United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A CHOUDHURY (of Counsel) Instructed by: Messrs Lock Marlborough Solicitors 3 The Broadway Gunnersbury Lane London W3 8HR


 


JUDGE PUGSLEY: This is a case in which the appellant seeks to persuade us that there is an arguable ground of appeal from a decision of the Employment Tribunal sitting at London (North) in which they found that the respondent's complaint of unfair dismissal succeeds and the matter be relisted for consideration of remedy.

1. We have had the benefit of an extremely urbane and sophisticated argument on the appellant's behalf by Mr Choudhury.
2. The appellant's business is ownership and operation of nightclub in Ealing, where at the material time, there were five permanent members of staff. Mr White the appellant had employed the respondent/applicant since 1995 as the assistant manager up to the time of his dismissal in September 1998. The appellant/respondent, Valueunion Limited undertook a review of its business which led to Mr White's dismissal.
3. The tribunal's findings of fact are set out in their decision and would be otiose to repeat them at any length. Suffice it to say that in their findings of fact the tribunal made it very clear that the appellant/employer were not people whose evidence they took to in any material detail.
4. In the tribunal's review of the law they followed the well worn route of considering the statutory provisions and the case law applicable to redundancy dismissals. They noted that in paragraph 13 of Church v West Lancashire NHS Trust [1998] IRLR 4, the President stated in that case that:

"In many cases of alleged unfair dismissal, it may well be that it is largely irrelevant to the … tribunal's decision whether there was a true redundancy situation, or a reorganisation which did not fall within one of the four categories [of redundancy]. Fair and reasonable treatment of an employee would be unlikely to hinge on the label applied to the reason for the dismissal."

5. The best part of the argument put to us by Mr Choudhury is that this is a rare case where it would be appropriate to give considerable thought to what the reasons were. In paragraph 12(i) the tribunal say this:

"We are not satisfied that the Respondent has shown redundancy to be the reason for dismissal. This is because the overall requirements of the business for employees to carry out work of a particular kind has not been proved to have ceased or diminished (or to have been expected to do so). We regard the Respondent's evidence in this regard as sketchy."

In 12(ii) they say:

"However, we accept that the reason for dismissal made out by the Respondent is some other substantial reason within the terms of section 98(1)(b) of the Act, namely a reorganisation of tasks which resulted in the Applicant's functions being undertaken by existing employees. It must be right to allow the Respondent formally to amend its case as to the reason for dismissal, and the matter was fully canvassed with the Parties. Accordingly, following the guidance in Burkett v Pendletons (Sweets) Ltd [1992] ICR 407, 413, we permit such amendment as is required. We would also note that this is, in our view, a case to which the President's above comments in Church fully apply. We do not consider that the reason for dismissal, whether redundancy or a business reorganisation, makes any difference to the fairness of the dismissal."

The tribunal then go on to say in stringent term in paragraph 12(iii):

"We conclude that the dismissal was certainly unfair on procedural grounds. There was no warning or consultation whatsoever with the Applicant. Moreover, there was a complete lack of clarity about what was taking place. The Applicant was, even on the Respondent's case, told about the prospect of a new job so as to 'soften the blow' (to use Mr Aston's phrase). However, as we have set out above, we have found that he was being positively misled and deliberately not told that he was being dismissed. Whatever were the motives in the employer's collective mind, we regard what occurred as the very reverse of acceptable and fair industrial practice. The Applicant was misled as to what was going on. Accordingly, the Respondent acted unreasonably in treating the reorganisation as a sufficient reason for dismissal. We have considered all the circumstances, including equity and the Respondent's size (5 full time staff and up to 30 part-time employees). We do not consider that the Respondent's size could be an acceptable reason for dealing with the Applicant in this arbitrary fashion."

6. In his skeleton argument, initially drafted, Mr Choudhury clearly has much experience in this area of law and relied on the procedural unfairness and arguments about consultation. Very properly, as one would expect, he has resiled completely from paragraphs 9 and 10 and accepts that concessions were made. What is said by Mr Choudhury is simply this –if you look at 12(i) and (ii) the tribunal says that there was no redundancy in paragraph 12(i) and yet give as a substantial other reason in (ii) what amounts, says Mr Choudhury, to reasons that he contends could be construed as redundancy. He says that if there was a failure to correctly define the state of affairs which existed. It is not a purely academic matter though both were potentially fair reasons. He says because of that the tribunal may well have failed to consider, as they should have done, the impact as far as the Polkey selection concern. If the tribunal had in fact categorised the reason as redundancy, they would have gone on, Mr Choudhury submits, to consider that as there was inevitably going to be a dismissal of one employee there was a live issue whether Mr White would have been dismissed even if a full and fair procedure was followed.
7. We consider that is arguable. We do not wish to say anymore than that. We by no means think that the argument is overwhelming. We just do not consider, despite his very subtle arguments, that there is any basis in law for reversing the findings made by this tribunal in paragraph 12(iii) or to the fairness of the dismissal. We think it would be improper to seek to allow any attack on the findings of unfair dismissal to be mounted. In our view, the only basis upon which this appeal can be allowed as an arguable issue is that the grounds of appeal could be limited to those points encapsulated in paragraphs A and C and that the only ground on which we will permit grounds of appeal to be put forward are as to the issue of whether or not the tribunal should have made a Polkey deduction.
8. Therefore, the grounds of appeal are to be amended within 14 days. The only issue arguable is whether the tribunal correctly analysed the issue of a Polkey deduction. The case is to be listed as Category C and should last no longer than half a day.