Graff Diamonds Ltd v Boatwright

An employment tribunal must decide clearly whether an employee’s departure was a redundancy dismissal or a consensual termination, particularly where the classification determines whether collective consultation duties arise. An appellate tribunal may remit where the reasoning does not disclose which evidence was accepted, which was rejected, and what inferences were drawn. A protective award is not calculated by mechanically linking its length to the statutory minimum consultation period. Its amount must be assessed in accordance with the principles in Susie Radin Ltd v GMB and Hutchins v Permacell Finesse Ltd.

The Employment Tribunal found that the employer had proposed to dismiss 20 employees as redundant, including an employee whose departure was labelled early retirement, and made a protective award of 30 days’ pay. The employer appealed against the finding that the collective consultation provisions applied. The employee appealed against the amount of the award.

The Employment Appeal Tribunal considered whether the tribunal’s factual reasoning was sufficiently clear and whether it had adopted the correct approach to the protective award.

1. The employer’s appeal was not allowed on perversity grounds. There was material on which the Employment Tribunal could conclude that the employee had volunteered for redundancy, and the tribunal was entitled to reject or disbelieve evidence and draw adverse inferences where appropriate.

2. However, the tribunal’s reasoning was insufficiently clear. Volunteering to leave employment for a payment did not necessarily mean volunteering for redundancy. The tribunal had to decide whether it accepted or rejected the evidence that the employee sought consensual early retirement, whether and why it rejected relevant evidence from the employer’s witness, and whether the employer was the prime mover in the termination.

3. The issue whether the employer was proposing to dismiss the employee for redundancy was remitted to the same tribunal, if available. The tribunal was directed to receive proper disclosure of documents concerning the termination, including the admissible compromise agreement, and any further evidence limited to that issue. Its renewed decision had to identify the evidence accepted and rejected, the reasons, and the inferences drawn.

4. The employee’s appeal concerning the protective award succeeded. It was wrong to link the length of the award to the 30-day minimum consultation period. The question had to be reconsidered in accordance with Susie Radin Ltd v GMB [2004] ICR 893, particularly paragraph 45, and Hutchins v Permacell Finesse Ltd (2007) UKEAT/0350/07, particularly paragraphs 20–21.

1. Employment Appeal Tribunal: remitted the issue whether the twentieth employee was dismissed for redundancy and remitted the amount of the protective award for reconsideration.
2. Employment Tribunal: held that the employer had failed to comply with the collective consultation requirements and made a protective award of 30 days’ pay.