APT to go overboard

Aptuit (Edinburgh) Ltd v Kennedy

The statutory dispute resolution procedures require employers to “inform” employees of their right to appeal. If they don’t, employers are in breach of the procedures, a dismissal is automatically unfair and tribunals can increase their compensation.

In Aptuit (Edinburgh) Ltd v Kennedy, the Employment Appeal Tribunal (EAT) said that employers don’t have to “inform” employees in writing; and tribunals should only add an uplift if the employer fails to complete the statutory procedure.

Basic facts

In mid-November 2004, Ms Kennedy was told she was to be made redundant as a result of a company re-organisation. She asked for a meeting to discuss her position which took place at the end of November.

The company’s human resource department then wrote to her, indicating that she was to be made redundant by the end of March 2005. She contacted human resources again a couple of times, but was not offered alternative employment.

She was dismissed at the end of March 2005 and subsequently lodged a complaint of unfair dismissal, on the basis that the selection process had been unfair.

Tribunal decision

The tribunal said that her dismissal was automatically unfair because the company had failed to tell her in writing, of her right of appeal, under the statutory dispute resolution procedures.

As the law also gives tribunals the right to increase the compensatory award by between 10 to 50 per cent if the dismissal is automatically unfair, the chair increased it by 40 per cent.

He also said that the dismissal was unfair because the company had failed to engage in meaningful consultation with Ms Kennedy, and that the meetings she had were “completely perfunctory”.

Arguments on appeal

The company appealed, arguing that the claimant had not mentioned the lack of an appeal process on her ET1 (her complaint form to the tribunal) and that the tribunal chair had, effectively, taken over her claim.

It also argued that the law did not require the company to put her right of appeal in writing; there was no explanation as to why the consultation meetings were described as “perfunctory”; and no reason was given for the 40 per cent uplift.

EAT decision

The EAT agreed with the company. It said that the tribunal chair had failed to maintain his impartiality in his efforts to help Ms Kennedy who was representing herself.

It said that the tribunal chair had not understood the test under the dispute resolution procedure. Employers just have to “inform” of employees of their right of appeal , but that did not necessarily mean in writing. The onus was then on the employee to tell their employer that they wanted to appeal. It did not require employers to “offer” an appeal as such.

Nor was there any justification for the tribunal’s finding that the meetings between the company and Ms Kennedy were “perfunctory.” Instead, it said they were perfectly reasonable.

With regard to the uplift, the EAT said the tribunal had seemed to think that it was required to apply an uplift of between 10 and 50 per cent, but was, in fact, only required to apply an uplift of 10 per cent. Anything above that was discretionary “and must be justified as being just and equitable in all the circumstances.”

The circumstances in this case were “those surrounding the failure to complete the statutory procedure”. Instead, the tribunal had irrelevant matters into account, such as the size of the company, its finding that there had been no consultation and that it had treated Ms Kennedy badly. This was a mistake, said the EAT, as “these matters should not have influenced the decision on uplift at all since they did not relate to any failure to complete the statutory procedure.”

The EAT therefore allowed the appeal and remitted the case to a new tribunal for consideration.