United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 261_93_0302

Appeal No. EAT/261/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MR E HAMMOND OBE

MISS E WHITTINGHAM

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MISS H PAREKH          APPELLANT

OSRAM LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P JASANI

(SOLICITOR)

21 Doreen Avenue

Kingsbury

London NW9 7NX


 


MR JUSTICE WATERHOUSE: In this Appeal the Appellant complains that an Industrial Tribunal sitting at London (North) on 19 January 1993 made an incorrect assessment of her compensation for unfair dismissal because the Tribunal wrongly decided that the compensation should be reduced by one-half. The case for the Appellant is that a full award should have been made. However, the Tribunal considered themselves bound to make an assessment of the prospect that the Appellant would have had of retaining her employment, or of being offered acceptable alternative employment, if the employers had adopted a fair procedure when dealing with her potentional redundancy; and, in doing so, the Tribunal purported to follow the process spelt out by the House of Lords in Polkey v. AE Dayton Services Ltd [1988] ICR 142.

It is unnecessary to go into great detail about the underlying facts of the case. The Appellant was employed by the Respondent from 12 September 1988 as a bought ledger supervisor in the Respondent's headquarters office. Eventually, a situation arose in which redundancies occurred in the Respondent's factory and all the employees in that factory received notice of redundancies on 29 August 1991, with effect from the end of September 1991. Those redundancies, as we understand it, did not directly affect the headquarters staff because it was the factory that was being closed; but, in the course of the selections for redundancy that followed, the Appellant was offered alternative employment on less favourable terms, whilst another employee, who had been employed as a bought ledger supervisory in the factory, was offered the Appellant's job. In their statement of reasons, the Tribunal explained how the selection for redundancy was made by a man called Thomas Ockenden and, having considered the various steps taken by Mr Ockenden, the conclusion of the Tribunal was that the procedure had been unfair and that, accordingly, the Appellant had been unfairly dismissed.

The Tribunal went on at paragraph 8 of their statement of full reasons to say the following:

"We then considered that if the proper procedures had been followed whether the Applicant would have been made redundant in any case. We cannot assess the comparative abilities of the Applicant and Mrs Arch - [that is the other employee who replaced her] - but we heard Mrs Arch in evidence who informed us that she had been in accounting all her working life and also that she had one years longer service with the company than the Applicant. We therefore consider that there was a 50% chance that the Applicant would have been redundant in any event and her compensation should be reduced accordingly."

The major ground of appeal formulated by Mr Jasani, the solicitor acting on the Appellant's behalf, is to the effect that the Tribunal were wrong in holding that there was a 50% chance that the Appellant would have been made redundant in any event. It is suggested that there was no evidence before the Tribunal that the Appellant would have been made redundant had correct procedures been followed. However, the remaining grounds of appeal listed in paragraph 3 of the notice recite matters that were essentially relevant to the Tribunal's favourable finding - that is, favourable to the Appellant - that she had been unfairly dismissed. In short, it is said that there was a plot against the Appellant, that the management had decided to get rid of her whatever the true situation might be and that Mrs Arch was accorded favourable treatment in taking over the Appellant's work, which would have been unnecessary if the Appellant herself had continued in her employment, in which she had shown herself to be satisfactory.

These latter complaints in the grounds of appeal are wholly misdirected. They simply serve to reinforce the correctness of the conclusion by the Tribunal that the Appellant had been unfairly dismissed. What this Appeal Tribunal has to look for is any basis upon which it could be argued properly that there was an error of law by the Industrial Tribunal in assessing the Appellant's prospects under a fair procedure at 50%. The assertion in the grounds of appeal is that there was no evidence before the Tribunal to suggest that the Appellant could properly have been made redundant in accordance with a fair and proper procedure. However, the brief citation from the reasons given by the Tribunal is sufficient to show that they had in mind that Mrs Arch was a person of long experience in accounting, who also had a longer period of service than the Appellant with the company. It is not surprising, in those circumstances, that the Tribunal concluded that Mrs Arch would have had a substantial chance of being preferred to the Appellant if a correct redundancy procedure had been followed.

Paragraph 4 of the proposed grounds of appeal alleges that the Tribunal wrongly held that the Appellant had not made use of the grievance procedure and that such procedure would have made a difference to the Respondent's decision to dismiss the Appellant. The Tribunal did not, however, find that the grievance procedure would have made a difference and their comment, in paragraph 9 of the statement of reasons that the Appellant did not make use of the procedure had no relevance to the Tribunal's assessment of the Appellant's chance of success under a correct procedure. The comment was simply narrative and we cannot see any basis upon which paragraph 9 could be used realistically to suggest an error of law on the part of the Tribunal.

In the end, the Appellant has been driven to allege, at paragraph 5 of the grounds of appeal, that the finding of 50% was against the weight of the evidence but assessment of the weight of the evidence was a matter for the Industrial Tribunal and that allegation does not raise any question of law.

We must find, therefore, that the grounds of appeal do not disclose any point of law that could be argued before the Tribunal at a full hearing and the Appeal must be dismissed.