United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R F ASHTON (Solicitor) Messrs Hacking Ashton Solicitors Berkeley Court Borough Road Newcastle under Lyne Staffordshire ST5 1TT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE ALTMAN

1. This is an appeal from the Employment Tribunal sitting at Shrewsbury on 20 January 2000. The decision of the Employment Tribunal was that the Respondent had been unfairly dismissed.
2. The Appellant employer appeals on the ground that in considering the Appellant's allegation that dismissal was on the ground of redundancy the Employment Tribunal applied the wrong test and asked themselves the wrong question in rejecting that assertion.
3. The history of the matter is worthy of mention. The Respondent, after nearly 3 year's employment, was dismissed on 1 April 1999. On 25 June 1999 his Originating Application was received at the office of the Employment Tribunal.
4. The Appellants did not enter a Notice of Appearance in due time but it appears they did have leave to enter such a notice very late and on 8 November the Appellants wrote a letter, saying that they were unsure of whatever grounds on which the Respondent had made his claims; that is a little curious in the light of a fairly clear Originating Application. They went on:

"All payments have been paid in full and fully documented and cleared our bank accounts in favour of Mr Ralphs.

The department which employed Mr Ralphs was closed on 1 April 1999 and remains closed.

Therefore, any claim for unfair dismissal and/or outstanding payments of any kind will certainly be defended by ourselves and our Solicitors."

5. In due course, the Appellants did not take any further steps in the proceedings and the Employment Tribunal were faced with that bald sentence: "The department which employed Mr Ralphs was closed on 1 April 1999 and remains closed" as the total content of the Appellant's case and the total content of any evidence, if it can be so described as such, in support.
6. The Respondent appeared before the Employment Tribunal and gave evidence. The Respondent was unable, in fact, to appear before us and wrote a letter asking us to deal with this matter in his absence and we have done so.
7. In his Originating Application, the Respondent contended that the day before the dismissal he had been asked to work the following day, which he was not expecting to do because of the holidays and he was expecting to go away. However he said he agreed to work if payment was made to cover his cancelled holiday costs and that it was following that assertion that he was dismissed.
8. He used in his letter the word "redundant" but on the face of it, it is quite clear and the contrary has not been suggested, that it was actually being used in the very loose sense that is sometimes used just as a description of the ending of employment.
9. The decision of the Tribunal was expressed as extended reasons but it is appropriate to set it out in full.

2. "…The Tribunal took into account the Respondent's letter of 8 November 1999, which had been treated as the Respondent's Notice of Appearance.

3. On 1 April 1999, Mr Mark Bennett, the Respondent's Managing Director, came into the workshop where the Applicant was working and told the Applicant to stop his machine, get his tools and leave the premises immediately. The Applicant was told that Mr Bennett would send his "redundancy" to him in the post."

10. Pausing there for a moment, it is quite clear, on the face of the decision, that all the facts contained in that paragraph 3 were findings of fact by the Tribunal as to what had actually happened. The Employment Tribunal went on:

4. "The Applicant gave evidence that there was plenty of long term work for him to do when he was dismissed.

5. Accordingly the Tribunal rejects the Respondent's submissions that the Applicant had been dismissed by reason of redundancy. There was no other reason put forward by the Respondent, and the Tribunal is, therefore, not really able to say what the true reason for the Applicant's dismissal was. Accordingly, the Tribunal find that this dismissal was automatically unfair."

11. On behalf of the Appellant, Mr Aston has frankly conceded that his case is effectively disadvantaged by the absence of evidence put before the Tribunal. But he contends, that:

"The Tribunal erred in law by applying to such limited evidence as they had the wrong test"

And that it is said, and rightly said that:

"If that is the case, the Appellant is entitled to take advantage of that error of law and succeed in his appeal."

12. Did the Employment Tribunal err in law in applying the wrong test? We have been helpfully referred to the decision of the Employment Appeal Tribunal, in the case of Safeway Stores plc v Burrell [1997] IRLR 200, where in paragraph 24 His Honour Judge Peter Clark expresses the finding of the Tribunal as follows:

"Free of authority we understand the statutory framework of Section 81(2)(b) to involve a 3-stage process:

(1) was the employee dismissed? If so:

(2) had the requirements of the employer's business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish? If so,

(3) was the dismissal of the employee….caused wholly or mainly by the state of affairs identified at Stage 2 above?"

13. We are also referred to paragraph 29 in which it is pointed out that the actual requirement for particular work was not the issue that had to be considered, but rather the requirement for employees to do that work having ceased or diminished.
14. And Mr Ashton argues that by demonstrating that the department had closed it must follow that the Employment Tribunal had to ask themselves whether or not the need for employees had ceased or diminished. We are also referred to paragraph 69 in which the same analysis was reiterated in very similar terms.
15. In the Notice of Appeal the matter is put on the basis that simply because there was evidence from the Respondent "that there was plenty of long term work for him to do when he was dismissed" did not relieve the Tribunal from analysing the Appellant's case that the department had closed in the light of the test to which I have referred.
16. We return, in the light of that submission, to the wording of the decision of the Employment Tribunal. Having set out in paragraph 2 the Appellant's case as set out in their letter of 8 November on the one hand, and in paragraph 4 the Respondent's case that there was plenty of long term work for him to do on the other, and having made findings of fact in paragraph 3 as to the way in which the dismissal was effected, the Tribunal said in paragraph 5:

"Accordingly the Tribunal rejects the Respondent's submissions that the Applicant had been dismissed by reason of redundancy."

17. Mr Ashton relies upon the first word of paragraph 5, the word 'accordingly'. He says that is a reference back to paragraph 4 and the conclusion to be drawn is that the Employment Tribunal made a finding that because there was plenty of long term work to do there was no redundancy situation and that that was an over-simplistic and incorrect application of the legal test because there may well be plenty of long term work for employees to do and yet still be a redundancy situation, if the need for employees to do work of the kind at that place had ceased or diminished.
18. But that is clearly not what this decision finds. The word 'accordingly' at the beginning of paragraph 5, it seems to us, refers back to the whole of the Employment Tribunal's findings of fact and the arguments of each side and sets out their conclusion in the light of everything which has gone before. There is no reason to confine the reference back to the paragraph before.
19. Secondly, the Tribunal say that they reject the Respondent's submission that there was a dismissal by reason of redundancy. Of course, Mr Ashton is the first to concede, simply because a department closes is not proof of redundancy at all, even if such an assertion was true. But in this case the Tribunal was considering from the Appellant the allegation of the closure of a department and were then setting against that, quite clearly, the most extraordinary way, it seems to us, of dismissing an employee for redundancy on closure of a department, simply telling someone to stop his machine, get his tools and leave immediately. The Tribunal then refer to the assertion that there was still plenty of work.
20. It seems to us beyond any dispute that the Tribunal then went on to find that against that background of fact and competing evidence, they rejected the submissions of the Appellant that there was dismissal by reason of redundancy and we can see, we are bound to say, no error whatsoever, in that approach.
21. There was a conflict of evidence which the Tribunal had to resolve and they resolved it in favour of the Respondent. They were faced with a finding of fact wholly inconsistent, it seems to us, with an employer who was closing a department and telling his employees that he was closing his department and that they would not have work for him any more, but quite the contrary; with any employer who without any explanation, just sends an employee off the premises.
22. Coupled with the continued existence of work it is hardly surprising, it seems to us, that the Employment Tribunal took the view that the Respondents had failed to show a dismissal by reason of redundancy.
23. The wording of paragraph 5, furthermore, is important, it seems to us, because the Tribunal did not make the positive finding that dismissal was not for redundancy; rather they made the slightly negative finding that the Appellant had failed in his submission that there was a dismissal for redundancy. In other words they found that the Appellant had failed to discharge the burden of proof of showing the reason for dismissal. That is emphasised in paragraph 5 by the finding of the Tribunal that they are not able to say what the true reason for the dismissal was.
24. Simply because an Employment Tribunal in its decision does not spell out every statutory provision that applies to their approach to their decision, does not mean to say that they have not taken it into account and such an approach is not a failing in law. Even more so, the fact that an Employment Tribunal fails to follow slavishly some principles of guidance set out in one reported case of the Employment Appeal Tribunal, is not in itself an error of law, for otherwise Employment Tribunal decisions could be formal documents in standard form, set out in word processors and repeated in each case and it would then become impossible to discern what the true thinking of a Tribunal was.
25. In this case we are satisfied that the Appellant really never got to first base. He never showed the reason for dismissal and the mere fact that he had asserted a closure of department does not show that the Employment Tribunal were not addressing the true factors, which we have referred to.
26. We have been asked to re-open the case on the grounds that the Employment Tribunal misled themselves as to the correct approach to take. It may be that the Appellant appeared before the Tribunal with all his evidence; he may well have produced material which would have been relevant to the issues which have been argued before us today.
27. In the skeleton argument itself for instance, Mr Ashton makes a number of submissions. He says for instance that

"There was clearly, as a minimum, a diminution in the Appellant's requirement for employees to carry out work of a particular kind (in this case machining) and the Respondent's dismissal was attributable, wholly or mainly, to that state of affairs."

But there is no evidence that was before the Employment Tribunal to lend any support whatsoever, to any one of those propositions in the skeleton argument.

28. It is hardly surprising, therefore, that the Employment Tribunal cannot be criticised for failing to take those matters into account. This appeal must be dismissed.