United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1020_94_2411

Appeal No. EAT/1020/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24th November 1995

THE HONOURABLE MR JUSTICE KEENE

MR J D DALY

MR J H GALBRAITH CB

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JOHN CROWTHER & SONS (MILNSBRIDGE) LTD          APPELLANTS

MR M A STONEY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR C BOOTH

(Solicitor)

Pinsent Curtis

41 Park Square

Leeds

LS1 2NS

For the Respondent THE RESPONDENT NOT PRESENT NOR REPRESENTED


 


MR JUSTICE KEENE: This is an appeal by the employer against a decision by an Industrial Tribunal sitting at Leeds and entered in the Register on 9th September 1994, whereby it decided that the Respondent was unfairly dismissed and that the Appellant should pay to him the sum of £2,000 by way of compensation.

The Appellant is a textile company and it employed the Respondent as a salesman. In 1993 the company's managing director took the view that the sales team needed to be re-organised. This was to be essentially along the lines of having fewer members, but with more demanding roles to be played by each member. All of this became more urgent when one of the other members of this small sales team resigned. We have allowed Mr Booth, de bene esse, on behalf of the Appellant to tell us that that resignation took place on 26th August 1993 and that the board decided what should happen on 9th September 1993. The Respondent was a potential candidate for one of the up-graded posts but there were others both from inside and outside the company. A set of criteria was drawn up. The Tribunal's decision then records what happened:

"Around the time the respondents were undertaking the process described, the applicant sought assurances with regard his future in the business and was given assurances at that time, although it must have been clear to the respondents that in fact, in the light of the consideration that they were giving to the future, the applicant's long-term role within the business was in question. It was only on 7 October 1993 that the applicant and his colleague, whose job was also in question, were seen by representatives of the respondents and advised of the position. Within the ensuing week the applicant's future in the company had been determined and he was dismissed with effect from 13 October 1993."

The Industrial Tribunal held the dismissal to be unfair. They said this:

"Although the respondent had identified the need for changes in staffing requirements as a result of the perceived needs of the business, there was no attempt to warn the applicant that this could result in his job being put at risk. Indeed, when the applicant sought assurances as to the future, he was not given any cause for concern. Nor was there any attempt to involve the applicant in the formulation of the strategy which ultimately lead to his dismissal."

The Tribunal then went on to emphasise the importance of consultation in the context of good industrial practice, citing the case of R v Brent Council ex parte Gunning [1986] LGR 168. They said:

"By the time the applicant was advised that his job was at risk, all the decisions which the respondent needed to take had been taken. Other candidates for the posts available had been seen and assessed. The meetings held cannot be seen as meaningful consultation."

However, the Tribunal was satisfied that even if there had been proper consultation the Respondent would nonetheless have been dismissed. On the other hand they found that there was some loss to be covered by a compensatory award, and they said in dealing with compensatory award, that it:

"will be restricted to the period during which we believe the applicant's employment would have been prolonged had the respondent taken the steps in relation to consultation which we believe a reasonable employer would have taken. We assess that period at one month."

No challenge to the decision that the dismissal was unfair is now mounted in this appeal, but it is contended by the Appellant that there was an error of law, or alternatively, that it was perverse of the Tribunal, in holding that this Respondent's employment would have been prolonged had there been appropriate consultation. It is said, in effect, that all those appropriate steps would have taken place before the Respondent's dismissal. Mr Booth on the Appellant's behalf, submits that the only conclusion that the Tribunal could have come to would have been that dismissal would still have taken place on 12th October 1993, effective from the following day, even if fair procedures had been followed. Alternatively it is said that the period of prolongation should have been less than one month. It is also contended that there was no evidence upon which the particular conclusion now challenged could have been reached.

We say straight away on that last particular point that there are no Chairman's Notes of Evidence before us, because they have not been sought by the Appellant; in the absence of those notes, it is quite impossible for us to conclude that there was no evidence to support the conclusion which is being attacked.

Finally, Mr Booth has sought to raise a new point before us today, to the effect that he did not have a proper opportunity at the hearing to address the Industrial Tribunal on the amount of the compensation award.

Again, we deal with that argument at this stage in our judgment. That was a point which is not raised in the Notice of Appeal. In consequence of that we have before us no comment by the Chairman of the Industrial Tribunal on whether this procedural criticism is soundly based or not. There was at no time any application by the employer for a review of the Industrial Tribunal's decision by way of an application to that Tribunal for such a review. In all those circumstances, we conclude that the Appellant has not laid the foundation for this particular argument and that we have no basis upon which we could allow the appeal on this procedural ground.

We revert therefore to the main attack launched by the Appellant.

The finding that fair procedures would have lead to the employee's employment with the company being prolonged by one month is patently one of fact. In the absence of the Chairman's Notes of Evidence, it can only be attacked on the basis that it is perverse, that is to say that it is a conclusion which no reasonable Tribunal properly directed could have reached. It seems to us that what the Industrial Tribunal was saying at this stage in its decision was that if proper consultation had been carried out, the decision to dismiss the Respondent would have been delayed by those consultation processes by the period of one month. That is a conclusion of fact, not law. We have had no difficulty in arriving at the conclusion that that was a perfectly feasible finding for the Industrial Tribunal to have reached. Had the Respondent been involved in discussions on the criteria and strategy as the Industrial Tribunal says he should, then the whole process could have taken longer. Consultation involves a two way flow of proposals and responses. Time is needed for those being consulted to respond. Those responses then have to be considered by the management. This matter might have had to go back for a further board decision. All of that has to be seen in the context of the limited time in this particular case between when re-organisation became more urgent on the resignation of the other salesman, and the ultimate dismissal of the Respondent. In our view, the conclusion reached by the Industrial Tribunal was not outside the range of conclusions to which a reasonable Tribunal properly directing itself could have come. It was not a perverse finding by the Tribunal and consequently this appeal will be dismissed.