At the Tribunal
HIS HONOUR JUDGE PETER CLARK
MR K M HACK JP
MR E HAMMOND OBE
JUDGMENT
PRELIMINARY HEARING - EX PARTE
Revised
APPEARANCES
For the Appellant MR P FREKE-EVANS
(The Appellant)
JUDGE CLARK: This unfair dismissal case occupied five days of hearing before the London (South ) Industrial Tribunal last year. The claimed was dismissed and extended reasons for that decision are dated 18th October 1995. Against that decision Mr Freke-Evans now appeals.
Despite the length of hearing, the issues raised by the appellant's complaint were essentially these:
(1) Had the respondent made out its reason for dismissal? That is redundancy.
(2) If so, had the employer acted reasonably in treating that reason as a sufficient reason for dismissal under Section 57(3) of the Employment Protection (Consolidation) Act 1978. In answering that question, it was necessary for the Industrial Tribunal to look with particular care at the issue of consultation.
The material facts we take from the tribunal's extended reasons and can be summarised in this way.
The respondent is a statutory body charged with assisting overseas countries in economic development with operations in 50 countries. It is a development finance institution, and a major investor in long-term development overseas.
The appellant commenced work with the respondents on 17th July 1989, initially as a senior trader, having been recruited because of this substantial experience as a commodities trader in relevant commodities. He was thereafter promoted to head of marketing to replace Mr Smith. That promotion took place in June 1990 and he remained in that post until, on 27th May 1993, he was informed that he was to be dismissed by reason of redundancy. The dismissal was to take effect in August 1993.
So far as the first issue in concerned - the reason for dismissal. The tribunal find that Mr Gatt, the senior, has been anxious to transfer the senior trading role closer to the source of production, and as a result, it was decided that a new senior management role known as "Financial Controller (Managed Projects)" was to be formed, and the job holder was to be based in Papua New Guinea. That was a post Mr Gatt intended would be filled by a qualified chartered accountant and the appellant did not hold that qualification.
In due course, a Mr Girvan was appointed to the new post of Financial Controller, and took up that post in Papua New Guinea. Subsequently he left and returned home. But that is not material to the questions that were raised before the Industrial Tribunal. It was the respondent's case that there was a genuine diminution in the requirement for a particular job role, that is the one filled by the appellant. The Industrial Tribunal accepted that that was the genuine reason for dismissal, rejecting the case advanced by the appellant that this was a sudden and sinister decision which was taken as a result of personal animosity on the part of a Mr Collins towards the appellant.
The appellant challenges that finding as to the reason for dismissal. He invites us to say that there is an arguable case that that was a perverse finding. We think that his submission is misconceived to this extent. He relies upon the fact that the amount of trade from the London office in fact increased after his dismissal from some $25 million to $42 million a year. But the test under Section 81 of the Act for redundancy focuses on a diminution in the requirement for employees to do work of a particular kind, not in a diminution in the work. In these circumstances, having looked carefully at the tribunal's factual findings which led them to the conclusion that redundancy was the indeed the reason for dismissal, we are unable to say that any argument of perversity has any real prospect of success before a full hearing of this appeal tribunal.
So far as reasonableness is concerned the Industrial Tribunal, directing themselves in accordance with the guidance of the House of Lords in the case of Polkey v A E Dayton Services Ltd [1988] ICR 142, accepted the respondent's submission that this was one of those rare cases where there was really nothing about which to consult with the appellant before notice was given. We take the view that there are two possible areas of consultation. One is over whether or not redundancies should be made, the other is how that decision should impact on the job holders who are at risk of redundancy. It may seem that the two issues run together, and that is Mr Freke-Evans's case before us, we think also before the Industrial Tribunal, but the distinction has to be made because it is for management to decide what redundancies are to be made and then in appropriate cases for management to consult with those who are affected by that decision, and therefore, no criticism can be made, in our judgment, of the tribunal decision in not concentrating on consultation about the decision to do away with the post held by the appellant.
So far as consultation in relation to his own position is concerned, as we read paragraphs 25 and 26 of the tribunal's reasons, they accepted that the employer was entitled to take the view that this was a case where prior consultation would have been a useless exercise. That brings the case within the exception, identified by Lord Mackay LC in the Polkey case, to the general rule that consultation ought to take place with the affected employee.
After notice was given the tribunal found, there were discussions about the possibility of alternative employment. At the end of those discussions, it appears that no alternative employment was available. It seems to us that the duty of an employer in these circumstances, is to take reasonable steps to find alternative employment. There is of course no obligation always to find alternative employment or to make a job where none exists.
A further point taken by Mr Freke-Evans is that he led evidence to the effect that the grievance procedure which he pursued with his employers, following notice of dismissal, was not properly carried out. It is not necessary for Industrial Tribunals, particularly after a lengthy hearing like this, to set out each and every point of evidence and argument that they have heard during (in this case) five days. In our view, the Industrial Tribunal had that point in mind when it concluded in paragraph 26 of the reasons that the procedure adopted by the employers was reasonable.
We have considered the submissions made in writing and developed by Mr Freke-Evans before us today, but we conclude that there is no arguable point of law disclosed in this appeal. This is a preliminary hearing held to determine whether or not any arguable point exists which ought to go before a full hearing of the Appeal Tribunal. In the light of our findings, we have to answer that question in the negative, and accordingly this appeal must be dismissed.