United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MILLER (of Counsel) Instructed by: Messrs Jenkins O'Dowd & Barth Solicitors 384 Garratt Lane London SW18 4HP


 
MR RECORDER LANGSTAFF QC:
1. The Appellant seeks to appeal against a decision of the Employment Tribunal held at London South on 1 December 1999 which was promulgated on 9 December, by which the Tribunal unanimously found that the Applicant, Miss Hill had been unfairly dismissed by the Appellant, Seymour Valentine.
2. The issue, which confronted the Employment Tribunal, was first of all: What was the reason for the dismissal? Miss Hill maintained that given the circumstances of her dismissal, she did not believe that it was, as the Appellant claims, redundancy. The Employment Tribunal plainly had it well in mind that there was evidence that Miss Hill had problems in her relationship with a Mr O' Hara. Both she and he were supervisors and it is material to note that having been first employed in February 1997, Miss Hill had in fact been promoted as early as July 1998 to the post of Supervisor.
3. What is submitted by Mr Miller on behalf of the Appellant is that the Employment Tribunal approached the evidence in the wrong way; that they had committed an error of law because there was evidence before them, he says, to show that redundancy existed and that this was sufficient to raise a prima facia case that there was a redundancy situation. He submits that none of the evidence which the Employment Tribunal accepted as rebutting that case was capable of rebutting it, because it dealt with either business decisions, which he submits were not for the Employment Tribunal to review, or went into the issue of fairness, not to the issue of reason. But what they should have found was whether there was a redundancy situation. Because the Employment Tribunal failed to analyse whether there was a redundancy situation, the Employment Tribunal was unable, properly, to deal with the issues of causation which arose. Had they looked at the complaint properly, they should have looked at it with a view to seeing whether the reason for the dismissal was the complaint that Miss Hill had about Mr O' Hara, whether it was redundancy or whether it was in truth a combination of the two. He points out that, had they approached matters in that way, it was impossible to say that they would necessarily have concluded that the complaint alone was the cause of the dismissal.
4. The problem it seems to us with the approach which Mr Miller takes, which makes this appeal completely unarguble in our view, is that it starts from the wrong premise. s.98 of the Employment Rights Act requires first that it be for the employer to show the reason for the dismissal. Before the Employment Tribunal ever get to considering whether there is a redundancy situation or not, they have to consider what was the reason for the dismissal. Part of the evidence may be to consider whether there was a redundancy situation, but it is not the starting point as Mr Miller submits. When the Employment Tribunal addressed the question asking what was the reason for the dismissal, what they concluded is set out in paragraph 15 of the decision. They concluded that it was not redundancy. Therefore the employer had failed to discharge the onuses of proof, resting upon the employer to show what was the reason. They concluded that redundancy was merely a label. Mr Miller accepted in the course of his submissions to us that there were strong findings by the Employment Tribunal and we think that he was right in that observation. He accepted that it was open to the Employment Tribunal to conclude that they did not believe his clients when they gave the reason for the dismissal as having been redundancy.
5. He argues however that the facts which are selected in paragraph 14 of the decision do not, when taken individually and analysed closely, demonstrate that the conclusion they reached was a correct one. He points to flaws, which might be said to exist, if one took the reasons in isolation. We remind ourselves of two principles, which regularly guide this Tribunal: -

The first is that the decisions of Employment Tribunals must not be over analysed, they must be taken in the round. We are satisfied that what the Employment Tribunal was here doing was looking at a number of selected facts the combination of which pointed to the conclusion that redundancy was a false tag to put on the reason for this particular dismissal. We cannot say that they were wrong in doing so.

The second principle which we have already indicated is that one must begin in any case by going to the statue and the statutory provision which is appropriate. Reminding ourselves of the opening words of s.98 of the Employment Rights Act 1996 and also of the words of s.139 : That an employee should be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to, what might be loosely be described as 'redundancy situations'.

We conclude that in this case the Employment Tribunal undoubtedly approached the facts by asking the correct questions: Was the dismissal attributable to redundancy? Was redundancy the reason? The conclusion they reached, although they might equally have reached an opposite conclusion is not one which we think any appeal tribunal could properly interfere with and, for that reason, this appeal must go no further and should be dismissed.