United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 830_93_0802

Appeal No. EAT/830/93, EAT/900/93, EAT/26/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MR A C BLYGHTON

MR J C RAMSAY

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MR W P WOOD          APPELLANT

JAMES LONGLEY & CO LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents NO APPEARANCE BY OR

ON BEHALF OF

RESPONDENTS


 


MR JUSTICE WATERHOUSE: This has been the preliminary hearing of three Appeals by an employee who claims that, as a result of the decisions of an Industrial Tribunal sitting at Brighton, he received an inadequate award of compensation for unfair dismissal.

Briefly, the history of the matter is that the Appellant made an Application based upon alleged unfair dismissal, which was heard in May and June 1993 by an Industrial Tribunal sitting at Brighton under the Chairmanship of Mr L Starkey. The unanimous decision of that Tribunal, which was communicated to the parties on 31 August 1993, was that the Appellant had been dismissed by reason of redundancy but that there had been no consultation and that the dismissal was, accordingly, unfair.

The Tribunal went on to hold that, had there been consultation, its only effect would have been to have postponed the dismissal for no more than a fortnight, during which time the Appellant would have continued to have had the use of his company car. The Tribunal held also that he was entitled to be compensated for not having the use of the vehicle for the 12 week period of his notice. He had, in fact, had the use of the car for a period of one week only, so that his net loss of use of the car on the basis of the Tribunal's findings, was a period of 13 weeks. The Tribunal stated that, if the parties were to be unable to agree the terms of a monetary settlement, the case would have to be relisted for consideration of the amount of compensation.

The Appellant thus succeeded on the central issue of unfair dismissal but he was dissatisfied with the conclusions drawn by the tribunal about the basis on which his compensation should be assessed. Accordingly, he applied for a review of the decision on 13 September 1983 and he gave notice of appeal also to this Appeal Tribunal nine days later. That Appeal is identified as EAT/830/93.

The Industrial Tribunal considered the Application for a review and communicated their decision upon that matter on 30 September 1993. In giving their reasons for refusing a review, they set out the grounds upon which the Application had been made. They referred to a decision of this Appeal Tribunal in the case of A F Stevenson v Golden Wonder Ltd [1977] IRLR 474 and went on to say that they had decided unanimously that a review should be refused. They pointed out that, in the detailed grounds submitted by the Appellant, he was, in effect, disagreeing with their evaluation of the evidence and the findings and decision based upon that evaluation. They commented further that, if there had been an error of law on the part of the Tribunal, it was a matter for appeal rather than a review. For those reasons they were of the opinion that the Appellant would have no reasonable prospect of success if a review were to be granted. Against that decision the Appellant served notice of Appeal on 24 Octpber 1993 and that is identified as Appeal No. EAT/900/93.

Finally, the parties having been unable to agree the terms of the monetary award, a further hearing by the Appeal Tribunal on 4 November 1993 was necessary . The conclusion of the Tribunal was that the Appellant should be awarded a total sum of £1,627.77, made up of £427.77 in respect of loss of earnings and £1,200 in respect of loss of use of the car. Whilst challenging the basis of only two weeks' loss of pay, the Appellant does not challenge the arithmetical calculation of £427.77, if the award for loss of earnings was properly limited to two weeks. The appeal from that decision is EAT/26/94.

Having set out that chronology of decisions and appeals, it is necessary, first of all for the Appeal Tribunal to consider the basis or proposed basis of the appeal by the Appellant against the basic decision in this matter arising from the hearings in May and June 1993. In support of the Appeal, the Appellant served a document comprising some 14 pages and we must say at once that many of the points made consist of such detailed comment on the evidence that they can only be interpreted with great difficulty. What is striking at once on reading them is that there is no reference to anything that can be readily identified as a point of law. In order to assess put the matter in context it is necessary to say a brief word about the full reasons given by the Tribunal for their original decision.

What they said is that the Appellant had worked for the Respondents for 16 years, his employment having ended on 18 September 1992. He was a senior joinery surveyor, working at the company's joinery works at Crawley. The Tribunal referred to the fact that in 1991 there have been a number of redundancies in respect of those employed in the construction side of the company's business as a result of the recession but that the joinery works had not suffered similarly until 1992. There was then a dramatic reduction in work and the turnover of the Respondents for the first half of the year was down by 50%. The Tribunal then made detailed findings of fact about the decisions made by the Respondents in relation to the redundancies caused by the downturn in work. At paragraph 10 they said that two senior management representatives of the Respondents saw the Appellant on 26 August and informed him that he was to be made redundant the following month unless there was an upturn in the work load. Then, on 14 September 1992, a letter was written to the Appellant, which was handed to him the following day, giving him notice of termination on 18 September with 12 weeks pay in lieu of notice. Having reviewed this history, the Tribunal came to the conclusion that the Appellant had been dismissed by reason of redundancy within the terms of Section 57(2) of the Employment Protection (Consolidation) Act 1978.

They went on to consider the procedure that had been followed and the published policy in relation to selection for redundancy, as stated on page 8 of the employer's relevant handbook, and they reached the conclusion, as already stated, that the dismissal had been unfair by reason only of lack of consultation. At paragraph 22 the Tribunal said:

"With regard to the selection procedure, although this could have been better documented and conducted, having regard to the width and variety of factors to be taken into account, on balance we cannot find that the selection was unfair. We accept that in practice what Mr Wood did was different from what the estimators/surveyors did, and apparently always had been. The title senior joinery surveyor implies others were doing the same job in a more junior position but, as it was presented to us, that was not the case. Mr Wood was on his own, and there was no other person who reported to him. We also accept that by reason of the general reduction in the workload there was an element or re-organisation or re-distribution, in that what he did was in future to be covered by the estimators/surveyors who were retained."

It had been the case of the Appellant expressed in his evidence that there had been a deliberate plot to steer work away from him over a period of months preceding his redundancy and that had been engineered to ensure that he would be made redundant. But that was expressly rejected by the Tribunal at paragraph 23 of their reasons. A point also made in his evidence was that he would suffer greater hardship on termination of his employment because his salary was essential to him, having regard to commitments that he had made in connection with a property business, which he had started some years previously. The view of the Tribunal, however, of that special factor was that it was not one that could properly be regarded as decisive and that the point could not be sustained.

Finally, the Tribunal considered whether consultation would have made any difference to the result in the Appellant's case. Their conclusion was that, if consultation had taken place, the same decision would have been made in the end. Indeed, having heard evidence about what had occurred in September 1992, when an attempt had been made to discuss the matter by Mr Longley with the Appellant, the Tribunal, were of the view that the outcome of further consultation might well have been a fair dismissal by reason of misconduct on the Appellant's part. Thus it was that the Tribunal concluded that the only difference that consultation would have made would have been to defer the actual date of termination by no more than a fortnight.

The proposed appeal against the relevant parts of the decision by the Tribunal below is said now by the Appellant in his oral argument before us to be based on essentially four points. The first is that, although he spoke in measured terms about Mr Rimmer, the senior witness called by the Respondent when the matter was before the Industrial Tribunal, he wishes to state that Mr Rimmer is a liar and gave untrue evidence to the Tribunal. That is clearly not a point open to the Appellant to make in the absence of any new material or any question of principle related to the allegation. Mr Rimmer was called and his evidence was assessed by the Tribunal, who referred specificially to their consideration of the demeanour of the witnesses and all the surrounding documents before them. There is no possibility that that argument could be pursued successfully if the appeal were to proceed to a full hearing.

The second point that the Appellant seeks to make is based on the burden of proof. He says that the Tribunal did not even look at it and that they misunderstood the true position, namely, that the burden of proof rested upon the employers to establish the reason for the dismissal and its fairness. This point too is wholly misconceived. We have been unable to find the slightlest trace in the full reasons given by the Tribunal of any error in relation to such a fundamental matter as the burden of proof. It is a matter that has occurred to the Appellant only since the hearing and it is wholly without merit. Indeed, the resume that we have given already in this Judgment of the Tribunal's findings is a sufficient answer to any suggestion that the Tribunal misunderstood the burden of proof.

Finally, the Appellant wishes to rely upon a general assertion of maladministration by the Chairman of the Industrial Tribunal in the conduct of the proceedings both before and at the hearing. He is said to have been irascible and it is alleged that he made errors in two particular respects. It is asserted, first of all, that he wrongly rejected an application for further discovery of documents by the Respondents. The Appellant wished to establish that there had been a progressive change in the work allocated to him from 1991 onwards up to the moment of his dismissal. He wished to have that evidence to support his assertion that there was a deliberate policy and a plot on the part of the Respondents to facilitate his dismissal in September 1992. We have examined the documents relating to this issue. The Appellant did seek an order in relation to documents at a comparatively late stage before the hearing and he was entitled to make such an application under paragraph 4(1)(b)(ii) of the Rules of Procedure set out in Schedule 2 to the Industrial Tribunals Rules of Procedure Regulations 1985. It is plain, however, that the application made by the Appellant was so wide in its terms that it was manifestly oppressive. He was seeking disclosure of all the estimating records, that is, continuous estimating records, through the later period of his employment. He wished also to have all files relating to estimating for the particular period, the computer print-outs cross-referring to those matters and the continuous records of the invoicing of clients. It is apparent that, if that application had been acceded to, it would have caused considerable disruption of the Respondent's work and, in the event, it seems to have been accepted that there had been a degree of re-organization in relation to estimating and invoicing, both before and after the Appellant's dismissal. The question of a deliberate re-allocation of work as part of a plot was clearly before the Tribunal. They heard evidence about it and we are unable to accept that there was any incorrect decision by the Tribunal on to the question of discovery.

A similar point is relied upon by the Appellant relation to the calling of witnesses. Like so many applicants in person, he appears to have envisaged compelling the Respondents to produce various members of the management and other employees to enable him to cross-examine them at the hearing in order to try to establish his case that there had been a plot against him. It is certainly unlikely that, if he had chosen to call them himself, he would have found any support for his allegation of a plot. What happened in the event was that he wrote to the solicitors acting for the Respondents insisting that these witnesses should be made available. They made it clear that they would decide who should be called on the Respondents' behalf. The Appellant did write requesting orders in relation to certain witnesses and, in response to a request from the Tribunal, he did indicate in May 1993 the general nature of the evidence that he thought that the witnesses would be able to give. That can be seen in two copies of the same letter dated 9 May 1993, one of which is at page 69 of the bundle before us; and the particulars of what the witnesses, that is, witnesses other than the senior management, might say can be seen at page 70. The response of the Chairman of the Tribunal was that it was too late to make realistic orders under the provisions of Rule 4(1)(b)(iii) in advance and that a decision about any appropriate order would be deferred until the hearing itself. In the event it does not appear that the Appellant made any renewed application for an order directing the attendance of any specific witness.

The witnesses who were most closely concerned with the work of the Appellant and the decision to dismiss him were called at the hearing; and the Tribunal heard both Mr Rimmer and Mr Michael Longley. If any further application had been made by the Appellant, no doubt it would have been considered on its merits. We could not, therefore, allow this Appeal to proceed to a full hearing on the basis that the Chairman failed to make any direction at the hearing in relation to additional witnesses when he was never specifically asked to do so.

Our comments so far dispose of the principal matters that the Appellant has sought to argue before this Appeal Tribunal at the preliminary hearing of appeal No. EAT/830/93. We must add, however, that his real wish is to re-argue the evidence and history of this matter to show that his selection for redundancy was wrong and unfair generally. He wishes to say that, within any fair procedure, he would not have been selected for redundancy, having regard to his qualifications, length of service and record with the company. He suggests that, although the finding of the Tribunal on the issue of unfair dismissal was in his favour, it was subject to subsidiary findings that had the effect of making their decision derisory in terms of compensation. Those are all matters, however, relating to the evaluation of the evidence below. They do not raise any question of law, either actually or potentially, and they do not provide any ground of appeal that could properly be considered by the Appeal Tribunal at a full hearing.

The remaining issues before us can be dealt with much more briefly. In the first place, there is an appeal against the refusal of a review. We have read the grounds of the proposed appeal but we can see no basis upon which the Appeal Tribunal could hold that the Tribunal below came to a decision that was plainly wrong in exercising their discretion as to whether or not to grant a review of their original decision. The reasons for refusal were properly and fully set out in the document sent to the Appellant on 30 September 1993. What the Appellant says is that there was no new material to place before the Industrial Tribunal. He wanted them to reconsider the case generally. The only new matter that he wished to raise was the burden of proof, on which he had instructed himself following the original hearing. In our judgment, the decision of the Industrial Tribunal to refuse the review was not only properly within the discretion of the Tribunal but also plainly right in the absence of any any proper reason for a review within the terms of Regulation 10(1) of the Industrial Tribunals (Rules of Procedure) Regulations 1985, Schedule 1.

Finally, we are left with the appeal against the assessment of compensation. In view of our dismissal of the other two appeals, that is limited now to the assessment of compensation for the loss of use of the car for a period of 13 weeks. The Industrial Tribunal were in some difficulty because the Respondents were content to rest their case on an evaluation of the tax benefit assessment that would have been made by the Inland Revenue in respect of that period. That was calculated to be only £850 for 13 weeks. The Tribunal, however, rightly rejected that basis of computation and instead looked to see what the cost of hiring a car for the relevant period would have been, bearing in mind that, if the Appellant had mitigated his loss, he would have hired an appropriate similar car for the relevant period. The Appellant submitted figures which were very high because they were based on the hire of a 1992 Sierra 1800 GLX car. The car to which the Appellant was entitled for use was a Vauxhall Cavalier 1600, registered in 1990. The Tribunal thus had to make the best assessment they could of the proper figure between the extremes put before them by the parties. The figure for hire of a Sierra would have been about £2,969 for a period of l3 weeks. It may be that the Members of this Tribunal or some of them might have been a little more generous than the Tribunal below, whose own figure was £1,200, but this was no doubt based on local knowledge as well as the figures placed before them. The Appellant had put an elaborate computation before them, covering not only the cost of the hire of a car but also a large number of other lost benefits said to flow from the lack of use of the car. Those additional matters were rightly rejected as a matter of law by the Tribunal below. The only point in the end that has been discussed in any detail before us has been the cost of oil and petrol for the use of the hired car, which would have been, it is said, additional to the cost of hire itself. We reject the suggestion that there could have been any realistic application in respect of the cost of oil and the Appellant has rightly agreed that there could be no proper claim in respect of tyres.

The argument is, therefore, limited in our view to the cost of petrol. The figure put forward on the basis of the usage of 19,000 miles per annum by the Appellant came to £355.65. It is quite clear that that was an excessive estimate. The usage during the period of 13 weeks, at a time when the Appellant was no longer employed, would clearly have been modest for domestic and minor business purposes. We have not seen any document setting out what the actual arrangements were about the cost of petrol. We have been told by the Appellant that the company paid the cost, except for long journeys on the Appellant's own business. We have no reason, having considered this argument, to find any error of law on the part of the Tribunal below in making their assessment of £1,200 by way of compensation for loss of use of the car. It is not clear on the face of it whether they had in mind the question of petrol but they did have the document put in by the Appellant before them and we consider that it would be wrong to infer that they failed to take into account all the material factors.

It follows that there is no point that would justify an appeal from this last decision of the Industrial Tribunal.

For all these reasons, therefore, all three Appeals must be dismissed.