United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SKELLY (of Counsel) N J Evans & Co Solicitors 30 Marsh Wall London N14 9TP
For the Respondents	MR C SHELDON (of Counsel) Norton Rose Solicitors Kempson House Camomile Street London EC3A 7AN


 


JUDGE PETER CLARK: The appellant, Mr Elliott, founded the respondent company in 1962. Two or three years later his brother joined him as a co-shareholder.

On 30th November 1994 the shares in the company were sold to Blackbushe Metals Ltd and the appellant entered into a written service agreement with the respondent. That agreement provided for a fixed term commencing on 1st December 1994; the agreement was terminable on three months notice at any given time after 31st August 1997.

By letter dated 28th August 1997 Mr Richard Smith, a director of both the respondent and Blackbushe, gave the appellant notice of termination of the employment to take effect on 30th November 1997. The employment came to an end on that date, although the appellant continued to work for the respondent on a self-employed basis during December 1997.

By an Originating Application dated 24th February 1998 the appellant presented complaints of unfair dismissal, redundancy payment entitlement and failure to give written reasons for his dismissal to the Employment Tribunal.

The complaints came before an Employment Tribunal sitting at Reading on 3rd June 1998. By a decision with extended reasons dated 16th June 1998 the tribunal found that he was dismissed by reason of redundancy and awarded him a redundancy payment of £990 based on three years continuous service as an employee. They found that he was not an employee prior to his entering into the service agreement on 1st December 1994. They held that his dismissal was unfair due to lack of consultation but concluded that had proper consultation taken place he would have been dismissed by reason of redundancy in any event and made no compensatory award. The complaint in respect of written reasons was dismissed.

The appellant appealed against the tribunal's findings, first that his continuous period of employment commenced no earlier than 1st December 1994 and secondly, the finding that he was not entitled to a compensatory award for unfair dismissal.

The appeal came before a division of this Appeal Tribunal presided over Judge Byrt QC on 28th October 1998. The tribunal dismissed the appeal against the finding as to continuity of employment, but allowed the appeal against the tribunal's nil compensatory award to proceed to this full hearing.

The basis on which the appeal was allowed to proceed on that limited ground was a submission made on behalf of the appellant by Mr Skelly that there was no evidence to support the tribunal's findings that proper consultation would have made no difference to the outcome. Mr Smith did not give evidence before the Employment Tribunal. In those circumstances the EAT directed that the Chairman be asked to produce his Notes of Evidence. That he has done.

It is important to appreciate that the ground of appeal here is that there was no evidence to support the tribunal's award of nil compensation for unfair dismissal. That is a correct application of the test propounded by Lord Donaldson MR in Piggott Bros. v Jackson [1991] IRLR 309, 312.

It is right to say, as Mr Skelly submits, that the respondent's only witness, Mr Burke, gave no useful evidence on the question raised by Polkey v AE Dayton Ltd [1988] ICR 142, namely, what was the chance of the appellant retaining employment with the respondent had a fair consultation procedure been followed, a question, as Mr Sheldon reminds us, which the tribunal must answer in a case of unfair redundancy dismissal. Red Bank Manufacturing Co Ltd v Meadows [1992] IRLR 209.

However, the tribunal was required to consider all of the evidence before it, including that of the appellant. He told the tribunal that the number of employees had been cut back from 18 to 8; that his position was never filled, his work was taken over by the manager, Mr Lawrence. The appellant agreed to stay on for the busy month of December 1997 on a self-employed basis.

From this evidence it was, we think, open to the tribunal to infer that had a proper consultation procedure been followed the appellant would inevitably have lost his job with no prospect of alternative employment with the company. That is what they effectively found at paragraph 10 of their reasons. We are unable to say that there was no evidence from which the tribunal could reach that conclusion. It would have been otherwise had there been evidence from the appellant that he might have been retained in preference to another employee, such as Mr Lawrence, or that there was another job which he could have done and that evidence was unchallenged. However, he gave no such evidence, despite his continuing to work at the respondent for some four months after notice of dismissal was given to him.

In these circumstances, we have concluded that this appeal raises no grounds in law for interfering with the tribunal's decision and accordingly it must be dismissed.