An employee has won an appeal against a tribunal’s decision not to award him compensation even though it decided he had been unfairly dismissed.
The issue arose because the tribunal had found that the dismissal was unfair due to the lack of consultation before making him redundant. However, it decided not to award any compensation on the basis that he would have been dismissed by the same date even if a fair procedure had been followed.
The Employment Appeal Tribunal (EAT) held that the decision was not sustainable in law.
It said the date until which the employment would have continued but for the dismissal was distinct from evaluating the chance that, if a fair procedure had been followed in that exercise, the employee would have survived it and continued in employment.
When considering the latter issue, the tribunal had to envisage that the consultation that was not carried out, which fairness required, would have been carried out in good faith and with an open mind.
That required an evaluation based on evidence of what alternatives to redundancy the employer would have considered if it had acted fairly. In those circumstances, it was appropriate to remit the issue to the same tribunal for reconsideration.
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