Pipecoil Technology Ltd v Heathcote

An Employment Tribunal must substantially comply with the requirement to identify the issues, but need not use a rigid form where its reasons make clear that the relevant issues were addressed.

In an unfair-dismissal case, a finding that the dismissing officer had predetermined the outcome may support a conclusion that the investigation was unreasonable and the dismissal unfair. An appeal will not necessarily cure those defects where it has material procedural flaws.

Where a Polkey issue is raised, the Tribunal must determine it. In assessing compensation, it must apply the statutory mitigation rule and make a logically reasoned assessment rather than a broad-brush reduction. An uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 must be expressly raised; the Tribunal need not consider it of its own motion.

The claimant, a mechanical design engineer, was dismissed for alleged poor performance, excessive personal emails and inaccurate recording of time. The Employment Tribunal held that he had been unfairly dismissed and awarded compensation of £17,445. It also rejected his disability-discrimination complaint concerning reasonable adjustments.

The employer appealed on eight grounds, challenging the Tribunal's approach to the unfair-dismissal issues and the compensatory award. The claimant cross-appealed, contending that compensation should have been increased under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. The principal issues were whether the dismissal finding was sustainable, whether the Tribunal had failed to decide Polkey and mitigation issues, and whether the section 207A point had been properly raised.

1. Appeal allowed in part; cross-appeal dismissed. The Tribunal's liability decision for unfair dismissal was upheld. The appeal succeeded only on the omitted Polkey issue and mitigation of loss. Those issues were remitted to the same Tribunal on the evidence already before it.

2. The Tribunal had substantially complied with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations. Although it would have been preferable to set out the issues and the three-stage Burchell test expressly, the relevant issues had been clearly identified in case-management orders and the parties' submissions. Its reasons showed that it had addressed the Burchell issues.

3. The finding that the managing director had decided the outcome before hearing the claimant's explanation was open to the Tribunal. It supported the conclusion that there had not been a proper investigation. That conclusion was within the band of reasonable responses. The appeal process did not cure the unfairness because the appeal officer had prior involvement and the employer had departed from its own procedure as to who should hear the appeal.

4. Both parties had raised the Polkey issue, but the Tribunal had not determined it. The omission was an error of law requiring remittal.

5. On mitigation, the Tribunal had considered whether compensation was just and equitable under section 123(1) of the Employment Rights Act, but had not carried out the distinct exercise required by section 123(4). A mitigation deduction requires a logical and reasoned basis; it cannot rest on a broad-brush assessment. The Tribunal had to make findings on whether the claimant had taken reasonable steps to obtain alternative work.

6. The section 207A cross-appeal failed. The claimant had referred to the ACAS Code, but had not expressly raised an application for an uplift in compensation. Section 207A is permissive. The Tribunal was therefore under no obligation to raise and determine that issue of its own motion.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal sitting at Newcastle-upon-Tyne, whose decision was sent to the parties on 27 April 2011. The unfair-dismissal finding was upheld, but the Polkey and mitigation issues were remitted to the same Tribunal.