United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS CAROLYN D'SOUZA (of Counsel) Instructed by: Mr J H Coates Messrs Moseley Chapman & Skemp Solicitors 4 Trinity Place Midland Drive Sutton Coldfield West Midlands B72 1TX


 


JUDGE WILKIE QC: This an appeal by Selectapak Limited against a finding that it unfairly dismissed Mr Nash, which arose at a hearing which took place on 26^th August 1998, the decision dated 23^rd September 1998. The tribunal found that there was a redundancy situation. It found that the dismissal of Mr Nash by virtue of redundancy was unfair, essentially on the basis that there was no consultation whatsoever with Mr Nash, indeed, he was dismissed whilst he was on holiday.

1. It is said that the Employment Tribunal's decision was one which was perverse in that it failed to identify what the criteria were and that it failed to consider properly, on the basis of the evidence, whether consultation would have made any difference.
2. The tribunal did make findings of fact. It found that the Managing Director, Mr Connelly, discussed the question of who was to be made redundant with one of his colleagues, the Works Director, Mr Bassett. Mr Connelly expressed the view that Mr Nash was the obvious man to go because outwork had dropped. There was a dispute with Mr Bassett who thought the other foreman, Mr Bryan, should be the one to go. Mr Bassett in fact was related by marriage to Mr Nash and Mr Bryan was apparently his brother.
3. There was insistence by Mr Connelly that it should be Mr Nash. Mr Bassett left the premises and did not return to his work. Accordingly, on the very next day, Mr Connelly dismissed both the applicant and Mr Bassett, apparently in a fit of pique. As I have already indicated, Mr Nash at the time was on holiday.
4. To call this process a "procedure" would probably be an overstatement and certainly, in our judgment, the Employment Tribunal were perfectly entitled to come to the view that there had been no consultation whatsoever of any kind, and to reflect in their decision such thinking there had been on the part of the Mr Connelly as to who was to be made redundant.
5. It is not to be laid at the door of the tribunal for failing to construct what should or would have been appropriate criteria, but the Employment Tribunal was obliged and did consider whether consultation would or might have made any difference. It took evidence on this point. It records in its decision at paragraph 3 that Mr Nash did, apparently, without any dispute, have a series of general skills and that he would have been prepared to take a different job if it had been offered to him. No doubt in so doing, it was reflecting, at the very least, the evidence of the applicant which it was entitled to accept as truthful and accurate.
6. On that basis, the Employment Tribunal decided, on the evidence as we find, that had there been any sort of proper discussion or consultation, there was a very good chance that Mr Nash would have remained and that someone else would have been made redundant. There was already one identified person in the frame, Mr Bryan, and no doubt there were others who could have been considered.
7. The point is made that at the time the employer had no vacancies. That does not seem to us to be valid criticism of the Employment Tribunal's decision, because they explicitly indicated that what they were considering was the question of someone else going rather than Mr Nash being slotted in to any existing vacancy.
8. In truth, in our judgment, this appeal amounts to little more than an attempt to re-open issues of fact where the Employment Tribunal has heard the evidence, come to its conclusions which, in our judgment, are proper conclusions for it to have come to, and therefore, we find that there is nothing in the appeal against the finding of unfair dismissal.
9. As far as the level of the award is concerned. There is an appeal against the award of future loss for a period of eight weeks from the date of the tribunal hearing.
10. The tribunal took evidence from the applicant as to what he had been doing in order to attempt to obtain alternative work. In paragraph 2(d) of the tribunal's decision it summarises that evidence and it expresses the view that they were not particularly convinced that he had made a great effort to obtain alternative employment. That view being repeated in the concluding passages in paragraph 3.
11. That is a far cry from a finding of fact that the Employment Tribunal concluded that he should by now have got an alternative job and, therefore, was disentitled to claim any future loss.
12. In our judgment, the Employment Tribunal made findings of fact. Its conclusion, by way of inference, was one which was open to it to come to being the industrial jury and having experience of the employment market in the area within which it sits. Its judgment was that the applicant should be awarded future loss for a modest further period to reflect their view of the efforts that he had thus far made. In our judgment, it is simply hopeless for it to be said that the appellate tribunal, with its limited jurisdiction, is in any position to reopen what is essentially a matter of judgment and feel, where there was ample evidence for the Employment Tribunal to come to the conclusions to which it did come.
13. Therefore, on both of these limbs, we find that there is no reasonably arguable case upon which this appeal on either ground could succeed and therefore we dismiss this appeal at this stage of the proceedings.