Appeal No. UKEAT/0556/12/KN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 29 January 2013

Before
HIS HONOUR JUDGE PETER CLARK
MS V BRANNEY
MR P GAMMON MBE

MR D MALEKOUT	APPELLANT

 DR AHMED  DR MONTEIRO  DR QUERESHI 
(T/A THE MEDICAL CENTRE)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MILSON
(of Counsel)
(Appearing under the Employment Law Appeal Advice Scheme)	
For the Respondents	No appearance or representation by or on behalf of the Respondents	

SUMMARY
UNFAIR DIMISSAL
Reason for dismissal including substantial other reason
Polkey deduction

Procedurally unfair redundancy dismissal; 100 percent Polkey deduction. ET entitled to find (a) that reason for dismissal was redundancy (b) it was procedurally unfair and (c) it was inevitable that following a proper procedure a fair dismissal would have occurred at the same time as the original dismissal. Appeal dismissed. 

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This is an appeal by Mr Malekout, the Claimant before an Employment Tribunal sitting at East London against parts of that Tribunal’s Judgment dated 8 May 2012. Written reasons for that decision were given on 6 July. The Respondents are his former employer Dr Ahmed and others trading as The Medical Centre.

2.	The Claimant commenced employment with the Respondents at their Dagenham practice on 3 March 1995. He was dismissed on the Respondents case by reason of redundancy on 16 January 2009. It was the Claimant’s case that the reason for dismissal was his having made protected disclosures concerning extra hours payments made to the practice at the latest in May 2008. The Tribunal found that these were operational matters and not qualifying disclosures.  However, they went on to find as fact that nothing the Respondents did after May 2008 was connected with the disclosures relied on by the Claimant; see paragraph 26 of the reasons.

3.	On 17 May 2008 the Respondents employed Mr Kader, described as a trouble-shooter to replace the Claimant if he left the practice; the Claimant having earlier indicated in April that he was thinking of resigning. It seems that Mr Kader had an immediate positive effect on the running of the practice; see particularly paragraph 42. The Claimant decided to remain at the practice. As a result there were effectively two people for one job as Practice Manager. 

4.	The Respondents decided that the Claimant had to go and Mr Kader would stay. That, the Tribunal held at paragraph 56 amounted to a redundancy situation to use the loose term found in the old cases. That was the sole reason for dismissal. They found that the dismissal unfair; see paragraph 60. It was a pre-determined decision to retain Mr Kader and there was no genuine consultation with the Claimant prior to dismissal. However, on the facts the Tribunal found that had a fair procedure been followed the Claimant’s dismissal for redundancy, particularly in light of a mutual loss of trust and confidence between Claimant and Respondents, see paragraph 61, was ‘inevitable’. That expression is to be found at paragraphs 64 and 74. In these circumstances they applied a 100 percent Polkey deduction resulting in a nil compensatory award.  

5.	Before us at this preliminary hearing the Claimant has had the advantage of representation by Mr Milson of counsel under the ELAAS pro-bono scheme. We note that the Claimant was also represented by counsel, not Mr Milson below. Mr Milson has organised his submissions under two main heads having abandoned a point on the two weeks pay awarded for the Respondents’ failure to provide the Claimant with written particulars of his terms and conditions of employment. First, the question of protected disclosures and the redundancy reason for dismissal found by the Tribunal and, secondly, the 100 percent Polkey deduction.

6.	Dealing first with the question of redundancy, Mr Milson submits that there never were two jobs here at this practice, only one for a Practice Manager and in these circumstances this was not a redundancy within the meaning of section 139 of the Employment Rights Act 1996 as explained by the House of Lords in Murray v Foyles Meats [1999] ICR 827 approving my approach in Safeway Stores v Burrell [1997] ICR 523.  

7.	We cannot accept that submission. On the Tribunal’s findings the reason for employing Mr Kader in the first instance was the Respondents’ fear that the Claimant would resign and leave them without management of the practice. Having then two people in the post for effectively one job, it was inevitable that that situation would result in two employees being reduced to one. That is a diminution in the requirement for employees to carry out work of a particular kind within the meaning of section 139 ERA. Secondly he submits that the Tribunal have failed to deal properly with the question as to whether or not the Claimant made protected disclosures. We think that the findings of fact between paragraphs 20 to 26 sufficiently deal with that finding.  However, as we observed earlier, critically the Tribunal were satisfied that nothing that happened after May 2008 was in any way connected with the alleged protected disclosures.  It therefore followed that those disclosures did not form any part of the reason for dismissal and the reason or principal reason as found by the Tribunal was indeed redundancy.

8.	Turning then to the question of remedy the focus here is on the finding of a 100 percent Polkey deduction.  It is not suggested that such a finding cannot be made, rather that it could not properly arise on the facts of this case. Again, we disagree. The clear finding by the Tribunal, as we have indicated, is that given the choice between Mr Kader and the Claimant, the Claimant’s dismissal for redundancy was inevitable; see paragraph 64.  In these circumstances we return to the basis on which the dismissal was found to be unfair at paragraph 60, that the decision to retain Mr Kader was pre-determined and there was no genuine consultation with the Claimant.  This is not a case, compare for example Mining Supplies Longwall v Baker [1988] ICR 676 where no attempt was made at consultation and that a fair dismissal would have required further time for such genuine consultation to take place.  The finding here was that there was consultation but it was a sham.

9.	In these circumstances there is no basis for extending the dismissal date beyond 16 January 2009. The question is whether it was open to the Tribunal on these facts to find that a 100 percent deduction was appropriate. Given the clear finding that the selection of the Claimant was inevitable then a 100 percent finding necessarily follows. Far from being a perverse conclusion it seems to us to be an entirely rational determination by the Tribunal.

10.	It follows that having considered the way in which the case is put in the proposed amended grounds of appeal, we are not satisfied that this appeal raises any arguable point of law which ought to proceed to a full hearing, consequently the appeal fails and is dismissed at this preliminary hearing stage.