United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P GILROY (of Counsel) Instructed By: Ms K Skeaping Messrs Addleshaw Booth & Co Solicitors 100 Barbirolli Square Manchester M2 3AB


 


JUDGE J HICKS QC: The Respondent in this appeal, Mr David McBride, was employed by the Appellants, Cobble Blackburn Ltd, from August 1979 until he was dismissed on 30 March 1998. He was an Electrical Projects Manager. The employer's staff went through a process of reduction, in so far as the reasons of the Tribunal covered the matter, in two stages.

1. In November 1997 two Managers had been made redundant at Mr McBride's level of seniority, but he survived. However in March 1998 the Operations Director was instructed to eliminate Mr McBride's job and a meeting was arranged between him and Mr McBride for 26 March 1998. Mr McBride was not told the purpose of the meeting in advance but when it took place he was told his job had gone and that his employers were not aware of any other positions which he could fill but would consider any options that he, Mr McBride, could think of, and that there was to be another meeting on 30 March. That was four days later but a weekend intervened so that it was in effect the next, or next but one, working day.
2. At the second meeting, which was in the letter confirming the first meeting said to be for the purpose of "seeking together any alternatives", it was quite apparent that there was not going to be any seeking of alternatives in the sense that the Operations Director said that he had been unable to find any and Mr McBride thought, and said, that in that event there was nothing that he could say. His employment ended the same day. Mr McBride was entitled to 12 weeks' notice but instead received pay in lieu of notice.
3. The Respondent's case was that there was no alternative employment. The Tribunal found that the reason was redundancy and addressed the question of fairness in appropriate stages, first of all considering whether there was any unfairness in the fact that Mr McBride was selected for dismissal and concluding that there was not. They then considered whether there was adequate and appropriate consultation and reached the conclusion that there was not and that there was no attempt genuinely to explore the alternatives. That finding of theirs is, as Mr Gilroy for the employers accepts, unimpeachable.
4. The Tribunal then considered the question of possible offers of alternative employment and at the liabilities hearing there had been canvassed two possibilities, one as Works Manager in another Company within the Group and the other a position or positions as Technical Service Engineer. The Works Manager position effectively drops out of the picture because, although at the liabilities hearing the Tribunal concluded that the possibility of offering it should have been considered, at the remedies hearing the Tribunal reached the conclusion that in the event, on the further evidence it heard, even if proper consideration had been given to that possible role the outcome would have been the same. There was no specific vacancy at the time and no vacancy or appointment would have been made available to Mr McBride even had the matter been properly considered. But the question of a position as Technical Service Engineer remained alive. The Tribunal's conclusion at the liability hearing was that consideration was being given to that matter at the time, although it had not then crystallised.
5. There was then a direction that there should be a further remedies hearing at which the parties were to be free to develop the question of alternative employment more fully and to call additional evidence on it. At that remedies hearing there was indeed such evidence and in particular evidence from the employers and the Tribunal deals with that in this way:

"6. The applicant then referred us to the possibility of a role for him as a Technical Service Engineer. He told us in evidence that there had been consideration at senior management level, in the months preceding his redundancy, to appointing Technical Service Engineers with greater expertise, particularly in his particular field of electrical/electronics systems. He pointed to the fact that in mid-May 1998, only some six weeks after his redundancy, a vacancy was advertised internally within the respondent's organisation for a Technical Service Engineer and subsequently, in August 1998, there was a further advertisement for Technical Service Engineers with greater electrical expertise. The respondent's witnesses, on the other hand, told us that there were no vacancies for Technical Service Engineers at the time of the applicant's redundancy on 30 March 1998, the vacancy in mid-May 1998 was created at that stage in the light of business conditions, and the discussions, about more qualified Technical Service Engineers had not led to a conclusion in March 1998."

6. The Tribunal then make their own finding as follows:

"7. We accept that an unrealistic standard must not be imposed on employers with regard to consideration of alternative employment. We repeat the findings in our previous decision that we are unanimously satisfied after considering the evidence of the applicant and the respondent's witnesses that debate and discussion had taken place about the appointment of more qualified Technical Service Engineers in a role for which the applicant would have been well qualified by virtue of his experience, skills and training. …"

It is that last sentence which Mr Gilroy submits shows an error of law on the part of the Tribunal because, he says, the words "We repeat the findings in our previous decision" effectively mean that this finding stands or falls by the validity of the original finding in the first decision, which is to be found in paragraph 3(x) of the Tribunal's reasons on the liability hearing where they say:

"The other possibility was that the respondent's management had been actively considering the appointment of better-qualified Technical Service Engineers. Although again the applicant conceded that no decision had been taken at the time of his redundancy to appoint new Technical Service Engineers, he knew that the matter was under active consideration and, indeed, Mr Hards [the employer's witness] confirmed in his evidence that appointments were duly made. …"

7. The criticism is that at the liability hearing there simply was no evidence, Mr Gilroy says, that in March at the date of the redundancy dismissal the possibility of these appointments was under active consideration - nothing except Mr McBride's evidence that that was what he believed. Therefore, says Mr Gilroy, the finding at the remedies hearing, which simply repeats that conclusion, must be equally flawed. In our view that is a totally misconceived criticism. It is quite plain that at the remedies hearing this matter was one of those vigorously in contention and was the subject of evidence from both parties, and when the Tribunal says "We repeat our findings" they are not saying "We repeat our findings and only for the same reasons and only on the same evidence". They are manifestly saying "We repeat our findings, having regard to all the evidence we have now heard". The evidence they heard manifestly was evidence on which a Tribunal could reach that conclusion, whether rightly or wrongly in fact is not a matter for us, because we are concerned only with errors of law and in our view no error of law whatsoever is shown in that conclusion.
8. On the basis of that finding and of the other evidence before it the Tribunal assessed the chance that, had that possibility been properly considered by the employers, Mr McBride would have been offered and taken such a post, at 50 per cent. They then went on to consider another possibility which, as they put it, emerged during the hearing, namely that since Mr McBride was entitled to 12 weeks' notice which he did not receive, he would still have been working for the employers when the first of these Technical Service Engineer vacancies actually arose on 18 May and that that was therefore another opportunity which he would have had to take this alternative post, but that is not treated by the Tribunal as a cumulative matter which justifies increasing their assessment of 50 per cent. It is treated as an alternative possibility but they leave the chance at 50 per cent and Mr Gilroy accepts that, even if he were to succeed in his argument that there is a flaw in the Tribunal's reasons on this limb, that would not justify the Employment Appeal Tribunal, for that reason, only in reducing the 50 per cent.
9. In those circumstances it would be purely academic to allow this point to go forward for argument, even if it were arguable, but we have nevertheless considered whether it is arguable and have come to the conclusion that it is not.
10. The contractual background is that Mr McBride was entitled to 12 weeks' notice. The lawful way of terminating his employment was to give him 12 weeks' notice, in which case he would have been both entitled, and indeed bound, to work out that period and would indeed have still been in employment when the vacancy arose on 18 May. It is true that it is very common for employers in such circumstances not to give notice but to give pay in lieu. That, as Mr Gilroy accepts, is technically a breach of contract unless, as there was no evidence in this case, there was an express term entitling the employer to take that course or unless the employer freely agrees to that course. I say "technically" a breach because the offer of full pay for the period in lieu of notice normally covers any damages to which the employee would otherwise be entitled.
11. The employers on this point did not seek to adduce any evidence that there was a term entitling them to terminate without notice. The reason they gave for doing so was one not accepted by the Tribunal, and that was a matter of fact for them, namely that Mr McBride was a person with access to sensitive information which might be disclosed if he worked out his notice. It is not surprising that the Tribunal rejected that because there seems to have been absolutely no evidence, and no suggestion, that Mr McBride was the sort of person who would be in breach of his duties of confidentiality and trust in that kind of way. The position therefore was that when the Tribunal say "he was not permitted to work out his notice" they are simply stating in a summary, and perhaps not a highly technical form, the fact that the employers were in breach of contract in not giving him the notice to which he was entitled.
12. We therefore see no error of law in the fact that the Tribunal took this consideration into account, especially as they did so only for the very minor, and in a sense inconsequential, purpose of providing an alternative basis for a conclusion which they had already reached on a ground which we have found to be unappealable, and did not use it to alter the percentage adjustment which they made to compensation.
13. Finally, Mr Gilroy relied on a distinct ground which is raised by ground 2.3 (e) of his skeleton argument and reads as follows:

"The Tribunal wholly ignored, as an indication of his [Mr McBride's] willingness or otherwise to accept a position as a Technical Service Engineer (which should have had a bearing on the '50% chance' finding), the fact that the Respondent [Mr McBride] did not actually apply to be considered for the vacancies in May and August 1998."

14. There is nothing specific in the reasons of the Tribunal to show whether that matter was in evidence before them, but Mr Gilroy tells us on instructions that it was and it impinges on the reasons which are actually given in this way, that at the end of paragraph 7 of the remedies reasons the Tribunal says:

"Of course, we cannot be sure that a role would have been found or that the applicant would have accepted it because in the event none of this happened. But it is our view, having regard to all the evidence we have heard, that there is a 50% chance that a role would have been found for the applicant which would have preserved his employment."

15. We see no reason why we should not accept that the Tribunal was indeed having regard to all the evidence which they had heard and which would, on Mr Gilroy's instructions, have included this point. The conclusion they reached was a matter for them and we see no way in which we can say that it is perverse or that no Tribunal could still have arrived at the 50% assessment. All sorts of considerations would, no doubt, have been different when Mr McBride had already been dismissed and learned, as Mr Gilroy says he did, of these job vacancies, as compared with the position had one of them been offered to him as alternative employment during the redundancy process. It appears from the Tribunal's reasons that had that happened during the redundancy process the positions, although junior, would have been offered on the basis of the same salary. Presumably after he had once left the post any application by him would have been dealt with on the same basis as anyone else and at the salary which went with the job. However that may be, and it is not for us to make findings on the facts, the truth is that the Tribunal state in their reasons that they had regard to all the evidence in reaching their 50 per cent assessment and we see no basis on which we ought to assume or find them in error on the basis that they did not do so.
16. In the circumstances we find no arguable ground of appeal which justifies proceeding to a full hearing and we dismiss the appeal.