The Garden Centre Group v Oakley & Anor (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke)

An employment tribunal must make findings on factual issues that are significant in its reasoning and explain whether it accepts or rejects material evidence. An unexplained failure to determine the factual basis on which the employer identified posts for redundancy was a fatal flaw. Where the tribunal has not reached firm conclusions on other potentially relevant issues, the appellate tribunal should not determine the merits itself. The appropriate disposal may be a complete rehearing before a fresh tribunal, with the original hearing effectively expunged, subject to any issue concerning inconsistent statements.

The employer appealed against an Employment Tribunal decision upholding complaints of unfair dismissal brought by two former Regional HR Managers. The Tribunal found that the dismissals were not for redundancy or some other substantial reason and awarded compensation.

On appeal, the employer contended that the Tribunal had failed to decide whether the decision to identify the Regional HR Manager posts for redundancy was made at a senior management meeting or later by the Chief Executive. The central issue was whether that unresolved factual question was material to the Tribunal’s reasoning and, if so, how the appeal should be disposed of.

1. Appeal allowed. The Tribunal’s decision could not stand because it failed to determine whether the evidence of the employer’s witnesses established that the redundancy proposal had been discussed or decided at the meeting on 9 September 2009. That finding was significant in the Tribunal’s chain of reasoning, applying the approach in Levy v Marrable & Co Ltd [1984] ICR 583.
2. The Tribunal did not state whether it accepted or rejected the evidence of the two witnesses on that issue. That omission was particularly serious because the Tribunal’s conclusion appeared to be that the employer had failed to establish a potentially fair reason for dismissal.
3. Since section 98(4) of the Employment Rights Act 1996 is not engaged unless a potentially fair reason has been established, the Tribunal did not need to decide the fairness of the dismissal procedure once it had rejected the employer’s asserted reasons. Its partial discussion of the selection pool, consultation and appeal process was therefore incomplete and lacked firm conclusions.
4. The Tribunal’s treatment of the Polkey v A E Dayton Services Ltd principle [1987] ICR 142 also required reconsideration. A Polkey issue would arise if a potentially fair reason were established, even if the dismissal were ultimately found unfair under section 98(4).
5. The case was remitted to a fresh Employment Tribunal for a complete rehearing. Either party could call additional evidence. The original hearing was effectively expunged, subject only to any issue concerning inconsistent statements by the same witness at the two hearings.

• Employment Tribunal, Reading: Judgment promulgated on 24 January 2011, upholding the unfair-dismissal complaints and awarding compensation.
• Employment Appeal Tribunal: Appeal allowed. The decision was set aside and the case remitted to a fresh Tribunal for complete rehearing.