United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ALAN PHILLIPS Director Telelift (UK) Ltd The Old Flour Mill Queen Street Emsworth Hampshire PO10 7BT


 


JUDGE D PUGSLEY

1. This is an appeal from a decision of the Industrial Tribunal sitting at Southampton. Mr Phillips, the Director of the Respondent Company has submitted that we ought to allow this matter to go for a full hearing.
2. The brief circumstances are set out in the decision of Mr Simpson and the Members and they concern the situation which pertained in 1999, when the Respondent Company was taken over by Swisslog Telelift, a large international group of companies.
3. The Managing Director, Mr Phillips, who appears before us, was instructed to consider ways of saving money; a rather melancholy fate not unknown to many directors whose companies have been taken over by foreign companies, or larger companies.
4. At the time of this takeover, the Applicant was on holiday. He was told about it by Mr Phillips and according to the Tribunal, they accepted that the Applicant was told that there would be no problem over job security. The Tribunal thereafter outlined, in some considerable detail, the narrative history of what happened and in the event, they came to the view that they accepted the integrity of Mr Phillip's position, in that there was a redundancy situation and it no longer required a dedicated Manager Foreman; the work previously performed by the Applicant was effectively, they said, absorbed into Mr Quick's position. But they said this, at paragraph 14:

"14 No consideration was given by the Respondent whether there was a pool of engineers from whom one should be selected for redundancy. No attempt was made by the Respondent to evaluate the relative objective merits of the Applicant and the other 6 engineers. The selection of the Applicant for redundancy was made entirely on the subjective assessment of Mr Phillips who gave no evidence of any attempt to select by objective criteria. No consideration was given by Mr Phillips to selecting one of the other engineers for redundancy and offering his position to the Applicant. He merely assumed it would not be acceptable to the Applicant. No warning was given to the Applicant that he was being considered for redundancy. Indeed, when the Applicant enquired about possible redundancies amongst the engineers for whom he was the line manager he was reassured by Mr Phillips that not only were their positions safe but the same applied to his own position. This reassurance was false and known by Mr Phillips to be false as it was given at a time when Mr Phillips was actively considering making the Applicant redundant. No consideration was given by the Respondent to whether any alternative employment was available for the Applicant. The Applicant was not consulted about his proposed redundancy nor given assistance to find alternative employment."

5. The Tribunal go on at paragraph 16 to say this:

"The Tribunal accepted the Respondent's contention that the Applicant was dismissed for redundancy but found that his selection for redundancy was unfair when considering all the circumstances of the case, including the size and administrative resources of the Respondent, and when determining the matter in accordance with equity and the substantial merits of the case. The Tribunal therefore concluded that the Applicant was unfairly dismissed by the Respondent."

6. Now, Mr Phillips has made a number of criticisms. The first of those criticisms is this: he says that the original decision was wrongly made as a result of error by the Tribunal staff. In support of this argument, we submit three copies of the Originating Application form which had not been signed or dated by the Applicant, and therefore should have been refused. He asked the Tribunal to reject the earlier decision on this technical but critical point and set the original judgment aside. The answer to that is quite simple: we do not intend to wade through the leaves of dead authority. Attached to the Originating Application was a letter which sets out his case, signed "D. Cherrington". We fail to see how, in any shape or form, there can be a requirement, to have a signature when there is absolutely no doubt from whom it emanates. There is no prejudice at all to the Respondent Company, save, except of course, that if we could strike it out for a technical reason, that would be of benefit to them, but no prejudice other than in that. We do not consider that as an arguable ground of appeal.
7. The second ground is that new evidence is available. Attached are three copies of letters. First of all we are not satisfied, if we may say, that these matters could not be obtained, if a proper enquiry has been made at an earlier stage. This case has the hallmarks, if we may say so, of trying to prepare the case after it has been concluded. There has to be a good reason why these were not obtained earlier.
8. Furthermore, we are bound to say that in view of the clear findings of fact made by the Tribunal, we question whether or not this evidence is particularly relevant in any event, but it could have been called. There is a finality in litigation and we do not give leave to appeal on that ground. Much of the Appellant's complaint is in effect an attempt to re-litigate matters which were before the Tribunal and about which they made their own considered decision.
9. However, we are concerned about the issue of compensation. We do not in any wish to either depress the Applicant or excite the Appellants into thinking that there is more than an arguable case. But we are concerned that there is some doubt about the way in which compensation is calculated and assessed. It is true the Tribunal made a decision that there was unfair dismissal, but we find that, having regard to the overall statutory wording of the compensatory award, in that it is just and equitable, surprising that greater consideration was not given by the Tribunal as to whether an employee who was 62 would necessarily, inexorably continue to work to 65, either at his wish or, alternatively, in the light of the company continuing to wish to employ him to that length of time. There is no concession that to compensate someone for three years' payment ahead, is to accelerate the benefits they thereby receive, by having interest payments or other dividend payments.
10. We are somewhat concerned as to whether the Tribunal, for the reasons set out in the Skeleton Argument, have in fact confused the net payments of the Respondent in this appeal, Mr Cherrington, and gross payments. It is Mr Phillips's contention that any monies already received would have had to be paid net, because that is a requirement of tax law in the construction industry, save and except if you have an exemption certificate.
11. Further we consider that there is an arguable case on the question of expense. If people receive a tax free subsistence allowance, that that should not be equated as a loss of employment, because it was definitely there to meet an expense that arose from that employment and could only be given when a person was away from their place of work for 9 hours, and was not working in their normally accustomed place.
12. We do not wish, in any shape of form, to be accused of adopting a somewhat over puritanical attitude to life, but the whole point of that is to compensate an employee at that job, for the fact that he cannot take his own sandwiches in. To say that, at large, that forms part of his remuneration seems to us to be rather over-stating it and we think that that may amount to an error of law. So there are various areas in the calculation of compensation that do raise arguable issues.
13. We do think that at the end of day, when considering compensation, a Tribunal really ought to have regard to general existing prevailing conditions and to find that someone at 62 is inexorably and necessarily going to continue to 65 needs to be explored in some greater detail, and the explanation that you could provide them with an accelerated payment, and not make any deduction for that acceleration, and to include in it a sum for an allowance for a job, which they are no longer required to do, seems to us, to raise arguable issues.
14. We dismiss the appeal as to unfair dismissal but we consider issues as to compensation are matters for argument before a full Tribunal.