United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SALLY ROBERTSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF QC

1. We have before us a Preliminary Hearing in an appeal from the Employment Tribunal sitting at Liverpool whose extended reasons were promulgated on 4 September 2000. They had heard the case on 3 March 2000. They decided that the application of the Appellant should be dismissed. He had claimed that he had been unfairly dismissed by the Respondent. The decision appears to be a majority one although the minority view is not expressed.
2. The facts as found by the Employment Tribunal were that the Appellant was the purchasing manager for the Respondent. Within the company were four departments, namely, planning, purchasing, warehousing and distribution, In the May and June of 1999 the financial situation of the company was very poor and a decision was taken that there should be a restructuring of those departments, in short, there would simply be one manager of logistics.
3. It is common ground that, against the background of that decision, the reason for the dismissal which followed, of the Appellant, was redundancy. The sole question was whether or not the decision by the Respondent to select the Appellant for dismissal by reason of redundancy, was or was not fair and had been obtained by pursuit of a fair procedure.
4. The issue was, as the Tribunal set out at paragraph 21, whether Mr Hearn, of the employer, had acted reasonably in rejecting the Appellant for the post of logistics manager. That was in essence a decision of the fact. Decisions of fact are for the Employment Tribunal to make on the evidence that is before them. They noted at paragraph 9 of their decision, that there was a fundamental dispute between the parties as to how a meeting on 19 July had proceeded. They accepted the evidence given by Mr Hearn and rejected the evidence produced by the Appellant. They did so at paragraph 20, in which they say:

"We believed that in the meeting on 19 July 1999, Mr Allen was fully aware of the situation. He was happy to confirm that consultation had ended and to be interviewed for the new post of Logistics Manager. A proper interview then took place."

There was an application for a review following that decision. That application was based upon the fact that the Appellant said that he had discovered fresh evidence. In the course of sorting through personal belongings, files and paperwork, he discovered the receipt for the professional production of his CV, the date on the receipt post-dated the interview on 19 July, at which Mr Hearn had said he had been presented with a copy of the CV. There was, we should add, no issue as to the presentation of a CV, the issue was when it was presented and whether the meeting on 19 July was an interview or not.

5. On the basis of this the Appellant sought a review. It was rejected without hearing the Appellant on the basis that the evidence could have been, with reasonable diligence, obtained before the Employment Tribunal sat and heard the matter. Indeed, there is some support for that conclusion because, in his Notice of Appeal against the extended reasons of the Employment Tribunal, the Appellant himself said:

"I believed my case to be cast iron and that I could do it alone."

and explains that that was why he, in effect, did not bring witnesses on his behalf.

6. There has been an appeal, we are told, against the decision to refuse a review, but the Notice of Appeal was submitted out of time and is not proceeded with before us. We have simply the appeal against the original decision. For the Appellant, Ms Robertson, who appears under the ELAAS scheme, for whose submissions we are grateful, makes essentially two points. The first is that the Employment Tribunal's reasoning is not so clear within their decision as to satisfy the requirements of Meek v City of Birmingham, that is, they do not set out clearly why the Appellant lost. Associated with that she points to the delay between the hearing and the production of reasons, which made it all the more incumbent, she says, for those reasons to have been expressed with clarity and care. Secondly, she suggests that the review decision was flawed, because there should have been a hearing at which Mr Allen's case could have been presented by him. She points out, as was indeed the case, that the issue was essentially one of credibility.
7. We have considered those submissions and have concluded that there is no force in them. The decision was indeed, one of credibility. There were a number of points to be made by the Appellant. It is for the Employment Tribunal to decide in such a case whose evidence it accepts and whose it rejects. That may not be an easy task and it is bound not to satisfy the losing party, but it is a task which they had to do, they did it, and they sufficiently expressed their reasons so that we can see no properly arguable ground of appeal in this case. The appeal must therefore be dismissed.