United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 406_93_1102

Appeal No. EAT/406/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A FERRY MBE

MR K HACK

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SPECTUS LTD          APPELLANTS

ROBIN L SWALE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR D BOOTH

(Of Counsel)

Stayners

Berkshire House

The Broadway

Farnham Common

Bucks

SL2 3PN


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal held at Reading on the 13th January 1993. The Tribunal unanimously decided that Mr Swale had been unfairly dismissed by his employer, Spectus Ltd, for reasons stated in the decision notified to the parties on the 15th April.

Spectus were dissatisfied with the decision and appealed by Notice of Appeal dated 25th May 1993.

The background to the decision is that Mr Swale was a Manager of Information & Computing Services with Spectus. His employment began on the 1st May 1983 and ended on the 30th April 1992.

In his Originating Application to the Industrial Tribunal presented on the 27th July 1992, he complained of unfair dismissal. He stated that shortly after 31st January 1992 he received a letter enclosing another letter which he was asked to sign and return if he agreed to the contents.

The next thing that he was aware of was of being called to a meeting on the 1st April 1992 by two directors, Mr Beazer and Mr Tindall, and told that he was to be made redundant on the 30th April 1992. He was handed a letter confirming that.

Spectus contested the claim and stated in their Notice of Appearance dated 2nd September 1992 that the reason for dismissal was redundancy. They stated that the dismissal was by the letter of 31st January 1992. That contained an offer of a new contract, which was not accepted.

That was the dispute between the parties. The Tribunal set out their decision clearly and concisely. The Tribunal referred to Mr Swale's employment and stated in paragraph 8 that in early 1992 Mr Tindall said there was little work for Mr Swale to do. Mr Tindall gave evidence to the Tribunal that Spectus did not, in January and February 1992, wish to make Mr Swale redundant, though the Company was under severe financial pressure.

A letter was, however, sent to Mr Swale on 31st January 1992, with an enclosure. The letter was stated:

"Contract of Employment

As a result of the current recession the company is reviewing employees' contracts of employment. Accordingly, this letter is formal notice that your contract of employment dated 1 May 1983 is terminated on 30th April 1992.

Enclosed, please find a letter comprising a new contract of employment for your consideration and if agreeable, your written acceptance."

Mr Swale did not sign or return the enclosed letter. He did not accept the new terms that were offered. His contract of employment terminated on the 30th April 1992 by reason of the letter of the 31st January 1992.

In paragraph 14 of the decision the Industrial Tribunal said that Mr Beazer a Director of the Company, told the Tribunal that he really intended fully to terminate Mr Swale's employment at the end of January, but could not bring himself to tell Mr Swale.

The Tribunal said at paragraph 16:

"The applicant [Mr Swale] had no suspicion he was to be made redundant until he was handed the redundancy letter on 1 April 1992 at a meeting with Mr Beazer. There was no consultation in connection with the redundancy situation."

The Tribunal set out its conclusions. It was stated that it had been accepted by Counsel for Spectus that the 31st January 1992 letter was the letter of dismissal which terminated employment when the offer of alternative employment was withdrawn. Spectus relied on the January notice that expired on the 30th April 1992 - they had not considered or at least did not dismiss at that time for redundancy. No reason was given on 31 January as to why they terminated the employment. In those circumstances the Tribunal held that the dismissal was unfair. It was not for redundancy. It was not for any stated reason other than redundancy. The Tribunal went on to say:

"However, if we are wrong and the dismissal took effect as a result of the letter of 1 April 1992 on the grounds of redundancy, there was no consultation whatsoever with the applicant [Mr Swale]. We believe that had there been, a different course may have been found which could have been available to deal with the applicant. Again we find that the dismissal was unfair through lack of consultation even if a redundancy situation did exist."

The Tribunal stated in conclusion:

"The Tribunal having made a finding of unfair dismissal, the parties then reached agreement on the terms of compensation."

On this preliminary hearing our function is to consider whether there is an arguable point of law on the Tribunal's decision. If there is, the matter must proceed to a full hearing. If there is not, the appeal should be dismissed now.

Mr Booth, who appeared for Spectus on this ex-parte hearing, submitted a summary of his arguments. He has amplified them during the hearing in response to our questioning.

First, he takes the point that there was a redundancy situation at the date of the dismissal letter. He says it is plain from the letter that the reason for dismissal was redundancy. There is no point of law on this. It is a question of fact. The Tribunal set out the facts in the decision. Included in the facts were not only the terms of the letter but also evidence given on behalf of Spectus by Mr Swale. It is clear from the finding of fact that the letter of 31st January 1992, though a letter of dismissal, was not a dismissal for redundancy. Redundancy came later.

Secondly, the point is taken that there was some evidence of consultation, though it is admitted not sufficient individual consultation. There is no error of law in the Tribunal's decision on this point. There is a clear finding of fact by the Tribunal that there was no consultation with Mr Swale. That finding of fact cannot be reversed by this Tribunal unless there is an error of law.

The third point Is that, in so far as the Tribunal decided that the dismissal was procedurally unfair, it should have gone on to consider whether Mr Swale would have been dismissed anyway and to make a finding as to what extent Mr Swale's loss should be reduced. The complaint is that there was no finding. This has put Spectus into the position of having to agree a payment based on a finding of substantially unfair redundancy. This point may be called the Polkey point, [1988] ICR 142.

The Tribunal is unable to find any error of law. It is not disputed that, on the basis of the finding of unfair dismissal, the parties reached an agreement on the terms of compensation. We are told that the agreement reached was that the statutory maximum of £10,000 should be paid. An agreement is an agreement. There is no power in this Tribunal to entertain an appeal on the grounds of error of law in relation to an agreement which the parties, both represented by Counsel, reached.

Mr Booth submitted that there was an error of law, on the part of the Industrial Tribunal, in not raising the point with the parties when the Industrial Tribunal made its decision on unfair dismissal. The parties would then know the basis on which they could reach an agreement on compensation.

We are unable to find any error of law, for this reason. When parties are represented it is for the parties to take the points on each side and ask the Tribunal to decide them. Mr Booth has informed us that the Polkey point was not taken by Counsel (not Mr Booth) then instructed on behalf of Spectus. If the point was not raised it is not an error of law on the part of the Industrial Tribunal not to raise it themselves. For all they knew the employers did not wish to raise the point. The Industrial Tribunal were entitled to proceed on the basis that, if the point was not raised, it was not for them to decide anything more. It was for the parties, through their legal advisers, to negotiate an agreement. That is what they did.

We add this. As the point was not raised below, Mr Booth has the additional difficulty that, as a general rule, this Tribunal will not allow a point of law to be raised on an appeal, which could have been, but was not, raised before the Industrial Tribunal. If there is a point of law here, (we can only entertain points of law), it was not raised below. No good reason has been given as to why this should be raised now. The Employment Appeal Tribunal, as a general rule, takes a more lenient approach to the raising of new points where a party before the industrial tribunal has not been legally assisted and may not have been aware of a point that could have been raised. When parties have been represented by Counsel, they have had the opportunity to raise the point of law. It is not appropriate to raise it for the first time on an appeal.

We do not decide the case mainly on that basis, because we regard this as a case where there is no point of law to be raised. There is no point of law in relation to redundancy and consultation. Compensation was a matter of agreement and cannot be an error of law on the part of the Industrial Tribunal.

For those reasons the appeal is dismissed.