United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R JACKSON (Managing Partner) DBS Contract Interiors 27-29 Arthur Street Hove East Sussex BN3 5JD


 


JUDGE PETER CLARK: This is an appeal by DBS Contract Interiors, a firm, of Hove against a reserved decision of the Brighton Industrial Tribunal sitting on 11th November 1996 that its employee, Gavin McLean had been unfairly dismissed by reason of redundancy. Compensation of £472 was awarded, made up of two weeks net pay plus £200 for loss of statutory rights. An appropriate redundancy payment had been made, although we are now told the cheque bounced, so there was no basic award. Full reasons for the tribunal's decision are dated 21st November 1996.

The facts may be shortly stated. The respondent commenced employment with the appellant in August 1993 as an upholsterer. In June 1996 there were three permanent upholsterers; Mr Brindley, a working supervisor, Mr Daley and the respondent.

At that time Mr Jackson, the managing partner of the appellant, a small firm manufacturing curtains, upholstery and soft furnishings for trade purchasers such as pub chains and hospitals, decided that there was enough work for only two of the three upholsterers.

He discussed with Mr Brindley who should go, and decided upon the respondent, who was thought to be less flexible that the others over working hours when a rush job had to be completed.

Without consulting with the respondent first he called him into his office on 23rd June and told him that he would be dismissed as redundant on 27th June. The respondent left with one week's pay in hand, holiday pay and pay due to him up to that date.

The tribunal was satisfied that the reason for dismissal was redundancy; that the respondent's selection for redundancy was reasonable and, inferentially, that no suitable alternative employment was available for him.

However, it found that the decision to dismiss had been reached without any consultation with the respondent; that it could not be said that consultation would have been utterly useless, but that following consultation the dismissal would nevertheless have occurred. It therefore limited the compensatory award to two weeks pay, being the appropriate consultation period as the tribunal found, together with an award for loss of statutory rights. That award also took into account the fact that the respondent had been entitled to two weeks notice, but had received only one week's pay in lieu.

In arriving at that conclusion it is clear to us that the tribunal had in mind the guidance of the House of Lords to be found in Polkey v A E Dayton Ltd [1988] ICR 142 and the judgment of the Employment Appeal Tribunal in Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676.

The Appeal

Mr Jackson appears before us today and makes the plea on behalf of the small businessman. He was in financial trouble at the time. There was no money to pay all the members of staff then employed. There was insufficient work for them to do. He sought advice from ACAS; acting on that advice, he dismissed the respondent by reason of redundancy. He says that the tribunal found that it was reasonable to select the respondent for dismissal in those circumstances, and that even if consultation had taken place, it would at the end of the day have made no difference; therefore he says the law is in effect an ass.

That may or may not be his view. But our powers are plainly limited by statute. This is a preliminary hearing held to decide whether or not this appeal raises any arguable point of law to go to a full hearing. Having heard Mr Jackson's submissions we are driven to conclude that there is no point of law in this appeal. He wishes to reargue the matter; that is not the function of the Employment Appeal Tribunal, and in these circumstances, this appeal must be dismissed.