United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A MILLS (Managing Director) Commercial Landscapes Ltd The Nursery Paices Hill Aldermaston Reading RG7 4PG


 


JUDGE BUTTER QC: This case has been listed for a preliminary hearing of the appeal. That means that, if, today, we consider that there is a reasonably arguable point of law then we direct that the matter goes forward to a full hearing. If we decide that there is no such reasonably arguable point of law then we dispose of the appeal today.

Mr Mills, the Managing Director who has appeared on behalf of the Appellants, came to the Tribunal this morning under a misapprehension that this was a full hearing and, further, that the Tribunal would hear oral evidence, that is to say from witnesses whom he has brought along. That is a misconception and, as I have explained to him, this Tribunal is solely concerned with issues of law.

The decision in question was a decision made at Reading on 11 September 1997. The Tribunal decided that Mr Danes was entitled to a redundancy payment of £2,730. Mr Mills is dissatisfied with the decision and draws attention in particular to what he understandably regards as an important point that another employee, Mr Cannon, failed in his application.

Mr Mills applied for the Tribunal's decision to be reviewed, drawing attention in particular to the fact that the circumstances were identical in the other case. The Chairman considered that application, but refused it for reasons which he explained in the letter that was sent by him to Mr Mills.

Dealing briefly with the second point, namely the review, the position is that if the Industrial Tribunal considers, among other things, that the interests of justice require a review it will normally grant such a review. If it decides otherwise, it is entitled to refuse to do so and the Employment Appeal Tribunal will not readily interfere with the exercise of that discretion. I should say that in paragraph 9 of the Industrial Tribunal's decision in declining to grant a review, the Chairman said at paragraph 9:

"It cannot be denied that presented with similar facts two Tribunals have reached opposite conclusions, but in considering the application I must decide whether the application comes within the five grounds under Regulation 11."

And having gone on to consider that, refused the review.

I return to the brief facts which were set out in the extended reasons given by the Industrial Tribunal after the main hearing.

The Tribunal dealt with the question of the Applicant's employment and drew attention to the fact that the Applicant claimed that he had been dismissed by reason of redundancy, whereas the Respondents, the employers, maintained that the Applicant was not dismissed but resigned on 12 May 1997.

The Tribunal then made a number of findings of fact, including the fact that the Company's work had been diminished over a period of time and the Tribunal refers specifically to the Applicant, to Mr Cannon and to a Mrs Halliley. They then dealt with an informal meeting, as they called it, which had taken place on 21 February 1997 and then dealt specifically with the letter which Mr Mills had prepared dated 21 February.

As the Industrial Tribunal rightly said at paragraph 13 of their extended reasons:

"The issue for the Tribunal to determine is whether the letter of 21 February constituted a warning of a possible future redundancy or was a true notice of dismissal. If the former, an employee on leaving cannot claim a redundancy payment, but if the latter a claim can be made."

The Tribunal said at paragraph 15 that the letter was:

" ... a true notice of dismissal pursuant to Section 136 of the Employment Rights Act 1996; it informs quite clearly the date upon which the employment will end, namely 12 weeks on 21 February which can easily be calculated as being 16 May."

They go on to elaborate upon that and then dealt with the case of Doble v Firestone Tyre and Rubber Company [1981] IRLR 300 and distinguished that case from the present one. In the result, the Tribunal awarded the redundancy payment to which I have already referred. Mr Mills argues that there is something wrong, because two different Tribunals have reached two different decisions on what he says are identical facts.

It is necessary for this Tribunal today to consider whether it can fairly be said that the particular Tribunal that we are considering reached a decision which was arguably wrong as a matter of law, or that they reached a decision which no reasonable Tribunal could have reached.

We are entirely unable to say that, although it is a matter for regret that different Tribunals have reached different decisions on either similar or even identical facts. It does not follow that the Tribunal that we are considering erred as a matter of law or reached a decision which no reasonable Tribunal could reach.

In these circumstances we would do no service at all to Mr Mills by directing that the matter proceed to a full hearing and we are unanimous in our view that the appeal today fails and must be dismissed.