“What happened at the Agency Workers Employment Appeal Tribunal on 19 December 2013?”
Please note: Barnet’s Appeal was not about re-opening the case itself but about the number of days compensation to be paid to staff affected by the Council’s breaches of TUPE and TULCRA 1992. You can read the original judgement here
The Case made by Barnet Council was that there had been a ‘error in law’ by the employment tribunal.
The key to this claim can be found in the original judgement by the Tribunal in December 2012. Specifically the following paragraph of this judgement was critical to the decision to uphold the Appeal.
Paragraph 8.5 which states
“For these purposes we consider the failure together for all matters raised (the redundancies and the two transfers) before deciding what it is appropriate to award. In general terms, we accept that we have to consider what is just and equitable. The guidance contained within Susie Radin is quite clear and we must consider the seriousness of the breach. We also accept that Susie Radin indicates that we start with a maximum only where there is no consultation and that cannot be said to be the position in this case. Having said that, we are not quite sure where we should start if we do not start with the maximum and work down. It was not put to us by either of the respondents’ representatives that there was a better place to start and given that, in our view, this is a relatively serious failure, we do indeed start with the maximum.”
Counsel acting on behalf of Barnet argued that the sentences highlighted in yellow provided grounds to say there had been an “error in law”.
There was a long discussion about how to calculate the starting point for the award i.e. should the Tribunal have started from zero days and worked upwards or should they stayed at maximum award (90 days) and work backwards, or should they have started in the middle.
In the end the Appeal Tribunal agreed that technically there had been an “error in law’ and therefore upheld Barnet’s appeal.
This presented the Appeal Tribunal with three options:
1. Make a decision on what the right award (how many days pay) should be; or
2. Refer the case back to a different Employment Tribunal to look at the case again; or
3. Refer the case back to the original Employment Tribunal.
Counsel acting on behalf of Barnet Council argued for the following:
1. Appeal Tribunal to give a decision on the award; or
2. Refer to a different Tribunal
They did not want the decision to go back to the same Employment Tribunal because they claimed that original Judges would be unlikely to change their original decision about the number of days to be paid out to staff.
The Appeal Tribunal decided to refer the matter back to the original Employment Tribunal.
We do not have the date of when the original Employment Tribunal will make a decision.