United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 300_93_3010

Appeal No. EAT/300/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30 October 1995

Before

HIS HONOUR JUDGE J HULL QC

MRS J M MATTHIAS

MR G H WRIGHT MBE

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MR E FISHER          APPELLANT

S & H PRECISION ENGINEERING          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M DUGGAN

(of Counsel)

Messrs Massucco

Shelbourne Wray

Solicitors

6 Clifton Court

Cherry Hinton Road

Cambridge

CB1 4QG

For the Respondents NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE RESPONDENTS


 


JUDGE HULL QC: This is an appeal by Mr Fisher, a precision engineering worker. He is now aged 55; he was employed by the Respondent employers, S & H Precision Engineers, at their premises in Cherry Hinton, Cambridgeshire.

His employment began in 1973; it is apparent that at all times that this has been a very small business. At the material time, in addition to the two principals who ran the firm, Mr Fisher, who was a friend of each of the gentlemen concerned, and had been with them from the inception of the firm, was one of six operatives (if I can call them that); other skilled men who were working in this precision engineering field.

The Industrial Tribunal sat to hear his complaint of unfair dismissal at Bury St Edmunds on 19 February 1993 under the chairmanship of Mr Smith, with two members, and their decision was promulgated on 3 March 1993.

They set out the history of the matter. They say the two partners were Messrs Scott and Heale who had served their apprenticeship together with the applicant about 20 years earlier and then set up the business and he, of course, had been with them ever since.

They say that the catastrophe which led to the dismissal of Mr Fisher was:

"3 In 1991 the order book dried up. The firm existed on an overdraft and the bank manager was breathing down the partners' necks. There had to be savings made. ..."

And they say that there was one man, a Mr Webster, who was going to go in any event, and then they come to the events in 1992 which led up to the dismissal. Mr Fisher was the longest serving applicant but:

"4 ... Mr Scott decided that the applicant was the least flexible of the remaining men on the workforce. That is not to say that the applicant was positively inflexible. It is just that relatively speaking, when compared with his mates, he was the least flexible. In particular, he lacked the expertise to work on the CNC machine [computer controlled machine] which some of the others possessed. The applicant himself acknowledged in evidence that Mr Scott had in the past told him that he `was not up to CNC work'. Mr Scott made his decision and informed the applicant of his redundancy in a letter dated 18 February, [1992] ... giving the applicant 12 weeks' notice which was to expire on 13 May [1992]. The applicant worked that notice and in fact found himself fresh employment so that he left before the expiry of that notice with his statutory redundancy payment. That is a very brief recital of the facts.

5 It has to be remembered that by section 57(1) of the Act, in determining whether a given dismissal is fair or unfair, it shall be for the employer to show what was the reason, or at any rate the principal reason for the dismissal and moreover that it was one of the four reasons listed in section 57(2) or some other substantial reason of a kind justifying dismissal. It is further provided by section 57(3) that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) he acted reasonably or unreasonably in treating it as a sufficient reason for dismissal. That question has to be determined by us in accordance with equity and the substantial merits of the case."

That of course, is quite right.

"6 It is perfectly true that the modern authority lays down that in cases of this nature there should normally be proper consultation before the employer embarks on redundancy. It is equally true that the applicant was the longest serving of this workforce. However, each case has to depend on its own particular facts. This is a small employer. It had a small and highly skilled team of precision engineers, one of whom had to be dismissed in order to preserve the future viability of the company. Mr Scott chose to go the one whom he thought was the least flexible; that person was the applicant. He did not consult because there was nothing to consult about.

7 At the end of the day, we are satisfied that the employer was acting within the band of reasonable responses of a reasonable employer in treating the fact that the applicant was redundant as a sufficient reason for dismissal. For these reasons we dismiss the application."

I comment on that simply to show the reason for our decision. It is not merely normal; it is essential, in most cases, that there should be consultation if the dismissal is to be fair, not merely consultation but warning.

If you look at it from the point of view of the employee, as well as the point of view of the employer, which of course is the only fair way to look at it, the employee is entitled to expect that if he is to be dismissed, then he will have his say; that is the whole idea of consultation. He may have all sorts of things to say; he may, as in this case the applicant does say on his appeal to us, say that in fact somebody else should have been chosen, it was not fair to choose him.

He may say, as the applicant does say, that he thinks that there are ways in which the redundancy could be avoided, at any rate so far as he is concerned. He is entitled to be given the opportunity to think about it and to speak about it to the employer and to have his opportunity of changing the employer's mind, if he thinks he can. He may have suggestions by which his dismissal may be deferred. He may be able to suggest reorganisations in the firm; sometimes even in a small firm a person who works will have a different perspective from the management and it may be that he could have made suggestions of that sort.

However that may be, there was no consultation; no warning apart from his notice; and in those circumstances, the Tribunal could only be satisfied that the dismissal was fair if they thought, having considered the matter, that this was one of those rare cases in which a reasonable employer could take the view that consultation was entirely pointless. They do not seem to have addressed their minds to that question. On the contrary, they say the employer "did not consult because there was nothing to consult about", which may be a perfectly accurate representation of the employer's mind, but had the employer thought about it, had he thought about what was fair to the employee?

The Tribunal do not deal with that and that, it appears to us, is a fatal omission in the reasons, because the employee is entitled to be told why he has lost and it appears to us that here the Tribunal have not sufficiently shown why they formed the view that they did, and on the face of it they have not approached it in the right way.

In addition, Mr Fisher complains that he did not see at the proper time a bundle of documents which was before the Tribunal; that may not be, when it is properly analysed, a serious matter, but at the same time on the face of it he was entitled to see any document that was put before the Tribunal by the employers and, as the Chairman has said, it was an unfortunate omission that the bundle, which should have been given to him, was not given to him at the time.

That is another blemish but it can be put right on the view which we take of the case. In addition, it is complained on this appeal that the decision of the Industrial Tribunal was perverse. We have not heard Mr Duggan out; we indicated to Mr Duggan that, in our view, it would be difficult indeed to substantiate that averment and Mr Duggan has not persisted in it, being satisfied with the view which we have indicated.

In those circumstances, the matter must be remitted to a Tribunal differently constituted to consider the complaint anew. They will have to consider the whole case to decide exactly what happened and whether it was fair or not; and if it was unfair, what the consequence of that unfairness was in terms of compensation.

So that is the order which we make. The appeal will be allowed; the matter remitted to an Industrial Tribunal differently constituted, for re-hearing.