Arhin v Enfield Primary Care Trust

An employment tribunal’s assessment of compensation for unfair dismissal will be overturned for perversity only where an overwhelming case shows that no reasonable tribunal, properly applying the evidence and law, could have reached it. A 100% reduction under the Polkey principle is permissible where the claimant had no chance of success in a fair competitive selection process. An error concerning one factor in re-engagement will not justify appellate intervention where other independent factors make re-engagement inappropriate. A tribunal’s reasons need not be exemplary if they adequately explain the outcome to the parties.

Dr Dyna Arhin was dismissed for redundancy during a restructuring by Enfield Primary Care Trust. The Employment Tribunal found the dismissal unfair because she and Mr Stewart had not been placed in a competitive selection pool, but awarded no compensation after finding that she would not have obtained the reorganised post and would later have been dismissed for ill-health.

The Employment Appeal Tribunal dismissed her appeal on 25 November 2009. The Court of Appeal considered the alleged use of the wrong appointment procedure, the assessment of her prospects, the ill-health findings, re-engagement, a 25% alternative reduction for failure to engage with the process, and the adequacy of the Tribunal’s reasons.

1. Appeal dismissed. The Employment Tribunal’s conclusion that Dr Arhin had no chance of obtaining the reorganised post through a fair competitive selection process was not perverse. The applicable threshold, stated in Crofton v Yeboah [2002] 1 RLR 634, required an overwhelming case showing that no reasonable tribunal could have reached the decision on a proper appreciation of the evidence and law.
2. The absence of a detailed job specification had been significant at the liability stage, but there was sufficient material at the remedies hearing to assess the likely outcome of a fair selection. The Tribunal was entitled to find that Mr Stewart’s recent management experience and greater involvement in the relevant work made him the stronger candidate. The possible application of the Advisory Appointments Committee procedure under the National Health Service (Appointment of Consultants) Regulations 1996 was not resolved because the available material was insufficient and the issue was unnecessary to the result. Even if that procedure applied, Dr Okoli’s assessment would probably have carried substantial weight.
3. The findings that Dr Arhin would probably have been dismissed on grounds of ill-health between January and March 2008 were supported by the evidence concerning her sickness absence, sick-pay position, ill-health retirement request and the Trust’s published procedures. They were not speculative or perverse. The burden of establishing that the Trust caused, contributed to or exacerbated her illness lay on Dr Arhin, and she lacked cogent expert evidence establishing causation.
4. The Tribunal had erred in relying on the strained relationship with Dr Okoli when refusing re-engagement, since Dr Okoli had left the Trust. That error was immaterial because the absence of an identified suitable post, the need to economise and Dr Arhin’s conduct of the internal dispute remained cogent reasons. The alternative 25% reduction under section 31(2) of the Employment Act 2002 was not shown to be impermissible. Although the remedies decision was not a model of clarity, it adequately explained the result.

1. Court of Appeal (Civil Division): Appeal dismissed: [2010] EWCA Civ 1481.
2. Employment Appeal Tribunal: On 25 November 2009, dismissed the appeal from the Employment Tribunal and found no legal error in its remedies decision.
3. Employment Tribunal: Found unfair dismissal but rejected race discrimination. It refused reinstatement and re-engagement and made no compensatory award after applying a 100% reduction.