United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 666_94_2311

Appeal No. EAT/666/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 November 1994

HIS HONOUR JUDGE J BULL QC

MR K M HACK JP

MRS E HART

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NORMAND MOTOR GROUP LTD          APPELLANTS

G MURTUZA          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR MICHAEL DUGGAN

(Of Counsel)

Messrs Astons

57 Love Lane

Pinner

Middx

HA5 3EY


 


JUDGE J BULL QC: This is a preliminary ex-parte hearing of an appeal by Norman Motor Group Ltd, against the decision of the Industrial Tribunal sitting at London North on 2 March 1994, presided over by Mrs Barbara Calvert QC, by which it found that the Applicant, Mr G. Murtuza, had been unfairly dismissed. The Tribunal then adjourned the hearing on remedies to a date to be fixed. Their full reasons were promulgated on 25 April 1994.

The Applicant before them, Mr Murtuza, worked for the Normand Motor Group Ltd for some 20 years progressing from a Service Reception Engineer to a managerial position. He had been employed at one time at King Street, where he found that he was under considerable stress and was moved by the employers, with his consent, to Greenford about February 1990.

The recession seriously affected this business, as so many others, and a decision was made in 1992 that there was insufficient work at Greenford for two people at management level of whom Mr Murtuza was one, and he was told that he had to go to King Street and that he would there be found a clerical job.

On 23 February 1993, pursuant to that decision Mr Murtuza visited Greenford in order to collect his belongings, but then was taken ill, visited a medical centre where he was told that he was suffering from high blood pressure and that he must go home. This he did. On the way he called on his general practitioner and was advised to go home, rest, and take two weeks' sick leave.

Thus it was, that by a letter dated 25 February 1993, Mr Murtuza wrote to management saying that he was not obliged to accept a variation of his contract which would involve a move back to King Street. He went on to say that he believed a transfer would amount to a demotion and added this:

"I feel, as does my G.P., that the move would be detrimental to my health. I shall therefore continue to attend work at Greenford branch".

The Industrial Tribunal in paragraph 7 of their reasons set out with care and clarity those matters which they accepted:

"Mr Mitchell, the Operations Director, replied to that letter and suggested that there would have to be a discussion when Mr Murtuza had recovered sufficiently to return to work. He returned to work at Greenford and Mr Monaghan told him to remain there two days as on 2 April they were having a meeting with Mr Monaghan. On that date at lunch time Mr Murtuza went to Greenford but it was Mr Biott who told him that he was to be made redundant and he was handed a letter terminating his employment with effect from that date. In that letter is set out the sums he was entitled to by way of a redundancy payment and the sum he will receive in lieu of 12 weeks notice. In the second paragraph it was stated that Mr Murtuza was offered alternative employment at the King Street branch but that he refused the position. Therefore his employment had to be terminated because the work he was doing at Greenford had diminished and Mr Biott was able to do what work remained. We find that the work which Mr Murtuza was employed to do at Greenford had diminished and there was no longer a position for full-time employment for him at that depot. We further find that at no stage was he told that he would be made redundant if he did not go to the job offered at King Street. There was no consultation with him. There should have been".

Mr Duggan, in his Notice of Appeal and his skeleton argument, urges us to find that the Industrial Tribunal fell into error in two ways. First, having accepted there was a redundancy at Greenford and stating that consultation should have taken place about the move to King Street, they failed to go on and consider whether this was a case where consultation was futile, given the clear statement from Mr Murtuza that he was not prepared to move to King Street because he took the view, confirmed by his general practitioner that such a move would be injurious to his health. Secondly, submits Mr Duggan, that in paragraph 7 of the decision the Tribunal had stated that there should have been consultation, but failed to consider whether any reasonable employer in the position of the Appellant would have been entitled to conclude that consultation was futile given the Respondent's clear assertion in his letter that the move would be injurious to his health.

It is important in our view, to note that in setting out their reasons in paragraph 7, the Industrial Tribunal find that Mr Mitchell, the Operations Director suggested that there would have to be a discussion when Mr Murtuza recovered sufficiently to return to work, but that the Industrial Tribunal find, plainly, that there was no such discussion between Mr Mitchell and Mr Murtuza. Mr Duggan accepts, as he must, the finding that no such discussion took place. But he submits to us that the real question which the Tribunal had to grapple with was to ask itself, could a reasonable employer having received that letter of 25 February 1993, take the view that consultation in respect of the move to Greenford was futile?

We have considered this but in our unanimous view, the Industrial Tribunal in the clearest possible terms found that there was no consultation with Mr Murtuza and there should have been. This, we are certain, by necessary implication rejects any contention that consultation in the circumstances of this case, would have been futile.

We are sure that in their finding they considered the matter that was put forward by Mr Duggan before us and rejected it, but Mr Duggan has a further matter which he asks us to consider. Having decided that there was no consultation and there should have been, the Tribunal in paragraph 7 went on to say:

"In evidence Mr Murtuza said and we accept that he had been told that it was the job at King Street or redundancy he would have taken that post because at his age he was going to find it very difficult to find other employment".

Mr Murtuza agreed that the Respondents had a right to transfer him having regard to his contract of employment. Mr Duggan draws these sentences into sharp focus and contrasts them with the remainder of paragraph 7. He submits that the Industrial Tribunal wrongly tied up the evidence of Mr Murtuza with the question of consultation.

The findings in paragraph 7 in our judgment set out the facts which the Industrial Tribunal found and finally, their conclusions in relations to those facts in the trenchant terms to which I have already alluded. Having considered the passages both in Polkey v Dayton Limited [1988] AC 344 and Duffy v Yeomans and Partners Limited, the case recently decided by the Court of Appeal and which is before us in transcript of 12 July 1994, we reject the contention that the final two sentences demonstrate that the Industrial Tribunal applied an erroneous test. They were, in our view, by way of a tidying up exercise dealing with submissions which had been made to them.

It is of course, trite law that any appeal to this Tribunal from a Decision of an Industrial Tribunal can only be supported upon a point of law, that there can be no question of us re-trying the matter. The Industrial Tribunal of course had the privilege, which is completely denied to us because we are a Tribunal of law and not of fact, of seeing those persons who gave evidence before them, hearing their evidence and hearing it tested in cross-examination. In those circumstances, it would of course be quite idle for us to say that we have a better view than that of the Industrial Tribunal. We can detect no error of law in this Industrial Tribunal and most certainly we cannot say that in any of the respects that have been put forward with great persuasiveness by Mr Duggan, or indeed any other respect which occurs to us, this Industrial Tribunal acted in a way and reached a conclusion that no reasonable Tribunal could have done. It follows therefore that there is no point of law here and in our judgment this appeal therefore must be dismissed.