Greenwood v NWF Retail Ltd

Employment Tribunal written reasons must comply in both form and substance with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The rule is mandatory, although substantial compliance may be demonstrated without reproducing its structure. Meek remains a useful guide to whether the required detail has been provided. A failure to satisfy rule 30(6) is an error of law.

Section 98A(2) of the Employment Rights Act 1996 cannot apply where the dismissal is automatically unfair under section 98A(1) because of a breach of statutory dismissal procedures. Any question about the financial consequences of an inevitably repeated dismissal must instead be addressed at the remedy stage, including under the Polkey principles.

The appellant had been dismissed by NWF Retail Ltd after the elimination of his Plant Manager post. The Employment Tribunal found that the reason was redundancy, rejected his protected-disclosure and sham-redundancy arguments, and held that the dismissal was otherwise fair. It nevertheless found automatic unfairness under section 98A(1) because no right of appeal had been offered, awarded a basic award, and applied section 98A(2) to deny compensation.

The appellant challenged the adequacy of the Tribunal’s reasons and its approach to section 98A(2), compensation and an alleged concession that an appeal would have made no difference. The central issues were whether the reasons complied with rule 30(6) and whether section 98A(2) could operate alongside a finding of automatic unfairness under section 98A(1).

1. Appeal allowed. The case was remitted for a complete rehearing before a differently constituted Employment Tribunal.
2. Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 uses mandatory language. Its requirements must be met; otherwise the Tribunal’s judgment is erroneous in law. The rule is not a straitjacket because compliance need not be apparent from the judgment’s structure, but the constituent requirements must be found in substance in the decision.
3. Substantial compliance requires sufficient detail concerning each relevant component of rule 30(6) to enable the parties to understand the findings, the applicable law, how the law was applied, and why the outcome was reached. Meek v City of Birmingham District Council remains a helpful guide to that assessment. It requires an outline of the story, the basic factual conclusions, and reasons sufficient to explain why each party won or lost.
4. The Employment Tribunal’s reasons did not adequately identify and resolve important factual issues concerning the alleged sham redundancy, alternative employment and the fairness of the procedure. The judgment did not comply with rule 30(6) in form or substance and was inadequately reasoned.
5. Section 98A(2) of the Employment Rights Act 1996 is expressly subject to section 98A(1). Once the dismissal is automatically unfair because statutory dismissal procedures were not followed, section 98A(2) has no application. The two provisions cannot operate as alternative analyses of the same procedural defect.
6. If section 98A(1) applies, the consequences of an inevitable dismissal are matters of remedy. A finding that the eventual outcome would have been the same does not automatically make the compensatory award nil. The possible period of continued employment may require consideration under the Polkey principles.
7. The alleged concession that an appeal would have been unsuccessful was ambiguous. Its meaning and scope were matters for the Employment Tribunal on rehearing.

• Employment Tribunal: The Tribunal held that the dismissal was by reason of redundancy and otherwise fair, but automatically unfair under section 98A(1) because no statutory appeal procedure had been followed. It awarded a basic award of £1,320 and no compensatory award.
• Employment Appeal Tribunal: The appeal was allowed on both the reasons and compensation points. The matter was remitted for a complete rehearing before a differently constituted Employment Tribunal.