United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 310_94_2710

Appeal No. EAT/310/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 October 1994

THE HONOURABLE LORD COULSFIELD

MS S R CORBY

MR T C THOMAS CBE

---

MR K J WALSBY          APPELLANT

THE AUTOMOBILE ASSOCIATION          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant MRS J WALSBY (WIFE)


 


LORD COULSFIELD: This is a Preliminary Hearing in relation to an Appeal against a decision of an Industrial Tribunal which held ultimately that the Appellant had been unfairly dismissed, but that no remedy was appropriate.

The original decision of the Industrial Tribunal under the Chairmanship of Mr Winter-Taylor was given on the 21st September 1993. That decision held that the Appellant had not been unfairly dismissed. A review took place and by decision dated 17th February 1994, the Industrial Tribunal reached the view that there had been an unfair dismissal but that no remedy was appropriate.

In outline, the circumstances are that the Appellant was employed by the Respondents from 23rd April 1990 until 18th April 1993 as Head of Radio Development. He was recruited to replace another employee named David Evans and was responsible for radio planning and development.

In 1992, the Respondents undertook a re-structuring exercise and carried out consultations with the Unions involved, starting on 8th October 1992. The Industrial Tribunal found that there were reductions in radio development funds, so that radio developments had to be reduced and one head of radio development made redundant. They found that the overall reduction in development funds was 5%. They went on to find that between October and December there were meetings between the management and the unions, in the course of which the method of selection was agreed as last in, first out, based on the total length of service with the Respondents. As a result, Mr Evans was retained on the basis that had longer service with the Respondents. The Appellant invoked a grievance procedure but the decision stood.

The Industrial Tribunal say that they first had to decide whether a redundancy situation had arisen. They state that, because of the recession, the Respondents sustained a fall in membership. There was also a reduction in the hotel and insurance market which resulted, according to their findings, in three regions being reduced to two. They find that there was a reorganization at management level to reduce costs and improve the trading situation and therefore in all the circumstances, that a redundancy situation had arisen.

They go on to consider whether the criteria for selection were fair and decide that they were, and refer again to the question of consultation with the union. In their original decision, they also went on to say that in their view there had been sufficient personal consultation with the Appellant.

As a result of the review, however, they altered their opinion on this last point. They refer to the decision in Robertson v Magnet Limited Retail Division [1993] IRLR 512. They consider what personal consultation took place and decide that there was, effectively, no real consultation. However, they conclude their decision by saying that, as to remedy, the only point on which consultation might have been assistance to the Appellant was in relation to alternative employment, but that the consultation period would have been short and even if there had been consultation, the result would probably have been no different. They therefore conclude that there was no appropriate remedy.

In explaining the grounds of appeal today, Mrs Walsby, first of all referred to a number of points in relation to the Industrial Tribunal's finding that a redundancy situation existed. She put the position very fully and clearly to us and, if it were open to us to reconsider the decision of the Industrial Tribunal on a question of fact, these might be points which we would have to take seriously.

It is, however, clear both from the statute and the case law that the Industrial Tribunal is appointed by Parliament to be the sole judge of all questions of fact arising in applications such as this. We have carefully considered what is contained in the grounds of appeal and in Mrs Walsby's submission and we are unable to see that there is any question other than a question of fact raised in them. Accordingly, there is nothing in this part of the appeal which would enable us to allow the appeal to proceed to a full hearing.

With regard to the Industrial Tribunal's findings in relation to remedy, Mrs Walsby again, has made certain submissions. Some of them depend upon the submissions earlier made in relation to the existence or non-existence of a true redundancy situation and others are independent. But again, we are not able to see that any question is raised other than a question of fact.

The third matter raised in the grounds of appeal and in the submissions today was that the Industrial Tribunal had erred in failing to consider whether the Respondents acted in breach of a customary procedure or agreed basis of redundancy. Again, however, there is nothing in the facts, as we see them, which would amount to a breach of such a procedure in the sense of the statute. It is suggested that the Industrial Tribunal had material before it in relation to this issue which is not actually mentioned in the course of the decision. Again, however, it is well established that it is not necessary for an Industrial Tribunal to mention every matter which was raised in the argument before it, but to give its reasons upon those matters which it considers essential to the decision.

Finally, a question was raised about the procedure at the review hearing. The Appellant enquired, before the review hearing, whether witnesses should be in attendance and indicated that he would wish to call evidence. The Industrial Tribunal office indicated that it was not necessary to have witnesses in attendance and that there would be a further hearing if evidence was required. However, the Industrial Tribunal heard submissions only on certain limited points, such as the question whether the personal consultation had been adequate and decided to refuse the application for a review, except in regard to the matter to which we have already referred.

There is nothing in the documents before us to indicate that the Industrial Tribunal erred in any way in the procedure which it followed or acted outwith its powers. In these circumstances, although we have sympathy with the Appellant's position, and with the concern which Mrs Walsby has explained to us that the facts should be properly understood in a case such as this, we feel that we have no alternative but to refuse this Appeal.