Port of London Authority v Payne

When considering re-engagement after unfair dismissal, an industrial tribunal must make an assessment of practicability before making an order. That assessment is necessarily provisional. The final question, whether the employer has shown that compliance was not practicable, arises if the order is not obeyed and is determined on the facts then known.

The tribunal has a wide discretion under section 69 of the Employment Protection (Consolidation) Act 1978, subject to taking account of the statutory considerations. At the later stage the employer bears the burden of proving non-practicability on the balance of probabilities. A tribunal must assess the evidence without substituting its own commercial judgment for that of the employer, but need not accept bare assertions. A week's pay for a special award can be calculated despite the omission of section 75A from Schedule 14's calculation-date provisions.

Nineteen dock workers, including seventeen shop stewards, were dismissed as redundant after abolition of the Dock Labour Scheme. The industrial tribunal found the dismissals unfair under section 59 of the Employment Protection (Consolidation) Act 1978. It ordered re-engagement of twelve applicants and later found that the Port of London Authority had not shown compliance to be impracticable. It also awarded special awards.

The Employment Appeal Tribunal set aside the re-engagement orders, holding that practicability had to be finally determined beforehand, and criticised the tribunal's approach to commercial judgment. It dismissed the appeal concerning the calculation of a week's pay. The central issues were the validity of the re-engagement orders, the stage-two practicability test, and whether a week's pay could be calculated for section 75A purposes.

1. Re-engagement orders. The appeal concerning the remedies decision was allowed by the Employment Appeal Tribunal on an erroneous basis. Section 69(6) requires a tribunal to determine or assess, on the evidence available, whether re-engagement is practicable before making an order. That assessment is provisional, rather than a final determination creating an estoppel or restricting the evidence available at the later stage. The tribunal must exercise its discretion and take account of the complainant's wishes, practicability and contributory fault, together with the statutory requirement concerning the terms of re-engagement.
2. Two stages of practicability. The first assessment looks forward when the order is considered. If the order is not complied with, the tribunal looks back at the actual circumstances under section 75A(2). At that second stage the employer bears the burden of satisfying the tribunal, on the balance of probabilities, that compliance was not practicable. The tribunal must not substitute its commercial judgment for management's, but the employer must provide evidence and cannot rely on bare assertions. The Industrial Tribunal applied that approach and was entitled to find that the Authority had failed to prove non-practicability.
3. Appellate function. The Court of Appeal's task was to decide whether the Industrial Tribunal's decision was correct, as a second-tier appellate court, rather than merely whether the Employment Appeal Tribunal's reasoning was correct.
4. Calculation of a week's pay. Although Schedule 14 did not expressly identify a calculation date for section 75A, the omission appeared to be an oversight. Paragraphs 3 and 7 supplied sufficient guidance for the necessary calculation. The cross-appeal on this issue was dismissed.

The Industrial Tribunal's remedies and practicability decisions were upheld. The Authority was awarded 50 per cent of its costs of the hearing, with no separate order on the cross-appeal.

• Court of Appeal: The Industrial Tribunal's remedies and practicability decisions were upheld. The cross-appeal on calculation of a week's pay was dismissed.
• Employment Appeal Tribunal: The appeal against the Remedies Decision was allowed and the matter remitted for rehearing. The appeal against the Practicability Decision was also allowed on the basis that the tribunal had substituted its commercial judgment for that of the employer. The appeal concerning the Compensation Decision was dismissed.
• Industrial Tribunal: The dismissals were found unfair. Re-engagement was ordered for twelve applicants, and the Authority was found not to have proved that compliance was impracticable.