Appeal No.EAT/1154/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 January 2001

Before
MR RECORDER UNDERHILL QC
MS H PITCHER
MR N D WILLIS

IPC MAGAZINES LTD	APPELLANT

MISS A L CLEMENTS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR W DIAMOND
Representative
Heald House Cottage
Heald House Road
Leyland
Lancashire PR5 2JA	

MR RECORDER UNDERHILL QC

1	On 11 February 1999 the Employment Tribunal, after a 4 day hearing, found that the Applicant, the Respondent in this appeal, had been unfairly dismissed by IPC Magazines, who are the Appellants in this appeal, and ordered them to re-engage the employee by 1 April 1999.  

2	We do not have a copy of the Tribunal’s reasons on that occasion and we know only a limited amount about the issues on the question of unfair dismissal;  It is clear, however,  that the hearing involved hotly contested matters of fact, with allegations on the part of the employee that there was a conspiracy against her, which we are told that the Tribunal expressly rejected, and an allegation by the employer that the employee had written certain offensive anonymous letters: we are not clear what express finding the Tribunal made about that allegation, but it is clear that it did not regard it as justifying the employee’s dismissal or as preventing an Order being made for re-engagement on that occasion.  

3	The Respondent did not comply with the Order for re-engagement.  That matter came back before the Employment Tribunal on 4 August 2000.  The Tribunal heard evidence from Mr Leverett, the Respondent’s Head of Personnel, who had also been a witness on the first occasion, and also from the employee.  

4	In the result the Order which the Tribunal made was for a basic award of £440, a compensatory award of £12,000 and an additional award, in respect of the failure to re-engage, of £5,720.  The present appeal, as Mr Diamond who appears for the Respondent has confirmed (although it is not clear from the Notice of Appeal itself) is only against the additional award.  Mr Diamond submits that it was not open to the Tribunal to find, as it did, that the re- engagement of the Applicant, the employee, pursuant to its original Order, had been practicable.  

5	Mr Diamond advanced before the Tribunal, and advanced before us, on this preliminary hearing four principal grounds on which he says that it was impracticable, and the Tribunal should have so found, for the employee to be re-engaged.  

6	The first was that, as Head of Personnel, Mr Leverett would have had to have been involved with matters relating to the employee after her return - not just generally but because she had outstanding grievances at the time of her dismissal which presumably would have had to be dealt with on her return.  It is said that he would have found it impossible to deal with those grievances objectively, because he believed (Mr Diamond put it stronger, and said he ‘knew’ - but it does not matter which is the correct way of phrasing it) that she had lied about him at the initial hearing and attacked his professional integrity and he took strong personal exception to that.  

7	Secondly, he says that even though IPC is a large organisation, the idea, which he says must have lain behind the Tribunal’s reasons, that the employee could be engaged in another line management job where she would not come across people who knew her history was unrealistic.  He says that everyone knew her history, as a result of an e mail which Mr Leverett had circulated immediately after her dismissal. 

8	Thirdly, he says that during the course of Mr Leverett’s investigation following the dismissal, the employee alleged, as indeed she did at the Tribunal, that there had been a conspiracy to get rid of her, involving her immediate colleagues and the Personnel Department and Mr Leverett himself, and to fabricate evidence for that purpose.  He says that the Tribunal had expressly rejected that conspiracy theory, and the fact that she had made those allegations created an atmosphere where there could be no trust and confidence between her and her employer.

9	Fourthly, he says that the Tribunal had evidence of letters from other people, which Mr Leverett had received, following her dismissal, when she had in fact come back, unknown to him, to work in another part of the IPC organisation, objecting strongly to her as a colleague.  

10	Mr Diamond says that none of those points was dealt with adequately by the Tribunal.  We have looked carefully at the Reasons.  Although it is correct that not every point which Mr Diamond makes now, and which he says were made at the hearing (or sufficiently appeared  from Mr Leverett’s witness statement before the hearing) is specifically addressed in precisely the way in which it is now put to us, nevertheless it is clear to us that the Tribunal did have each of these points well in mind.  They are all referred to, sometimes expressly, sometimes by clear implication, in the recital of the facts and the evidence and/or in the part of the decision in which the Tribunal gives its grounds for rejecting the claim that it was not reasonably practicable to re-engage the employee.  

11	We do not therefore think that this can be said to be a case where the Tribunal failed to deal with points that were before it.  Once that point is reached, the question is then a pure question of fact and assessment for the Tribunal.  The Tribunal had well in mind the cases in which it has been held that the inevitable breakdown in confidence between employers and employee may be a ground for holding that it is not practicable to re-engage the employee, but its assessment was that this was not a case of that kind.  That was an assessment that it was entitled to make, and could not be challenged as a matter of law unless it was perverse.  We see no reasonable prospect that even if this matter proceeded to a full appeal, it could be established that the decision of the Tribunal was perverse.  It is clear to us that the Tribunal considered all the relevant matters, and did so carefully, and that is all that it is necessary to say to uphold its decision.  

12	Mr Diamond also says that this is a case falling within the principle of Meek v City of Birmingham Council where the employer was not given sufficient reasons to know why he had lost.  We are satisfied that that is not a fair criticism.  Although the Tribunal does not deal in detail with every point, it was not obliged to do so, and it is clear that it formed the view, which it was entitled to form, that none of the reasons advanced by Mr Leverett or Mr Diamond on behalf of IPC were sufficient to make it not practicable for re-engagement to proceed.  

13	In those circumstances we dismiss the appeal.