Appeal No. EAT/1035/93
	EAT/1036/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 May 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MRS E HART

	MR A D SCOTT

EAT/1035/93

MR B MONK	APPELLANT
	v

(1) J W COWARD LTD 
(2) ENM ENVIRONMENTAL MAINTENANCE LTD	RESPONDENTS

EAT/1036/93

ENM ENVIRONMENTAL MAINTENANCE LTD	APPELLANTS
	v

(1) MR B MONK (2) J W COWARD LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

EAT/1035/93

For the Appellant	MR D BROWN
(OF COUNSEL)
Messrs Lawford & Co
Solicitors
102-104 Sheen Road
Richmond
Surrey
TW9 1UF

EAT/1036/93

For the Appellants	MR D J CHALK
(REPRESENTATIVE)

	JUDGE PEPPITT QC:  We have before us both an appeal and a cross-appeal from two decisions of the Bury St Edmunds Industrial Tribunal sent to parties on 23 July 1993.  In both cases, unusually, the appeals are at the preliminary stage.  In its first decision the Tribunal found that the applicant had been unfairly dismissed.  In the second the Tribunal assessed the compensation consequently payable to the applicant

	The Tribunal found that the Second Respondents, ENM Environmental Maintenance Ltd, were the applicant's employers and held that the applicant had been unfairly dismissed on the grounds that he was selected for redundancy without reasonable consultation.  Mr Chalk on behalf of the employers, in what I would say (I hope without being patronising) was a most attractive address, attacks their finding on four grounds. 

	Firstly he says that the identity of the Second Respondents, as employers, was an issue before the Tribunal as to which both parties called evidence.  He submitted rightly that the proper approach of a Tribunal to such an issue should be that the primary facts which the Tribunal found should be assessed and a proper inference as to the identity of the employer should be derived from those findings.  Mr Chalk says that the inference which the Tribunal drew from its findings of the primary facts was an inference which was not there to be drawn and that accordingly the Tribunal's decision was perverse.

	On that submission we propose to say only this.  In paragraphs 6 to 10 of its decision on liability, the Tribunal found the material facts, accepted rightly that those facts provided pointers both for and against the Second Respondents being the applicant's employers and having analysed those pointers, came to the conclusion that the applicant had been employed by the Second Respondents. We can find no fault in the Tribunal's reasoning.  They were faced with a difficult issue to resolve, an issue which the Tribunal themselves described as "messy" and came to the conclusion on the facts which they found, that the Second Respondents were the applicant's employers.  In our judgment there was evidence which provided a basis for such a finding and accordingly this Tribunal has no jurisdiction to interfere.

	Mr Chalk's second point is in relation to the Polkey deduction which the Tribunal assessed as the value of the chance lost by the applicant by reason of the employers failure properly to consult him.  Of that finding Mr Chalk says that the Tribunal attached a 10% value to the fact that consultation did not take place.  In our judgment that was not what the Tribunal did.  The Tribunal, in applying the Polkey principle, were required to assess as best they could, the value of the chance with the applicant lost of retaining his employment had proper consultation taken place.  The Tribunal found, in paragraph 7 of their decision on remedy:

		"We are satisfied the likelihood is that there was no suitable vacancy for the applicant."

and in paragraph 8 further found:

		"While we are satisfied the likelihood is that there was no suitable employment that could be offered to him and which he would have accepted, we are not 100% satisfied.  We assess the position to be that there is a 90% chance that if there had been proper consultation he would have been fairly dismissed.  The 10% allows for the fact that there is uncertainty as to the position because of the absence of consultation having in fact taken place."

	It seems to us that that was an entirely correct approach on the part of the Tribunal.  They thought it likely that no amount of consultation would have preserved the applicant's job, but they were not sure that this would have been the position and so they allowed the applicant a very small proportion, 10%, of the compensation which he would otherwise have received.  We can find no fault with the Tribunal's reasoning and accordingly we reject the second of Mr Chalk's arguments.

	The third concerns the level at which the applicant's compensation was assessed.  The Tribunal based their assessment of compensation on the level of the applicant's remuneration before dismissal.  They no doubt did so because they were of a mind that the applicant would not have accepted a job at a lower rate despite his saying that he would at the time the matter came before the Tribunal.  It seems to us that that was an attitude which the Tribunal was wholly entitled to take.  It is very rare for this Tribunal to interfere with an Industrial Tribunal's assessment of remedy which must inevitably in cases such as this, be painted with a somewhat broad brush.  We find it quite impossible to say that no reasonable Tribunal could have assessed compensation on that basis.  

	The final submission of Mr Chalk was this.  He said that when considering what compensation to award under the principles of section 74 of the Act, the Tribunal were required to award such amount as they considered just and equitable in the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal.  This was a case where the Tribunal made an award on grounds of redundancy and an additional award on grounds of unfair dismissal.  Mr Chalk says that the Tribunal cannot have it both ways.  If it is assessing the loss to the applicant stemming from the employers' failure properly to consult him, and in so doing assessing the value of the chance which he lost of retaining his job had there been proper consultation, a Tribunal should not award in addition a sum reflecting the loss of the job by redundancy; or put another way, the fact of the redundancy payment should be reflected in the assessment of the Tribunal's compensatory award.

	In our judgment that submission is not well founded.  The applicant's entitlement to a redundancy payment is a statutory right based in the main upon his past service to the employers, in this case to the employers and to associate employers.  The right to compensation is also a statutory right and it seems to us that there is nothing wrong in principle with a Tribunal assessing the value of the lost chance of continued employment as this Tribunal did and at the same time giving the applicant compensation by reason of his redundancy.  It follows that in our judgment the employers' appeal does not surmount the hurdle created by this preliminary hearing and should accordingly be dismissed.

	Mr Brown, on the part of the employee, said that there were tactical reasons for the cross-appeal.  We think that whether or not that be the case the employee's attack on the Tribunal's assessment of the value of the lost chance at 10% falls into precisely the same difficulties as does Mr Chalk's.  We think that in the case of that appeal too the matter is not worthy of a full hearing and accordingly we propose to dismiss it at this stage.

	Accordingly both appeals will be dismissed.