United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL NICHOLAS (of Counsel) Instructed by: Messrs Hewitson Becke & Shaw Solicitors Shakespere House 42 Newmarket Road Cambridge CB5 8EP
For the Respondent	MISS M MONDAY (of Counsel) Instructed by: Messrs Kingsley Smith & Co Solicitors 81,87,89 High Street Chatham, Kent ME4 4EE


 


JUDGE WILCOX:

1. This is an appeal against the decision of the Tribunal sitting at London (North) on 25 January and 31 March 1999. The decision was that the Respondent was unfairly dismissed and in consequence he should receive compensation. The Respondent employed the Appellant as a Stock Control Supervisor within the despatch department. It was a company that sells and hires training support materials. In the summer of 1998 there was a decision taken to reorganise business, following a decline in sales and a fall off in profitability. In short, to take things economically it is clear that a redundancy situation arose so found by the Tribunal. So far as the Tribunal's findings were concerned, the original framing of the complaint by the Respondent was in terms of constructive dismissal.
2. We think that is a matter of some significance because the Tribunal considered it and as a result of their preliminary consideration, the Appellant reframed his complaint and the complaint was not, thereafter pursued as constructive dismissal. It clear to us looking at the reasons given in the extended reasons by the Tribunal, that original complaint as ---- informed in large part, the approach by the Tribunal in its consideration of the facts. What happened is that the job of Stock Controller fell to be vacant and the Appellant and others were required to make application for it in paragraph 12, an issue of fact was identified by the Tribunal, which we think is a fairly vital issue. It was to the appointment to the Appellant's job:

12. "The interviews were conducted on 5 August by Ms Moor and Mr Prior. They had prepared job descriptions for the five posts. Two other staff indicated they wanted to take the redundancy package. Mr Wood (the Appellant) was the last to be interviewed. There is a conflict of evidence as to what was said at the interview. Mr Prior and Mr Moor said that Mr Wood indicated right from the beginning that he was not interested in continuing, or in any of the jobs on offer, and wanted to discuss the redundancy package. Mr Wood's evidence is that he enquired whether the redundancies were forced or voluntary, whereupon he was asked to attend a meeting later in the day and when he did so, Ms Moor outlined his redundancy package, thanked him for his work with the company and effectively dismissed him there and then. "

And then this curious sentence:

12. "Again, the Tribunal did not find it necessary for the purposes of its conclusions to resolve which one of these two versions is correct."

3. We turn to paragraphs 27 and 28:

27 "The Tribunal found that Mr Wood was dismissed. The Tribunal found that there is in effect no difference between a situation in which, where there are redundancies to be made, an employee asks if he may be made redundant voluntarily and an employer agrees, as compared with the situation where the employee comes off unsuccessful as a result of a selection process."

In paragraph 28, in this paragraph there is a finding by the Tribunal that seems to indicate to us that they have in fact attempted to resolve the issue of fact, which is posed in their reasons at paragraph 12. I go to the latter part of paragraph 28:

28. "The Tribunal found that what caused Mr Wood to volunteer for redundancy was a combination of those circumstances, together with the way in which the process for redundancy had been handled. Therefore, the Tribunal found it was the method by which Mr Wood came to the conclusion that he would seek voluntary redundancy and came to be dismissed, that was the cause of his dismissal, not the redundancy situation."

It seems to us that the Tribunal did not direct its mind as to what was the proximate cause of the dismissal. It seems to us that they confuse their approach and when one looks at their reasons, one is left in considerable doubt as to the path down which they went. That is not satisfactory from the point of view of either Appellant or Respondent in a situation such as this.

4. We think that the proper way to deal with this appeal is to allow it, as we so do and remit it to a fresh Tribunal. Before I part with the case, I go on to consider very briefly the paragraphs at page 30 and onwards. There, these were volunteered on the basis of various hypothesises. This is wholly Obiter Dicta. We derive no assistance from that exercise as to the manner in which the Tribunal approached its task. We make this comment; perhaps it is not desirable that this practice of looking at the hypothetical to be followed. It certainly did not avail us to understand how the vital question in this case was decided. Those brief reasons, the matter should be remitted to a fresh Tribunal.