Cowley v Manson Timber Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE HOFFMANN |
| Judgment Date | 03 November 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1103-11 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | EATRF 93/1830/B |
| Date | 03 November 1994 |
[1994] EWCA Civ J1103-11
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Lord Coulsfield)
Before: Lord Justice Neill Lord Justice Hoffmann
EATRF 93/1830/B
MR T KIBLING (Instructed by Messrs Freeth Cartwright Hunt Dickins, Nottingham NG1 7DL) appeared on behalf of the Appellant
MR P LAWRENCE (Instructed by Messrs E King Manning, Nottingham) appeared on behalf of the Respondent
Thursday, 3 November 1994
The Appellant, Mr. Walter Cowley, was employed by the Respondent company, Manson Timber Limited, for nearly 21 years. He worked in the main as a forklift truck driver. At the beginning of 1991 the employers came to the conclusion that there was a need to declare redundancies. There had been a very serious downturn in trade and it was decided that two of the nine operatives employed by the company would have to be made redundant.
The process of selection was carried out by Mr. Manning, the Managing Director. He selected Mr. Cowley as one of the two men to be made redundant. The other man selected had been with the company for 29 years.
On Friday 1 March 1991, Mr. Manning saw Mr. Cowley in his office and told him he was being made redundant, and Mr. Cowley was handed a letter of dismissal. Mr. Cowley had been born in 1929 and so, in 1991 at the time of his dismissal, he was 62. Mr. Cowley went to see solicitors and, in due course, made an application to the Industrial Tribunal for a finding that he had been unfairly dismissed. In paragraph 11 of the form of application (IT1) he ticked the box which indicated that he wanted compensation and wanted to get an award of money. He did not seek reinstatement or re-engagement.
His application was heard by the Industrial Tribunal on 15 November 1991. The decision was sent to the parties on 30 December 1991. The Industrial Tribunal held that Mr. Cowley had been unfairly dismissed in that he had been given no warning, and that the matter had been dealt with with undue haste. The Tribunal further held however that, if the matter had been dealt with properly, the result would have been the same. It is sufficient to turn to paragraph 15 of the decision of the Tribunal which was in these terms:
"The finding of the Tribunal was that if this reasonable procedure had been adopted the result might well have been that Mr. Cowley would have worked a further 14 days before being declared redundant … the Tribunal awarded the applicant his wages for this 14 day period."
In the result, therefore, the award was the comparatively small sum of £283.20.
Mr. Cowley then appealed to the Employment Appeal Tribunal. A number of grounds of appeal were put forward. We are now only concerned with one of those. That was in these terms:
"The Industrial Tribunal misdirected itself in law in failing to explain to the Appellant (after finding that he had been unfairly dismissed) what orders for reinstatement or re-engagement could have been made, and further failed to ascertain whether the Appellant wanted such an order to be made…"
It was said that that failure was contrary to section 68(1) of the Employment Protection (Consolidation) Act 1978.
The appeal came before the Employment Appeal Tribunal on 5 November 1993. Judgment was delivered on 24 November. It was held that the undoubted failure by the Industrial Tribunal to comply with section 68 of the 1978 Act had not rendered the decision a nullity. An appeal has now been made to this Court which, with the written consent of the parties, has been heard by two Judges.
We have had the advantage of hearing the argument of Mr. Kibling on behalf of Mr. Cowley, who has obviously given a great deal of care and attention to this case and done a lot of research. In his carefully prepared submissions, he has drawn our attention to the history of the legislation and the history of section 68 of the 1978 Act. The statutory remedy for unfair dismissal was first introduced by the Industrial Relations Act 1971. At that stage, a complaint to an Industrial Tribunal was made under section 106 of the 1971 Act, and by section 106(4) it was provided:
"Where on a complaint under this section relating to dismissal the industrial tribunal -
(a)finds that the grounds of the complaint (as specified in paragraphs (a) to (c) of subsection (1) of this section) [and that included the nature of the dismissal] are well-founded, and
(b)considers that it would be practicable, and in accordance with equity, for the complainant to be re-engaged by the employer, or to be engaged by a successor of the employer or by an associated employer,
the tribunal shall make a recommendation to that effect, stating the terms on which it considers that it would be reasonable for the complainant to be so re-engaged or engaged."
Mr. Kibling points out that at that stage the statute was merely making provision for a recommendation to be made by an Industrial Tribunal. The concept of reinstatement as contrasted with re-engagement had not yet been introduced, and there was no provision in the statutory machinery that, if the recommendation for re-engagement was not given effect to, there would be any penalty imposed as a result.
The 1971 Act was in due course followed by the Trade Union and Labour Relations Act 1974. That Act reenacted section 106 with certain amendments and included for the first time the possibility of reinstatement. Reinstatement was introduced by a new section 106 which was substituted for the earlier section by paragraph 17 of the First Schedule to the 1974 Act.
The next statute was the Employment Protection Act 1975. That Act, as Mr. Kibling rightly pointed out, introduced a major change because it made provision, not merely for a recommendation, but for an order for reinstatement or re-engagement. The Act included provisions which have been substantially reproduced in section 68 of the 1978 Act. As they have been substantially reproduced, it is sufficient for me to turn next to the 1978 Act itself.
The Employment Protection (Consolidation) Act 1978 was, as its name indicates, a consolidation Act. It was the Act which was in force when the present proceedings were launched. Section 67 makes provision for a complaint to an Industrial Tribunal by any person who wishes to complain that he has been unfairly dismissed by his employer. In the group of sections which follow section 67 are set out the remedies for unfair dismissal. It is right to point out, as Mr. Kibling emphasised, that under this legislation the primary remedy for unfair dismissal is reinstatement or re-engagement.
Section 68 is in these terms:
"(1) Where on a complaint under section 67 an industrial tribunal finds that the grounds of the complaint are well-founded, it shall explain to the complainant what orders for reinstatement or re-engagement may be made under section 69 and in what circumstances they may be made, and shall ask him whether he wishes the tribunal to make such an order, and if he does express such a wish the tribunal may make an order under section 69."
Section 69 contains the provisions as to an order for reinstatement or re-engagement. Section 68(2) makes provision for what should happen if an order is not made under section 69. The subsection which has been amended in a manner which is not material for this case by the Employment Act 1982, was at the time in these terms:
"If on a complaint under section 67 the tribunal finds that the grounds of the complaint are well-founded and no order is made under section 69, the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with [sections 72 to 76], to be paid by the employer to the employee."
That therefore is the statutory scheme. One turns next to the provisions in section 69 relating to orders for reinstatement or re-engagement. It is to be noted that in section 69(5) it is provided:
"In exercising its discretion under this section the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account the following considerations, that is to say -
(a)whether the complainant wishes to be reinstated;
(b)whether it is practicable for the employer to comply with an order for reinstatement;
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement."
There are rather similar provisions in subsection (6), to which it is not necessary to refer in detail, to cover the...
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