United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mrs I M Hancock (Solicitor) Instructed by: Messrs Knight & Sons Solicitors The Brampton Newcastle under Lyme Staffordshire ST5 0QW
For the Respondents	NO APPEARANCE


 


JUDGE WILKIE:

1. This is an appeal by George S Hall Ltd against a decision by the Employment Tribunal, sitting at Shrewsbury, the decision dated 19 May 1999, in which they concluded that the Applicant was unfairly dismissed. The question of remedies was adjourned, and, as we understand from Mrs Hancock, who has represented the Appellant, there is a remedies hearing scheduled in the relatively near future.
2. The conclusion of the Employment Tribunal, which is not in dispute, is that the Applicant was dismissed by reason of redundancy. The Tribunal found his selection for redundancy from the position which he held up until his dismissal was unfair. In paragraphs 6 and 7 of their decision they concluded that it was unfair for two separate, and distinct reasons.
3. The first reason, was that the process of consultation was wholly inadequate, and that no reason was advanced why consultation, and a warning could not have commenced tineously as a separate ground for finding that the dismissal was unfair. The second was that the Tribunal held that the Respondent acted in a way other than reasonably, in failing to discuss with him what they identifed as half a dozen posts for which he was qualified. If either of these gives rise to no reasonably arguable point of law then this appeal is bound to fail, as they were separate and cumulative reasons.
4. The facts, as found by the Tribunal which are not in dispute, are that there came a point at which the Applicant was working in the United States for the Respondent. He was returning from the United States to take up a position in York. On the 14 August the Respondents wrote to the Applicant at his Chicago address. We have had that letter read out to us by Mrs Hancock. The letter says that the employment which he was coming back to the UK to take up in York, would cease as of the 30 September, and that the employer would be making every endeavour to find him alternative employment.
5. It is right to say that nowhere in that letter is it ever suggested that Mr Harding would be made redundant at the end of September, nor was there any invitation to him to discuss his future with them, nor was there anything to indicate that this was the commencement of a period of consultation. In fact, Mr Harding did not receive that letter in the normal course of delivery, which would have been some time shortly after the 14 August he received it in the middle of September. Having read that letter and taken what the Tribunal accepted was a reasonable reading of it, on the 23 September, he wrote to his employer enquiring where he should report on the 1 October. In other words, there was nothing in his response to that letter to indicate that he had a clue that he was to be made redundant at the end of September, or indeed he had any particular choice as to where he was to work. It is right to say that as far as his permanent future was concerned he had identified certain fairly stringent requirements. Only after the 23 September letter had been written and received by fax, were there any consultations commenced concerning his possible redundancy.
6. The Tribunal, in paragraph 6 of its decision, concluded that that period of consultation, which was less than a week was wholly inadequate. That is a conclusion of fact and not one with which we are minded to quarrel. It is certainly a conclusion of fact which was well open to this Tribunal on the evidence which was presented to it. That conclusion that there was a failure to consult adequately rendered the dismissal by reason of redundancy unfair, there being no question or no argument that this was a case in which consultation would have in any event been futile.
7. Thereafter it appears the Tribunal looked at a number of possible alternative employments, and criticised the Respondent for failing to discuss those with the Applicant notwithstanding the fact that he had, at an earlier stage set out fairly stringent requirements. Whether or not that was a conclusion that the Tribunal was entitled to come to on the evidence, we are not in a position to judge, since we do not have the notes of evidence. But even if it were a matter which gave rise to a reasonably arguable point on appeal, we have already indicated, that the principal ground of the decision is unattackable, and therefore this appeal must be dismissed at this stage.
8. We do however note, that there is a remedies hearing, and no doubt at that hearing, the Appellants will seek to canvas all the arguments relating to what would have been the outcome of any proper consultation based on the evidence which is already before the Tribunal, and no doubt that would include matters such as, the actual availability of any sensible employment offer which would this applicant would have been minded to have accepted, had he been adequately consulted about it.
9. Those are matters for another occasion, namely the remedy hearing, and they do not in any way amount to a ground for attacking this decision of the Tribunal on liability. Therefore, our conclusion is that this is an appeal which must fail. There is no reasonably arguable point of law which would permit this appeal to succeed and therefore we dismiss it at this preliminary stage.