Hughes v Jones (t/a Plas-Y-Bryn Nursing Home)

The Court of Appeal granted permission to appeal on the basis that an Employment Tribunal may not properly reduce a reinstatement or compensation award to nil where that reduction rests on later-available allegations supplied by questionnaires which were not tested at the hearing.

Where employers rely on post-dismissal information to justify a zero award, the tribunal must examine whether the employee had an opportunity to meet those allegations by cross-examination or other testing. Evidence derived solely from untested questionnaires is unlikely to justify a complete reduction in compensation.

The appellant, dismissed after an incident at work, challenged an Employment Tribunal award which found unfair dismissal but reduced compensation to nil.

The reduction relied in part on information contained in staff questionnaires which appeared to have been compiled after the dismissal and which were not the subject of oral evidence or cross-examination before the Tribunal.

The Employment Appeal Tribunal refused permission to appeal. The appellant sought permission from the Court of Appeal to challenge the Tribunal's reliance on the untested questionnaire material and the resultant zero award of compensation. The central issue was whether the questionnaires could justify a complete reduction in compensation where the employee had no opportunity to test the allegations.

1. Disposition: Permission to appeal was granted by the Court of Appeal.
2. Reasoning: The court considered it arguable that the Employment Tribunal erred in treating evidence from questionnaires as a sufficient basis for a 100% reduction of compensation when that evidence was not put to the appellant nor tested by cross-examination. The Court noted it may be permissible for an employer to rely on subsequently obtained information to argue for a reduction in compensation where it can be shown the employee would in fact have been dismissed shortly after the actual dismissal. However, where such material was not the subject of oral evidence, the Tribunal should consider whether the employee had an opportunity to meet it.
3. Procedural fairness: The court emphasised the requirement that allegations relied upon to justify a nil award ought to have been presented in a form that allowed the employee a proper opportunity to challenge them.
4. Practical observation: The court urged the parties to seek settlement or mediation to avoid the costs of a full appeal and possible further employment tribunal proceedings.
5. Order: Permission to appeal granted; permission to amend the appellant's notice granted; transcript to be supplied to parties at public expense.

1. Court of Appeal (Civil Division): Permission to appeal granted from the Employment Appeal Tribunal. [2002] EWCA Civ 346.
2. Employment Appeal Tribunal: Permission to appeal refused (as described in the Court of Appeal's reasons).