Norman & Anor v NWF Retail Ltd

Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 imposes mandatory requirements on the form and substance of written reasons. An employment tribunal must substantially comply with each applicable requirement. The structure need not be visibly reproduced, but the judgment must disclose the issues, relevant findings, applicable law and its application sufficiently to explain why each party won or lost. Meek remains a useful guide to substantial compliance. Where a dismissal is automatically unfair under section 98A(1) of the Employment Rights Act 1996, section 98A(2) cannot operate as an alternative route to uphold the dismissal. The possibility that the same outcome would have followed does not automatically eliminate compensatory loss.

The appellant challenged an Employment Tribunal decision which found that his dismissal was by reason of redundancy and automatically unfair because the employer had failed to follow the statutory dismissal procedure. The Tribunal nevertheless held that the dismissal was otherwise fair, applied section 98A(2) alternatively, and made only a basic award.

The appeal concerned the adequacy of the Tribunal’s reasons under rule 30(6), the relationship between that rule and the Meek approach, and the proper interaction between sections 98A(1), 98A(2) and compensation under section 123(1) of the Employment Rights Act 1996.

1. Appeal allowed. The Employment Tribunal’s judgment failed to comply with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 in both form and substance and was therefore erroneous in law. It did not sufficiently identify and determine the material issues, make adequate relevant findings of fact, or explain how those findings supported the conclusions.
2. Rule 30(6) is mandatory. The judgment need not reproduce the rule’s structure, but its constituent requirements must be substantially satisfied. A formal statement which pays lip service to the rule is insufficient. Meek v City of Birmingham District Council [1987] IRLR 250 remains relevant as a guide to whether substantial compliance has been achieved; it does not replace the statutory requirements. Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240; [2007] IRLR 63 was applied. The contrary suggestion in Short v Hayman UKEAT/0379/08/CEA was not followed.
3. The Employment Tribunal also erred in its approach to compensation. Since it had found the dismissal automatically unfair under section 98A(1) of the Employment Rights Act 1996, section 98A(2), which is expressly subject to subsection (1), could not apply. Questions under section 98A(2) and compensation under section 123(1), including Polkey considerations, are distinct.
4. An inevitable eventual dismissal does not necessarily make compensatory loss nil. It may mean that employment would have continued for a shorter period, which can require reflection in compensation. The alleged concession that an appeal would have been unsuccessful was ambiguous and required determination by the Employment Tribunal.
5. The case was remitted for a complete rehearing before a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment and remitted the case for a complete rehearing before a differently constituted tribunal.
• Employment Tribunal: held that the dismissal was automatically unfair under section 98A(1) of the Employment Rights Act 1996, but otherwise fair, and awarded £1,320.