United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MR J HURD (of Counsel) Instructed by: Mr I Blackledge Royal & Sun Alliance Insurance Group Legal Department P.O. Box 30 New Hall Place Liverpool L39 3HS


 


JUDGE PETER CLARK: This is an appeal by Miss Canning, the applicant before the Birmingham Industrial Tribunal sitting on 19th February 1996, against that tribunal's decision promulgated with full reasons on 23rd May 1996.

There are two grounds of appeal, each alleging that the tribunal made material findings which were unsupported by the evidence, alternatively which were perverse. Accordingly the appeal raises potential questions of law. See Piggott Bros. Ltd v Jackson [1992] ICR 85.

First the primary facts as found by the tribunal.

The appellant commenced employment in the respondent's Land and New Homes Department in Tamworth on 18th June 1990. In March 1995 Mr Stephen Brown, the newly appointed Regional Director, attended a meeting with the new Finance Director who wanted a review of the profitability of the business. A formula was devised for testing staff ratios and overheads in all branches and departments including the appellant's. He found that there was little or no income in the Land section, although the formula applied arguably overlooked the indirect benefits contributed by land sales to the development of new homes.

At all events, Mr Brown identified the land part of the department as uneconomic and resolved to make the appellant redundant. This was in March or April 1995.

The same exercise was carried out throughout the company and it was not until July that affected employees were informed of their fate. Meanwhile, no consultation had taken place with those identified for redundancy.

On 5th July the appellant was seen by Mr Brown and Mr Moore of personnel. She was simply told that her department was to close and she would be made redundant.

What happened then we take directly from the tribunal's reasons at paragraphs 3 and 4:

"3 ... She was shocked and dismayed. She felt that the Department was going to exceed budget by the end of the year, but was unable to press home that point at this necessarily strained meeting. Mr Brown referred to vacancies - there were two or three available. That was not pursued with the applicant. The applicant was aware, on talking to Miss Whorton, who ran sales, that there was a job available in Worcester. The applicant indicated an interest. Mrs Whorton felt that it would only be a short term appointment for the applicant since she wanted someone lower paid than her. The applicant wrote in detail to Mr Brown on 7 July - he passed it on to Mr Willets at Head Office. The applicant stressed the inter-relationship between the New Homes Department and the Land Division, set out the work that she had done - the interest she had encouraged and the income she had generated. She tried to show the profit and loss figures were misleading. Mrs Whorton also protested about the decision, confirming that the two departments ran in tandem, saying that the work which the applicant did directly affected the number of new houses eventually sold.

4 There was a further meeting on 30 July which the applicant was told that the decision had been reviewed but the decision stood. The only reply to the applicant's letter was on 17 July. We consider that by this time, a policy decision had been made that they would concentrate on core business. The decision affecting the applicant was financial. The applicant made certain proposals for the company, but not before Mr Brown had confirmed the redundancy in writing, document 16. On 9 August, Miss Canning suggested that she might be employed as a consultant. She got no response."

Her employment terminated on 18th August. She then set up in business on her own account as a Land and Development Consultant.

On 1st September 1995 Mr Kitchen became a Director of the company. He had earlier been interviewed for the job and spoke to Mr Brown in mid-August. He took a different view about the Land Department. As a result an advertisement was placed in the Estates Gazette for a Land Agent on 30th September. This was, said the appellant, her old job. Had she been offered and accepted the job as site negotiator in Worcester she would have remained in employment with the respondent and been in a position to reclaim her old job in late September. As it was, she did not apply for the vacancy, having by then set up her own business and in view of the way she had been treated by the respondent.

However, the tribunal found that the respondent had genuinely decided to close down the Land Department in July. It was the advent of Mr Kitchen after 1st September which led to a change in policy. In these circumstances, held the tribunal, the reason for the appellant's dismissal was redundancy.

The Industrial Tribunal decision

The tribunal found that the dismissal was unfair in that there had been no consultation over the decision to close her department and make her redundant. Nor had efforts been made to find her alternative employment.

Nevertheless, the tribunal went on to find that there were in fact no alternative jobs which the appellant would have accepted and that this was a case in which a fair procedure would have made no difference to the outcome. Accordingly she had suffered no loss. It is these two findings which are attacked in this appeal.

The Appeal

The way in which the appellant puts her case is this.

First, there was no evidence to support the tribunal's conclusion that there was no alternative job which she would have accepted; indeed, she submits, the evidence points to the contrary conclusion.

This really focuses on the site negotiator vacancy at Worcester. The evidence of Mrs Whorton, the Regional Sales Manager, was that a vacancy arose at Worcester, in respect of which a job interview had been held on 3rd July. Following the meeting with the appellant on 5th July, the appellant told Mrs Whorton that she would consider that job. She was considered suitable for it by Mrs Whorton. However, the job had to be filled quickly and it was filled by an external candidate within days. The appellant was upset when she heard that it had been filled. It was never offered to her. Mrs Whorton said that she not believe that the appellant was interested in the job.

In evidence, the appellant said that she would have considered any alternative job. She had a mortgage to pay and was a committed employee of the respondent.

It must also be borne in mind that after the meeting on 5th July the appellant wrote to Mr Brown, setting out a detailed financial analysis designed to persuade him to change his mind about closing the Land Department. That attempt continued until after the Worcester job had been filled.

Against that background we must ask ourselves whether the tribunal's finding that the appellant would not have accepted that job if it had been offered to her on or shortly after 5th July was wholly unsupported by the evidence. With some reluctance we feel driven to conclude that we cannot accept that submission. Although we ourselves might well have reached a different finding had we been sitting as an Industrial Tribunal that is not the test. In our judgment it was open to the tribunal to conclude on the evidence either that she would have accepted the job; or that she might have accepted it or that she would not have accepted it. Each of those options was open on the evidence. Accordingly we reject the appellant's first ground of appeal.

The second ground is directed to the tribunal's finding that a fair procedure would have made no difference to the result.

Here the principal point taken by Miss Canning is that in evidence, as the tribunal record in paragraph 7(b) of their reasons, Mr Brown said that he might have come to a different decision about closing the Land Department had he known all the facts, particularly the financial analysis. He admitted in evidence to his inexperience in these matters.

In these circumstances, submits Miss Canning, how could the tribunal find that proper consultation would have made no difference? If it might have made a difference then it is for the tribunal to assess, in percentage terms, her loss of a chance of retaining her employment.

The answer, submits Mr Hurd, is to look at the overall picture. The tribunal found that Mr Brown's concession was speculative and an insufficient basis for holding that consultation would have made a difference. That finding must be viewed in the context of Mr Brown's evidence that he was following a nationally laid down formula. The fact that Mr Kitchen came along later and reversed the policy is immaterial. At the time of the dismissal the tribunal was entitled to find that proper consultation would have made no difference. It would not have caused Mr Brown to change his mind.

With equal reluctance we have reached the conclusion that Mr Hurd's submission is correct. It is not our function to minutely examine sentences taken from the tribunal's reasons, although we have done so in order to test this appeal.

Ultimately, Parliament has entrusted the fact-finding role to the Industrial Tribunals. We are reminded of the words of Lord Donaldson MR in Piggott, where he said at page 93E:

"It does not matter, with whatever degree of certainty the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer the question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence. If it cannot do this it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as "perverse"."

With that guidance in mind we have concluded that we are unable to find that the material findings by the tribunal were unsupported by the evidence; nor can the decision be properly said to be perverse. We are satisfied that the tribunal has demonstrated sufficient reasoning to support its findings, looking at the evidence and primary findings of fact as a whole.

Accordingly there are no grounds upon which we can properly interfere with this tribunal's decision, and the appeal must be dismissed.