United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 104_94_1007

Appeal No. EAT/104/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th July 1995

THE HONOURABLE MR JUSTICE TUCKEY

MR R JACKSON

MR J A SCOULLER

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MR E FINZI          APPELLANT

MARCASS JEWELS LTD T/A STRACOM JEWELLERY CO.          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S BLOCH

(of Counsel)

Silvermans

11 High Street

Barnet

Hertfordshire

EN5 5UJ

For the Respondents MR D STILTZ

(of Counsel)

Paisner & Co

Bouverie House

154 Fleet Street

London

EC4A 8DQ


 


MR JUSTICE TUCKEY: This is an appeal from the decision of the London (North) Industrial Tribunal by which, following a hearing on 6th December 1993, they dismissed the appellant Mr Finzi's application that he had been unfairly dismissed.

Mr Finzi had been employed since July 1987 by Mr Wiesenfeld who ran a small jewellery business in Upper Street, London N.1. We say "by Mr Wiesenfeld", because it was a one man small business, although in fact Mr Wiesenfeld ran that business through a company called Marcass Jewels Limited. So legally and technically it was that company who were Mr Finzi's employers. However, nothing turns on this.

The business employed three others. It was involved in the manufacture of gold rings. Mr Finzi was the polisher.

The circumstances giving rise to Mr Finzi's complaint of unfair dismissal were very much in issue before the Tribunal. Mr Finzi's case was that at the end of 1992, the business took its customary Christmas break, the employees returned to work at the beginning of February 1993 and on 12th February 1993 he was dismissed for no good reason. The employers' case was that due to a drop in orders, Mr Wiesenfeld decided at the end of 1992 that he had to dismiss all his employees and did so without intending to re-open the business the following year. He did in fact re-open the business five weeks later, but Mr Finzi was not re-employed. His case was that Mr Finzi had been dismissed because he was redundant and had last worked in the business on 18th December 1992.

The Industrial Tribunal had to grapple with this issue on such documentary and oral evidence as were put before it. They heard the evidence from Mr Wiesenfeld and his accountant Mr Martin and from Mr Finzi. Mr Wiesenfeld gave evidence that at some time in November 1992 he had instructed Mr Martin, to make all the staff redundant. Mr Martin gave evidence to the Tribunal which confirmed this and he produced contemporaneous written instructions from Mr Wiesenfeld which said he wanted to finish the business and sack all the employees by the end of November. Mr Martin was to prepare P45 and redundancy notices in accordance with those instructions. Mr Wiesenfeld produced a notice to Mr Finzi dated 4th December 1992 on a sales invoice. It stated that the business was closing due to recession as from 14th December 1992 and "Your employment is terminated" as from that date, "the accountant worked out the redundancy money due to you." Mr Wiesenfeld gave evidence that there had been a decline in business in 1992 and that although it was anticipated that the employees would stop work on 14th or 15th December they in fact worked for a day or so more until 18th December 1992. That was the last date on which Mr Finzi worked.

The Tribunal say at the beginning of the second page of their decision:

"Mr Finzi did not accept that there was a redundancy situation and he says that he took the Christmas closure period and then returned to work and did not leave until 12 February 1993. Mr Wiesenfeld states that Mr Finzi's last day of work was 18 December 1992. On 23 December he gave a cash payment of £2,400 to Mr Finzi and cheque for £1,237. That cheque was not presented by Mr Finzi and was sent back to Wiesenfeld. Mr Finzi denies having £2,400 in cash. [and then they go on to say] Where the evidence of Mr Wiesenfeld and Mr Finzi differs we prefer the evidence of Mr Wiesenfeld and we find as a fact that Mr Finzi did receive a cash payment of £2,400."

They went to say:

"5 On 1 February 1993 Mr Finzi arrived at Mr Wiesenfeld's premises in Upper Street where he was told that he had been made redundant. Mr Finzi returned to the premises on 4 February when he was told that he Mr Wiesenfeld was prepared to pay Mr Finzi seven weeks' compensation if he would sign the invoice presented to him. Mr Finzi would not sign that invoice. ..."

"6 Mr Finzi in his evidence stated that he was never given any notice on 23 December or earlier, however there is a statement from the tenant of the downstairs floor in which he says he heard a row going on in Mr Wiesenfeld's premises and went up and saw a man he describes as "a big man". We are satisfied that that was Mr Finzi. ... This Tribunal finds as a fact that Mr Finzi was given notice and that his last day of work was 18 December 1992, that he went around on 23 December and collected £2,400 in cash."

"7 Mr Finzi complains that Mr Wiesenfeld's business was continuing and that there was not a redundancy situation. We are satisfied that due to the drop in orders Mr Wiesenfeld decided to dismiss all his employees and at that time did not intend to reopen the business. He did reopen it five weeks later but did not re-employ Mr Finzi."

Those extracts are the guts of the Tribunal's decision from which it is apparent that they resolved the issue of fact in favour of Mr Wiesenfeld. They rejected Mr Finzi's case that he had not been dismissed until 12th February 1993.

Mr Bloch, Counsel who appears on behalf of Mr Finzi today (he was unrepresented below) argues that the findings of the Tribunal to which we have referred, were perverse, and/or they lack reference to essential facts which had they addressed them, would have called into question the decision they reached and should induce in us a sense of unease, so as to interfere with the decision of the Tribunal.

He went about this difficult task by focusing firstly on one document which he argued the Tribunal either misunderstood or underrated and with that point, so to speak, under his belt, he then argued that if one looked at the other evidence before the Tribunal, the decision could not be supported and was perverse.

So the starting point for his argument is this document. It is a document which we have in our bundle at page 32. Again it is on one of Mr Wiesenfeld's sales invoices. It appears to be dated 8th February 1993 and is addressed to Mr Finzi. It says:

"Notice given on the 8th.2. 1993. That E, Finzi's employment is terminated. Time 5 years and 10 months. Weeks of notice from the 12.2.93, 19.2.93, 26.2.93, 5.3.93, 15.3.93, 22.3/93. Please confirm receipt of notice. Sign here."

Now what Mr Bloch says is, that it is not apparent from the Tribunal's reasons that they ever considered this document and certainly if they did, they did not appreciate its significance, because he submits that this is a notice which terminates Mr Finzi's employment on 8th February 1993. It is therefore a document of vital importance in substantiating the case which Mr Finzi was running before the Tribunal, and its significance has been totally overlooked by the Tribunal in their reasons.

We are unable to accept this submission. It is quite obvious from paragraph 5 of the Tribunal's reasons that they did consider this document. They refer in that paragraph to the fact that when Mr Finzi returned to the premises in February 1993 (as it was common ground he did) Mr Wiesenfeld had agreed to pay him seven weeks compensation, if he would sign the invoice presented to him. Mr Finzi would not sign that invoice, they say. In other words, he did not accept the offer of settlement that was being made to him by Mr Wiesenfeld at that time which required him to sign the invoice and accept the money there and then. Mr Wiesenfeld's evidence was that in order to get Mr Finzi off his back, he was prepared to pay him extra compensation, provided that he would settle there and then for that amount. It is common ground that Mr Finzi did not accept this offer and did not sign the invoice.

We are satisfied from looking at the document in its original form and in the form in which it was produced by Mr Wiesenfeld, and from looking at the Chairman's Notes of Evidence that the Tribunal could not have failed to have appreciated the significance of the document, in the sense that it purported to be a notice. But it was only of significance in the sense that it represented a second notice produced by Mr Wiesenfeld in order to try and settle the dispute of which he was being reminded by Mr Finzi by his repeated visits to the jewellers in early February. So, we do not think that the Tribunal ignored the document. It is referred to in paragraph 5 of their reasons. It was of no significance in the event, because the evidence was that it had been produced as a basis for compromise which was never reached.

So Mr Bloch's starting point is not one which we accept. We can therefore deal with his other points shortly. He suggested that it was very difficult for Mr Wiesenfeld to establish that he had dismissed Mr Finzi for redundancy before Christmas, because the business had customarily closed down in this way for Christmas and the employees had resumed working the following year without there being a redundancy situation. He said that when the business resumed, all the other employees were re-engaged apart from Mr Finzi, and that the reason for this appears not to have been redundancy but because Mr Wiesenfeld was fed up with Mr Finzi against whom he had a grievance. There was also conflicting information in the documents before them about the actual date of termination. Mr Bloch took us through differences between the Notice of Dismissal, which referred to 14th November 1992, the P45 which referred to 30th November 1993 and other dates in the documentation which he said cast doubt on the respondent's case.

We should in passing mention the point which was raised by Mr Bloch at the end of his submissions to us about the P45. Not only does it refer to the employment ending on 30th November 1992 but also it does not refer to the £2,400 which Mr Wiesenfeld says he paid, but Mr Finzi denied he received on 23rd December 1992. However, the P45 as drawn appears to record the pay for the tax year to the date of termination, that is to say to the date of 30th November 1992, which is of course before the £2,400 was allegedly paid. We do not therefore think that there is much, if any, forensic mileage in that point. The date can be explained because those were the instructions given to Mr Martin who prepared the P45.

Mr Bloch also points out that in the course of their reasons, the Tribunal do not refer to two other documents which Mr Finzi put before them. The first is a letter from Mr Wiesenfeld, dated 21st February 1993, in which he gave reasons for the dismissal as:

"In order to reduce my commitments by making redundant the entire labour force - which will free me from the very heavy burden and worry of employing people at a time when it is impossible to provide full employment. [But he does go on to say] ... How I must operate and manage the work force in order to survive the annual holiday between Christmas when there is no work from the 14 or the 15 of December until early February. A period of 5 weeks. Everybody is happy to agree an to accept these conditions. Except Mr Finzi. ..."

Mr Bloch argues that the latter part of this letter is inconsistent with the case advanced by the respondent. Some reference to the document should have found its way into the Tribunal's reasons.

Undoubtedly forensic points can be made about this document, but it does start by saying that he had decided to make his entire work force redundant.

Another document which is the subject of the same criticism is a note from Mr Wiesenfeld to Mr Finzi saying that:

"The factory closes on Monday 21.12.92."

That somewhat cryptic note is said to be inconsistent with the respondents' case that he made his entire work force redundant before that date. It should at least, so it is submitted, have found its way into the Tribunal's reasons.

Other points made by Mr Bloch are that, the evidence of turnover in the relevant months is inconsistent with a declining business calling for redundancies; that the finding by the Tribunal that £2,400 was paid to Mr Finzi on 23rd December 1992 was based on the evidence of a witness who did not actually appear before them.

The cumulative effect of all these points, Mr Bloch argues, is that we should be left in a state of mind which enables us to interfere with this decision. He cited a number of cases (we hope we will be forgiven if we do not refer to all of them). The latest one seems to us to summarise accurately the position of the Employment Appeal Tribunal when invited to interfere with the decision of an Industrial Tribunal in circumstances such as these. What the President (Mummery J) said in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, at paragraph 33 is this:

"Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is `irrational', `offends reason', `is certainly wrong' or `is very clearly wrong' or `must be wrong' or `is plainly wrong' or `is not a permissable option' or `is fundamentally wrong' or `is outrageous' or `makes absolutely no sense' or `flies in the face of properly informed logic'."

The President goes on to say that those phrases are culled from a variety of decisions and to make the point that:

"... it is rare or exceptional for an appeal to succeed on the grounds of perversity."

and:

"... The consequence of this approach also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to `meticulous criticism' or `detailed analysis' or to trawl through it with a `fine-tooth comb'. What matters is the substance of the Tribunal's decision, looked at `broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse."

Looked at broadly and fairly, we think that the reasons for this Tribunal's decision are sufficiently expressed to inform the parties as to why they won or lost the case. In short, they preferred the evidence of Mr Wiesenfeld to that of Mr Finzi. There was obviously a very serious conflict of evidence between them. They found that Mr Finzi was dismissed because he was redundant before Christmas 1992, and that when he was dismissed Mr Wiesenfeld had no intention of re-employing his work force. These were findings of fact which were clearly permissible on the evidence which the Industrial Tribunal had before them. Indeed Mr Bloch did not go so far as to suggest that there was no evidence to support the findings.

The conclusion was not one to which, in our judgment, one could attach any of the various labels of perversity which the President identified. It is therefore, not one with which we can or should interfere.

To say that the document was not dealt with as fully as the Tribunal could have done, to say that other documents were not referred to at all, to refer to other evidence which supported the appellant's case is indulging, in our judgment, in a detailed analysis or analysis by "fine tooth-comb". It is also an attempt to re-open the argument. This is not allowed.

Mr Bloch's final point was that the Tribunal went straight from their finding that Mr Finzi had been dismissed to a finding that that was not unfair, without considering whether there was not some procedural unfairness in the manner of his dismissal, because there was no consultation or consideration of alternatives to dismissal. This was not a point raised by Mr Finzi before the Tribunal. However, we think it likely that this experienced Tribunal did consider that question, because it is the very "meat and drink" of these applications. However when the business closed there was no work for any employee so questions of consultation and alternatives were academic and would not have affected the fairness or otherwise of this dismissal. We therefore do not think that there is anything in this procedural point.

For these reasons this appeal is dismissed.