United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 98_95_0205

Appeal No. EAT/98/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2nd May 1995

Before

THE HONOURABLE MR JUSTICE MORISON

MR G M WRIGHT MBE

MR K M YOUNG CBE

---

E T M STEEL FABRICATIONS LTD          APPELLANTS

MR M BATH          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants MR TREFOR JONES

(Director) and

MR EDWARD

MCGUINNESS (Director)


 


MR JUSTICE MORISON: The purpose of this hearing is to determine whether there is an arguable point of law in relation to the Notice of Appeal which has been filed in this case.

The proposed Appeal is against an unaminous decision of an Industrial Tribunal held at Cardiff on 18th August 1994, whereby they unaminously upheld the Applicant's (Mr M A J Bath's) complaint that he had been unfairly dismissed from his employment by E T M Steel Fabrications Ltd, who are the Appellants or prospective Appellants in this case.

We shall refer to the Company as the Appellants and to Mr Bath as the Employee.

We would first like to say that we accept that the Appellant company is to be described as a friendly, reputable, small company who employ all their workforce, as we understand it, locally. As they put it, in effect they employ the village.

The application complaining of unfair dismissal came as a nasty surprise to them, bearing in mind the good relations which they had enjoyed with their local workforce over the many years; and also bearing in mind, that they helped to train the Employee and first took him on to their books when he was sixteen years old.

It also came as a nasty surprise to the Appellants that the Tribunal should decide the case against them, because it was their firm belief, without having taken legal advice, that there was going to be no difficulty in resisting the application. They thought they would be bound to succeed. With the benefit of hind-sight, it has become apparent that they would have been better advised to have gone to their solicitor in first place, as they certainly would have done if they had imagined that they were going to be on the receiving end of an award of compensation in the total sum of £8,265.00. We also are bound to accept, because we have been told that this is the case, that such an award will put pressure on the financial position of the Appellant company, who are striving to survive the recession and to come out of it in a wholesome manner. At the moment they are fully extended, although it is right to say that they have made considerable steps to obtain work for the benefit of the company and the local community, and are working at full blast at the present time.

The essence of the Industrial Tribunal's decision was that the dismissal, which was by reason of redundancy, was unfair because there was no consultation with the applicant regarding the redundancy situation; no use of established criteria, and no discussion about the use of the criteria; and a lack of offer of alternative employment or a consideration of the Employee's position.

The Tribunal were satisfied that the Applicant was merely sent a letter terminating his employment as at the time he was away sick from his employment, and nobody asked the Employers to consider any other options. They indicated that they were satisfied that there were others in the company who had less service than the Employee; yet were retained. They rejected on the facts the company's explanation given as to the greater flexibility offered by those people, as against the way that the employee was prepared to work. That, as we have indicated was a decision on the facts based on the evidence they heard, and based on the way the evidence had been given and, broadly speaking, as to which part of the case for each of the parties they accepted or preferred. That is not a finding with which this Tribunal can interfere.

What is being said in the Notice of Appeal is that in effect the Appellant company were misled by the Chairman of the Tribunal into believing that the medical evidence which was produced at the last minute was not going to be used by the Tribunal in its decision. It seems to us quite clear that what happened was that the Chairman of the Tribunal indicated that this material would not be used for the purposes of determining whether the dismissal was fair or unfair, which was the first task upon which they had embark; but they did not indicate that they would not take it into account when assessing the question of compensation.

The last two grounds of appeal, namely that the Tribunal failed to give adequate weight to the evidence that the Applicant was frequently away from work, is not, in our judgment, an argument of law at all. The weight which a Tribunal gives to evidence is a matter for them and entirely for them. Arguments about them giving more weight or less weight to a particular piece of evidence is not a matter to be debated in this Tribunal.

The third point is that the award of compensation to the Applicant was excessive and did not take into account the attitude, behaviour and general demeanour of the Employee outlined above. Again that is not a ground of appeal which is one we can entertain. It is not a point of law. As we understand it, the Tribunal's reasoning was that they were satisfied that the absence from work due to sickness, after the decision to dismiss had been taken, was substantially caused by the dismissal itself. And they based their judgment on the evidence provided to them in writing, as we understand it, from a Community Psychiatric Nurse. They made their award on the basis that but for the dismissal, he would have been able, up to the date of the Tribunal hearing, to have earned £6,525.00 and they took a very modest period of prospective loss, namely a period of twelve weeks, and arrived at a further figure of £1,740.00 making the total which we have already referred to of £8,265.00. It seems to us that that was a judgment which they were entitled to make on the evidence before them.

It follows therefore, that there is no arguable point of law raised in this matter, and therefore, we must dismiss the Appeal. But before doing so, we would wish to indicate in order to allay the Appellant company fears, that this decision is a decision based entirely on the facts of the case in relation to Mr Bath. It is no kind of precedent for any further decision in different circumstances, which the Appellant company might have to take if the recession were to continue any longer. It seems to us that there are no grounds for taking the view that, because they have failed in the Tribunal in this particular case, they will or ought to fail in any other future case that may be brought against them. We have indicated to them, and they accept the need for employment practices to be better arranged within the company and we have no doubt that they will comply with their obligations which are set out in the various codes of practice and which are explained in handbooks and other material which are readily available. We have no doubt that, with their care for their employees, which they generally show, that if they master that material, there is no reason to expect that they will come to grief in any other tribunal hearing in the future.

The criteria that they must always follow, in our judgment, is best expressed in this way, that they should do unto their employees as they would expect to be done unto them, if they were in the position of their employees. If you treat people as you would hope to be treated yourself, unless you are an irrational being you are very likely to be acting reasonably.

Accordingly, although this is a matter of great disappointment to the Appellant company, we are unable to say that it should go for hearing before a Full Tribunal. Accordingly, we dismiss the Appeal.