United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 180_93_0811

Appeal No. EAT/180/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 November 1994

Before

HIS HONOUR JUDGE J HULL QC

MRS M L BOYLE

MR K M HACK JP

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ROBERT CORT LTD          APPELLANT

MRS T M MAGYAR          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR I M GRANT

(Employee Relations Consultant)

Grant Associates

103 Arnos Grove

Southgate

London

N14 7AG

For the Respondents MR N MAGYAR

(Friend)


 


JUDGE HULL QC: This case has given us a certain amount of anxiety and we have not found it very easy. Mrs Magyar is a lady who was first employed by the Respondents, Robert Cort & Sons Ltd, in Reading on 27 September 1982. Her exact job apparently defies a short description. She had put it in her application as "sales (value spares)". She was a member of the Sales Spares Department, Robert Cort & Sons Ltd.

It appears that Robert Cort & Sons Ltd are well known suppliers of very heavy valves for use in particular in the petroleum industry and apparently these enormous things weigh up to 30 tons; it is a very specialised business. Part of the business is supplying spare parts which have to be assembled and produced and so on and the parts for those have to be ordered elsewhere.

Mrs Magyar was concerned with responding to orders and putting a price on them. She had, of course, to know what it would cost Robert Cort to buy component parts and to have a knowledge of the paper work required and the way in which the organisation worked. The job altered or, at any rate, it was not quite the job that she came in to.

At first there was a computerised list of prices from various suppliers; but that had to be dispensed with for various reasons. There were changes in the way in which business was carried on and eventually, it was decided by the employers that what was required was not the skills, or not only the skills which Mrs Magyar brought to the job but also an engineering appreciation of the nature of the task, in other words, "going outside her particular duties". They were looking, they said, for somebody to do Mrs Magyar's job or part of Mrs Magyar's job and indeed, what was in effect a fresh job of going out to sources (as they were called) suppliers of these very specialised components of spare parts. The person wanted would have an engineering appreciation of how they were to be used and applied.

It would apparently require a person with training, an apprenticeship at any rate, and technical qualifications probably. Mrs Magyar, although intelligent and literate, and conscientious in every way, is not a lady with any formal engineering qualifications, so it was decided that it might be possible to train her in the additional tasks. That was discussed by a Mr Waters who was a contract controller to whom she was responsible. He discussed it with her in June 1991. At that time there was no question of making Mrs Magyar redundant and so the discussion was along the lines of whether she thought she would be prepared to undertake the training involved, in what was, in effect, seen as a new job; and she said at that time that she was not. She was not threatened in any way. She was asked whether she would be interested in that.

Then, there was further thought. The view was taken by the management that perhaps she could not do the job, it would be better to look for somebody else for this new job. So eventually, in August 1991, she was told that they would have to part. The employers wished to dispense with her services and, in one of the bundles which we have been shown, there is an advertisement for the new job, as it has been described. It did include some of the matters which Mrs Magyar had been dealing with, indeed, a great many of them and it was described as:

"....a vacancy for a person who will be responsible for handling enquiries for spares, preparing quotations and in subsequent customer liaison".

But it said:

"The successful applicant will have had an engineering training (eg apprenticeship or equivalent) and commercial experience gained by either buying or selling".

There was a long letter written by Mr Waters, who appears to have taken the matter very seriously indeed. The letter, which starts at page 30, is dated 6 August 1991 and tells Mrs Magyar that she is to be made redundant and sets out all sorts of matters, some of which I have mentioned.

It appears to be a perfectly proper letter and it gave her a clear idea that she was going to be made redundant. She was not clear at first, for a few hours, whether she was to go at once or not, but she was told again, in a perfectly humane and sensible way apparently, that she could go at once if she would like to. She would be paid for the four weeks which was to elapse before the notice arrived and then for her notice period and she did, in fact, elect to go the next day on 7 August, and in due course that was found to be the effective date of termination of her employment.

On 12 August she complained to the Industrial Tribunal that she had been unfairly dismissed and wanted reinstatement. In due course, the Tribunal sat at Reading on 4 and 5 February 1992 under the Chairmanship of Mr Jenkinson, with two Industrial Members. Those two days seem to have gone, in some ways, in a rather curious way. The parties agreed that there had been a dismissal. The exact date probably does not matter. They agreed that she had been dismissed and it was said by the employers, "well, the reason is redundancy" and the Industrial Tribunal sat for two days, as I say, and then announced, not once but twice, that they found that the application failed because Mrs Magyar had not shown that she was dismissed.

It is rather hard to see how they could reach their conclusion when it was admitted on both sides, and when there was no doubt that the employers intended to make her redundant, as the letter makes perfectly plain. But at any rate, that was the Tribunal's view, so the parties were apparently twice told that the finding was against Mrs Magyar. No reasons had been given at that stage and then, apparently, what happened was that the Industrial Tribunal thought a little more about the matter and they reconvened, saying that "they wanted to reconsider the matter and hear further argument on the question of dismissal".

As a result of that, they sat on 18 May 1992 and they gave eventually, as a result of that sitting, a very long Decision which starts at page 9 of our bundle and goes on right the way through to page 24. Most of that Decision is devoted to considering the question of dismissal or not and after setting out the facts and indeed setting out the evidence at great length they came to the conclusion, contrary to their previous feeling, that there was, indeed, a dismissal.

They went on, more shortly, to consider whether it was a fair dismissal or an unfair one and they said as follows (in paragraph 30):

"30 The Tribunal was troubled by the fact that when Mr Waters and Mrs Magyar met on 11 June 1991 and she declined his suggestion that she take a greater responsibility, she had not been presented with the alternative: being made redundant ....".

That could hardly be unfairness of itself because they found that, at that stage, Mr Waters did not have in mind the possibility of redundancy, nobody did. She testified that if she had been warned she might have looked differently at the proposal.

"30 .... In his testimony, Mr Waters told us that the reason was that in June he was not even contemplating redundancy. The purpose of the meeting was that he felt substantially overworked and was looking for ways of alleviating that situation. .....".

(If I might just insert a parenthesis - Mr Waters had been doing a good deal of the work that would fall to the person in the new job, as it was called).

"30 .... There was then no further material discussion of her future until they met on 2 August when she was told she would be made redundant, but should await his letter".

And then they refer to the letter of 6 August:

"31 Accepting as we do, that letter accurately summarises what Mr Waters said on 2 August, he did not repeat the suggestion that she might take a greater responsibility, while raising the question of redundancy in the alternative. In our view this was a mistake in terms of good industrial relations. Although Mr Waters did not give her immediate notice on 2 August, but said a period of two weeks would elapse (later extended to four weeks) before she was given notice, the moratorium cannot truly be called a period for consultation, as Mr Waters had already made the decision to dismiss, even if it was not to be implemented at once. On the last page of his letter ..... he discounted the possibility of finding another suitable vacancy for her.

32 Given the option of working the notice period or of leaving even before it had began, Mrs Magyar cannot be blamed for choosing to go at once. The result of her doing so was effectively to remove her eligibility for an alternative position in the respondents' undertaking, arising after the effective date of determination of her employment. A number of these were canvassed in evidence before us .... .

33 We also observe that although she queried the decision to terminate her employment, in an interview with Mr Ball, Managing Director, who told her to await Mr Waters' letter, she did not pursue the question of an appeal after she did get it, although she was, doubtless, in a position to receive advice from her husband and his father who both hold reasonably senior posts in the company".

That, again, cannot have anything to do with unfairness. It was entirely for her to say whether she pursued the appeal or not. Then the Tribunal in paragraph 34 said:

"34 Having regard to that point and to the other matters considered in paragraph 30 to 33 above, on balance we are unanimous in finding this dismissal to have been unfair".

We all said to ourselves when we read that paragraph, what exactly is this Tribunal finding was unfair? It does seem that several matters are referred to, in particular a failure to consult; or was it something else? So we asked the advocates here today: Mr Grant, Consultant, and Mr Magyar who appears for Mrs Magyar (he is her brother-in-law, and plainly skilled in the law or at any rate this department of the law) and these advocates, who undertook the responsibility for presenting the case to the Industrial Tribunal, gave us quite different answers.

Mr Magyar says that questions of procedural unfairness were not raised. What was being dealt with was the question, which he describes as a substantive question, whether this lady should have been offered again, in August, the job which he says she was offered in June; and again, not having heard the evidence, we cannot say whether it amounted to a true job offer or whether it was merely a discussion of what might possibly happen.

That was the basis on which the Tribunal acted throughout. They were not concerned with procedural unfairness. He says procedural unfairness was not really raised and the question of "what difference would it have made" did not arise.

Mr Grant, on the other hand, says the unfairness was, as he understood it, a failure to consult. He said there appears to be only one finding of unfairness, namely failure to consult and no consideration of the loss caused by that unfairness.

However that might be, this very long Decision, which was made in May and was promulgated in June 1992, was not appealed. And so, in due course, we get to the Remedies Hearing for which Full Reasons are given at page 5 of our bundle. That hearing was held on 30 September 1992 and the reasons promulgated on 20 January 1993. The Tribunal recite that:

"3. The respondents' representative made it clear that the question of contribution was in issue ..... [and referred to various matters in the previous Decision]. Next, after suggesting that consultation, or the lack of it, was not such an important issue in this case as the Tribunal had made it out to be, he pointed out that the impetus for cutting short the employment of the applicant had come from her (paragraph 23 of our Decision): he added that the provisions of Section 55(3) of the Employment Protection (Consolidation) Act 1978 rendered the termination of her employment a dismissal. Further, by rejecting an opportunity to appeal to the Managing Director, she contributed to her dismissal" .... [that must be, we think, wrong in law but there it is].

So they say:

"5. The Tribunal determined the issue of contributory fault after hearing the parties' submissions on the point ..... ".

They set out the provisions of Section 73 and Section 74 which are material. They have again read Mr Waters' letter. They say:

"7. ..... There is no suggestion there that the applicant's conduct falls within the statutory provisions which we have set out above, and, although the respondents drew attention to the way in which she dealt with some of her duties (which the respondents' representative touched on at the hearing ......), we consider that the respondents regarded these as evidence of a change in the nature of the work, rather than as errors on her part which might require disciplinary action on theirs".

And so having gone through that, they say they did not find that she had contributed to her dismissal in any way. She cannot be criticised, having been given the option to leave straight away, for leaving.

They then went on to consider the question of re-engagement and decided that that was not practicable in all the circumstances. A considerable time had elapsed. Then they went on to deal with compensation and they referred of course to the redundancy payment, in effect it extinguished her right to any basic award. They then went on to consider the question of the compensatory award. They said that she was still out of work and they thought she would remain out of work on balance for something like six months further and they awarded her compensation on the basis of indemnity.

In other words, they most certainly never embarked upon the exercise which a Tribunal so often do when they find there has been procedural unfairness, of deciding "what difference would it have made" and matters of that sort, putting perhaps a value in terms of percentage or otherwise on imponderables and saying, "we think, if there had been for example warning and consultation, there was perhaps a 50% chance of finding another job" - or - "we think on balance from the evidence we heard, that the salary might have somewhat lower, it would have been less skilled or she would have had to undergo a period of training in which she would had less", they did not make any enquiries of that sort. They simply considered it on the indemnity basis and, says Mr Magyar, it is perfectly plain why they did that; it is because they were not considering a question of procedural unfairness at all, they were considering his submission and accepting his submission, that she should have been offered and would have carried out the job which was in effect mooted in June, that is to say she would have accepted the extra training and done it, and the Tribunal so found.

We have been told that the appeal is brought first of all on the point that the Tribunal never did consider what difference consultation; or any matters for which the Respondent was blameworthy; what difference they would have made. And secondly, on the question whether she contributed to it, whether she contributed to her own loss.

Neither of these points, says Mr Magyar, was raised before the Industrial Tribunal. In effect, he says, Mr Grant said there what he said to us today, that "we are asking ourselves what on earth did we do wrong. We offered consultation. We had decided that she could not do this new job, but we offered consultation and she went off without consultation. We did not do anything wrong". It is remarkable, if that is the position, that the original Decision in May, the decision on liability, was not appealed.

We have to look at the substantial justice of it. Clearly, this Industrial Tribunal considered submissions and facts of considerable difficulty, and they seem to have applied their minds very thoroughly to what they understood the issues to be. The main misgiving which arises in our minds is whether they have sufficiently indicated the matters of unfairness on which they finally found that she was unfairly dismissed and the route by which they came to award compensation, that is to say the causation by which they found that all her losses since her dismissal were due to that unfairness.

It appears to us though, accepting, as of course we do, the integrity of both the advocates, that the only proper explanation for that is what is put forward by Mr Magyar, namely that that was his case, that that was what was pressed upon the Industrial Tribunal and they must be taken in the circumstances to have accepted that. Of course, they are not required to spell out every detail of their intellectual processes by which they arrive at the result.

It appears to us, having considered it as carefully as we can, that we ought to accept that and that a Tribunal which has gone about its task as conscientiously and, indeed, painstakingly as this one has, should be assumed to have proceeded in the way they did because they accepted the submission which was made by Mr Magyar. Of course, a very great deal can be said about that. We have not seen the evidence. Mr Magyar reminded us very forcefully that we must not endeavour to make findings of fact which have not appeared in the reasons given by the Tribunal and he might have added, though perhaps this would have been less easy to maintain, that we ought to assume unless it is quite clearly wrong that the Tribunal was proceeding in a rational way. Having, as I say, thought about it rather anxiously and with some misgivings, we have come to the conclusion that this Tribunal is to be taken to have proceeded in a rational way. Although it might be said that certain steps have not been spelled out, they must be taken to have accepted unfairness of the sort that Mr Magyar indicated to us and have concluded that she could, and should, have been offered the job and would have accepted it at the same salary and thus that she would not have suffered any loss.

It may be that the blame for any obscurity rests partly with the parties, partly with the Tribunal. It may be that the parties could have done more to clarify the precise issues, but having considered it as carefully as we can we think it right to uphold this decision which, whatever else one can say about it, was reached after very great care had been taken and a very great deal of time devoted to the matter and, of course, after hearing Mrs Magyar herself and giving proper effect to her evidence. The burden, of course, was on the Respondents to show the reason for which she was dismissed.

So to put it very shortly, although this decision is one which gives us certain misgivings, we are satisfied, after thinking about it, that there is no point of law which arises on which we can interfere and we therefore dismiss the appeal.