SUMMARY
UNFAIR DISMISSAL – Polkey deduction
AGE DISCRIMINATION – Dismissal
VICTIMISATION – Post-employment
FACTS
The employee was dismissed on grounds of
retirement, having reached an age over 65.
A failure by the employer to follow
statutory procedures in relation to age-related retirement led to findings by
an Employment Tribunal of unfair dismissal and of unlawful age discrimination.
The Employment Tribunal rejected a claim
for victimisation (in the form of giving an adverse reference in consequence of
the unfair dismissal claim being lodged) as the Equality Act 2010 did
not make a remedy available for post-employment victimisation: section 108(7).
THE APPEALS
The employer appealed from the failure
of the Employment Tribunal to make any deduction in the compensation awarded - to
reflect the likelihood of the employee being fairly dismissed had the correct procedures
been followed.
The employee cross-appealed from the
rejection of the victimisation claim and the Equality and Human Rights
Commission intervened in support of the cross–appeal.
RESULT
Appeal allowed for want of adequate
reasoning by the Employment Tribunal as to why no reduction in the compensation
had been made. Assessment of compensation remitted.
Cross-appeal dismissed. The 2010 Act
provides no remedy for post-employment victimisation.
MR RECORDER LUBA QC
Introduction
1.
By a unanimous Judgment of an Employment Tribunal sitting at Reading
(Employment Judge Hardwick and members), Mr Jessemey succeeded in a claim for
unfair dismissal and unlawful discrimination (on grounds of age) brought
against his former employers Rowstock Limited. However, both parties are
dissatisfied with the Tribunal’s judgment and have appealed to this Appeal
Tribunal. Mr Jessemey appeals from the refusal of the Employment Tribunal to
uphold a further claim he made arising from what he alleged was post-employment
victimisation. The employers appeal from the failure of the Employment Tribunal
to make any deduction from, or reduction in, the award of compensation to
reflect the fact that – as they assert - even if fair procedures had been
followed Mr Jessemey would inevitably, or very likely, have been dismissed a
few months later than he was.
2.
As will shortly become clear, the appeal by Mr Jessemey raises a point
of some considerable public importance such that the Equality and Human Rights
Commission was granted permission to intervene in his appeal. We have been
assisted by the oral and written submissions of the Commission and of both
parties.
The Background
3.
Rowstock Ltd sells and maintains Nissan motor cars. Mr Jessemey was
employed by the company as a car body repairer. His employment began on 5 March
2008. He reached the age of 65 on 17 January 2010. A year later, on 10 January
2011, a Director of the company – Mr Davis – told him that the company did not
wish to employ men over 65. He was given two weeks’ notice of termination of
his employment. As the company did not require him to work out his notice, he
was paid two weeks’ in lieu and did not return to the workplace. On 8 February
2011 the company gave a very poor reference about Mr Jessemey to an employment
agency, from which he had sought assistance in finding work.
4.
On Mr Jessemey’s making of a claim for unfair dismissal, the company
gave ‘retirement’ as the principal reason for his dismissal and conceded that
it had not (by reason of alleged ignorance) complied with the statutory
retirement procedures set out in the Employment Equality (Age) Regulations
2006.
5.
Before the Employment Tribunal, the company’s case was that if it had
complied with the requisite procedures Mr Jessemey would have lost his job in
any event some six months later on 10 July 2011. For Mr Jessemey it was said to
be wholly hypothetical that he would simply have been dismissed six months
later had the correct procedures been followed.
6.
Mr Jessemey also claimed that the poor reference had been given because
he had initiated his claim for unfair dismissal. He sought compensation for
that unlawful victimisation.
7.
Having heard evidence and submissions for both parties, the Employment
Tribunal held that the concession of the company in relation to the unfairness
of the dismissal had been inevitable and that the dismissal had been manifestly
and automatically unfair in that it was contrary to the Employment Rights
Act 1996 section 98ZG (Judgment para [5.1]). It rejected the argument that
the company ‘could’ have dismissed in any event by following the statutory
procedures (para [5.7]) and accordingly made no reduction to the compensation
payable in respect of the dismissal. As that dismissal had been by reason of
‘age’ the Employment Tribunal was satisfied that it amounted to an act of
unlawful age discrimination and it made an award for injury to feelings.
8.
In respect of the reference, the Employment Tribunal found that the poor
reference had indeed been given because Employment Tribunal proceedings had
been pursued and, further, that the content was such that no employer would
hire on such a reference (para [5.5]). However, it decided that it had no
jurisdiction to give any remedy for this victimisation because of the terms of Equality
Act 2010 section 108(7).
The Victimisation Appeal
9.
Equality Act 2010 section 108 is the opening section of Part 8 of
that Act. Part 8 is headed “Prohibited Conduct: Ancillary”. Section 108 is
itself entitled “Relationships that have ended”. It provides:
“(1) A person (A) must not discriminate against another (B) if—
(a) the discrimination arises out of
and is closely connected to a relationship which used to exist between them,
and
(b) conduct of a description
constituting the discrimination would, if it occurred during the relationship,
contravene this Act.
(2) A person (A) must not harass another (B) if—
(a) the harassment arises out of and
is closely connected to a relationship which used to exist between them, and
(b) conduct of a description
constituting the harassment would, if it occurred during the relationship,
contravene this Act.
(3) It does not matter whether the relationship ends before or
after the commencement of this section.
(4) A duty to make reasonable adjustments applies to A [if B is]
placed at a substantial disadvantage as mentioned in section 20.
(5) For the purposes of subsection (4), sections 20, 21 and 22
and the applicable Schedules are to be construed as if the relationship had not
ended.
(6) For the purposes of Part 9 (enforcement), a contravention of
this section relates to the Part of this Act that would have been contravened
if the relationship had not ended.
(7) But conduct is not a contravention of this section in so far
as it also amounts to victimisation of B by A.”
10.
As appears from the language used, the function of section 108 is to
extend the reach of the Equality Act into dealings between parties who were
previously in an employment or other relationship which has since ended.
Expressly applied to the post-relationship context are the prohibitions on
unlawful discrimination (subsection (1)) and harassment (subsection (2)).
Sub-sections (4) to (6) serve to extend the reach of other parts of the
statutory scheme into the post-relationship environment. But subsection (7)
appears to expressly dis-apply the concept of victimisation where a
relationship has ended.
11.
That was the construction put on the sub-section by the Employment
Tribunal. It held that, by reason of section 108(7), post-employment acts of
victimisation are “not rendered unlawful” by section 108 (Judgment para [5.6]).
12.
Mr Jessemey puts his appeal against that holding in these pithy terms:
“[He] contends that Section 108 cannot have been intended by
Parliament to remove post-employment victimisation and contends that, in any
event, this is rendered unlawful as discrimination for the reasons set out by
the House of Lords in Rhys Harper”
13.
The reference there being made is to the decision in Rhys-Harper v
Relaxion Group PLC which (together with the judgments in linked
appeals) is cited as [2003] UKHL 33 and reported at [2003] ICR 867. In those
cases the House of Lords was concerned with claims made under the Sex
Discrimination Act 1975, Race Relations Act 1976 and Disability
Discrimination 1995 in relation to acts of discrimination which had taken
place after an employment relationship had ended. The decision in those cases
was that, notwithstanding that the incidents of discrimination occurred after
the claimants’ employments had ended, the Employment Tribunal had jurisdiction
to hear their claims.
14.
Mr Jessemey did not (though his representative Mr Archer) seek to
develop this Ground of Appeal in his submissions or argument, preferring to
adopt the submissions and argument put forward by the Equalities and Human
Rights Commission in support of it. It was sensible of him to do so because the
material we received in writing and in oral argument from Mr Milsom, instructed
by the Commission, represented a tour de force, and amply developed
every aspect of the point that could possibly have been deployed in support of
the appeal.
15.
It was common ground before us that the remit of section 108 runs well
beyond the context of employment. It applies to all the other former relationships
– such as those arising in the provision of services, goods, and education – on
which the Equality Act 2010 might bite. If the Employment Tribunal was
right to hold that the Act gives no remedy for post-employment victimisation it
likewise fails to offer a remedy for victimisation in any other
post-relationship context to which the 2010 Act might otherwise apply. The wide
applicability of section 108, together with other reasons advanced in a witness
statement of Mr John Wadham, General Counsel to the Commission, amply explains
the Commission’s interest in the correct construction of section 108(7).
16.
Among those ‘other reasons’, was the need for consistency of approach.
The witness statement drew our attention to the decision of another Employment
Tribunal in Taiwo v Olagigbe (unreported, 2389629/2011).
In that case, Employment Judge Tsamados (sitting alone) had allowed a claim for
post-employment victimisation to proceed. He held that the exclusory provision
apparently contained in section 108(7) appeared to have been made “in error”
(at [57]). The error, he held, appeared to have occurred because “the drafters
believed that post employment victimisation was covered elsewhere in the Act” (at
[58]). The learned judge found himself able to correct the error by inserting
the words “current and/or former” before the word “employment” where it appears
in section 83(2)(a) of the 2010 Act.
17.
Mr Milsom invites this Appeal Tribunal to take broadly the same bold
approach as Judge Tsamados to statutory construction and interpretation.
18.
His submissions in support of such an approach took us first to the
decision of the Court of Justice in Coote v Granada Hospitality Ltd
[1998] ICR 100. That had been concerned with the reach of the then 1976 Council
Directive on Equal Treatment in the context of a complaint by Ms Coote that she
had been victimised by her former employer (in not providing her with a
reference because she had made a claim to an Employment Tribunal about her
dismissal). The effect of the judgment of the Court of Justice was neatly
summarised by Mr Justice Morison P in giving the judgment of this Appeal Tribunal
when the Coote case was remitted for determination. He said:
“First the Court reminded national courts that there was an
obligation on them, when applying national law, to interpret it, so far as
possible, in accordance with the wording and purpose of a Directive so as to
achieve the result pursued by the third paragraph of Article 189 of the Treaty
["a directive shall be binding, so far as the result to be achieved, upon
each Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods"].
Second, it concluded that by reason of article 6 of the
Directive Member States must take such measures as are sufficiently effective
to achieve the aims of the Directive and that the rights thus conferred can be
effectively relied upon before the national courts by the person affected.
Third, the principle of effective judicial control laid down in
Article 6:
‘would be deprived of an essential part of its
effectiveness if the protection it provides did not cover measures which, as in
the main proceedings in this case, an employer might take as a reaction to
legal proceedings brought by an employee with the aim of enforcing compliance
with the principle of equal treatment. Fear of such measures, where no legal
remedy is available against them, might deter workers who considered themselves
the victims of discrimination from pursuing their claims by judicial process,
and would consequently be liable seriously to jeopardise implementation of the
aim pursued by the Directive.’
...
In those circumstances, the answer to the questions put by the
national court must be that Article 6 of the Directive requires Member States
to introduce into their national legal systems such measures as are necessary
to ensure judicial protection for workers whose employer, after the employment
relationship has ended, refuses to provide references as a reaction to legal
proceedings brought to enforce compliance with the principle of equal treatment
within the meaning of the Directive."
19.
The learned President was there quoting from [24] – [28] of the judgment
of the Court of Justice. Although that case concerned the 1976 Directive no change
of course, Mr Milsom submitted, had occurred on the adoption of the subsequent
Equal Treatment Directive (2000/78/EC). He invited us to take the same approach
to interpretation as the Court of Justice had required in Coote.
20.
Ample support for that approach was given, Mr Milsom urged, by the
strong language in which the House of Lords had delivered their speeches in the
Rhys-Harper case and in the linked appeals. It is only necessary
to cite the following passage from Lord Nicholls’ speech (at [38]–[39]) when
addressing the proposition that the reach of the then anti-discrimination
statutes was de-limited by the ending of the employment relationship:
“If such a hard and fast line were drawn at this point it would
mean that the employee who asks for a reference before he retires from his
employment is protected but the employee who asks for a reference the day after
he left is not. It would mean that the employee who is dismissed with notice
and whose appeal is heard before his notice expires is protected against
discrimination in his recourse to the employer's appeal procedure, but the
employee who is dismissed summarily and without notice is not. It would mean
that retaliatory action taken by an employer before the contract of employment
ends is within the scope of the legislation, but retaliatory action taken
later, for instance, regarding bonus payments, is not.
This cannot have been the intention of Parliament. Dismissal is
one of the matters in respect of which discrimination is expressly prohibited by
the statutes. Parliament cannot have intended that this prohibition should
include an appeal decision regarding dismissal if the appeal is heard before
the dismissal takes effect but not if it is heard later. That would be palpably
absurd. Dismissal cannot have been intended to have such an artificially
limited meaning. Nor can it have been intended that reprisals may be exacted,
so long as they are postponed until after the employee has been dismissed. Nor
can a sensible distinction be drawn between giving a reference the day before
employment ends and giving a reference the day after.”
21.
As Mr Milsom submitted with justification, the majority in the House did
not “mince their words”. Among the effects of their judgment, he submitted, was
the consequential amendment of each of the three principal domestic
anti-discrimination statutes by SI 2003 No.1673. That, we were reminded, was
legislative amendment at the behest of the same Government as was to be
responsible for the introduction of the 2010 Act.
22.
The Commission’s case was that the 2010 Act had not been intended to
remove any of the protective provisions in the previous legislation. All that
had occurred was a recasting. The Act had not been preceded by a White Paper or
a Law Commission Report and nothing emanating from the sponsoring Government
department suggested that any reduction in scope was intended.
23.
Victimisation was moved from being a sub-species of the various forms of
discrimination into provisions which offered free-standing redress for acts of
victimisation. Mr Milsom took us through the relevant provisions of the 2010
Act. He emphasised that sub-section 108(7) had emerged only in a section itself
described as ‘Ancillary’. It could not, on his case, have been properly placed
there if its intended effect had been to remove any remedy for
post-relationship victimisation.
24.
The contrary was, he submitted, clear from the Explanatory Notes to the
2010 Act. We were shown paragraph [325] which provides, in relation to section
108:
“A breach of this section triggers the same
enforcement procedures as if the treatment had occurred during the
relationship. However, if the treatment which is being challenged constitutes
victimisation, it will be dealt with under the victimisation provisions and not
under this section.”
25.
Similar reliance was placed on the Commission’s own Employment Statutory
Code of Practice (on the 2010 Act) which was laid before and approved by
Parliament. Particular emphasis was put on paragraphs 1.12 and 9.4.
26.
In sum, Mr Milsom submitted that the literal words of section 108(7)
must have been enacted by what (intending no disrespect) he called a
“legislative blunder” - the terms used by Mr Wadham had included “drafting
error” - or what Judge Tsamados had simply described as “an error”. Mr Milsom submitted
in oral argument that any referral to the Court of Justice would be pointless.
The inevitable outcome, if this Appeal Tribunal itself held that the literal
sense of the words prevailed, would be (as Mr Crosfill accepted) a finding that
the UK was out of compliance with the requirements of EU Directive(s). If this
Tribunal so held, the Government would simply have to introduce an amendment to
the Act to achieve compliance.
27.
Having reached this point in his submissions, Mr Milsom then strove to
identify a means by which this Appeal Tribunal might, through a particularly
broad approach to the task of statutory construction and/or interpretation,
render such an amendment unnecessary.
28.
Before turning to those submissions, we note that Mr Crosfill –
appearing for Rowstock - did not demur from the proposition that a strict
interpretation of section 108(7) would mean that the UK Government was in
breach of the relevant EU Directive(s). But on his argument, to which we intend
no disrespect by summarising it shortly, there had been no legislative
‘accident’. Mr Crosfill submitted that the 2010 Act reflected the history of
the development of anti-discrimination in this country - and in the EU - in
requiring a nexus between any unlawful act of a former employer and the actual relationship
of employer and employee. The plain function of section 108 was to make
provision for the application of some parts of the new statutory rubric of the
2010 Act to post-relationship situations. It spelled out, in terms, the
circumstances in which the provisions relating to discrimination and harassment
would bite in such cases. Like the body of the remainder of the Act, section
108 dealt separately with discrimination, harassment and victimisation. Where
it applied, it gave rise to new causes of action and remedies for them (see
sections 109-111). However, by virtue of section 108(7) no cause of action
arose in respect of post-employment victimisation and no remedy was provided
for it. The Employment Tribunal had been right to apply the words as they stood
and to hold that the Act had enacted no remedy for post-relationship
victimisation.
Discussion and Conclusion on Victimisation
29.
We are amply satisfied that the effect of the literal words of section
108(7) is to produce a lacuna in the statutory scheme of protection from
discrimination, harassment and victimisation which the UK is required by EU legislation to enact. The history from Coote to the 2010 Act
demonstrates that it is highly unlikely that it was ever intended to legislate
away (or fail to make provision for) any redress for post-employment
victimisation.
30.
The more difficult question has been whether it is legitimately within
the judicial function, or more specifically the power of this Appeal Tribunal,
to plug the gap or eliminate the lacuna.
31.
We were rightly reminded by both counsel that we are not construing a
consolidating Act (to which special rules of construction and interpretation
might apply). As its long title indicates, the 2010 Act was introduced “…to reform
and harmonise equality law and restate the greater part of the
enactments relating to discrimination and harassment related to certain
personal characteristics; [and] ….to prohibit victimisation in certain
circumstances….”. The emphasis in that extract is our own.
32.
Mr Milsom took us to the Court of Justice decision in Kucukdeveci
v Swedex GMBH [2010] IRLR 346 for the proposition that,
in relation to anti-discrimination measures, national courts must strive to do
all they can to interpret domestic statutory schemes in a way compatible with
applicable EU Directives. Further, that if that compatibility cannot be
achieved, the domestic court must dis-apply the incompatible provision. We were
shown the decision of Mr Justice Underhill P in EBR Attridge LLP v
Coleman [2010] ICR 242 taking that sort of approach – stepping beyond
the strict limits of domestic principles of statutory construction – in order
to read words into legislation in order to achieve conformity with Community
law.
33.
As to the correct limits of this flexible interpretive approach, both
counsel relied, unsurprisingly, on different passages from the decision of the
House on Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557. That
case was concerned with the extent to which domestic courts are now free to
take a more purposive approach to statutory construction and interpretation so
as to enable domestic statutes to be read compatibly with overarching
anti-discrimination provisions (such as, in that instance, Article 14 of the Human
Rights Act 1998 Schedule 1).
34.
Tempting as it would be to adopt the approach of Judge Tsamados, and
avoid the strictures of section 108(7) by reading prior employment-related
provisions in the 2010 Act as including additional words extending them to the
post-employment scenario, we were persuaded by Mr Crosfill’s closely argued
submissions that such a course would represent an incomplete recasting of the
2010 Act. As already emphasised, the reach of section 108 runs well beyond
employment relationships. If some ‘recasting’ could be justified in respect of
employment or former employment relationships, how should the Act be recast to
embrace victimisation arising after, and referable to, other relationships?
Even confining the judicial ‘amendment’ to employment relationships is not
possible without creating knock-on effects. The definition of ‘employer’ would
need modification throughout to embrace a ‘former employer’. And what of the
provisions relating to ‘contract workers’ (section 41) and ‘partners’ (section
44)? Would they too not need ‘rewriting’?
35.
We are reminded of the powerful injunction in the speech of Lord
Nicholls in Ghaidan at [33] that the judicial role is not one
geared to amendment of primary statutes. His Lordship said:
“Parliament, however, cannot have intended that in the discharge
of this extended interpretative function the courts should adopt a meaning
inconsistent with a fundamental feature of legislation. That would be to cross
the constitutional boundary section 3 seeks to demarcate and preserve.
Parliament has retained the right to enact legislation in terms which are not
Convention-compliant. The meaning imported by application of section 3 must be
compatible with the underlying thrust of the legislation being construed. Words
implied must, in the phrase of my noble and learned friend Lord Rodger of
Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have
intended that section 3 should require courts to make decisions for which they
are not equipped. There may be several ways of making a provision
Convention-compliant, and the choice may involve issues calling for legislative
deliberation. [emphasis added]
36.
Essentially we have to decide on which side of the Ghaidan
‘line’ this case falls. We remind ourselves of the actual wording of section
108(7) – while remaining careful to see it in the statutory context in which it
appears. The subsection says:
“(7) But conduct is not a contravention of this section in so
far as it also amounts to victimisation of B by A.”
37.
We are, in effect, being invited to hold that it means the exact reverse
of what it says so that it should be understood to mean:
“(7) Conduct is also a contravention of this section in so far
as it also amounts to victimisation of B by A.”
38.
We are unanimously of the view that such a reading - or indeed any
interpretation of that subsection which has the effect of creating a cause of
action for post-relationship victimisation - would be an interpretation flying
directly in the face of what Parliament has actually enacted in section 108 (whether
for ‘good’ reason or ‘bad’ reason or through error or inadvertence). That would
represent a “Rubicon which the courts may not cross” (per Lord Steyn in Ghaidan
at [49]) and we cannot legitimately “repeal, delete, or contradict the language
of the offending statute” (per Lord Millett at [68]). Although those words were
uttered in the context of the interpretative jurisdiction in section 3 of the Human
Rights Act 1998, the dicta in Ghaidan illuminate each
side of the pathway containing the correct approach to the interpretation of
anti-discrimination legislation, as Underhill P explained in Coleman
(even if following that pathway in that case enabled him to produce a Community
law compliant result). We have been unable to hold that the pathway can be
followed by us to produce such a result in the instant case.
39.
This is simply not a case, like Rhys-Harper, of
extrapolating from a statutory scheme of protection for employees, remedies for
post-employment misconduct. The instant situation is one in which express
provision has been made for the post-relationship landscape but subject to an equally
express exception in the case of victimisation. In such a situation no
judicial tool is available to make available a remedy which the words used by
Parliament have simply stated shall not be available.
40.
It follows that the judgment of the Employment Tribunal in rejecting Mr
Jessemey’s post-employment victimisation case must be upheld and his appeal
(actually pursued by way of a cross-appeal) on this point must be dismissed.
The only other ground of appeal that he advanced having been withdrawn with our
leave, his appeal fails.
The Employer’s Appeal
41.
Rowstock Ltd assert that the Employment Tribunal erred in failing to
limit the compensatory award made in respect of Mr Jessemey’s dismissal by
reference to the familiar rule established in Polkey (Polkey
v A E Dayton Services Ltd [1988] 1 AC 344). That rule is to the effect that
where a dismissal has been unfair, the Employment Tribunal can have regard to
the likelihood that the employee would in any event (or may well) have been
fairly dismissed. This had been Rowstock’s contention before the Employment
Tribunal as to the compensation payable in respect of both dismissal and
discrimination.
42.
The first Ground of Appeal contends that the Employment Tribunal must
simply have treated itself as unable to apply a Polkey approach,
under the misapprehension that it had no application in a case of a dismissal
rendered automatically unfair by statute or in a case of unlawful
discrimination. The second Ground is that, even if they took the right approach
in law, their reasoning does not adequately explain why the employer’s case on
Polkey was rejected.
43.
The Employment Tribunal’s reasoning on this point is set out in their
judgment in the following terms (at para [5.7]):
“5.7 As regards compensation for unfair dismissal we reject the
Respondent’s argument that the Claimant could have been dismissed by adherence
to the statutory procedures. We prefer the evidence of the Claimant in
relation to the casual conversation with Mr Spiers that in effect there was no
need to worry because there were no procedures. A letter was put in from Mr Spiers
(D39) stating his version of the conversation was that he told the Claimant
that the company did not engage manual workers after the age of 65. The
Respondent did not field Mr Spiers to give evidence. In any event this is at
odds with the assertion of Mr Davis that it was agreed that his employment
would continue for a further 6 months. Indeed the Company Secretary, having
been approached by the Citizen’s Advice Bureau on 14 January (D32), stated “the
company did not employ manual workers after the age of 65 for health and safety
and quality reasons”. This is at odds with any arrangement that the Claimant
would stay on for 1 year only. We consider that the decision to terminate the
Claimant’s employment arose only around the end of 2010/2011 and the Claimant
was simply given 2 week’s notice. In our view the Claimant was a credible
witness and we preferred his version.”
44.
Mr Archer, for Mr Jessemey, submits that this reasoning demonstrates
that the Employment Tribunal engaged with the Polkey point and
decided, having regard to the specific facts of the case, that a full compensatory
award should be made. Although he was prepared to concede in argument that the
Employment Tribunal’s reasoning on the point is “not clearly set out” he urged
that its decision should not be disturbed.
45.
We can deal with this aspect of the appeals before us relatively
shortly.
46.
If and in so far as the Employment Tribunal considered that Polkey
had no application to this class of case, it was in error. That much is clear
from the recent decision of this Appeal Tribunal in Compass Group v
Ayodele [2011] IRLR 802 (in relation to automatically unfair dismissal)
and of the Court of Appeal in Abbey National PLC v Chaggar [2010] ICR 397 (in relation to discrimination).
47.
From the language used in the Judgment at [5.7] it is at least possible
that the Employment Tribunal was correctly directing itself in accordance with
those decisions but we are satisfied that, even if it was, its reasoning fails
to explain why it had decided not to limit the compensation in this case by
reference to the Polkey principle.
48.
It had found that the reason for dismissal was retirement and that the
employer had unfairly failed to adopt statutory procedures that might have
enabled a fair dismissal on that very ground some six months later. It awarded
compensation for a period of over 14 months.
49.
The starkest fact in favour of the contention that Rowstock would have
dismissed in any event at the first opportunity properly available was
that Mr Davis had actually decided to peremptorily dismiss Mr Jessemey even
earlier than the law had permitted him to do so fairly. The critical issue
was whether, but for the want of compliance with the proper process, Mr
Jessemey would very likely have been dismissed six months later or whether, in
the course of the procedures required by law, Mr Davis could have been
dissuaded from the path he manifestly intended to take.
50.
In our judgment, faced with that issue, the Employment Tribunal was
wrong to focus its reasoning on the credibility of the competing accounts as to
what had been said to Mr Jessemey pre-dismissal. The apposite question turned
on the significance of the fact of the actual dismissal itself and the reasons
for it. The focus of the Employment Tribunal’s reasoning should have been on
whether such a dismissal could, and in the particular circumstances of this
case would, have likely followed had the proper procedures been applied.
51.
Mr Crosfill submitted that if, as we have found, the Employment
Tribunal’s reasoning came up short on this point the consequence should be
remission to a different Tribunal. We do not accept that submission as we see
no justification for that approach. In our judgment, the proper course in this
case is to remit the questions of compensation to the same Employment Tribunal and
that is the order we shall make.
Outcome
52.
For the reasons we have given, the orders we make are that the appeals
of Rowstock Ltd and Mr Davis are allowed. The appeals made by Mr Jessemey are
dismissed. The assessment of compensation is remitted to the same constitution
of the Employment Tribunal (if that can be practicably assembled) for re-determination.
53.
Plainly, the section 108(7) point is one of some general importance on
which there is no Court of Appeal authority. We grant permission to appeal on
that point only, should Mr Jessemey wish to pursue it further.
