Appeal No. EAT/468/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 30th April 1993

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MRS M L BOYLE

	MR R H PHIPPS

CROYDON ADVERTISER GROUP LTD	APPELLANTS

MRS M CLINTON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R PERKOFF
Counsel
Messrs Rowe & Maw
20 Blackfriars Lane
London
EC4V 6HD

For the Respondent	MRS M CLINTON
(Respondent in Person)

	JUDGE J PEPPITT QC:  This is an appeal by employers from a decision of the South (London) Industrial Tribunal promulgated on the 2nd July 1991 after a hearing extending over some 4 days.  The unanimous decision of the Tribunal was that the Applicant, Mrs Margaret Clinton had been unfairly dismissed.

	 At a later stage the Tribunal assessed compensation, subject to the compensation issues raised by this appeal, at £8,925, then the maximum which it could have awarded.  Without that ceiling Mrs Clinton's compensation, as calculated by the Appellants, would have been £9,991.88.

	The facts can be stated shortly.  The Appellants are the proprietors of a chain of provincial newspapers circulating in Surrey.  Mrs Clinton was the Advertising Manager of one of those newspapers, the "Reigate Post and Independent".  She had been so employed since 1985.  

	In 1990 the Group was affected by the recession and it became necessary to cease publication of four of its titles.  The "Reigate Post" was not affected but the closure of the other titles created a redundancy situation with which the Appellants had to deal.  They decided to make Mrs Clinton redundant and to replace her with the Advertising Manager of one of the "closed" titles, a Miss Vivash.  It is not suggested that the decision was one which the Appellants were not entitled to take.

	Mrs Clinton's first intimation that she was to be made redundant occurred on Monday, 23rd July 1990 at 10 am.  Mr Jones, the Group's Deputy Managing Director, whom she hardly knew, then handed her the letter set out in paragraph 4 of the decision.  That letter reads as follows:
"I am writing to confirm the announcement which was made today to the effect that the publication of The Bromley Post, The Sutton Post and Sutton Property News and The Epsom Post will cease after this week's issue.  As a result it is with regret come necessary to inform you that the company proposes to terminate your employment on Friday 27 July on the grounds of redundancy.

You will be contacted during the course of this week for personal counselling.  At this meeting your entitlements will be discussed and you will be given the opportunity to ask questions about these closures and their implications for you.  I would however like to confirm that the company intends to honour the terms of your employment.

I should also say that we have considered whether it would be possible to employ you in a suitable capacity elsewhere within the company but regret that there is no such position available.

If in the meanwhile there are any questions you wish to ask would you please let me know and if I am unable to answer them I will arrange for someone else to speak to you."

That letter was signed by Mr Colin Lewis, the Appellant's Managing Director.  

	At this meeting Mrs Clinton was told by Mr Jones that there would be a further interview on the following Friday, 27th July.  At the same time she was told to clear her desk and leave immediately.  Her replacement took over later that day.  Mrs Clinton was permitted to retain her Company car until Friday 27th July, the day when her employment came to an end.  In the meantime she wrote to Mr Lewis, the Managing Director, asking to be told why she was selected for redundancy.  When on Friday 27th July she called to return the car, she had a meeting with Mr Jones.  In the course of that meeting she raised the possibility of her being retained in the Appellant's employment as a tele-sales person.  That suggestion Mr Jones rejected on the ground that he considered it quite inappropriate to retain her at a comparatively menial level amongst colleagues in their early 20's and in the position where she would have to report to those who had previously been her equals or her subordinates.  In any event by then all available tele-sales posts within the Group had been filled.

	Mr Perkoff, on behalf of the Appellants, invited us to infer from the evidence that the question of Mrs Clinton being retained as a tele-sales person was not specifically considered by the Appellants until it was raised by Mrs Clinton on the 27th July and was then rejected by Mr Jones for the reasons we have given.

	Against this background the Tribunal found that the ground for the dismissal was redundancy but that the dismissal was unfair having regard to the provisions of Section 57(3) of the Act.  That decision was based upon the Tribunal's finding that there was no meaningful consultation between the Appellants and Mrs Clinton and that the Appellants failed to consider her adequately for an alternative job in tele-sales.

	Mr Perkoff attacks this finding as perverse.  There was, he said, consultation on the 27th July in the course of which Mrs Clinton made, and Mr Jones rejected, the possibility of retention in tele-sales.  That rejection, he said, was within the band of reasonable responses by an employer and it was the view which, on the evidence, the Appellants held.

	We are unanimously of the view that the Tribunal's finding was one which it was entitled to make.  Mr Lewis' letter of the 23rd July effectively closed the door to any meaningful consultation about the possibility of Mrs Clinton being retained in any capacity.  She was then told to clear her desk and leave at once.  Her successor took over that day.  It was not until the following Friday, the last day of her employment, that anything approaching consultation took place.  By then the employers had made up their minds and any available post had been filled.  Consultation to justify dismissal must be meaningful.  The Tribunal found that this consultation was, too little and too late, in our judgment it was entitled so to find.

	Mr Perkoff's alternative submission relates to the Tribunal's assessment of Mrs Clinton's compensation.  If the dismissal was unfair, he argued, for the reasons found by the Tribunal, Mrs Clinton's compensation should have been discounted on a percentage basis to reflect the risk that she might not have been appointed to the post of tele-sales person, even if there had been proper consultation.  In view of the Appellant's reasoned objections, he said, to such an appointment the discount should have been significant.  Nowhere in the judgment was there any indication that such a discount had been considered.

	We have found this the most difficult aspect of the appeal.  In Polkey v. A E Dayton Services Ltd [1988] ICR 142, Lord Bridge at p.163H, cited with approval Mr Justice Browne-Wilkinson's suggestion as to how the question should be approached.  The citation was from Sillifant v. Powell Duffryn Timber Ltd [1983] IRLR 91 at p.96 and reads as follows:
"`There is no need for an `all or nothing' decision.  If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.'"

The absence in the decision of any discounting by the Tribunal of the sum awarded to Mrs Clinton by way of compensation can only be justified if the Tribunal was entitled to find, and did find, that no such discounting was warranted.  In other words, that Mrs Clinton would have been appointed to a tele-sales post if she had had the benefit of proper consultation.  There is no express finding to this effect.  But having concluded that Mrs Clinton was ideally suited to the post the Tribunal considered the question in paragraphs 19 to 22 of the decision.  Those paragraphs read as follows:
"19	We have to decide what compensation ought to be paid to the applicant.  In coming to our decision, we have had to take into account our assessment of the applicant and the position which she would have retained, had she remained in employment with the respondents.

20	Suffice at this stage to say this.  We think that the applicant would have done all in her power to seek to accommodate herself within the new environment which would have existed had she taken on the job as a tele-sales assistant.  We are satisfied that she had the necessary expertise to deal with the customers on the telephone and indeed she has a very soothing voice which would be well received by customers.

21	She has emphasised and we accept that at the age of 53 she would want to preserve her pension rights for as long as possible and so would have done all in her power to have held on to some sort of job.

22	We accept that there is always a risk that the position may not have worked out in coming to our final calculations we have taken into account that risk and made the necessary discount.  We bear in mind that in March 1991 there were further redundancies which might have caught up with her but we think that in the e vent the risk of her losing her job was fairly minimal despite what we were told by Mr Tomkins.  By that stage she would have been employed for some 5 years, all in the same field and which would be more than a lot of the other staff in that position, and we are satisfied that she would have acquired the necessary skills as a computer operator."

	Upon analysis of those four paragraphs it is apparent that in paragraph 19 the Tribunal asked itself the right question and in paragraphs 20 and 21 it found facts which suggested that Mrs Clinton would have been able to persuade the Appellants to offer her a job.  In paragraph 22 the Tribunal move on to the next question, of how long she would have lasted in the job. That, in our judgment, postulates that she would have obtained it.  It seems to us, therefore, that by this admittedly circuitous route the Tribunal must be taken as having found that, given proper and timely consultation, Mrs Clinton would have been offered a job as a tele-sales person.  This is a finding that on the evidence it heard the Tribunal was entitled to make though it is not necessarily the conclusion that we would have reached ourselves.  But, in our judgment, it was in no sense perverse and accordingly, on this ground too, the appeal must be dismissed.