Appeal No.	 EAT/680/99/MA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 1999

Before
HIS HONOUR JUDGE J ALTMAN
MR J A SCOULLER
MR N D WILLIS

MRS J WATERS	APPELLANT

CO-OPERATIVE RETAIL SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr G McLean (Solicitor)
USDAW
Oakley
188 Wilmslow Road
Fallowfield
Manchester
M14 6LJ

JUDGE ALTMAN:
This is an appeal from the decision of the Employment Tribunal sitting at Sheffield on the 18 March 1999.  It comes before us by way of preliminary hearing to determine if there is an arguable point of law such as to warrant a full hearing before the Employment Appeal Tribunal.  

The Appellant was dismissed admittedly for redundancy at a time of re-organisation.  She was a part-time employee engaged for 20 hours per week.  A new scheme was to be introduced which made two changes.  First of all the total number of hours was to be reduced to 20.  Secondly, those hours were to be worked for no more than 4 hours on any particular day.  That general scheme was subject to variation where the volume of work demanded it.   The Appellant appears to have been willing to embark on that new procedure save that she wished to perform 2 of the 4 hour sessions on a single day in any one week.  The Respondent declined to make that concession and on the 17 August 1998 she was dismissed.  She was not given a redundancy payment because the respondents at that time had decided to not give redundancy payments to part-time employees.  It was conceded before the Employment Tribunal that that was an error.  

The Employment Tribunal found that the appellant considered that she was being unfairly treated because other employees were being allowed to work, she believed, in the way that she herself proposed.  Furthermore, the Employment Tribunal found that that was the only ground upon which she was complaining of unfairness.  The Employment Tribunal also found that following her dismissal she has found it difficult to obtain other employment partly, the Appellant believes, because she gives the appearance of having been deliberately awkward when she left the Respondents’ employment.  

The Employment Tribunal found that at the time of the discussions and consultations before dismissal, Mr Gough the Human Resources Manager, and Mr Evans the Area Store Manager, who were dealing with this matter, did not know of any arrangements for any other employees to work more than one 4 hour shift on any one day under the new scheme, and they were surprised to learn of it happening at the Tribunal.  The Employment Tribunal dealt with this in a number of passages.  

In Paragraph 5 they point out that the Appellant herself was “particularly exercised” by her knowledge that colleagues appeared to be working the new contracts but nevertheless accommodated for 8 hours during the middle of the week. The Employment Tribunal then found 
“the Respondents throughout the consultation period stated that that was not possible.  That impasse continued until the Appellant was dismissed”.  

In Paragraph 9 the Employment Tribunal made their essential findings of fact on this issue and they found first of all that the system by the time of the hearing was not working out quite as neatly as expected.  But they then go on to find that 

“the Tribunal find that at the time that the system was being discussed with Mrs Waters it was the honest belief of Mr Evans and Mr Gough that, once the system had completely bedded down, with all staff making the relevant decisions and those that were not prepared to accept the new-contracts having been finally dismissed, the situation would be as they described it.  We find that Mr Evans and Mr Gough are as much surprised by the news that that is not the case as we are.  We therefore find that Mr Evans and Mr Gough did not have in their contemplation at the time of their discussions with Mrs Waters the possibility that other staff could be accommodated or would be accommodated on precisely the terms that Mrs Waters wished to be accommodated on”.

The Tribunal then deal with the arguments in Paragraph 11 of their decision.  They deal with the contention of the Appellant that she should have been given the alternative proposal for working that she had put forward particularly bearing in mind that others were doing it.  But the Employment Tribunal expressly rejected that on very clearly set out grounds.  They say that the respondents are entitled to bring out the changes 

“They’re entitled to take a view as to the way in which the new system should operate in practice.  They were entitled to operate on their reasonably held belief that, once the system had bedded down, no part-time employee would be working for more than four hours a day on any day except a Saturday”.  

That was the only ground upon which the Applicant said the dismissal was unfair.  

On behalf of the Appellant, Mr McLean argues that there is in effect a lacuna in the Employment Tribunal’s reasoning.  He would say that having reached an impasse in which the Employee says, “people are working 2 four hour sessions a day” and the Employer says “no they’re not”, there was a process missed out by the employer which was one of investigation.  He says that management should have investigated not only the theory but the practice and had management done so they would have discovered that Mr Evans and Mr Gough would have discovered that they were wrong and that in effect the proposal that the Appellant had put forward was in fact being applied to other employees so that her job would have been saved.  

That is a proposition of fact but it seems to us that it is precluded as the basis for arguing an error of law for 2 reasons.  First, we are not satisfied that that argument was addressed to the Employment Tribunal.  It is not specifically referred to and the Employment Tribunal state expressly that there was only one ground, which was the unfairness of not actually giving the Appellant the job she asked for.  We approached that decision a little diffidently but of course Mr McLean very fairly said that he cannot assist one way or another on that issue. But secondly, it seems to us, that the approach of the Employment Tribunal on the facts precluded management from carrying out an investigation because the Employment Tribunal found that management were reasonable in concluding that their system would be applied in the way that they intended it to apply.  Therefore at that time any deviation was one which would be ironed out and eliminated in due course.  There was no purpose therefore it seems to us for investigation and no argument that it could have made any difference and that it was a failure of management.  In those circumstances we find there is no error of law which could succeed on that matter.  

We turn to the two other matters that are raised before us. First of all as to the calculation of the compensatory award, applying in what are called the Polkey principles, the Employment Tribunal concluded that the adoption of a fair procedure would have made no difference so that there was no compensatory award to be made.  However, the redundancy payment in fact made appears to have been the statutory payment, not the payment which the Respondent’s would normally make by way of enhanced award to employees generally made redundant.  We are puzzled as to why that is the case, but it is clearly arguable that if that is so it is an error of law.  The amount at stake of £385.26 is set out in a letter to this Employment Appeal Tribunal from the Appellant’s union dated 18 May 1999.  And in the absence of the Respondent’s making good that payment before the Appeal is heard, we find that there is an arguable point of law which merits a full hearing as to the calculation of the compensatory award so as to include that amount.  

Finally it is argued that the Employment Tribunal failed in determining the remedy to consider the application for re-instatement or re-engagement.  In her originating application in Paragraph 10 the Appellant sought re-instatement or re-engagement and did not seek compensation only, and we are told that she asked for that before the Employment Tribunal.  The Employment Tribunal did not advert to that at all in their decision and we find that there is an arguable point of law that the Employment Tribunal erred in failing to evaluate that application.  On the face of it, it seems to us that that was, on the information before us at this stage, an application that had substantial merit.  We know that it is incredibly rare that the remedy of re-engagement and re-instatement is either asked for or awarded.  The irony of it is that when Industrial Tribunals were first established, that was an important remedy that was intended to be given.  On the face of the material before the following appears.  At the time of dismissal there was what the Employment Tribunal described as an impasse, an employee and employer were at odds as to the appropriate terms of hours of work. By the time of the hearing with hindsight it appears that the practical application of the new scheme introduced by the respondents had effectively eliminated any difference between employer and employee.  In those circumstances, we would have thought that there was a strong argument, and certainly an arguable point of law.  Bearing in mind the identity of the respondent in this case as a very long established, large and reputable and well known employer, we venture the proposition that this aspect of the case may be worth looking at whilst the listing for full appeal is taking place.  It appears that they lost an employee who had given them service for a large number of years for a reason, which was no longer a reason by the time of the Tribunal hearing.  

Accordingly this matter will proceed otherwise to a full hearing on the quantification of the compensatory award to embrace the enhanced redundancy payment; and secondly on issues relating to the claim for re-engagement or re-instatement.  It will be listed for a day in Category C skeleton arguments to be furnished not less than 14 days before the hearing.