England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2A 2LL
		23 July 2004

Friday, 23 July 2004

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. It is made by Mr Learnihan in person. He also asks for an extension of time for appealing the order made by the Employment Appeal Tribunal on 3 November 2003, dismissing his application under Rule 3.10 of the Employment Appeal Tribunal (Amendment) Rules 2001, and accordingly dismissing his appeal against the decision of the Employment Tribunal.
2. The Employment Tribunal heard his application for unfair dismissal on 10 March 2003 and, for reasons which were sent to the parties on 25 March 2003, the Tribunal unanimously decided that Mr Learnihan was not unfairly dismissed.
3. Mr Learnihan also asks for an order that certain witnesses (other employees currently employed by his former employer, the respondent, TDK UK Ltd) produce witness statements.
4. I will deal first with the application for extension of time because, as Mr Learnihan appreciates, if time was not extended, there would not be much point in considering any of his other arguments. The order was made by the Employment Appeal Tribunal on 3 November 2003, but the judgment was not sent out from the Appeal Tribunal until 16 December 2003. Mr Learnihan received it on 18 December and he sent in a notice of appeal to the Civil Appeals Office in the Royal Courts of Justice on 29 December. He was then sent a letter by the Civil Appeals Office relating to the receipt of his papers on 30 December, pointing out that his notice of appeal was unacceptable, because it did not contain any grounds of appeal and it was beyond the 14-day time limit which ran from the date of the seal on the order. Thus he would have to apply for an extension of time; he would have to submit a document saying why he thought the judge's decision was wrong; and the reasons why he had been unable to file his appellant's notice within the time limit. He would have had to sign a statement of truth.
5. Mr Learnihan had already made it clear to the Employment Appeal Tribunal that he was requesting a transcript and asking for it to be sent to him. He sent a letter to the EAT on 12 November. He wrote another letter on 14 November 2003 to the Civil Appeals Office, saying that he was seeking permission to appeal against the decision of the Employment Appeal Tribunal of 3 November; that he had requested a transcript and that he had spoken to Mr Arbuckle of the Employment Appeal Tribunal, who asked him to put in a written request for the transcript. He informed the Civil Appeals Office in his letter of 14 November that, as he had not received the transcript, he believed, from reading the Practice Direction of the Employment Appeal Tribunal, that he had 14 days from the receipt of the transcript to identify an error in a point of law so that the appeal could be entered.
6. The position is that, following the letter from the Civil Appeals Office on 6 January, he sent in on 19 January an amended appellant's notice completing the sections of the form requested and insisting that he had entered his appeal within the 14-day time limit. The Civil Appeals Office received his document on 20 January. He was then requested on 26 January to complete a fee exemption form.
7. The upshot of all this was that it was finally decided by the Civil Appeals Office on 11 February 2004 that Mr Learnihan's notice would be treated as filed on 6 February 2004 so, as Mr Learnihan appreciated, it was being treated as a case where his notice of appeal was out of time. He accordingly made an application for an extension. He set out in section 10 of the notice the details of the correspondence which I have mentioned and he argued that he had submitted the appeal notice in time. He requested an extension of time.
8. I am satisfied from reading the correspondence and from what Mr Learnihan has told me that if there is a real prospect of his appeal succeeding, I should not reject his appeal simply because he was out of time in lodging the notice of appeal. I would therefore grant an extension of time if - and this is the point I am now going to consider - I am satisfied that he has a case which should go before the full Court of Appeal.
9. I explained to Mr Learnihan that, as in the case of the Employment Appeal Tribunal, he is only entitled to bring an appeal to this court if he can identify a point of law in the decision of the Employment Tribunal and if he can satisfy me that it is an error of law and that there is a real prospect of succeeding on an appeal to the full court. I have also explained to him that there can be no appeal against findings of fact. This court hears appeals. It does not re-try cases either on the evidence that was produced before the Employment Tribunal or on additional evidence which he might seek to put before this court in the form of witness statements required to be produced from other employees of his former employer.
10. With those points in mind Mr Learnihan then explained why he should have permission to appeal. He has helpfully set out in his skeleton argument of 23 February 2004 the grounds on which he would wish to argue that the Employment Tribunal made errors of law. They are under three headings: lack of consultation; the subjectivity of the selection criteria for redundancy, which was the reason given for his dismissal; and failure to consider alternative employment within the employer's organisation.
11. In order to understand the points under those three headings I need to say a little more about the way in which Mr Learnihan came to be dismissed. He was employed from 1996 by TDK UK Ltd. He was a senior analyst/programmer in the IT Department. His responsibility included maintenance and development of a computer system. He had been particularly involved in something called the "EDI System". The company had been suffering, it is said, from loss of profit and was reviewing its position in April 2002. Over the relevant period Mr Learnihan was away for a couple months on ill-health grounds. He was dismissed for redundancy with effect from 9 August 2002. He says that he was unfairly selected to be dismissed for redundancy; he had not been properly consulted; the criteria for selection was drawn up and scored by someone who was himself a candidate for redundancy and he had not received any offer of alternative employment within the company.
12. At the hearing before the Employment Tribunal evidence was given and findings of fact were made. Mr Learnihan has explained that in his view the Employment Tribunal failed to grasp many of the facts and points that he was making, with the result that it has made incorrect findings of fact on the case that he presented in person to them. Mr Learnihan gave evidence, but called no witnesses. Evidence was given on behalf of TDK by the chairman, Mr Matier, and by the IT manager, Mr Barnes.
13. The Tribunal set out the facts, as they found them, and the applicable law, including a reference to Polkey v A E Dayton Services Ltd and the submissions of the parties. The important part of the decision is in the Tribunal's conclusions in paragraphs 20 and 21. In paragraph 20 the Tribunal found that the reason for dismissal was redundancy and that was a potentially fair reason within section 98(2) of the Employment Rights Act 1996. In paragraph 21 the Tribunal stated:

"The Tribunal considered whether the dismissal was fair or unfair having regard to section 98(4) of the [Employment Rights Act] 1996. We first considered whether the selection criterion was fair. We bear in mind that in the Applicant's department were just three employees. This was the pool from which the Respondent had to select a person for redundancy. We accepted the evidence of Mr Barnes that in view of the reduced workload for that department he could carry out the Applicant's duties as well as his own. In those circumstances we found that the selection criteria drafted by Mr Barnes was fair in that it was a documentary representation of the duties that each employee carried out and in that it demonstrated those parts of the work that could be carried out by Mr Barnes. The Respondent conceded that there had been no consultation. The Tribunal find the lack of consultation in the circumstances of this case did not render the dismissal unfair. The purpose of consultation is to avoid redundancy if there is a possibility of an alternative. In this case the Applicant's role had reduced early in the year and Mr Barnes was required to take action in response to that event. Consultation in these circumstances would have served no practical purpose. Therefore, having considered all the circumstances of this case, the Tribunal finds that the Applicant was not unfairly dismissed."

14. The matter was then considered by the President of the Employment Appeal Tribunal, Burton J, sitting alone on a Rule 3(10) application to review the Registrar's decision that the Employment Appeal Tribunal had no jurisdiction to entertain Mr Learnihan's appeal, because no error of law was disclosed in his reasons. Burton J heard Mr Learnihan again in person. He set out the background facts and dealt with the points of criticism of the Employment Appeal Tribunal's decision by Mr Learnihan and explained why he agreed with the Registrar that there was no point of law raised in Mr Learnihan's grounds of appeal. He said in paragraph 26:

"In those circumstances, given that this Appeal Tribunal is not here to rerun cases that have been considered on the facts by the industrial jury in the Employment Tribunal, there is no error of law indicated in relation to any of the three matters to which the Appellant has referred."

He found that Mr Learnihan's points were not arguable, there were no errors of law shown and so he dismissed the application and the appeal.

15. Mr Learnihan's best point is that he was not consulted. He said that he was just seen at home and told that the decision had already been made. Of course the general rule is that in order to be fair the selection of someone for redundancy should be preceded by proper consultation. On that point Mr Learnihan correctly refers to the general legal position explained in Polkey. But, as the Employment Tribunal itself pointed out in paragraph 17, although failure to consult can render a dismissal unfair - and generally will, in my view - it is not unfair to fail to consult, if the Tribunal is satisfied that the employer could reasonably have concluded that consultation would not have made any difference to the decision of who to select and would therefore be pointless. The Employment Tribunal in the final paragraph concluded that consultation in this case would not have served any practical purpose.
16. I know that Mr Learnihan disagrees with that conclusion, but it is a conclusion of fact that the Tribunal had made about the evidence given by the witnesses on behalf of TDK and accepted by the Tribunal. It therefore seems to me that there is no real prospect of Mr Learnihan succeeding in an appeal on his best point, because the Tribunal correctly directed themselves that, as a matter of law, there are cases in which a fair dismissal can take place without consultation if satisfied on the facts that consultation would have been pointless. They made a finding of fact that it would, and I agree with Burton J that there is no point of law arising from that. Thus an appeal tribunal or this court could not interfere with the decision of the Employment Tribunal.
17. I have taken on board the other criticisms which Mr Learnihan has made. They are less important points legally than the lack of consultation point. I can see why he feels aggrieved and why he considers that the selection criteria were not objectively drawn up, and why he thinks that he should have been considered for other positions in the light of the amount of work that he had done on the system and the fact that in his view he could have continued to play a useful part in the affairs of the company. Those are, however, in my view, factual points. They arise from the evidence which he gave to the Tribunal. I am unable to find in the Employment Tribunal's decision, any more than Burton J could, any legal error in the law that they applied under the Employment Rights Act 1996 relating to dismissal for redundancy.
18. I conclude - and I know Mr Learnihan will be disappointed to learn this - that his appeal does not stand any real chance of succeeding in this court. If I gave permission to appeal I think that it is highly likely that the appeal would fail. It is also likely that on failing he would be further disadvantaged by having an order for costs made against him, which has not happened in the Employment Tribunal and the Employment Appeal Tribunal. I would not be helping his situation by allowing him to go on with an appeal which would not succeed and might have even more detrimental consequences than the loss of his position with TDK. So, fully understanding his criticisms and his sense that he has been unfairly treated, I am unable to conclude, as a matter of law, that there is anything wrong with the Employment Appeal Tribunal's decision.
19. The application is refused.
(Application dismissed; no order for costs).