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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Format Interiors Ltd v McGinley [1993] UKEAT 354_91_0204 (2 April 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/354_91_0204.html
Cite as: [1993] UKEAT 354_91_0204, [1993] UKEAT 354_91_204
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At the Tribunal
HIS HONOUR JUDGE J PEPPITT QC
MS S R CORBY
DR D GRIEVES
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR G D HARRINGTON
(Solicitor)
Messrs Moss & Coleman
170-180 High Street
Hornchurch
Essex
R17 12 6JP
For the Respondent MRS E McGINLEY
(In person)
JUDGE J PEPPITT QC: The Appellants, Format Interiors Limited, appeal from a decision of the North London Industrial Tribunal made on the 14th November 1990 holding that the Respondent, Mrs McGinley, had been unfairly dismissed. The Tribunal assessed her compensation at £3,075.13.
Mrs McGinley was employed by the Appellants as a Transport Clerk. Her complaint of unfair dismissal was heard with a similar claim by another employee of the Appellants, Mrs Mower, who had been employed in the Appellants' packing department.
The Appellants, by Mr Harrington, argue that the Tribunal erred in law in hearing the two cases together, or alternatively, when considering them did not distinguish sufficiently or at all between the respective situations as it applied to Mrs McGinley on the one hand and Mrs Mower on the other. By Section 57 of the Employment Protection (Consolidation) Act 1978 it is provided that in determining whether the dismissal of an employee is fair or unfair the Tribunal should first consider the reason given by the employer for the dismissal. The burden for establishing the reason for the dismissal lies upon the employer. If he satisfies it and if he also establishes that that reason is one of the reasons specified in sub-section (2) of Section 57 the Tribunal then proceeds to the final stage of its consideration and decides under sub-section (3) whether the employer acted reasonably in treating that reason as a reason for dismissal. In this case the reason given by the employer for Mrs McGinley's dismissal was redundancy, and redundancy is one of the specified reasons in sub-section (2) of Section 57. The Tribunal properly considered this first stage and arrived at this finding:
"We are far from satisfied on the evidence that the Respondents have shown the reason for the dismissal."
and a little later in the decision:
"It is our view on the balance of probabilities that the Respondents have not shown the reason for dismissal . . ."
In the light of those findings it is clear to us that the Tribunal held that these employers fell at the first hurdle. They did not satisfy the Tribunal that the reason for Mrs McGinley's dismissal was redundancy. This failure rendered the dismissal was automatically unfair, and in our unanimous view, the appeal fails on this ground. But we are also satisfied that the Tribunal's alternative finding was well founded. The Tribunal said if, contrary to their view, the Appellants had established redundancy as the reason for Mrs McGinley's dismissal that dismissal was unfair having regard to the criteria set out in the decision.
The situation was that when Mrs McGinley was dismissed from her employment as a Transport Clerk there followed a series of appointments, by the Appellants, to their packing department. The criteria were that between 1984 and 1986 three employees were taken on in the Appellants' packing department. The employees were Mrs Lighten, Mrs Benson and Mrs Blackman. They joined the Appellants after Mrs McGinley did. The Appellants did not offer Mrs McGinley the opportunity to revert to her old job in the packing department. Mr Harrington told us that the reason why they did not do so was that they thought it would be contrary to good industrial relations and because they thought she would cause trouble. But it seems to us that when considering questions of redundancy the fullest possible discussion between employer and employee should take place. We are of the view that a reasonable employer, faced with the situation that faced these Appellants, would at the very least have floated with Mrs McGinley the prospect of her returning to her old job, even though as Mr Harrington told us, this would have involved demotion.
Accordingly, it seems to us that the Tribunal was right in its alternative view and on that ground too, we are unanimously of the view that this appeal must be dismissed.