Appeal No.	EAT/1017/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 2000

Before
MR RECORDER BURKE QC
MR P DAWSON OBE
MR J HOUGHAM CBE

(1)	MR M THORNE
(2)	MISS L ROLFE	APPELLANTS

THE RIVERSIDE CENTRE LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS K LADVA
(Advocate)
Instructed By:
The Employment Law Service
Wembley Law Chambers
38 Napier Road
Wembley
Middx HAO 4UA	
For the Respondents	MS P SZATTER
(Solicitor)
Instructed By:
The Legal Services Manager
Isle of Wight Council
County Hall
High Street
Newport
Isle of Wight
PO30 7UD	

	MR RECORDER BURKE QC:

1	This is an appeal by two Appellants, Mr Thorne and Miss Rolfe, from the decision of the Employment Tribunal at Southampton, chaired by Mr Cowling and promulgated with Extended Reasons on 7 July 1999.  

2	Both Appellants were employees of the Respondents, a registered charity, providing facilities in Newport, Isle of Wight, for the integration of disabled and non-disabled people and, as we have been told today, for other purposes connected with the furthering of the interests of those who are disabled.

3	Mr Thorne was employed from August 1990, latterly as Finance Manager.  Miss Rolfe was a Receptionist and Booking Clerk and employed as such from February 1995.  Each was dismissed on the grounds of redundancy in October 1998 as a result of a restructuring.  Each claimed unfair dismissal and Miss Rolfe also claimed that she had been the subject of discrimination on the grounds of her sex.

4	The Tribunal heard evidence over four days in April, May and June 1999.  It concluded that the Appellants had been unfairly dismissed because there had been inadequate consultation.  Indeed, on the Tribunal’s findings, there had been very little which could be called consultation at all.  It dismissed Miss Rolfe’s sex discrimination claim.  There is no appeal against either of these decisions by any of the parties.

5	The Tribunal went on in the same decision to consider remedies.  There is no reason for us to refer to its decision as to basic awards.  As to compensatory awards, the Tribunal awarded Mr Thorne four weeks’ pay on the basis that proper consultation would have had no effect save that it would have delayed the falling of the axe by a period of four weeks which would have been, the Tribunal thought, an appropriate period for proper consultation.  They therefore awarded Mr Thorne four weeks’ net pay.  

6	In the case of Miss Rolfe the Tribunal by a majority concluded that the Respondents had made her an offer of suitable alternative employment as a Development Manager on a project called “The Honeyhill Project” which was offered, according to the findings of the Tribunal, on no less favourable terms than those she had enjoyed in the job which was disappearing as a result of the restructuring, subject to an induction period of one month and subject to a one month trial period which, we understand, to have been a trial period for Miss Rolfe rather than a trial period for the employers.  The majority regarded this offer as suitable.  They concluded that she should, in the circumstances, have accepted it.  The minority Member regarded the offer as unsuitable for reasons which he set out.  The offer was made early in October, when Miss Rolfe was told that she would be made redundant from the next day.  She went home ill and was certified ill for a period thereafter which is, on the information before us, of uncertain length; but she appears to have remained off ill during the period which followed before eventually, two weeks or so later, she rejected the offer of alternative employment.  

7	In the case of Mr Thorne, an offer of alternative employment may have been made but nobody suggests now that it was an offer which he could or should have accepted.  He, we are told, believes that he should have been offered the post of Catering Manager.  There is discussion in the decision as to the suitability of the job of chef; but there is no finding as to whether there was or was not the job of Catering Manager available to him or whether that would have been a suitable job for him.  

8	There are two grounds of appeal.  The first, very unusually, relates to the assertion on behalf of the Appellants that they did not address the Tribunal, either by way of submissions or by way of evidence, on the issue of remedies at all.  The second is that the finding of the Employment Tribunal, by a majority in Miss Rolfe’s case, that she had been offered suitable alternative employment was perverse.  We refer first to the first ground of appeal.

9	The facts of what happened appear to be as follows.  During the course of the hearing it became clear that it was going to take rather longer than was originally expected.  It was expected to be a two-day case; it turned out to be a four-day case.  We are not sure precisely why that was; but there is no suggestion that anybody was wasting time; and the inter-relationship of the various issues may well have been quite complex.  

10	According to the advocate who has appeared today on behalf of the Appellants, Ms Ladva, those then appearing for the Appellants had no idea that the Tribunal was intending to embark, when the evidence was over, not only on a decision as to whether there had been unfair dismissal but also on a decision, if there was unfair dismissal, as to remedies.  It certainly was not clear that the Tribunal were going to be dealing with both, so we are told; and it is common ground that the Tribunal at no time indicated that it was going to be dealing with both, expressly.  Thus, it is said on behalf of the Appellants, the Appellants’ case was not put forward on the basis that the Tribunal was dealing with remedies.  Evidence on remedies was not proffered and no submissions were made as to what the consequence in terms of remedies should be if unfair dismissal was established.

11	Ms Szatter on behalf of the employers, who has appeared in front of us today and appeared in the Tribunal below, accepts that the Tribunal did not expressly indicate that it intended to deal both with the unfair dismissal issue and the sex discrimination issue and remedies thereafter all in one judgment or, indeed, that it believed itself to be hearing evidence on the issue of remedies during the course of the evidence which it received.  The Tribunal itself, as a result of a request made by His Honour Judge Pugsley and his colleagues who heard the preliminary hearing of this appeal, set out its views in a letter to this Appeal Tribunal dated 2 February 2000.  It said:

“The Employment Tribunal did not hear evidence or entertain submissions dedicated specifically to the question of remedy in this case.”

12	Ms Szatter accepts that the submissions for the Appellants did not address the question of remedy at all.  When the submissions were concluded the Tribunal did not jog the advocate for the Appellants or, indeed, either Appellant, by referring to the fact that they intended to deal with remedies; nothing at all was said.  Ms Szatter says there was a common understanding that they were going to deal with remedies; but when we asked her some questions about whose common understanding she was referring to it turned out that she was referring to a common understanding between herself and her clients, and not to any common understanding between herself and the advocate then appearing on behalf of the Appellants.  Thus the Appellants’ side did not know from the Tribunal that it was proposing to deal with both the substantive issues and remedies.  Neither advocate asked the Tribunal what it was going to do in this regard and the Tribunal made no comment about it.  It is clear to us, because no submissions were addressed on the question of remedies, nor, it seems, any direct evidence presented on that issue that the Appellants’ side plainly believed that remedies were not at that stage in issue.

13	In Duffy v Yeomans & Partners [1993] IRLR 368 this Appeal Tribunal, presided over on that day by His Honour Judge Peppitt, dealt with an appeal in which they had to consider questions arising out of a Tribunal’s decision that there had been no unfair dismissal and questions arising out of the same Tribunal’s decision that, if it was wrong in so deciding and the Applicant in that case was unfairly dismissed, the Tribunal would award no compensation.  The Applicant appealed against both limbs of that Tribunal’s decision.  The Employment Appeal Tribunal dismissed the employee’s appeal against the finding that he had not been unfairly dismissed; but it went on to deal with the position which arose in that case, which was very similar to that which arose in this case.  In that case too, it emerged that the representative of the Applicant was under the impression that the Tribunal was only going to consider the issue of unfair dismissal, and was not going to receive evidence and argument on the question of remedies so that no evidence and argument was put forward on behalf of the Applicant on the question of remedies.  The Employment Appeal Tribunal on that point said this, at paragraph 19 of its decision:

“… it is not strictly necessary for us to consider Mr Kerr’s appeal against the second part of the Tribunal’s decision but in view of the careful arguments which he advanced to us we propose to state our views shortly upon it.”

14	The Tribunal then set out the arguments put forward on both sides and, having recorded the acceptance by the Respondents’ representative that, in the circumstances which we have described, he could not contend that the Tribunal’s decision on that part of the case could be sustained, the Tribunal went on to say:

“… We agree,  We would only add that it is in our view essential that before embarking upon a consideration of remedies the Tribunal should satisfy itself that the parties appearing before it have been given the opportunity to call evidence and to make submission on that issue.  If that necessary step is not taken the Tribunal’s decision on remedies may, as in this case, be subject to an appeal.”

15	Ms Szatter on behalf of the Respondents today quite rightly draws our attention to the fact, as indeed the Appeal Tribunal in Duffy’s case itself made clear, that its expression of views, which I have set out, was not necessary for the decision and was therefore obiter dicta.  Because it is obiter dicta and indeed, is a decision of this Tribunal, it is persuasive but not binding on us.  However, it seems to us to be manifestly correct.  If a party is not given the opportunity to call evidence and to make submissions on the issue of remedies, because it is not made clear that the Tribunal is intending to deal with both liability (if we may so call it) and remedies, then something necessarily has gone seriously wrong and an error of law appears to have occurred.  In Harvey on Industrial Relations of Employment Law, Section T, paragraph 896, the learned authors say:

“In unfair dismissal cases, the issues of liability and remedy may be dealt with in one of two ways, and it is advisable for the parties to ascertain from the tribunal at an early stage which course it proposes to adopt in the instant case.  On the one hand, the tribunal may hear evidence relating to both issues at a single hearing, so that if it concludes that the applicant has been unfairly dismissed, it is then able to make a finding as to the appropriate remedy without the necessity of a further hearing.  This is the invariable practice in Scotland, but it is also adopted in England and Wales in more straightforward cases.”

We interpolate that a four-day hearing involving contested evidence about unfair dismissal and sex discrimination may rightly be seen as not being necessarily a straightforward case.  To continue:

“Where this course is taken, it is, however, essential that the parties are given the opportunity to call evidence and make submissions on the question of remedies before a decision is reached on this issue.”

16	In our view what happened in this case deprived the Applicants (the Applicants there, the Appellants here) of the opportunity of making submissions on remedies and putting forward evidence on remedies; and that deprivation should not in law have occurred.

17	We have heard a number of submissions as to whether or not, had the Appellants’ representative put forward such evidence and remedies and submissions on the remedies issue, the decision that the Tribunal would have reached could have been any different.  Having considered those arguments and considered the findings that the Tribunal made, we do not believe that it is open to us to conclude that it was impossible, or wholly unlikely, that such evidence and such submissions would have led or could have led to a different conclusion, either in Miss Rolfe’s case or Mr Thorne’s case; and that being so, we see no alternative but to allow this appeal and to remit it to the Tribunal to hear and adjudicate upon the question of remedies anew, hearing such evidence and such submissions as both parties wish to put forward.  Because this matter is going to go back to the Tribunal, we do not think it would be helpful to set out any reasons on the facts why we conclude that it is not impossible or unlikely that a different result could have been achieved.

18	The second ground of appeal relates to the findings that the job offer, which Ms Rolfe rejected, was one which she should have accepted and that her rejection of it was unreasonable.  In effect what the Tribunal was there saying was that she failed properly to mitigate her loss.  Since her representative did not understand that remedies were being addressed, it is possible, if not likely, that that matter was not fully the subject of evidence or submissions; and it is unnecessary for us to deal with the second ground of appeal because that is a matter which will be encompassed within the remission to the Tribunal which we have already indicated should take place and therefore, we do not make a decision about that.  That is a matter for the Tribunal if and when it hears this matter again.

19	We are not going to say that this remission should be to the same Tribunal or to a different Tribunal.  We remit it to the Tribunal and it will be for the Tribunal administratively to decide who it is who should hear the remitted matter.  

20	Finally, we would say this to the parties, and say it earnestly as we can; the amounts at stake here are not likely to be very high.  Neither Miss Rolfe nor Mr Thorne, nor for that matter the Riverside Centre Ltd, is likely to be in a favourable economic position.  We would urge them therefore, and we have no power to do more (and one wonders whether we have the power even to do that but we are going to do it nonetheless) to do all they can to seek to avoid another hearing by achieving a settlement and if they cannot achieve a settlement between themselves, to consider and explore the possibility of mediation.  The appeal will be allowed as we have indicated.