Strand Transport Services Ltd v Whitworth

In an unfair dismissal case, the Polkey question is fact-specific. The tribunal must assess whether, on the circumstances known to the employer at dismissal, a fair procedure would probably have made no difference. If so, the compensatory award may be reduced or eliminated.

An appellate court reads the tribunal’s reasons as a whole and in their factual and legal setting. A short or imperfectly arranged passage is not an error of law if the basis of the decision is sufficiently clear. A late, unpleaded hypothesis unsupported by credible evidence cannot establish the counterfactual.

The Manchester Employment Tribunal upheld Mr Whitworth’s claim for unfair dismissal and awarded him £21,219.60. It rejected Strand’s pleaded redundancy case, including centralisation and the alleged impact of its FLEET IT system. It also rejected a later contention that the General Manager’s responsibilities had been absorbed by depot managers.

The Employment Appeal Tribunal dismissed Strand’s appeal at a preliminary hearing under UKEAT/0381/08/RN. Strand appealed to the Court of Appeal, arguing that the tribunal had inadequately reasoned its rejection of the Polkey argument and that the case should be remitted. The central issue was whether the tribunal’s reasons, read as a whole, sufficiently explained its decision.

1. Appeal dismissed. The Court of Appeal announced a unanimous decision to dismiss the appeal. Strand was ordered to pay Mr Whitworth’s appeal costs, assessed at £7,129.54, with enhanced interest following a Part 36 offer.
2. Approach to tribunal reasons. A judgment under appeal must be read in its entirety and in its proper legal and factual setting. Isolated passages should not be subjected to overcritical analysis. Although the Employment Tribunal’s brief reference to the absence of evidence was less satisfactory when read alone, the judgment as a whole adequately explained the rejection of Strand’s case.
3. Polkey assessment. The Polkey principle, stated in [1988] 1 AC 344, requires the tribunal to decide, in the particular case and by reference to circumstances known at dismissal, whether a fair procedure would probably have made no difference. Strand’s argument depended on its having considered and discussed the alleged absorption of the General Manager’s responsibilities before dismissal.
4. Evidence and unpleaded case. That alleged ground was absent from the dismissal reasons and the ET3, and emerged only during the hearing. The tribunal found that it had not been discussed with Mr Whitworth, found no support for it in the relevant meeting notes, and rejected the evidence of Strand’s witnesses. Its statement that there was no evidence meant that no relevant facts had been established by credible evidence. The counterfactual was therefore unsupported and contradicted Strand’s own account of what had been considered at the time.
5. The Employment Tribunal had not erred in law or reached a perverse conclusion. The only sustainable criticism concerned the arrangement and expression of parts of its judgment, which did not justify appellate intervention. Strand’s reliance on section 98A(2) of the Employment Rights Act 1996 did not alter the result.

1. Court of Appeal (Civil Division): Appeal dismissed unanimously under [2009] EWCA Civ 858.
2. Employment Appeal Tribunal: Preliminary appeal dismissed on 2 December 2008 under UKEAT/0381/08/RN.
3. Employment Tribunal, Manchester: Claim for unfair dismissal upheld on 23 May 2008, with an award of £21,219.60.