United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr F H Lefevre, Solicitor Of- Quantum Claims Employment Division 70 Carden Place Queens Cross ABERDEEN AB10 1UP
For the Respondents	Mr M Upton, Advocate Instructed by- Messrs Anderson Shaw & Gilbert Solicitors 20 Church Street INVERNESS IV1 1ED


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee against a finding of the Employment Tribunal that he had not been unfairly dismissed.
2. The background to the matter is that the appellant worked in the respondents' restaurant business which had a very small number of employees. The business got into trouble and, initially, questions of redundancy were considered. However, by the time of the admitted dismissal of the appellant, what was being undertaken, it is now accepted, could properly be described as an economic or business re-organisation.
3. Against that background the Tribunal conclude as follows:-

"The tribunal then considered whether the respondents had acted reasonably in dismissing the applicant for that reason. We concluded that there had been discussion with the applicant over several months. Indeed he had been asked if he had any interest in buying the business with Mr Demirel, but he expressed none. The consensus of the evidence was that any cut beyond 42 hours would have been a cut too far for the applicant. His only suggestion for improving trade was the purchase of a pizza machine, but as the respondents were struggling to meet the payments for their supplies, it was not a suggestion they were in a position to implement. The tribunal preferred Mr Murat's evidence that his father had asked to speak to the applicant by telephone some time in February to say something had to be done. It was after that telephone conversation that Mr Oktay told his son that they would have to cease employing the applicant. Mr Lefevre made much of the increased use by the respondents shortly after the applicant's dismissal of Mr Cetiner and Uncle Maksut. He conceded that Mr Cetiner was not, as was claimed in the originating application, a new employee, who started on 10 March. The applicant did not work his notice. He therefore ceased working on 9 March. Mr Cetiner continued part-time. It was only on or about 25 March when Mr Demirel was called away urgently to Turkey, that his Uncle Maksut started work and Mr Cetiner started to work additional hours to provide cover for him. Since the reasonableness of the dismissal is dependent on the situation known to the employer at the time of the dismissal, the fact that work which the applicant could have done became available after his dismissal made no difference to the question of fairness Octavius Atkinson & Sons Ltd v Morris [1989] IRLR 158.

In concluding that the respondents had not acted unreasonably in dismissing the applicant, the tribunal also took into account that they were a small company with few administrative resources.

We would add, however, that even had we found the dismissal to be procedurally unfair, the likelihood in our opinion, that the applicant would have been dismissed even had a fair procedure been applied, was 100% and, accordingly, no award would have followed.

For the foregoing reasons the tribunal refused the application."

4. Mr Lefevre, appearing for the appellant, had a short, sharp submission. He maintained that the Tribunal had not properly directed themselves on the question of reasonableness and fairness against the background of an economic or business re-organisation, to the question of what alternatives were open to the employers rather than simply dismissing the appellant. Thus, he submitted, for that simple reason, the Tribunal had misdirected themselves since the matters to which they referred in the part of the decision which we have quoted were simply a narration of events.
5. He further criticised the finding that, in any event, even if there had been procedural unfairness, dismissal was still 100% likely.
6. Mr Upton, Advocate, appearing for the respondents, made a number of submissions on the evidence, particularly in relation to the question of alternatives, numbering a total of 16 which he set out helpfully in a Note of Argument to which we simply refer. Against that background he submitted that the Tribunal were entitled to conclude that the dismissal of the appellant was a reasonable response open to the employers in the business situation.
7. We have no hesitation in accepting the submissions made by Mr Lefevre. We consider that the Tribunal has not properly directed itself to the issue of alternatives and, indeed, we have some difficulty in following the precise reasoning from the paragraph we have quoted, which seems to us more to indicate why the dismissal was effected than how it should have been done.
8. In our opinion, the evidence as disclosed to us, inevitably, requires a finding of unfair dismissal and that far we will go, but no further. It seems to us necessary for the Tribunal to reconsider the question of the likelihood of dismissal if an alternative procedure has been followed and it may be they will come to the same conclusion but they should give reasons therefor against the background of the alternatives being suggested. Those are those now suggested by Mr Upton in his note of submissions which can be re-submitted to the Tribunal for their consideration. There is no need for further evidential hearing but there should be further submissions by both parties, whether in writing or oral is a matter for the Tribunal.
9. In these circumstances this appeal is allowed. We will quash the decision and find that the appellant was unfairly dismissed. Beyond that we will remit the matter back to the same Tribunal to consider the question of likelihood of dismissal if alternatives had been considered and, thereafter, only if that decision is, to some extent, in favour of the appellant, the issue of compensation.