United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Mrs L Fenton, Representative Of- The Confederation of British Wool Textiles Ltd Merrydale House Roysdale Way BRADFORD BD4 6SB
For the Respondent	Mrs D Illius, Advocate Instructed by- Messrs Digby Brown Solicitors The Savoy Tower 77 Renfrew Street GLASGOW G2 3BZ


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer in respect of a finding of unfair dismissal on the basis of a selection process for redundancy. The respondent was chosen for redundancy against a background that the employer had decided that one of a group of three in one particular department had to be made redundant.
2. After making certain findings the decision of the Tribunal is as follows:-

"The Tribunal was satisfied that the applicant was dismissed by reason of redundancy.

It fell to the Tribunal to determine the question of whether the dismissal was fair or unfair in the circumstances having regard to the provisions of Section 98 (4) of the Employment Rights Act 1996. The Tribunal was conscious of the fact that it was not for the Tribunal to substitute its own decision for that of the respondents.

The Tribunal took the view that the dismissal was unfair in a number of respects. It was the view of the Tribunal that no reasonable employer would have dismissed the applicant without first advising him of the selection criteria which would be employed. It was not until the applicant was informed of his dismissal that he was told of the selection criteria.

The Tribunal took the view that the consultation process was extremely short and that no meaningful consultation took place. The respondents had already decided to dispense with one full time employee from the yarn store. The respondents had already decided that it was essential that the person who remained in employment was able to drive. The applicant being a full time employee and not being able to drive was immediately at a severe disadvantage. There was no consultation with the applicant in relation to any of the selection criteria prior to the decision being made to dismiss him.

The respondents failed to consider suitable alternative employment for the applicant. Whilst it was the evidence of Mr Bart-Smith that there was no suitable alternative employment, there was no evidence from him that this matter was ever canvassed with the applicant or his representative or that it was considered by the respondents.

Given the applicant's length of service, it was the view of the Tribunal that no reasonable employer would have dismissed him with the minimal level of consultation applied by the respondents.

The Tribunal considered the applicant's arguments as to the pool for selection. It was the view of the Tribunal that in the light of the decision of Murray & another –v- Foyle Meats Ltd [1999] 3ALL ER 769 that the respondents were correct to exclude the winders from the pool for selection of redundancy given that the evidence was that there was no diminution in the work of the winders but only in that of the employees of the yarn store. In the case of Murray, the Lord Chancellor highlighted the fact that the wording of the relevant Northern Irish provisions in relation to redundancy (which mirror the provisions of section 139 of the Employment Rights Act 1996) ask 2 questions of fact. The first is whether one or other of the various states of economic affairs exist. In the case of Murray, the relevant one was whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second question was whether the dismissal was attributable wholly or mainly to that state of affairs. The Lord Chancellor pointed out that this is a question of causation. In the Murray case the Tribunal found that as a fact the requirement of the business for employees to work in the slaughter hall had diminished. Secondly, they found that the state of affairs had led to the applicant being dismissed. That, in the opinion of the Lord Chancellor, was the end of the matter. The Tribunal saw similarities between the instant case and that of Murray and was of the view, applying Murray, there was no need for the respondents to include the winders in the pool for selection for redundancy.

In applying the principals set out in Williams & Others –v- Compair Maxam Ltd 1982 IRLR 156 and Post Office –v- Folley and HSBC Bank Plc –v- Madden [2000] IRLR 827, the Tribunal was of the view that no reasonable employer would have acted as the respondents had in dismissing the applicant and that the dismissal of the applicant was not within the range of conduct which a reasonable employer would have adopted and that accordingly the dismissal was unfair.

Compensation

The applicant receives no basic award as he received a redundancy payment.

The applicant left the employment of the respondents on 13 July 2001. He was paid up to that date, in addition to which he received 12 weeks pay in lieu of notice. He was therefore effectively paid until 5 October 2001. From 5 October to the date of the hearing the applicant was unemployed for a period of 10 weeks. His loss was therefore £1,440. The Tribunal were satisfied that the applicant had mitigated his loss in trying to find alternative employment. The applicant had however been unsuccessful in his attempts. Not only did the applicant registered [sic] at the local job centre but he also visited the job centre in Carlisle. He had also made a number of applications direct to prospective employers, none of which bore fruit. The Tribunal was conscious of the difficult job market in the borders. The Tribunal took the view that given the applicant's age and the difficult employment climate, it would be appropriate to award the applicant one years future loss from the date of the hearing, the further sum of £7,488.00. In addition, the Tribunal took the view that the applicant should be awarded £200.00 for loss of statutory rights. The total award is therefore £9,128.00. The applicant received job seekers allowance totalling £135.88 which is the prescribed amount. The monetary award exceeds the prescribed amount by £8,992.12."

3. Mrs Fenton, appearing for the appellants, stated three succinct grounds of appeal with an addendum.
4. Firstly, she submitted that the two main cases referred to by the Tribunal towards the end of their decision had not been referred to at the hearing and an opportunity should have been given to the parties to consider them. We reject this submission on the basis that they are so well-known as not to require that notice.
5. However, when it comes to their relevance, it is generally true to say that Compair is generally related to large scale redundancies while the other two cases are concerned with unfair dismissal on grounds of misconduct. That having been said, however, there is nothing wrong with the Tribunal bearing them in mind. In any event, an analysis of the decision makes it clear that the approach of the question was on the proper basis, namely, whether the decision to effect redundancy had been reasonably achieved.
6. The second ground of appeal related to the failure on the part of the Tribunal to make any assessment as to the effect of a fair consultation process against a background of unfair dismissal. Again, this point can be dealt with very shortly. There does not appear to be any or sufficient evidence to enable the Tribunal to make such an assessment nor does it appear that they were asked to do so. For that simple reason this ground of appeal fails.
7. Finally, there was an issue raised about the basis of compensation assessment under reference to certain figures. We do not consider it would be appropriate for us to interfere with the finding of the Tribunal which was presumably based upon the evidence as between the two stated figures.
8. In these circumstances this appeal will be refused.