HEATHMILL MULTIMEDIA ASP LTD v (1) MR D JONES (2) MR M JONES [2003] UKEAT 0200_03_1006

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0200_03_1006Case No Appeal No. EAT/0200/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HEATHMILL MULTIMEDIA ASP LTDAPPELLANT(1) MR D JONES (2) MR M JONESRESPONDENT
Before
His Honour Judge J R ReidDate 10 June 2003
[1]APPEARANCES For the Appellant MR JAMES NEWMAN (of Counsel) For the Respondents No appearance or representation by or on behalf of the Respondents HIS HONOUR JUDGE J R REID QC This is an appeal from a Decision of a Chairman sitting alone at the Watford Employment Tribunal. The Decision was given on 2 September, following a hearing on 21 August of last year. Certain of the claims which the Applicants below, Respondents here - the brothers Jones - had made were withdrawn before the Tribunal.[2]The relevant matters which the Tribunal decided was firstly that the Applicants' claim for wrongful dismissal was not well founded, and against that Decision there is no appeal, and, secondly, (and it is against this Decision that the Respondent below, the Appellant here, Heathmill Multimedia ASP Ltd appeals) was that the Respondent, i.e. Heathmill, had acted in breach of section 10 of the Employment Relations Act 1999 , and ordering Heathmill to pay each of the brothers Jones the sum of £480.[3]On the face of the Decision, three points of law seem to me to arise, though only one of them is raised in the Notice of Appeal. I shall deal with the one raised in the Notice of Appeal and make reference to the other two.[4]The factual background to the matter was that the two Jones Brothers were employed by Heathmill as multimedia designers, Heathmill being a multimedia company. Their employment began in the spring of 2001 and terminated following a dismissal on 21 December 2001. The circumstances of the dismissal were that the company, Heathmill, was in financial difficulties and needed to reduce its overheads. It was decided by the company that the two Jones brothers should be dismissed in order to help reduce overheads. A Mrs Rumack, a solicitor employed by Heathmill, acted as the dismissing officer. She called the two brothers to a meeting on 21 December 2001 and gave each of them one month's notice. The reason that she did so was financial and although she gave no reasons to the brothers for their dismissal, the Tribunal found as a matter of fact that the reason for dismissal was redundancy. The Tribunal held that since the reason for dismissal was redundancy, "it was not appropriate therefore to follow the disciplinary route in dealing with this matter". Mrs Rumack's evidence had been that in disciplinary matters, she follows the ACAS guidelines.[5]Having made the finding that the reason for dismissal was redundancy, and that it was not appropriate to follow the disciplinary route in dealing with the matter, the Tribunal then went on in these terms:
"Turning now to Section 10 claim it is clear that the meeting on 21 December falls within section 13(4) of the Employment Relations Act 1999 which defines for the purpose of section 10 a disciplinary hearing as a hearing which could result in "the taking of some other action in respect of a worker by his employer"
. The meeting of 21 st December 2001 falls within this definition. The Applicants therefore had a right to be accompanied. They were unaware of the reason for the meeting. They were given very little warning of it and it was not therefore possible for them to make a request that they should be accompanied. They should have been advised of that right by Mrs Rumack and she failed to do so. This part of the Applicants' claims therefore succeeds. Both Applicants are entitled to two weeks pay. Mr Marlon Jones was in receipt of £15,000 a year and therefore one week's pay is £288.46. Mr Dean Jones was receiving £13,000 per annum and therefore one week's pay is £250 per week. The statutory maximum of £240 applied at that time and therefore each of the Applicants is awarded some £480 and the Respondent is ordered to pay these sums."[6]The statutory material which is relevant to this appeal is contained in sections 10, 11 and 13 of the Employment Relations Act 1999 . Section 10 provides as follows:
"(1) This section applies where a worker- (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. (2) Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who - (a) is chosen by the worker and is within subsection (3), (b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and (c) is to be permitted to confer with the worker during the hearing."
I need not read subsection (3). Subsection (4) provides: (4) If- (a) a worker has a right under this section to be accompanied at a hearing, (b) his chosen companion will not be available at the time proposed for the hearing by the employer, and (c) the worker proposes an alternative time which satisfies subsection (5), the employer must postpone the hearing to the time proposed by the worker." I need not, I think, read the remaining parts of the section. Section 11 of the Act reads:
"(1) A worker may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with section 10(2) or (4)."
Then it deals with time periods. "(3) Where a tribunal finds that a complaint under this section is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay. ….. (5) The limit in section 227(1) of the Employment Rights Act 1996 (maximum amount of week's pay) shall apply for the purposes of subsection (3) above." Section 13(4) provides as follows:
"(4) For the purposes of section 10 a disciplinary hearing is a hearing which could result in- (a) the administration of a formal warning to a worker by his employer, (b) the taking of some other action in respect of a worker by his employer, or (c) the confirmation of a warning issued or some other action taken."
[7]What is said on behalf of the Appellant is that the preceding meeting that took place could not properly be described as a disciplinary hearing. If one looks at the Tribunal's finding it correctly, it is submitted, held that the disciplinary route was not an appropriate one to be followed because this was a dismissal by reason of redundancy, hence it is said there was no question of any disciplinary hearing and that the wording in section 13(4) of the Act shows clearly that what is envisaged by subsection 4(b) is some other form of disciplinary action in respect of a worker by the employer.[8]It is submitted that where the purpose of the meeting is simply to inform an employee that by reason of redundancy he is to be dismissed, that is not a hearing, still less is it a disciplinary hearing, and it cannot properly be said to be a hearing which could result in the taking of some other action in respect of a worker by his employer. It is said that the words in subsection (b) must be construed as the taking of some other disciplinary action in respect of a worker by his employer. It seems to me that those arguments are well founded.[9]The procedure in this case, though it may have had a variety of shortcomings in terms of employee relationships and otherwise, was never a disciplinary procedure and never fell within sections 10 and 11. That is sufficient for the purposes of this appeal, and on that basis, the appeal must be allowed and the awards discharged with the Applicant's claims under subsection 10 dismissed.[10]The two other points which it seemed to me appeared on the face of the decision were these: first, sections 10(2) and 10(4) refer to the requirement that the employer permit the worker to be accompanied and requiring an employer to postpone a hearing if the chosen companion is not available. Section 11 entitles a worker to present a complaint to an Employment Tribunal "that his employer has failed or threatened to fail to comply with section 10(2) or (4)". It is at least arguable that a mere failure to notify an employee that he has a right to be accompanied does not amount either to a failure to comply with section 10(2) or 10(4) or a threat to fail to comply with that section. However, that point was not raised in the Notice of Appeal and beyond noting its existence, I do not think it would be appropriate to say any more about it.[11]The other point that arises relates to the Decision as to quantum. The Chairman simply said this:
"Both Applicants are entitled to two weeks pay……. The statutory maximum of £240 applied at that time and therefore each of the Applicants is awarded some £480 and the Respondent is ordered to pay these sums."
The wording of the Act - see section 11(3) "(3) …. it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay." The Chairman appears to have simply made an assumption that there would be an automatic award of the maximum. Nowhere does he address the question of why the award to each of the brothers should be in that amount.[12]Again, it seems to me that it might well have been arguable that this itself disclosed an error of law on the face of the Decision. Again, this is not a point which is in the Notice of Appeal and beyond indicating that the point might have been available, in the hope that in any future case the Tribunal Chairman will give reasons, albeit it may be very briefly, for the amount of their award, I do not think it appropriate to say anything further about that potential issue.[13]In these circumstances, therefore, for the reasons which have been given, I will allow the appeal. I should note that neither the brothers Jones appear before the Tribunal today, and neither of them put in any written observations. The Tribunal has been making the assumption that they were aware of the hearing today. If they were not, of course, they may have to apply to set aside the Decision on the basis that they were not informed of the hearing.