of there having been a fair dismissal if a fair procedure had been deployed, rather than saying, in effect, that on the balance of probabilities (that is to say, at least 51 per cent in Mr Pardey's favour) he would not have been made redundant at all and, ergo, that he was entitled to 100 per cent compensation. That sort of all or nothing practice, as Polkey shows, is not correct and we see this ground 6(a) in the Notice of Appeal to be arguable.[9]Next, we look at the second ground, 6(b). On 31 March Mr Pardey was told he was redundant. He wanted to stay on to clear things up and the Employment Tribunal said:
"His dismissal was therefore effective on 7 April 2000."
The day before that, 6 April 2000, a job became vacant. He applied for it and the Tribunal said:
"After a proper selection procedure, the post was given to someone who had not been in danger of redundancy."
Later, they said:
"This post was not offered to him and the others who were redundant as is the proper practice but was advertised at large within the firm."
And, they said:
"The Tribunal is convinced that that was a suitable vacancy that should have been filled by the Applicant."
[10]It is not entirely clear - and there has been some debate with Mr Burns about precisely which jobs were in mind and which were offered and to whom and so on – as to what their effect was in terms of overall reductions in the numbers of persons made redundant or not. But we see that Mr Burns's argument that the Tribunal did not look at matters through the eyes of the reasonable employer is an argument that is open to the Appellant in this case. It is by no means clear, at any rate to me, which job the Tribunal had in mind when they said that "This post was not offered to him". The position was that there are a series of steps upwards on what one might regard as the employment ladder. The first post was one which Mr Pardey, although not offered, nonetheless applied for and that was given, as it would seem, after a proper selection procedure to someone who had not been in danger of redundancy. That left a vacancy in the firm but that vacancy was, as it seems, not filled. The Tribunal says:
"The Applicant expressed interest in that post but no appointment was made."
[11]So that, in effect, was eventually not a job that was available to anyone. At all events, it will be clearer, perhaps, when both sides are before the Tribunal but we do see that there is an arguable ground there. That is ground 6(b); it is proper to go forward to a full hearing.[12]6(c) is pension loss. The Applicant below handed in a schedule of loss and the Tribunal said:
"Although not accepting all those calculations the Tribunal has accepted some of them and in particular takes the view that the claim for loss of pension was too high."
[13]The figure the Tribunal gave was £12,000. Apart from knowing that the claimed sum, which is not specified in the Decision, was too high and that there had been no actuarial calculation (because that is what the Tribunal says) it is hard to see how the £12,000 was arrived at. It is arguably impossible to tell whether the Tribunal erred in law in that computation, so to that extent one might describe the point as a Meek v City of Birmingham point.[14]Alternatively, Mr Burns says that, given that some sixteen and a half months was the period of unemployment contemplated and that Mr Pardey's remuneration was not very high, the computation of loss at £12,000 would seem to be, to put it at its lowest, surprising. But, one way or another, again, that is an issue that one might hope will become clearer when both sides are before the Tribunal. We do see it is arguable and, accordingly, the whole Notice of Appeal can go to a full hearing.[15]We direct skeleton arguments to be sent to the EAT and to be exchanged between the parties not less than 14 days before the hearing. At the moment we have had as yet no application for chairman's notes. If they become necessary, it will be best that the parties seeking them first applies in writing to the President and we put the matter in Category B on a time estimate, subject to hearing Mr Burns, of two half hours. [An application for Chairman's notes as to pension loss was then made][16]The EAT will invite the Chairman to supply his notes of any oral evidence given in relation to pension loss. Also, of course, whatever written material was laid in front of the Tribunal on that subject, because they obviously had some form of calculation put in front of them.