United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS HOUGH (Representative)


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Reading Industrial Tribunal, Mr Tinald, against that tribunal's decision to dismiss his complaint of unfair dismissal against his former employer, Tencer Ltd. The Industrial Tribunal heard the case on 31st July 1997 and its decision with full reasons was promulgated on 7th August 1997.

The facts were that the appellant commenced work for the respondent on 6th May 1986. He at the time of his dismissal was employed as an electrical supervisor in the electrical department. Notice of dismissal was given to him on 3rd January 1997, and took effect on 14th March 1997.

The electrical department consisted of the appellant, one electrician, Mr Harrison and two trainees. The director of the respondent who took the decision to dismiss, Mr Fairthorne, saw the appellant on 3rd January 1997 without any prior warning or consultation, and dismissed him then and there with a redundancy payment and wages in lieu of notice.

The tribunal considered the question of selection and for reasons given in paragraph 5 of their extended reasons, concluded that the selection of the applicant rather than Mr Harrison for redundancy was reasonable.

So far as consultation was concerned, the tribunal found that Mr Fairthorne had assessed the position and decided that prior warning and consultation with the applicant would have been futile. Looking at the matter in the round, the tribunal concluded that the reason for dismissal was redundancy and they found that the respondent acted reasonably in treating that reason as a sufficient reason for dismissal within the provisions of s.98(4) of the Employment Rights Acts 1996.

In this appeal Mrs Hough contends that the tribunal have substituted their own reasons for that of the employer in concluding that the dismissal was fair. She has drawn our attention to the case of Grundy (Teddington) Ltd v Willis [1976] IRLR 118 which is authority for the proposition that it is for the Industrial Tribunal to decide whether the employer has acted reasonably in treating redundancy as a sufficient reason for dismissal. Not whether they, the Industrial Tribunal, would have dismissed in the circumstances of the case.

Further, she submits that the absence of any prior warning or consultation rendered this dismissal unfair, and that the tribunal were wrong to look at Mr Fairthorne's subjective view as to whether or not consultation would have been futile. The question is whether a reasonable employer would have come to that conclusion.

We recognise of course the principle that generally where an employer is dismissing one of its staff by reason of redundancy there ought to be prior consultation before the decision is taken. However, we also bear in mind the exception to be found in the House of Lords decision in Polkey v A E Dayton Ltd [1987] ICR 142; that where consultation would be futile the dismissal in the absence of consultation may nevertheless be fair. We also bear in mind the Court of Appeal decision Duffy v Yeomans [1994] IRLR 642, to the effect that the question is whether a reasonable employer would have concluded that consultation would have been futile.

In our judgment the Industrial Tribunal reached a permissible conclusion without falling into error. Having decided that Mr Fairthorne had decided that prior warning and consultation would have been futile, they then went on to conclude that in all the circumstances of the case, the employer acted reasonably in treating redundancy as a sufficient reason for dismissal.

It seems to us that in so finding, the tribunal bore in mind the need for an objective test as to whether a reasonable employer would have reached that conclusion. In these circumstances, we have reached the conclusion that this appeal discloses no arguable point of law, and in the circumstances, it must be dismissed at this preliminary hearing stage.