Gardner v The Coopers Company & Coborn School

An Employment Tribunal must give reasons which identify the issues decided, the material findings of fact, the relevant law and its application. A conclusory finding on a disputed contractual notice issue is insufficient where the validity and timing of notice may determine the employee’s entitlement to further pay.

Where an award is reduced under the Polkey principle, a separate award for loss of statutory rights should ordinarily receive the same reduction unless the tribunal gives reasons for treating it differently.

The claimant, a teacher whose post became redundant, had a contractual minimum notice period under the Burgundy Book which required termination on specified term-end dates. Following an unsuccessful trial in an alternative role, the respondent sent a redundancy-dismissal letter dated 11 October 2017 while the claimant was on authorised leave abroad.

The claimant maintained that she did not receive the letter until November. She contended that notice was therefore too late to terminate her employment on 31 December 2017 and that she was entitled to pay until 30 April 2018. The Employment Tribunal rejected that claim without making findings on delivery or explaining its reasoning. It also reduced compensation by 90% under Polkey, but did not reduce the £500 award for loss of statutory rights.

The claimant appealed the notice determination. The respondent cross-appealed the treatment of the statutory-rights award.

1. Appeal and cross-appeal allowed. The Employment Tribunal’s conclusion that employment ended on 31 December 2017 could not stand. The Tribunal had not adequately explained why the contractual notice claim failed.

2. Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 required the Tribunal to identify the issues, make findings on them, state the relevant law, and explain its application. That reflected the principle in Meek v City of Birmingham District Council, [1987] IRLR 250, that parties must know why they won or lost.

3. The Tribunal had summarised the competing cases concerning the June and October letters and the claimant’s reliance on The Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood, [2018] 1 WLR 2073. It had, however, made no finding as to whether the October letter was delivered, or deemed delivered, at the claimant’s home, nor as to when she returned from leave. Those matters could bear directly on whether valid notice had been given in time. The Tribunal’s brief conclusion did not grapple with either the factual or legal issues.

4. The notice issue was remitted to a freshly constituted Employment Tribunal. Remittal to the original panel risked a perception of a second opportunity to decide the issue without reasons, and reconvening that panel promptly was unlikely.

5. The cross-appeal succeeded. The Tribunal’s 90% Polkey reduction should also have applied to the award for loss of statutory rights. Hope v Jordan Engineering, [2008] 5 WL UK 27, supported that ordinary approach. There was no stated reason to treat that head of compensation exceptionally.

6. The final two sentences of paragraph 16.2 of the Tribunal’s reasons were not binding on the fresh Tribunal if it needed to revisit that matter. Nothing in this judgment determined the merits of the remitted notice issue.

• Employment Appeal Tribunal: allowed the claimant’s appeal and the respondent’s cross-appeal in [2020] UKEAT 0235_19_0708. The contractual notice issue was remitted to a fresh Employment Tribunal.
• Employment Tribunal, East London: held that the claimant had been unfairly dismissed because she was denied an appeal, rejected her incorrect-notice claim, and applied a 90% Polkey reduction except to the award for loss of statutory rights.