At the Tribunal
HIS HONOUR JUDGE J HULL QC
MR J A SCOULLER
MRS P TURNER OBE
Transcript of Proceedings
JUDGMENT
P R E L I M I N A R Y H E A R I N G
Revised
APPEARANCES
For the Appellant THE APPELLANT APPEARING IN PERSON
JUDGE HULL QC: This is a preliminary hearing of Mr Driver's appeal to us against a Decision of the Industrial Tribunal which sat at Ashford in Kent where they heard Mr Driver's complaint of unfair dismissal, on 3 March and 24 April 1992. They gave their Summary Reasons on 1 May 1992 and their Full Reasons on 16 June 1992. Mr Driver applied to the Tribunal for a Review of their Decision but that was refused on 13 April 1993, after further consideration.
Reasons for all those Decisions are given and in addition Mr Driver has written a number of letters concerning his dissatisfaction with the Decision of the Industrial Tribunal.
He was first employed by the Respondents, Fractional HP Motors Ltd, on 2 May 1989 and was dismissed on 11 September 1991, and he is a very skilled and experienced gentleman. Mr Driver first had a distinguished career in Her Majesty's Forces where he achieved the rank of Warrant Officer Class 1, a truly outstanding rank. In addition he acquired high technical qualifications and therefore, he was, we are perfectly certain, of great value to his employers who were in the very technical business of manufacturing small electric motors for specialised applications. He was employed in Quality Control as a Quality Inspector and he was particulary skilled with the more technical and mathematical aspects of Quality Control and the use of very specialised measuring devices for that purpose. These are facts which are not in issue.
The Tribunal enquired into the facts and it is their duty and not our duty to arrive at the facts. They heard evidence including evidence from Mr Driver. The evidence for the employers was that the dismissal of Mr Driver was due to a desperate financial condition in which they found themselves. Their overdraft limits at the bank had been seriously exceeded: there was the prospect of closing down the entire factory; there had been a meeting with the bank in which it appears that they put forward less drastic terms to solve the difficulties; that had been rejected by the bank and the bank was insisting on a second scheme which involved dismissals. That was the evidence for the employers. They had, with reluctance, chosen Mr Driver as the person they thought, for various reasons, should be dismissed. They had chosen other people in other departments - one I think had voluntarily resigned and taken early retirement and others were being dismissed. It was, said the employers, a desperate situation.
Mr Driver suggested, suggests now and has repeatedly suggested, that all that is incorrect, that he was not treated truthfully and honestly and that his dismissal was an example of bad faith and all that was put forward on behalf of the employers was quite wrong; that there was some form of malice or discrimination against him which was being excused by the smokescreen being put up by the employers' evidence.
Those were issues that the Industrial Tribunal had to decide. It is for the Tribunal to hear the employers establish, if they can, the cause of the dismissal. It is for the Tribunal to find on the facts whether the employers have behaved reasonably or unreasonably, fairly or unfairly, that is laid down by the Statute and the Statute says that we are only to consider questions of law not facts - there is no appeal on facts.
The Tribunal here held that the reason for dismissal was redundancy, so they accepted the employers evidence about that. They then went on to consider all the aspects of the redundancy, as they were bound to, and they held that nonetheless, although that was the cause of the dismissal, the employers had not acted fairly because they had not consulted with Mr Driver and desperate as the situation was, they said, consultation should have been undertaken - consultation before the decision was taken, not after it.
Mr Driver seeks to appeal against that decision saying that it is on the wrong grounds.
In our view he cannot do so. Nobody can appeal, as a matter of principle, against a decision which is in his favour. It very commonly does happen that litigants find that decisions are given in their favour on grounds which they have not raised, or which were only subsidiary grounds raised by them, but the Tribunal did their duty and arrived at their conclusion of fact. It was in Mr Driver's favour and we think that it is a matter of principle that he cannot appeal against that.
The Tribunal then, being in Mr Driver's favour, had to consider how to assess his compensation. That, in the circumstances, was an imponderable. They found that Mr Driver had in a very realistic and rational way suggested that he would stand down until Christmas - these events being in September - and therefore that was something that he would have put forward, they held, had he been properly consulted. There would be a question, of course, about whether that would have been accepted and there was also the question of what happened thereafter.
He was unemployed until February and then he got better paid work. The Tribunal also considered that had Mr Driver been consulted, a period of time would have elapsed during which he would no doubt have received pay whilst his proposals were considered and so they must allow something in respect of that. It was, therefore, a balancing exercise. Mr Driver has suggested to us today, on this matter of compensation, that what happened after the middle of February was completely irrelevant to the considerations of the Tribunal but that, in our view, is not so. They were entitled to consider that; they were entitled to consider all that would have happened if the employers had behaved as they should have done and consulted Mr Driver.
The Tribunal did not arrive at a precise quantification: they took a figure of eight weeks at the basic rate of pay as the starting point of their calculations, because one has to start somewhere, and they thought, on the whole, that that was a fair basis for a compensatory award. They then had to deduct what had already been paid, the money in lieu of notice and so forth, and they arrived at a figure.
Arriving at a figure for compensation is fundamentally a question of fact for the Tribunal and, unless an error of law can be demonstrated, we cannot interfere. This hearing of course is for the purpose of seeing whether there is a point of law so that this appeal can go forward on that point of law. Mr Driver has told us that he is not interested in money and we accept that, but we do not let that influence us. He pursues his appeal as a question of principle, and that we entirely respect; but nonetheless, for reasons which I have endeavoured to give, and notwithstanding all that Mr Driver has told us and all that he has written, we do not think that he shows any error of law here.
The Tribunal were the judges of fact, they have arrived at the facts both with regard to the reason for dismissal and its unfairness, and they have arrived at their assessment of compensation. It may very well be that a different Tribunal might have arrived at a larger figure or at a smaller figure and it might have been quite impossible for Mr Driver to complain or, indeed, for the employers to complain about either. That is in the nature of findings of fact and decisions of amount which are basically findings of fact.
Therefore, we have to say, with reluctance because Mr Driver has put his case very fairly to us and with great courtesy, that we cannot allow this appeal to proceed because there is no point of law and it must be dismissed.