Appeal No.	 EAT/747/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MR A D TUFFIN CBE

MR G L TREVETT	APPELLANT

ELECTRONIC INDUSTRIES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

The Appellant neither present, nor represented.		

JUDGE PETER CLARK:
1	This is an appeal by the Appellant, Mr Trevett, against part of a decision of the Southampton Employment Tribunal in this case, promulgated with extended reasons on the 29 April 1999, following a hearing held on 14 April.

2	At this preliminary hearing the Appellant relies on the written submissions submitted by his Solicitors under cover of a letter dated 12 October 1999, and we have taken those matters into account.

3	The Appellant’s complaint was one of Unfair Dismissal against his former employer, the Respondent, Electronic Industries Ltd.  At the material times in 1998 he was employed as Stores Manager and then as a Sales Representative.

4	On 26 October 1998 he was dismissed by reason of redundancy.  Before the Employment Tribunal the Respondent conceded that the dismissal was unfair.  There was no warning of redundancy or consultation, and no discussion with the Appellant as to alternatives to redundancy.  It also appears that there was no objective selection criteria applied.  

5	The question which then arose was how should compensation be assessed under Section 123(1) of the Employment Rights Act 1996, the compensatory award.

6	On behalf of the Appellant it was submitted on the authority of King v Eaton Ltd No. 2 [1998] ILR 686, a decision of the Court of Session, that the Tribunal was bound to fully compensate the Appellant for all losses flowing from his Unfair Dismissal.  On behalf of the Respondent it was contended that it was for the Tribunal to assess, in accordance with the House of Lords decision in Polkey v AE Dayton Services Ltd [1988] ICR 142, the percentage chance of his retaining employment in some and if so what capacity and at what salary level with the Respondent had a fair procedure been followed.

7	The Employment Tribunal preferred the Respondent’s submission and proceeded to find that there was a 70% chance that had a proper procedure been followed the Appellant would have been offered and would have accepted alternative employment with the Respondent as a Storeman at a lower salary than he had previously earned.  They proceeded to assess the compensatory award on that basis.

8	In this appeal the Appellant, through his Solicitor, repeats his submission made below, relying on King.  It seems to us that this Appeal Tribunal should carefully consider the true principles emerging from the case of King and analyse how far they are properly consistent with the House of Lords decision in Polkey and subsequent English authorities.

9	In these circumstances we shall allow this appeal to proceed to a full hearing.  The case will be listed for four hours, Category B.  There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged with this Tribunal at the same time.  We should add that those skeleton arguments should deal fully with all the relevant authorities since Polkey.  We hope that at the full hearing the Appellant will have the advantage of representation by either Solicitor or Counsel.