United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1021_95_2901

Appeal No. EAT/1021/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th January 1996

HIS HONOUR JUDGE P CLARK

LORD GLADWIN OF CLEE CBE JP

DR D GRIEVES CBE

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MR A D OAKES          APPELLANT

NETWORK SYSTEMS (EC) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR A D OAKES

(The Appellant in Person)


 


JUDGE CLARK: This is a preliminary hearing held to determine whether or not the appellant employee has any arguable point or points of law in his appeal against a decision of the Shrewsbury Industrial Tribunal following a three day hearing that he was fairly dismissed by the respondent employer by reason of redundancy.

The respondent company carried on the business of selling and installing satellite tracking equipment and computers. The appellant had been employed from the date of incorporation of the company, 13th February 1989 as a technical director. He was primarily engaged in the selling, installation and provision of support and help for customers and purchasers of the company's products.

In late January 1994 he went off work sick due to an ankle injury. On his return to work on Monday, 21st February 1994 he was seen by the Managing Director, Mr Mackenzie and handed a letter dated 18th February 1994 which informed him that the post of Technical Director was being made redundant with immediate effect. The tribunal found, in their extended reasons dated 3rd August 1995, that the appellant was dismissed on 21st February 1994.

Before the Industrial Tribunal the appellant contended that he had been unfairly selected for redundancy; that he was dismissed without prior consultation and that no consideration was given to offering him alternative employment within the company.

In their detailed reasons the tribunal, having accepted that the reason for dismissal was redundancy; went on to find:

(1) that redundancy lay where it fell. No question of selection arose in this case.

(2) There was consultation between Mr Mackenzie and the appellant during the period when the appellant was off sick. This took the form of telephone calls and a visit by Mr Mackenzie. There had also been earlier discussions concerning the financial state of the company. The tribunal expressly found as fact that the appellant was, as a result of these discussions aware of the potential redundancy situation for himself and possibly others. Further, these conversations raised the possibility of him taking a sales position. The appellent rejected that suggestion, so the tribunal found.

(3) That as to alternative employment, none was available at the date of dismissal, he having earlier rejected the possibility of a sales job.

Looking at the matter in the round the tribunal rejected the appellant's complaints of unfairness and concluded that dismissal fell within the band of reasonable responses open to the employer. His application was dismissed.

In this appeal various of the Industrial Tribunal's findings and conclusions are attacked.

First, it is said that the pool for selection ought to have included two other employees with less experience than the appellant. It is submitted that although the Industrial Tribunal was referred to the Compair Maxam guidelines, it failed to apply them. We cannot agree. It was for the respondent to make a business decision as to which post or posts were to be made redundant. Where there was only one post-holder it was open to the employer to decide that redundancy lay where it fell. Care should also be taken not to substitute the helpful observation in Compair Maxam for the words of Section 57(3) of the Employment Protection (Consolidation) Act 1978. Those observations area particularly valuable in mass redundancy cases where there are a number of post-holders in the redundancy pool and where there is a recognised trade union representing those employees. That is not the factual position in this case.

Next, it is submitted that there was no evidence to support the tribunal's finding that consultation had taken place before dismissal. However, Mr Oakes has told us today that the Tribunal's findings in paragraph 6 were based on Mr Mackenzie's evidence. Mr Oakes disputed that account before the tribunal, and it was for the tribunal to weigh the evidence and reach conclusions of fact. This they did. We cannot interfere with those findings where there was evidence to support them.

It is further contended that the tribunal erred in finding that the decision to make redundant the job of Technical Director was not based on sales volumes. This is a purely factual matter again, in which the Industrial Tribunal accepted the evidence of the respondent and specifically rejected the analysis put forward by the appellant. We cannot interfere with that finding of fact.

In summary it is said that the Industrial Tribunal's conclusion that dismissal in all the circumstances fell within the band of reasonable responses was perverse. There is, of course, a high burden placed on appellants relying upon this ground of appeal. Having considered the matter in the round we are satisfied that none of the grounds of appeal raise any arguable point of law and accordingly this appeal must be dismissed.