GM Packaging (UK) Ltd v Ottey (Practice and Procedure : Review) [2014] UKEAT 0045_14_0907

EAT

GM Packaging (UK) Ltd v Ottey (Practice and Procedure : Review)

[2014] UKEAT 0045_14_0907 · 2014-07-09

[6]“ ...the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word ‘no’ because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects. ” 14. Applying that dictum to the present context, Miss Jeram submits that there is a high test here which an Employment Judge must apply in describing an application for review as having no reasonable prospects at all. Her submission was that, in the context of this case, taking account of all the material, that is to say both the application for review and the terms of the extant appeal to the EAT in the Haslem case, this was not a case in which the Employment Judge could properly shut the matter out at the threshold stage under Rule 35(3). 15. Miss Jeram’s second submission, regarding that the potential relevance of a successful outcome in the Haslem appeal, was that it would enable the Employment Tribunal, in considering a Polkey reduction, to move from an inability to speculate to a potentially real situation of comparison: that is to say, that if the EAT were to find (as we now know it eventually did) that Mr Haslem had been lawfully dismissed within a few weeks of the relevant incident, then that was at least some evidence that Miss Ottey might similarly have been dismissed within just a few weeks. 16. As to the potential relevance of that material, Miss Jeram, in the course of her submissions, took me to two sources of authority. First, she reminded me, as she had done in her Skeleton Argument, of what was said by Elias P, in the Employment Appeal Tribunal’s decision in Software 2000 Ltd v Andrews & Ors

[2007] IRLR 568

. In that case the Employment Appeal Tribunal, having reviewed the authorities, set out seven numbered propositions as to matters which might bear on the correct approach to a Polkey deduction. The second of those specifically indicates that, in considering such a deduction, a Tribunal must have regard to all the evidence, and at principle six identifies that, although the evidence may not be of a high order, the Employment Tribunal considering a Polkey deduction must take into account “any evidence on which it considers it can properly rely”. 17. To like effect, she relied on the more recent Judgment delivered by Langstaff P in the case of Hill v Governing Body of Great Tey Primary School , it being an unreported case

UKEAT/0237/12/SM

, in which again the President at paragraph 24, distilled the basic principles in a Polkey deduction case and, in particular, had directed Tribunals not to assess what a reasonable employer would or might have done when faced with the relevant facts but to ask itself what the actual employer would or might have done in relation to the circumstances of the particular case. 18. On this second aspect of her submissions, Miss Jeram developed the proposition that, in the light of those authorities, this Employment Judge had misdirected himself and ought to have found that potential success for the employer in the Haslem appeal would mean that a new dimension of the Polkey question was opening up. 19. In the light of those submissions, it is appropriate now to turn to the relevant parts of the Judgment of the Employment Judge in rejecting the review application. At paragraph 12 the Employment Judge said as follows: “I have considered the Application on the basis that the Polkey point now being advanced is not one previously canvassed at the EAT and on the basis that it arises out of the possibility that the EAT may strike down the Liability Judgment in respect of the Haslem case on any one or more of the four grounds which now proceed to full hearing but in particular ground 4 namely that the Tribunal erred in deciding that the Haslem dismissal fell outwith the band of reasonable responses open to the respondent. I am asked to consider that such a finding by the EAT would ‘inevitably impact on the likelihood of Ms Ottey being dismissed fairly on a date after 14 April 2011.’ It is contended in the Application that such a finding would mean that it would be appropriate then for the Tribunal to consider a Polkey deduction in respect of the Ottey case and that it would not then be too speculative for the Tribunal so to do (as it decided it was in the Judgment at paragraph 10.6).” 20. Note that the terms of that paragraph put paid to a submission tentatively advanced by Miss Jeram that the Employment Judge had gone wrong here because he had failed to address at all the potential weight or significance of the outcome of the extant appeal in the Haslem case. 21. I turn now to the material parts of the Judge’s conclusion. He said this at paragraph 13: “I conclude that there is no reasonable prospect of the Judgment being varied in the way advanced for the following reasons.13.1 The cases of Ottey and Haslem were different. The Tribunal decided that the dismissal of the claimant Ottey was unfair because it was tainted with sex discrimination: that was not so in the case of Haslem. Given the obvious differences between these two cases, there is no reasonable prospect that the Tribunal would consider an adverse finding by the EAT in respect of its judgment in the Haslem case to have any bearing on the narrow Polkey point being advanced in respect of the Ottey case.

13.2 The circumstances of the two claimants are different. The position of the claimant Haslem in the respondent company was a senior one: that of the claimant Ottey was not. The Tribunal reflected that difference in the different levels of reduction for contributory conduct which it imposed on the claimant Ottey notwithstanding it decided it was appropriate to assess compensation due to her under the relevant provisions of the Equality Act 2010 rather than the provisions of the Employment Rights Act 1996.” 22. In my judgment it is plain that the Employment Judge is there directing himself that, even if Mr Haslem’s liability finding was overturned by the employer on the appeal to the EAT, that could make no difference to how the Employment Tribunal would have assessed the Polkey deduction question. His justification was that, in his mind, and indeed perhaps in the mind of his Tribunal, the cases were very different. Miss Jeram submits that he was there misdirecting himself. The correct question was whether the particular employer would likely have dismissed Miss Ottey fairly and earlier, given that the premise necessarily was that it had fairly dismissed Mr Haslem within just a few weeks of the incident in question. That, she submits, is a misdirection which vitiates the Employment Judge’s entire Judgment and shows that he was wrong not to let the application for review through for substantive consideration. Conclusions 23. Despite Mr Barker’s admirable and helpful attempts to sustain the Judgment of the Employment Judge, I find that I must set aside the Judge’s Decision, essentially for the reasons advanced by Miss Jeram. Given the relatively low threshold that must be surmounted in order for a review application to be considered on its merits, I am satisfied that this case for review must, had it been properly considered, have passed that threshold. That is most particularly because of the potential materiality of the finding that Mr Haslem had not been unfairly dismissed and the impact that might have had on the Polkey reduction argument. I am satisfied that the Employment Judge erred in law in not permitting the matter to go through for consideration, based entirely on his assessment on the factual differences between the two cases when authority shows that the real question on a Polkey deduction consideration is what the particular employer’s assessment would likely have been in the circumstances of the case. 24. This, in my judgment, is an application for review, which ought either have been the subject of a stay or have been permitted to be considered on its merits. In my judgment, it was erroneous in law for the Employment Judge to have rejected it at the threshold stage under Rule 35(3). Disposal 25. I received helpful submissions from both Miss Jeram and Mr Barker as to what should happen in the event that I found the Judgment below was erroneous in law. Plainly the first possibility is that I should remit the matter to the same Employment Judge for a reconsideration of the threshold question. Indeed, the parties helpfully made submissions as to whether it should be the same Employment Judge. In the light, however, of the terms of the Judgment I have given, it is quite plain that I consider that, on any view, the threshold would have been passed. Therefore the question is simply one of the application for review proceeding for a determination on its merits. 26. Miss Jeram submitted that I ought to redirect the application for review to myself and determine it. Indeed, she would go even further and suggest that I should deal with the entire question of a Polkey deduction in the circumstances of the case. 27. I reject the notion that this is a suitable class of case in which a Judge of this Appeal Tribunal should make for himself the assessment which the statute has confirmed on first-tier Tribunal. I bear in mind the two recent decisions of the Court of Appeal, the first of which is the decision in Jafri v Lincoln College

[2014] IRLR 544

. Those two decisions speak forcefully in favour of decisions being remitted in the conventional way in the absence of some exceptional feature. 28. The remission of the current review application is, in the events which have happened, entirely academic. Both parties sensibly recognise that if what is to be done is that the matter is to be considered substantively on review, then that review should be considered with the benefit of the full Judgment of the EAT in the Haslem case. I agree, but it is not for me to achieve that outcome. The burden is on the employer to amend or reconstruct its application for review, so as to take into account that development. So remitting, as I do, the application for review for consideration on its merits, I am in reality remitting for consideration what will be a substituted or amended application for review. 29. The final matter for my determination is whether to remit the review application to the same Tribunal or to a differently constituted Tribunal. Miss Jeram strongly argued, both in writing and in oral submissions, that this is a fit case for a fresh Tribunal. She contends, in the circumstances which have occurred, that this Tribunal has shown itself in this particular case to have reached an erroneous conclusion in law on liability in relation to Mr Haslem, and the Employment Judge himself, as my Judgment indicates, has reached an erroneous view in law in determining an application for review at the threshold stage. That, she submits, demonstrates that it would be inappropriate to remit this case to the same Tribunal because there is a risk of prejudgment or partiality. Moreover, she submits, this is the sort of case in which it might be fairly be said by an objective bystander that the Tribunal has already made up its mind. 30. I have carefully weighed those submissions, together with submissions in opposition to them advanced by Mr Barker. I am satisfied that this is a case in which it can be safely entrusted to the same Tribunal to fairly and properly determine the application for review. The context has entirely changed. The Employment Tribunal will now recognise that its earlier decision in relation to Mr Haslem was incorrect and that therefore he had been fairly dismissed within a few weeks of the incident in question. It will now be for it to properly and carefully determine whether it should review its own approach to the Polkey question in relation to Miss Ottey’s case. I see no reason, notwithstanding two adverse findings on appeal having emerged from the same proceedings, to think otherwise than that the Tribunal will give proper and careful judicial consideration to the remitted review application. 31. For all of those reasons, my order will be:

(1) that this appeal will be allowed;

(2) that the application for review made by the employer and dated 13 June 2013 should be considered on its merits;

(3) that the merits consideration of the application for review should be conducted by the same Employment Tribunal as that in respect of whose decision the review is sought.