Cave v Borax Europe Ltd

An employment tribunal may find a dismissal unfair because of procedural failures while concluding that proper procedure would have produced the same result. In such a case, the employee may recover no compensation for loss, applying Polkey v AE Dayton Services Ltd [1988] AC 344. An appeal on questions of fact does not raise a point of law merely because the appellant disputes the tribunal’s assessment of witnesses or evidence. A tribunal may criticise a witness while accepting that witness’s evidence.

The applicant was dismissed after a departmental reorganisation. An Employment Tribunal rejected his protected-disclosure complaint under section 103A of the Employment Rights Act 1996, found that the reason for dismissal was redundancy or, alternatively, some other substantial reason, but held the dismissal procedurally unfair. It nevertheless made a nil compensatory award because the proper procedure would have led to the same outcome.

The Employment Appeal Tribunal dismissed his appeal and refused permission to appeal. The applicant sought permission from the Court of Appeal, challenging factual findings, the alternative reason for dismissal, the nil award, the protected-disclosure findings, procedural fairness and the refusal of extended reasons.

1. Application dismissed. The applicant had no real prospect of success and there was no other compelling reason for the appeal to proceed.
2. The Employment Appeal Tribunal was entitled to reject grounds challenging the Employment Tribunal’s factual conclusions. The complaints about witness credibility, the admission or exclusion of evidence and the weight given to particular evidence did not disclose an error of law. There was no evidential basis on which the Court of Appeal could interfere with the tribunal’s assessment.
3. The tribunal’s primary finding was that the dismissal was by reason of redundancy. Its alternative finding that the reorganisation constituted some other substantial reason was therefore immaterial to the result. In any event, that alternative reason had been pleaded.
4. The nil compensatory award was consistent with Polkey v AE Dayton Services Ltd [1988] AC 344. Where taking the procedural steps omitted by the employer would not have affected the outcome, an employee may recover no compensation despite the finding that the dismissal was unfair. There was consequently no need to analyse the applicant’s statement of losses or apply a percentage reduction to compensation. The judgment also referred to Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91, which had been approved in Polkey.
5. The protected-disclosure claim failed because the tribunal rejected two alleged disclosures and found that the admitted safety concern had no connection with the dismissal. The tribunal was entitled to reach that conclusion on the oral evidence.
6. The refusal of extended reasons caused no material injustice. The applicant had failed to comply with the applicable time limit, and the EAT had nevertheless allowed an appeal on the available summary reasons.

• Court of Appeal (Civil Division): Permission to appeal from the EAT was refused and the application was dismissed.
• Employment Appeal Tribunal: By order dated 25 March 2002, the EAT dismissed the appeal from the Employment Tribunal and refused permission to appeal.
• Employment Tribunal: The tribunal dismissed the section 103A complaint, found the dismissal unfair under section 98, and made a nil compensatory award. Its review decision was subsequently rejected.