United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S GILL (of counsel) Southall Legal Advice Centre Ltd 54 High Street Southall Middlesex UB1 3DB


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of an appeal by Mr Nadar, against the decision of an Employment Tribunal sitting at London (South), chaired by Mr Milton, promulgated on 16 February 2000 and supported by extended reasons.
2. Mr Nadar was employed by the Respondents as a warehouse man, somewhere in the suburbs of London.
3. On 30 September 1999 he went to the office to collect his wages from Mr Patel, the owner of the business; he was told that there was no further work for him and that he was dismissed for redundancy. This seems to have happened without notice. At the hearing before the Tribunal the Respondent's representative produced a letter dated 1 September purporting to give one month notice. The Applicant said that he had not received that letter and the Tribunal accepted that that was so.
4. The dismissal appears to have come about because the employers had found themselves in a disastrous financial downturn.
5. There had been in half a years trade a loss of over a ¼ of a million pounds for what was obviously a small organisation which had a staff of approximately 28 only together with a sister organisation, a courier organisation with about 5 staff. One part of the business consisted of exporting to Kenya which used to import 38 tons of business per week but was only now taking 4 tons a week, a drop of about 90%.
6. Clearly, as the Tribunal found, the Respondents were entitled to consider severe cost cutting measures including the laying off of staff. However, these short facts which I have recited, which are set out not in very much more detail in the Tribunal's decision, although not having been very much more by way of detailed facts before the Tribunal, demonstrated that the dismissal was a dismissal for redundancy but was plainly unfair. There had been no redundancy procedure, no consultation and thus the Tribunal decided that the dismissal was indeed unfair.
7. The Tribunal went on to consider pursuant to, as they expressed it, the classic decision Polkey what were the chances as to what would have happened had the employers adopted a fair procedure. They came to the conclusion that, in what they described as this small dwindling company and the small and dwindling warehouse department it was inevitable that the Applicant would have been dismissed not very much longer after the time when he was actually dismissed even if a fair procedure and proper investigation of alternatives had taken place.
8. They rejected the ably argued claim for reinstatement put forward by Mr Gill on behalf of the Applicant as being totally impracticable, concluded that the period for which had a proper procedure being carried out and then proper notice been given, the Applicant would have continued in employment was 9 weeks and calculated compensation accordingly.
9. By this appeal Mr Gill, in an admirable skeleton which he has supported before us today with even more admirable brevity and succinctness, takes in effect 3 points. First of all he says that the Tribunal failed to make any clear finding as to the number of staff in the pool from which selection for redundancy had to be made so that they never established how many employees there were with less service than Mr Nadar and how many employees there were who were better or more flexible with paper work than Mr Nadar, the employers having said that one of their reasons for making Mr Nadar redundant was that he was not very flexible or very good at paper work.
10. Secondly, it is said that the Tribunal failed to set out any facts to support its conclusion that it was impracticable for the employers to reinstate; and, thirdly, it is said that the conclusions to which the Tribunal came as to reinstatement and as to what would have happened or might have happened if a proper procedure had been adopted were perverse.
11. In our judgment that there is, alas, no arguable ground of appeal in this case. The facts were in a very short and brief compass and they are set out by the Tribunal in our judgment in a wholly satisfactory way. The Tribunal in relation to reinstatement found that it was impracticable to reinstate; they did so on the basis of the financial status of the employers. The financial status of the employers, as it appeared to the Tribunal, is adequately set out in the decision and the findings of fact and the reasons given by the Tribunal are sufficient and adequately support their decision on that issue. We do not see that it was necessary for them, in dealing with a small organisation as they were, to go further and to investigate or make findings of fact in detail as to the number of staff in a pool at any particular time. The same applies to the argument that they should have identified the number of staff in the pool in order to consider what would have happened had a proper procedure been carried out, in other words in order to carry out appropriately what we might describe as the Polkey exercise.
12. The Tribunal again identified the history; it identified the circumstances, it described the company as one which was both small and dwindling and the department in which the employee worked as small and dwindling. It was in our judgment entirely open to the Tribunal on the facts to come to the conclusion, as it did, that it was inevitable that the Applicant would have been dismissed soon after the time when he was actually dismissed and to reach, as it did, an assessment of how long it would have been had the procedure been properly carried out, before the axe fell.
13. The Tribunal is not required to go into enormous detail in a straight forward and simple case of this kind. It dealt appropriately with the issue before it and reached decisions which are not subject to any error of law; nor in our view is there any arguable case of perversity. It cannot be said that there was no evidence before the Tribunal to justify the conclusions which are now under attack. For these reasons we dismiss this appeal.