MR L BASS v TRAVIS PERKINS TRADING COMPANY LTD [2008] UKEAT 0352_07_2105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0352_07_2105Case No Appeal No. UKEAT/0352/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L BASSAPPELLANTTRAVIS PERKINS TRADING COMPANY LTDRESPONDENT
Before
Mrs Justice CoxDate 21 May 2008
[1]APPEARANCES For the Appellant MISS T LUBIMBI (of Counsel) Appearing under the aegis of the Bar Pro Bono Unit For the Respondent MR P LINSTEAD (of Counsel) Instructed by: Messrs Hewitsons Solicitors 7 Spencer Parade Northampton NN1 5AB SUMMARY Unfair dismissal – Reinstatement/re-engagement This appeal, listed for full hearing, raised the ET's approach to reinstatement and reengagement at a Remedies Hearing and whether the ET had complied with their statutory duty under section 112(2) Employment Rights Act 1996 to explain these remedies to the Claimant and seek his wishes. This duty was held to have been complied with in the circumstances and, no procedural unfairness or prejudice having been caused to the Claimant, his appeal was dismissed. THE HONOURABLE MRS JUSTICE COX DBE This is an appeal by the Claimant, Louis Bass, from the judgment of the Stratford Employment Tribunal dated 19 December 2006, following a hearing to determine the appropriate remedy for his constructive unfair dismissal. By order of Elias J, dated 2 July 2007, the appeal was set down for full hearing on the sole ground that the Tribunal erred in its approach to the question whether the Claimant should be reinstated or re-engaged. All other grounds of appeal were dismissed. Background[2]The Claimant, who is black African, was employed by the Respondents as a security officer from 17 September 2002 until his resignation on 19 May 2004. He presented two complaints to the Tribunal, claiming in the first, presented on 8 March 2004, that he had been directly discriminated against on racial grounds and victimised; and in the second, presented on 24 May 2004, that he had been constructively unfairly dismissed.[3]By their judgment dated 14 April 2005 a Tribunal upheld in part the Claimant's complaint of racial discrimination, but all the other claims were dismissed.[4]The Claimant's appeal against the dismissal of his remaining racial discrimination and victimisation complaints was dismissed by the EAT at a Preliminary Hearing on 26 October 2005. However, on that occasion his appeal against the rejection of his unfair dismissal claim was set down for a full hearing and, on 15 December 2005, his appeal was allowed. The EAT substituted a finding of unfair dismissal and remitted the matter to the Employment Tribunal for a Remedies Hearing.[5]The essential facts, so as to set in context the issues arising on this appeal, are taken from paragraphs 2 – 12 of the EAT's judgment (Appeal number UKEAT/0598/05/DA).[6]The Respondents operated 130 branches and had 36 security officers. It was a term of the Claimant's employment that he might be located at their South Eastern Regional Security premises or "elsewhere as may reasonably be required".[7]The Claimant was first employed at Bethnal Green, but on 5 July 2003 he was moved from Bethnal Green to Walthamstow. He made claims of victimisation and race discrimination in respect of certain aspects of his treatment at Bethnal Green, but these claims were held by the Tribunal to be out of time. He was initially unhappy to be moved to Walthamstow, but he accepted the move and settled down there.[8]At Walthamstow the Claimant's immediate manager was a Mr. Beresford. The Claimant alleged that Mr. Beresford made abusive and potentially racist remarks against him, but the Tribunal rejected that allegation. Above Mr. Beresford was the Regional Security Manger, Mr. Saunders.[9]In November 2003 the Claimant was the subject of a disciplinary hearing following a complaint that he spat at customers' vehicles. He was given a first written warning for this conduct.[10]On 11 December 2003 an altercation took place between the Claimant and Mr. Joel, a white employee at the Walthamstow premises. Mr. Beresford suspended the Claimant, but not Mr. Joel. He did not speak to the Claimant before suspending him, whereas he did speak to Mr Joel.[11]On 23 December Mr. Beresford gave the Claimant a final written warning arising out of the altercation.[12]Mr. Saunders told the Claimant that he would be transferred to the Dalston branch, but he did not consult him before telling him this. As the Tribunal found, the reason for the transfer was mixed. In part it was because the Claimant had expressed concerns about the travelling expenses to Walthamstow; the Dalston premises were closer to his home. In part, it was because Mr. Saunders and Mr. Beresford thought that removal to a different environment would prevent conflict with other employees of the kind which had given rise to the disciplinary hearings and other issues.[13]The Claimant did not report to work at Dalston. He decided not to do so, but he also became unwell with pneumonia. As the Tribunal found he was not paid, at any rate, initially. He did not submit sickness certificates.[14]On 14 January 2004 the Claimant wrote a letter, which was treated by the Respondents as a grievance. The grievance was investigated by a Mr. Watson and determined by his letter dated 12 March 2004. The grievance was wide-ranging and included a complaint about the transfer which had been ordered from Walthamstow to Dalston. The grievance was not upheld. It was dealt with comprehensively except for one aspect – relating to the Claimant's suspension in December 2003.[15]Solicitors wrote to the Respondents on the Claimant's behalf, complaining in particular about the transfer. The Claimant did not take up an offer of a meeting and he did not return to work. Rather, on 19 May 2004 he wrote his letter of resignation. The letter ran to four closely typed pages and complained of ill-treatment and discrimination in wide terms, including the first written warning, the subsequent disciplinary process, and the transfer to Dalston.[16]The Tribunal upheld the Claimant's complaint of unlawful race discrimination in one respect. They found that Mr. Beresford discriminated against the Complainant on grounds of race when, on 11 December 2003, he suspended Mr. Bass without first speaking to him, in sharp contrast to the way in which he dealt with Mr. Joel.[17]In relation to constructive dismissal the Tribunal identified three possible breaches of the implied term of trust and confidence, but found that the only one which amounted to a repudiatory breach of contract was the act of racial discrimination which they had found proved. However, they then concluded(1) that the Claimant did not resign in response to the breach of contract, but left rather because of a general feeling of dissatisfaction with the Respondents, which they found was not entirely justified; and(2) that he had delayed so long that he was deemed to have waived the contractual breach.[18]The EAT found that the first conclusion could not be upheld and that the Claimant did resign in part because of the repudiatory breach of contract. Secondly, they held that the Tribunal erred in concentrating on the question of delay when considering affirmation and, that on the evidence and facts found, it was clear that the Claimant did not affirm the contract.[19]There was nothing they considered that needed to be remitted to the Tribunal for further findings to be made, or for further argument to be heard, and a finding of constructive dismissal was substituted. Since the repudiatory breach was an act of race discrimination the EAT held that the answer to the section 98(4) issue was clear and a finding of unfair dismissal was also substituted. The case was then sent back for a remedies hearing. Case Management Decision 19 September 2006[20]The matter subsequently came before the then Regional Chairman, Mr. Lamb, on 13 September 2006, when he made a number of case management orders at a hearing attended by the Claimant in person and by Mrs. Fry, the Respondents' Employment Law and Policy Manager. The remedies hearing was ordered to take place before a differently constituted Tribunal and appropriate directions were given as to the preparation and service of witness statements and documents dealing with the Claimant's attempts to find fresh employment and mitigation of loss, and with the points to be made by the Respondents as to the Claimant's contributory fault.[21]At paragraphs 10 – 13 of his Reasons, promulgated on 19 September 2006, Mr. Lamb said as follows:
"10. After I had given the reasons set out above for the decision to change the constitution of the Tribunal, I discussed with the parties the appropriate orders to be made to ensure that the remedy hearing is fair to both of them. In my experience, it is essential to the fairness of a hearing that evidence should be served in advance by one party upon the other, to ensure that the party served has an adequate opportunity to consider the evidence and formulate the arguments to be put forward about it. I make this point because Mr Bass indicated that he would prefer to produce all his evidence on the day, and suggested that the order for advance disclosure was unusual. I give him my assurance, based upon many years of experience that these orders for advance disclosure of evidence are standard and made every day in Tribunals. 11. Mr.Bass confirmed that he has been signing on for job seekers benefit, and has been fit to work, and therefore no medical evidence will be served because it is not relevant. 12. The issues to be considered at the remedy hearing are: (1) What losses have been suffered by the Claimant because of his dismissal? (2) Should his compensation be reduced by reason of failure to take reasonable steps to mitigate his losses by finding fresh employment? (3) Should the compensatory award, and/or the basic award be reduced by reason of contributory fault prior to the dismissal. 13. I have made it clear to the parties that the arguments in respect of contributory fault must proceed on the basis of the findings made by the original Tribunal. It is not open to either party to go behind those findings and to produce evidence either to contradict them or to supplement them. It is essential to bear in mind the effect on those findings of the reasoning of the Appeal Tribunal in reversing the decision which was originally made."
The remedies hearing was fixed for 9 November 2006.[22]We observe at this point, because it is relevant to the issues on appeal, that the Claimant had not ticked any of the boxes on his second Tribunal application form indicating what remedy he was seeking if he won his claim for unfair dismissal. Nor was there any reference to remedy in the body of the form. At that stage the Claimant was represented by Duncan Lewis and Co. solicitors, who were named on the form.[23]Further, no reference was made in Mr. Lamb's judgment, following the case management hearing in September 2006, to reinstatement or re-engagement. Although the Claimant wrote a lengthy letter to Mr. Lamb on 20 September 2006, complaining about his conduct of the hearing and his directions, and accusing him of biased and racist case management (see pages 104 – 109 of the appeal bundle) he did not make any reference to reinstatement or re-engagement; or say anything suggesting that he wanted to be reinstated or re-engaged by the Respondents. Remedies Hearing[24]On 9 November 2006 the matter came before the full Tribunal, presided over by Professor Neal, when the Claimant once again appeared in person and Mrs. Fry appeared for the Respondents. The Claimant gave evidence as to his losses. He had produced a schedule of loss and a statement, made under oath, as to his efforts to find employment since May 2004. Mrs. Fry had submitted a substantial document on behalf of the Respondents dealing with the various points made by the Claimant.[25]At paragraph 8 the Tribunal stated that they were setting out their primary findings of fact "… in order to proceed to compensation computation".[26]In relation to mitigation, the Tribunal were not persuaded on the evidence that the Claimant had failed to mitigate his loss and held, accordingly, that no reduction would be made. Further, they concluded that no deduction should be made for any contributory fault by the Claimant, finding in his favour in addition on that issue.[27]They then set out their findings as to computation of the award of compensation and their conclusions. At paragraphs 28 – 37 they held as follows:
"28 In the light of the foregoing, the Tribunal turns to assessment of the compensation for unfair dismissal – there being no wish to seek an order for either reinstatement or re-engagement. 29 Basic Award . Mr Bass was employed for more than one year and less than two years. He is therefore entitled to count one complete year towards the calculation of his basic award. Given his age, we find that the one year should be multiplied by a factor of one. This should then be multiplied by the amount of a week's pay. The Claimant's week's pay is £233.33, which is below the statutory maximum set out for the 'week's pay'. The Tribunal therefore finds that the basic award should be in the sum of £233.33 . 30 Turning to the compensatory award under Section 123 of the Employment Rights Act 1996 , the first head to consider is the Claimant's loss of earnings to the date of Hearing. It is agreed by all parties that the period is 129 weeks, given the effective date of termination on 19 May 2004. The relevant weekly amount is, again, £233.33. The Tribunal therefore finds that loss of earnings to date of the Claimant amounts to £30,099.57 . 31 Turning to loss for the future, the Tribunal have considered the submission by the Claimant that the appropriate figure is a five year period. That was met with stern resistance from the Respondent, and the Tribunal shares the view that this would be a very generous and unreasonable assessment of future loss. 32 Such evidence as we have as to the marketability of Mr Bass (if it can be put in those terms) in the current labour market suggests, first of all, that he has spent his time well in 129 weeks since becoming unemployed – particularly involved with the 'new deal' scheme and with the period of training which he was undertaking from March to June 2006. We note with some pleasure the success that he has achieved with his certificates of competence and skills training (which have been exhibited to us at the back of the Trial Bundle of documents). We are confident, drawing upon our industrial knowledge, that these qualifications and that experience will stand him in good stead. It also goes to his marketability and the length of period when we think it will take him to find a new job. 33 We asked the Respondent's representative, Mrs Fry, to take instructions from the Respondent company as to the potential for reinstatement or re-engagement of this Claimant. In the event, the Tribunal accepts that reinstatement was clearly not available – there being a restructuring of the arrangements within the Respondent firm. However, it was indicated that, although at the moment there is a freeze on recruitment – and, therefore, even re-engagement would not be possible at the time of this Hearing in November 2006 – nevertheless there might be some possibility of employment in the future (and it is put no higher than that there is some prospect that jobs could become available within the Respondent firm from March or so 2007 onwards). No promises are made, no undertakings are given, and it would be wrong to represent that information from the Respondent as anything more than a 'possibility' that jobs may be available. 34 However, it does assist the Tribunal in looking at the context for Mr Bass to be finding new employment. Having regard to that situation, it seems to us that, with his newly enhanced level of skills and certified competence, the way that he has presented himself before us today, and the manner in which he has managed to conduct the marshalling of documents and the bringing of arguments about his case. Mr Bass should be able to find employment within a reasonably foreseeable period, and we are prepared to fix that period as half a year (26 weeks from this date of the remedy Hearing). 35 We therefore award as a period of future loss 26 weeks at the rate of £233.33 which comes to a total of £6,066.58 . 36 We are also minded to make an award in respect of the loss of statutory rights which Mr Bass will suffer even though he may move into a new job. It is borne in mind that many of the available Employment Rights – particularly that of unfair dismissal – are only enjoyed by employees after a given qualifying period of service (currently one year). In respect of that head of loss, the Tribunal awards Mr Bass the sum of £250 . 37. Mr Bass brought to our attention the general proposition (which we accept) that he has incurred various expenses in relation to his job-seeking. Unfortunately, however, as he has readily accepted, he does not have in his possession for evidential purposes 'chapter and verse' in terms of receipts and tickets and the like. Whilst we find this is unfortunate, and we have sympathy for Mr Bass, the position is that, without evidence to establish the expenditure claimed, it is not open to the Tribunal to compensate under this head. In consequence, we make no award in respect of that aspect of claim."
This Appeal[28]The precise scope of the Claimant's grounds of appeal, relating to the reinstatement/reengagement point, are not entirely clear from paragraphs 6 and 7 of his amended Notice, drafted by the Claimant himself and date stamped 4 July 2007. However, before us, the Claimant had the benefit of representation by counsel, Ms. Lubimbi, who had submitted a skeleton argument raising, essentially, five criticisms of the Tribunal's approach to this issue, as follows:(1) In breach of section 112 Employments Rights Act 1996, the Claimant was not advised, at either the case management hearing or the remedies hearing, of the possibility of reinstatement or re-engagement. Applying Cowley v Manson [1995] IRLR 153, the Tribunal's judgment must be set aside.(2) The Tribunal failed adequately to consider the question of reinstatement or re-engagement and took at face value the evidence of Mrs. Fry.(3) The Claimant was not permitted to make submissions as to reinstatement or re-engagement.(4) The Claimant was not permitted to cross-examine in relation to reinstatement and re-engagement, in part because Mrs. Fry as a representative could not be cross-examined.(5) The Tribunal did not order the attendance of the Respondents' witnesses to address remedy, and in particular reinstatement or re-engagement, or adjourn the hearing in order for them to attend so that the matter could be properly considered.[29]It became clear, once the Respondent's Answer was received, that there was a conflict between the Claimant and the Respondents as to what happened at the Remedies Hearing. The Chairman has therefore supplied his notes of that hearing, together with some comments, dated 22 October 2007, on the handwritten notes supplied, which have since, helpfully, been transcribed. Further, by order of the EAT dated 8 November 2007, the Chairman also provided further information in the form of answers to questions set out at paragraphs 2(a) to (g) of the EAT's order. The parties were also granted permission to file witness statements, from the Claimant and Mrs. Fry, as to the events which happened. We have had regard to all these documents, together with the Claimant's own grounds of appeal, in arriving at our conclusion. This has not been a straightforward task, since both parties agree that the notes are incomplete and do not record everything that was said and done at this hearing. We have however, after careful consideration, been able to form a clear view as to how events unfolded at this hearing.[30]The relevant provisions of the Employment Rights Act 1996, in the case of a successful claim for unfair dismissal under section 111, are as follows:
"112 The remedies: orders and compensation (1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are well-founded. (2) The tribunal shall— (a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and (b) ask him whether he wishes the tribunal to make such an order. (3) If the complainant expresses such a wish, the tribunal may make an order under section 113. (4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126) to be paid by the employer to the employee. 113 The orders An order under this section may be— (a) an order for reinstatement (in accordance with section 114), or (b) an order for re-engagement (in accordance with section 115), as the tribunal may decide. …….. 116 Choice of order and its terms (1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. (2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms. …………"
Section 117 (3) makes provision for an additional award of compensation if any order made for reinstatement or re-engagement is not then complied with.[31]Ms. Lubimbi submits that the Claimant was not advised by the Tribunal as to the remedies of reinstatement or re-engagement (R/R), either at the case management hearing or the Remedies Hearing; and that, in failing to explain these orders to him and to ask him if he wished them to make such an order, the Tribunal failed to comply with what is clearly a statutory duty.[32]She contends that the approach adopted by the Tribunal was to ask the Respondents' representative, Mrs. Fry, if they would consider R/R; and not to canvass the Claimant's views, explain what the orders were and when they might be made, and to ask if he wanted such an order to be made. Mrs. Fry then took instructions over the telephone and responded in the negative, effectively providing hearsay evidence. Her response was then taken, wrongly, at face value, when the Respondents, who are a large organisation, have the onus of showing that R/R is not possible or practicable. No live evidence was called from the Respondents on the issue, despite the fact that the Claimant had earlier asked for witnesses to be ordered to attend the remedies hearing; and no thought was given to adjourning the hearing to enable relevant witnesses to attend. The Claimant did not have the opportunity to cross-examine any witnesses and test the telephone instructions, given these circumstances and the fact that Mrs. Fry was there as a representative; nor did he have any opportunity to make submissions as to R/R.[33]This approach was erroneous and meant that the Tribunal failed to consider R/R properly, resulting in unfairness and an injustice to this Claimant, who has been deprived of the potential additional award where an order made for R/R is not complied with. Only after they have complied with their statutory duty to explain these remedies and canvass the Claimant's views does the discretion to consider the choice of order and decide whether or not to make an order for R/R arise.[34]Mr. Linstead, for the Respondents, submits that the judgment following the case management hearing is not the subject of an appeal to the EAT and can therefore be considered only as part of the background. In any event it is not in dispute(a) that the Claimant, when legally represented, did not indicate on his Form ET1 that he sought R/R; and(b) that he did not raise R/R at the case management hearing. There is no statutory duty on the Tribunal to raise R/R at the case management or directions stage.[35]Whilst accepting that the procedure followed at the Remedies Hearing on 9 November may not have been in "text book" form, he submits that section 112 was nevertheless fully complied with and that no unfairness or prejudice was caused to the Claimant. In all important respects the Chairman's notes and the witness statement of Mrs. Fry match up and reflect the reality of what happened. Whilst it is not clear precisely what terminology was used, the available evidence shows that the Tribunal made clear to the Claimant both that he had the option of R/R and, in lay terms, what those terms meant.[36]It is correct that R/R first arose during the cross-examination of Mrs. Fry, though the Tribunal may have had it in mind to raise it themselves at some point; but it is clear, he submits, that the Tribunal asked the Claimant if he wished to be re-employed by the Respondents and then followed that up by asking Mrs. Fry to find out whether he could be either reinstated or re-engaged. The Claimant had ample opportunity to say what he wished about R/R and to question Mrs. Fry, both of them having taken an oath at the start of the hearing. He never indicated that there was any aspect of either remedy that he did not understand.[37]The earlier requests by the Claimant for witnesses to attend did not refer to R/R and were contained in lengthy letters sent after the case management hearing, the content of which letters was abusive and offensive. Having regard to the overriding objective there was nothing wrong with the Tribunal at the Remedies Hearing acting on evidence about the prospects of R/R given by Mrs. Fry, having made enquiries, who was a witness for the Respondents and was on oath. The Claimant didn't challenge her evidence and made no application for an adjournment. Even now he does not put forward any matters he would have wished to put to witnesses or say how their evidence would have assisted him. The Claimant had been through a Tribunal and EAT hearing previously and was perfectly capable of making his wishes known. Conclusions[38]We agree, firstly, that we are concerned only with an appeal from the Tribunal's judgment of 19 December 2006, following the Remedies Hearing. The Claimant's grounds of appeal make no reference to any error of law relating to R/R at the case management hearing; and the EAT's Order of 2 July 2007 allowed an appeal to proceed only in respect of the approach of the Remedies Tribunal. The case management hearing is, nevertheless, relevant as part of the background to this appeal.[39]We also agree with Mr. Linstead that there is no statutory provision which expressly requires a Tribunal to explain R/R at a directions or case management hearing. However, we would normally expect the matter to be raised by the parties or the Tribunal at this stage, given that the purpose of such a hearing is, in part, to identify and case manage the issues to be dealt with at the substantive hearing. This, in our view, would be particularly the case where the Form ET1 is silent as to the remedy sought and the Claimant is in person.[40]In this case, however, R/R does not appear to have been raised by Mr. Lamb at the hearing before him. Nor did the Claimant himself raise it, though it is clear from paragraph 10 of the judgment that there was a discussion between Mr. Lamb and the parties as to the appropriate orders to be made "to ensure that the remedy hearing is fair to both of them". We note also that the Claimant did not write, subsequently, complaining that the list of issues at paragraph 12 was incomplete. Whilst he was appearing in person at this hearing, he had previously had the benefit of legal advice and representation, and this Claimant, in our judgment, has no difficulty in expressing himself in forceful terms as to his wishes and complaints.[41]The main thrust of the Claimant's letter to Mr. Lamb dated 20 September was criticism of the Regional Chairman's conduct, which was said amongst other things to have been biased, racist, and full of improprieties and flaws. It is correct that there was a specific complaint that Mr. Lamb had failed "…to order that the full respondent's original party should attend the remedy should it go ahead so as not to prejudice my case in the event that [Mrs. Fry] can't answer in full or satisfactorily certain remedy-related questions which might be beyond her ability, discretion or decision." A request for an order in these terms was also made. There was however no reference to any witnesses who would be required specifically to deal with R/R; and the "full original party" seems to be a reference to all those witnesses who had given evidence at the liability hearing, the outcome of which was still a matter of concern to the Claimant.[42]A further handwritten letter sent by the Claimant to Mr. Lamb dated 2 November, just a week before the hearing, requested that Frank Saunders of the Respondents should be ordered to attend, to deal with any matters that Mrs. Fry may be unable to address, without specifying what he was needed to deal with. The Claimant also enclosed the letter he had sent to Mrs. Fry of the same date, which referred to Mr. Saunders being "in a better position than you or anyone else for that matter to explain or prove why you (the respondent) think I was partly at fault". Mr. Lamb responded by letter of 7 November from the Tribunal refusing the request for a witness order and there is no appeal from that order before us.[43]It seems clear to us, therefore, that R/R had not been thought about by anyone at the case management stage; and the Claimant's requests for witnesses to be ordered to attend were addressed not to the issue of R/R but, rather, to the question of contributory fault. We therefore do not accept the criticisms made by Ms. Lubimbi of the Regional Chairman's case management at this stage, or her suggestion that it was clear to Mr. Lamb that the Claimant wanted witnesses to attend the remedies hearing in order to be prepared to deal with R/R. It is unfortunate that the issue was not raised then, but it is what happened on 9 November that is the focus of this appeal.[44]The statutory duty under section 112 was therefore a duty to be exercised by the Remedies Tribunal on 9 November. The nature and effect of this duty was considered by the Court of Appeal in Cowley v Manson Timber Ltd . [1995] ICR 367, the Court then considering the same provisions as they then appeared in the Employment Protection (Consolidation) Act 1978 .[45]At paragraph 21 Neill LJ, rejecting the Claimant/Appellant's argument that the failure to comply with this duty rendered any remedy order a nullity, said as follows:
"The crucial question in every case where one is considering the word "shall", which is clearly imperative in form, is to consider what are the consequences if the statutory duty is not complied with. It seems to me that if it appears that a failure to comply with that statutory duty leads to the possibility of injustice or unfairness, then any appeal to the Employment Appeal Tribunal would be likely to succeed and the matter ought to go back to be reconsidered."
[46]Agreeing, Hoffman LJ said at paragraphs 25 and 30:
"25. There is no doubt that the tribunal's duty under [s.112(2)] is mandatory in the sense that Parliament has not given the Tribunal a choice as to whether to give the necessary specified explanations or not…..But the fact that the Tribunal is obliged to give the explanation is not determinative as to what should be the consequences if they do not. ……. "30. There is a well–established alternative [to a nullity finding] which has been applied by the courts in a wide spectrum of cases in which there is a statutory obligation to give information, namely that the failure to do so renders the proceedings voidable if there is the possibility of prejudice or injustice having been suffered by the person to whom the information should have been given. That seems to me to be entirely adequate to give effect to the mandatory terms of [s.112(2)]. In this case, there is no suggestion of any prejudice likely to have been suffered by the applicant because the explanation was not given; he was represented at the hearing, his complaint form said that what he wanted was financial compensation, and there was no contrary suggestion from him or his representative before the Tribunal."
[47]We have therefore applied these principles in considering this appeal and deciding whether (a) the Remedies Tribunal complied with the statutory duty; (b), if not, whether the Claimant has suffered any prejudice or injustice which would make this an appropriate case for the matter to be sent back for consideration by the Tribunal; and (c) whether, even if the statutory duty was complied with, there was any error resulting in unfairness in the Tribunal's consideration of R/R, which means that the matter should be remitted for re- consideration.[48]We examine, first, whether the Tribunal complied with the section 112 duty.[49]In his amended Notice, the Claimant has acknowledged that he was asked by the Tribunal "….whether I could agree to being reinstated? Which I accepted or agreed to" (see paragraph 3 of his Summary of Key Issues on page 13 of the appeal bundle). Further, the Claimant states at paragraph 9 of his witness statement (page 133) that "I was at some stage asked a hypothetical question by the Chairman, that if my job was not available would I consider another position, to which I said I would not mind."[50]The Chairman has provided a useful description of the general conduct of the Remedies Hearing in his comments of 22 October 2007. Whilst these comments were responding to the wide-ranging allegations of "bias", "partiality", "racism" and "unfairness" made in the Claimant's original grounds of appeal, they provide a helpful indicator of the degree of informality adopted at this hearing, in order to assist the Claimant (appearing in person) procedurally. The Chairman's notes, together with these comments, show that both the Claimant and Mrs. Fry were sworn in at the start of the hearing. This was done "…in order to deal with a problem of discipline in relation to the submission of observations by either or both of those individuals, and in order to ensure that any relevant evidence contained in such observations was given on oath or affirmation, as required by Rule 27(3) [of the 2004 Rules]." The hearing was then conducted in "round table mode, with the Chairman exercising his inquisitorial powers under Rule 14(3). In particular questions directed to the Claimant and emanating from the representative of the Respondents were channelled through the Chairman."[51]In relation to R/R, the Chairman said this in his comments at paragraphs 12 and 13:
"12. It is correct that the issues of possible reinstatement or reengagement were raised by the Tribunal. Section 112 (2)...is mandatory in its terms, and the apparent expression by the Claimant of a wish for an order under Section 113 led the Tribunal to make an enquiry of the representative of the Respondent as to the prospects of any such order being possible. In the event no such order was made, for reasons set out on the judgment of the Tribunal. 13. The Chairman does not recognise the Claimant's assertion that he was denied a right or suitable opportunity to make "submissions"
. Each stage of the Hearing procedure was explained by the Chairman in "lay" terms for the benefit of both parties, and the reasons why particular matters might or might not be relevant to the issues before the Tribunal were further explained in "lay" terms. This included an explanation as to why repetition in a loud voice of propositions already put forward did not constitute any more weighty evidence than those propositions which had already been received and noted."[52]The Chairman's notes show, as is accepted by both parties to be the case, that R/R was raised for the first time during the cross-examination of Mrs. Fry and not, therefore, at the outset of the hearing or during the Claimant's own evidence. On page 120 of the bundle, the notes at pages 4 and 5 read as follows:
"CONTRIB FAULT 1. Mrs Fry undertakes to take instructions as to whether R would (a) reinstate or (b) reengage C. 2. Mrs Fry undertakes to take instructions as to whether R has been approached for references in relation to C C - If I were offered a job by R I would seriously consider taking it [Page 5] 1255 ET Retire PARTIES to be available @1415 Alan C Neal 9/11/2006 1445 PARTIES to return @1500 1510 PARTIES JUDGMENT Read out in open ET on tape END 1605 Alan C Neal 9/11/2006"
[53]Further assistance is provided by the Chairman's answers to the further questions from the EAT, dated 3 December 2007, at pages 122 – 126 of the bundle (the Supplementary Response). In general, and as the Respondents assert, the "round table" mode referred to reflects the steps taken by the Tribunal to overcome problems caused "….by an absence of discipline in terms of the behaviour of the Claimant when engaging with the Tribunal and with the representative of the Respondent." One aspect of that indiscipline revealed itself in the Claimant's "…inability to desist from loudly-expressed protestations of an inflammatory nature, together with heavy sarcasm directed towards the representative of the Respondent".[54]At page 123 the Chairman refers to the moment when R/R was first raised:
"During the course of formulating questions for Mrs. Fry, the Claimant embarked upon a number of long declarations, eventually culminating in a highly emotional declaration about his dignity and his wish, for the sake of his dignity, to take any job which might be available. In the course of those declarations it emerged that he was indicating that he would even take work with the Respondent. That indication was followed up by a direct question from the Chairman to Mrs Fry to ascertain whether there might be any question of re-employment with the Respondent. Mrs Fry explained her understanding of the Respondent's economic and recruitment situation, and indicated that, while she understood nothing to be available with immediate effect, this did not rule out the possibility of something in the future. In the light of that indication, the Chairman asked Mrs Fry if there would be any purpose served in looking further into this possibility. The undertakings of Mrs Fry are recorded in the notes."
[55]This account is supported by Mrs Fry, who recalls (at paragraph 3 of her witness statement) R/R being raised shortly before the lunch adjournment, when she was asked by the Chairman to take instructions as to whether either reinstatement or reengagement was a possibility. She did so on the telephone, having left the hearing room, where she spoke to both the Regional Director, Norman Watson, and the Managing Director, Joe Mescall. She then returned to the Tribunal and gave evidence as to the results of her enquiries, which are set out at paragraph 33 of the Tribunal's judgment. She recalls, at paragraph 5, the Chairman explaining to the Claimant that "…the reason he asked was to see whether the appellant would go back to work for the Respondent if the opportunity was there, particularly as the Appellant believed he had been picked on and victimised whilst working for the Respondent. Despite this, the Appellant confirmed that he would go back to work for the Respondent."[56]Mrs Fry states that, after she had given evidence as to the results of her telephone enquiries, the hearing was then adjourned for lunch and for the Tribunal to reach their decision. They returned to deliver judgment at approximately 3.20 p.m.[57]Notwithstanding the Claimant's denials that he was in any way indisciplined, or behaving in the ways described by the Chairman as set out above, the preponderance of the evidence, in our view, is that the Chairman found it necessary to take steps to ensure that the hearing would be conducted justly and fairly to both sides; and that there was indiscipline on the part of the Claimant in the course of this hearing. Our view as to the likely course of this hearing is also supported by what we regard as the intemperate and, on occasions, abusive content of letters written by the Claimant both to the Employment Tribunal and, subsequently, to the staff and judicial members of this Appeal Tribunal pending the hearing of his appeal (see for example pages 89, 90 and 93 of the bundle). Ms. Lubimbi sought to describe the Claimant as "parlous" and his language as "colourful", but this in our view does not adequately describe his conduct below, as set out in the Chairman's comments.[58]This is regrettable, but we feel that it is necessary to factor in this background when considering whether the Tribunal complied with its duty under section 112(2) and whether there was unfairness to the Claimant in the way the R/R issue was dealt with below. To some extent we consider that the Claimant's conduct at the hearing has contributed to misunderstandings on his part as to the correct sequence of events, as we shall explain later on in this judgment.[59]It seems to us that the Tribunal had probably assumed, initially, that the Claimant was not seeking R/R. This was no doubt due, at least in part, to the list of issues agreed at the case management stage, all of which were compensation issues; but whatever the reason, nothing at all was said about R/R at the outset of this hearing, or at any time before Mrs. Fry was being cross-examined by the Claimant.[60]On all the material before us however, we consider that the Tribunal complied with their duty under section 112. That the Claimant was asked by the Tribunal about both reinstatement and reengagement, and that he plainly understood when such orders could be made and the difference between the two, seems to us to be clear from his own grounds of appeal and from the Chairman's notes and comments.[61]It is not clear whether these precise terms were used by the Chairman, who refers to explaining matters generally in "lay terms" in the circumstances. The Claimant refers, for example, to being asked by the Chairman whether, if his own job were not available, he would consider another position. However it is not necessary, in our judgment, for a Tribunal to use the specific terms "reinstatement" and "reengagement", in order to comply with the statutory duty under section 112. Many hearings of this kind are regularly conducted in employment tribunals with a degree of informality, involving parties appearing without legal representation and without an understanding of legal terminology. So long as the Tribunal has explained, albeit in lay terms, what orders may be made under section 113 and in what circumstances, and has asked a claimant whether he/she wishes the Tribunal to make such an order, they will have done what is required of them under the Act. It will be necessary, of course, always to ensure that informality does not result in a tribunal straying so far from the statutory formulation that the duty is not complied with. Reinstatement and reengagement are potentially important elements of the remedies statutorily available to a claimant found to have been unfairly dismissed from employment.[62]In this case the Claimant has not alleged that at this hearing he was unaware of the availability of these orders, or that, following what was said to him, there was any aspect of either of them that he did not understand. On the contrary he accepts that he was asked both if he wanted to be reinstated or subsequently, if his own job was not available, to be reengaged, to each of which questions he answered in the affirmative. We consider that he was therefore made aware of both of these remedies, and how they could be made, and was asked if he wished the Tribunal to make such an order. At the time that Mrs. Fry was sent to make her enquiries, therefore, the Tribunal were considering both the possibility of the Claimant's reinstatement and, if his job was no longer available, the possibility of another position in the Respondents' company.[63]We turn then to the criticisms made of the Tribunal in considering R/R, once it was raised, and the Claimant's allegations of procedural unfairness and injustice.[64]These allegations are based on an account of events below which is very different from the description given by both the Chairman and Mrs. Fry. The Claimant alleges in his witness statement that, after the Chairman had asked Mrs. Fry about the possibility of reinstatement, he ordered a break in the proceedings to enable her to take instructions; and that, "During this break time, we adjourned for lunch and did not return to court until we were called back at 3.00 p.m.". The Claimant alleges that during this break time, Mrs. Fry "had relayed to the Chairman (not in open court) that there were no vacancies"; and that, after they were called back into court, the Chairman had informed him that there was a freeze on recruitment but asked him no further questions about reengagement or whether he would consider any other position within the firm. He also alleges that at 3.00 p.m. the Chairman told him that they had already worked out his award, "even though the reinstatement/reengagement issue had not been revisited and discussed".[65]This account of the hearing is, in our view, against the weight of the evidence and the suggestion that the Tribunal received evidence from Mrs. Fry in secret is not credible. It is clear from both the Tribunal's Supplementary Response and Mrs. Fry's statement that Mrs Fry gave her evidence as to the results of her telephone enquiries in open court and in the presence of the Claimant. This was before the Tribunal broke for lunch at 12.55, at which point they retired to consider their decision. When they returned at 3.10 p.m. it was solely for the purpose of delivering their judgment. There was no further evidence given and no submissions were made. Mrs. Fry refers to the Claimant then attempting to interrupt the oral judgment and to make comments about the amount of compensation he was being awarded for future loss of earnings. This conduct is also referred to by the Chairman at paragraph (f) of the Supplementary Response, including reference to an "abusive, oral attack on the Tribunal", such that they eventually had to rise and leave the room "leaving the Appellant still shouting abuse".[66]Before the break at 12.55 we are satisfied, on the material before us, that the Claimant had indicated that he wished to be either reinstated or reengaged by the Respondents; that the Tribunal had asked Mrs. Fry to make enquiries as to the possibility of either option; and that she had done so and returned to give evidence, still on oath and in the presence of the Claimant, as to the results of those enquiries. In essence, her evidence was that due to the restructuring of the Security Department and budgetary restraints, the Respondent had put a freeze on recruitment such that only the possibility of a job in March 2007 existed, and it could not in any event be considered before then.[67]The preponderance of the evidence is that the Claimant had the opportunity to put any questions about these matters to Mrs. Fry, but appears not to have done so. Certainly, her status as the representative of the Respondents presented no bar to his ability to question her since she was giving evidence on oath about the various matters raised. It is also clear that the Chairman had been advising the Claimant to identify matters in Mrs. Fry's statement with which he did not agree, so that he could challenge them in an appropriate manner; and that "A series of questions-cum-statements were put by the Appellant in the light of that advice." (See paragraph (c) of the Supplementary Response.) We are not persuaded therefore that the Claimant was afforded no opportunity to cross-examine her as to the results of her enquiries. Nor has he raised in this appeal any matters which he says that he would have wished to put to her in cross-examination as to R/R.[68]Nor are we persuaded that the Claimant was prevented from making any further "submissions" as to R/R after Mrs. Fry's evidence about the prospects of such an order. Whilst formal submissions in the usual sense were not made by anyone in this case, we note from the Supplementary Response that, after Mrs. Fry had given the results of her enquiries, "The final part of the morning was taken up with confirming whether either of the parties had anything further to add before the Tribunal retired to undertake its decision-making activity." Mrs. Fry confirms (paragraph 6) that the Claimant had every opportunity to make final submissions on R/R before the adjournment at 12.55. We note, in addition, that none of the matters the Claimant mentions at paragraph 7 of his grounds, as matters he would have raised if he had been given the opportunity to do so, refer to R/R. They are all concerned with compensation.[69]To the extent that the Claimant was prevented from speaking at this hearing, this on the evidence was only during the delivery of the Tribunal's judgment, when it was necessary to take steps to ensure that their decision could be delivered without interruption.[70]We consider, finally, Ms Lubimbi's submission that the Tribunal, erroneously, took Mrs Fry's evidence about R/R at face value and did not adequately consider R/R, or consider adjourning the hearing to enable the witnesses to attend to give evidence about these matters.[71]When exercising their discretion under s.116, where there is no suggestion of contributory fault, the Tribunal must take account of the following, firstly in relation to reinstatement and then as to reengagement:(a) the Claimant's wishes as to R/R; and(b) whether it is practicable for the employer to comply with any order made.[72]We observe, firstly, that paragraph 28 of the judgment is odd, in that it does not reflect the reality of the position for either side. There clearly was a wish by the Claimant to seek an order for R/R; and the Tribunal treated this as a case where there was such an application because they considered and rejected it, for the reasons given at paragraph 33. We think it likely that paragraph 28 was simply a reference to the fact that the Claimant had not asked for R/R in his Form ET1, but in any event it is not relevant to the Tribunal's approach to what was in fact the position. We are all of the view, on the evidence, that the Tribunal did have regard to the Claimant's wishes in this respect, both as to reinstatement and reengagement.[73]In relation to practicability, there is well-established authority that this is a question of fact for the Tribunal who, in carefully scrutinising the reasons advanced by an employer, should give "…due weight to the commercial judgment of the management unless… the witnesses are disbelieved ", and that the " standard must not be set too high ". See Port of London v Payne [1994] IRLR 9 at 57 (CA). The test is practicability, not possibility, and an employer cannot be expected to explore every possible avenue which ingenuity might suggest. It is a matter of what is practicable "in the circumstances of the employer's business at the relevant time."[74]In Cold Drawn Tubes Ltd. V Middleton [1992] IRLR 160 (EAT ), the EAT held that "practicability" meant "capable of being put into practice" and, at paragraph 12, that it:
"….ought to be looked at in a subjective sense, in a pragmatic sense, bearing in mind the particular circumstances of the case……an [Employment] Tribunal ought to look at the circumstances of the case where reinstatement is being considered, and not try to analyse in too much detail the application of the word 'practicable' but to take a broad commonsense view."
[75]A Tribunal is entitled to reject a request for R/R "…if they are satisfied that it is unlikely to be effective." See Timex Corporation v Thomson [1981] IRLR 522 at paragraph 8.[76]Where an employer is advancing the case that there is no vacancy for a claimant, there is no obligation on the employer to fit an employee in somewhere. Taken to its logical conclusion it would become the employer's duty "to dismiss other employees in order to create the necessary space for he or she who is to be engaged". See Freemans PLC v Flynn [1984] IRLR 486 at paragraph 13. Thus, in circumstances where there was no work for a claimant to do, and to reinstate or reengage him would result in overmanning or redundancies, a tribunal would be entitled to find that it was not practicable to comply with an order for R/R (see Cold Drawn Tubes at paragraphs 20 and 23).[77]In the present case this Tribunal, at paragraph 33 of their judgment, correctly addressed and considered separately first reinstatement, and secondly reengagement. In our judgment they properly applied the test of practicability in respect of each. The restructuring of the Respondents' organisation meant that reinstatement was "not available" (not capable of being put into effect). Due to this restructuring and to budgetary constraints there was also a freeze on recruitment, which meant that reengagement was not "possible" (and therefore not practicable). The Tribunal, having heard Mrs. Fry's evidence on this, were entitled to come to this decision on the facts and there is nothing in our view which would justify interference by this Appeal Tribunal.[78]The Chairman records, in the Supplementary Response, that "The question of calling additional witnesses from the Respondent was not raised. The Applicant made no application to call any such witnesses at any stage during the Hearing." Mrs. Fry, having spoken to members of the Respondents' senior management, gave evidence as to the present economic and structural position of the company and as to the freeze on recruitment. Notwithstanding what the Claimant now says, at the time he did not challenge her evidence on these matters or apply for other witnesses to be called. Whilst he was appearing in person and is therefore entitled to some leeway in that respect, this Claimant had already been through one Tribunal hearing and an appeal to the EAT and would in our view be alive to these issues. There is therefore no basis for saying that the Claimant was prejudiced or that there was any injustice caused to him as a result of the absence of these witnesses. The experience of all members of this Appeal Tribunal is that those called to give evidence about company policies in this context are, in any event, rarely those who are responsible for them.[79]In the absence of any challenge the Tribunal, as it seems to us, were entitled to proceed on the basis of the evidence before them and were not in error in failing (in the absence of any application) to adjourn the hearing in order for the matter to be considered again at a later stage, when the regional and managing directors could attend. Paragraph 33 contains sufficient analysis of the Respondents' response to the enquiry as to R/R to demonstrate a broad, common sense view as to practicability, having regard to what they had been told. It is also worth emphasising that, by 9 November 2006, two and a half years had passed since the Claimant's dismissal.[80]For all these reasons this appeal must be dismissed.[81]For completeness we add that, a week after the conclusion of the hearing before us, the Claimant sent a letter to the EAT containing matters that he said he had wished his counsel to place before us by way of Reply to Mr. Linstead's submissions. These were essentially criticisms of what was said to amount to character assassination of the Claimant by Mr Linstead, in attempting to derail the Claimant's case; and arguments in favour of an additional award of compensation in his case. There is nothing which would effect our consideration of the issues arising for determination in this appeal which, for the reasons set out above, must therefore be dismissed.