England and Wales High Court (Queen's Bench Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> W. Gimber & Sons Ltd v Spurrett [1967] EWHC QB 2 (07 March 1967)
URL: http://www.bailii.org/ew/cases/EWHC/QB/1967/2.html
Cite as: [1967] EWHC QB 2

[New search] [Help]

JISCBAILII_CASE_EMPLOYMENT

		BAILII Citation Number: [1967] EWHC QB 2
		Case No. 150/66

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION

Royal Courts of Justice

7th March 1967

B e f o r e :

Lord Parker C.J.
Diplock, L.J
and
Ashworth, J
____________________

	W. GIMBER & SONS LIMITED
	- and -
	SPURRETT

____________________

P. Millett (instructed by Devonshire & Co., agents for Wright, Hassell & Co.) for the appellants.
J. Mitchell (instructed by Pattinson & Brewer) for the respondents.
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Parker, C.J.: This is an Appeal by employers, W. Gimber & Sons Limited against a decision of the Industrial Tribunal dated 23rd June of last year, whereby they awarded the present respondent, a redundancy payment of some £692 8s. Od. No question as to the amount of the redundancy payment arises, no question as to whether he was dismissed; the only question is whether, as the Tribunal found, the dismissal was by reason of redundancy. The short facts were that the appellants deal in chemists sundries and veterinary supplies, and the respondent had been employed by them for some 20 years, originally as a driver warehouseman, and ultimately as the manager of their warehouse. He was dismissed in February of last year.

The facts found by the Tribunal show that the appellants were going through a period of poor business a year or two ago; apparently a Mr. Newman was brought in to reorganise the business and in the Autumn of 1965 a Mr. Skimins was employed as one of the sales representatives of the appellants covering a certain territory. It was decided that this territory was not a very successful one; then the appellants instead of dismissing Mr. Skimins decided that he was of good managerial material and brought him into the office. Part of his territory was given to another representative and the remainder was left uncovered. When the applicant [respondent] was dismissed in February Mr. Skimins took over work he had been doing. Those are the facts found by the Tribunal.

By section 1(2) of the Redundancy Payments Act, 1965, it is provided so far as it is material for this Appeal that:

"... an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to . . . (b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish."

By section 9(2) it was provided that:

" For the purpose of any such reference (a) a person's employment during any period shall, unless the contrary is proved, be presumed to have been continuous; (b) an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy."

The appellants, the employers, sought before the Tribunal to rebut the presumption in two ways. They first of all said that since the respondent had been replaced by Mr. Skimins, who was doing all the work that Mr. Spurrett, the respondent, used to do, that therefore there could not be redundancy. To that the Tribunal in effect made answer in this way, and I am reading their Decision:

" If there is a reduction in the requirements for employees in one section of an employer's business and an employee who becomes surplus or redundant is transferred to another section of that business, an employee who is displaced by the transfer of the first employee and is dismissed by reason of that displacement is dismissed by reason of redundancy."

That as it seems to me is sound in law and was a possible answer to the appellants' first contention. The second one was that anyhow the dismissal had been because the respondent was unco-operative. As to that the Tribunal heard a great deal of evidence, and end by saying this:

" Having listened to the evidence on both sides on the issue as to why Mr. Spurrett was dismissed we are left in some doubt and the law requires that we have to resolve that doubt in favour of the applicant. We find that the employers have failed to satisfy us that the dismissal was for a reason other than redundancy and we accordingly find that the dismissal was for redundancy."

Mr. Willis as I understand him takes two points on the passage that I have just read. He says that the Tribunal have applied what one might call a criminal burden of proof rather than proof on the balance of probabilities, and that for that reason they have erred in law. Secondly it is said that they have abrogated, as he puts it, their duty to decide on the facts.

For my part I am quite unable to accept those submissions. I have no reason to think that the Tribunal were dealing with the matter other than on a balance of probabilities, although they do use the expression " some doubt." Moreover it seems to me that they asked themselves the question quite properly after hearing the evidence: are we satisfied that the dismissal was for a reason other than redundancy, and the employers having failed to so satisfy them, they awarded redundancy payment.

For my part I can find no way in which the Tribunal erred in law, and I would dismiss this Appeal.

Diplock, L.J.: I agree.

Ashworth, J.: I agree.

Appeal dismissed

Costs

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010