United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR HORAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of Mr Lancaster's appeal against a decision of the Employment Tribunal sitting at London North chaired by Mr Scott and promulgated with Extended Reasons on 26 June 2001. On the basis of those Extended Reasons the Tribunal held that Mr Lancaster's claim that he had been unfairly dismissed by his employer failed.
2. Mr Lancaster was first employed by the employer as a software engineer in February 1996. The software engineering manager was a Mr Morgan. It is quite clear from the Tribunal's findings, and not in contention, that at an early stage of Mr Lancaster's employment, for whatever reasons, he and Mr Morgan did not get on. In April 1998 all the employees were invited to enter into a new contract of employment which gave the employer greater protection in relation to matters of confidentiality and required the employees to give longer notice to terminate their employment. The Tribunal found that these new provisions were required by the employer because the field in which the employer was operating was highly competitive and subject to leakage of confidential information and to the poaching of staff.
3. Mr Lancaster did not agree with all of these changes. He was prepared to accept the confidentiality provisions but not the extended notice provisions. The employer was not prepared to accept that compromise. The Tribunal found that the employer told Mr Lancaster that he would not be given confidential work and would not get any salary increase - although today Mr Lancaster has told us that the employer, in his view, did not give him full information as to its reaction to the course which he had taken. Mr Lancaster stayed in employment on his existing terms until dismissed on 30 September 1998. The employer's case was that the reason for dismissal was redundancy for which Mr Lancaster was fairly selected. Mr Lancaster's case was that he had been dismissed not on the basis of a reasonable selection process but because he had fallen out with Mr Morgan and had refused to agree the new contractual terms which the employer wished him to enter into.
4. At paragraph 22 of its decision the Tribunal correctly set themselves the task of considering first whether the employer had proved that the reason for dismissal was redundancy. They state that the Applicant had made it clear at the outset of the hearing that he admitted that the ground for dismissal was redundancy. The Tribunal said that it was satisfied on the evidence that there was a redundancy situation and that the reason for dismissal was redundancy.
5. Mr Horan, who has appeared on behalf of Mr Lancaster today, has told us that Mr Lancaster does not recollect admitting that the ground for the dismissal was redundancy and that he might well not have done so, particularly because Mr Morgan in cross-examination had admitted that during the relevant period the employer had taken on two software engineers even though they were contending that there was a redundancy situation in relation to software engineers. It is clear to us that the Tribunal did not decide that the reason for dismissal was redundancy only on the basis of Mr Lancaster's supposed admission. In the decision, in several paragraphs, they describe the history of what happened. In paragraph 17 they deal in detail with how and when the redundancy situation arose. They set out that, as a result of failure to reach sales targets, twenty five redundancies needed to be made. Ten of these arose from volunteers but, from the other fifteen, five redundancies had to be found from the software engineers. A process of selection was then carried out which is described in detail in the decision. For present purposes we do not need to go into those details. Even if it be right that no admission was made, and even if it be right that two persons were recruited as software engineers during the period of the redundancy exercise, that would still have meant that there was a redundancy situation, because, on the findings of the Tribunal, five software engineers had to be lost. The Tribunal does not refer in its decision to Mr Morgan saying (if he did) that they had recruited two persons but we do not regard that the absence of any reference to that piece of evidence, if that piece of evidence was given, as in any way giving rise to an arguable ground of appeal. The Tribunal have set out wholly adequate reasons why there was a redundancy situation. They did not depend entirely on the supposed admission; on their findings of fact they would have been wholly entitled to decide that the reason for dismissal was redundancy in the absence of any such admission. So the point that Mr Horan has ably and sensibly taken, on behalf of Mr Lancaster, in our unanimous judgment does not in fact give rise to any arguable ground of appeal.
6. Mr Lancaster, following Mr Horan, has argued to us, as he has set out in his skeleton argument and written presentation to us, which we have carefully read, that his employer had behaved wholly unreasonably in dismissing him and dismissed him on the basis of their dissatisfaction with him which arose in the circumstances which we have described. We have no doubt that Mr Lancaster deeply feels that that was the reason why he was dismissed or selected for redundancy; but it is clear from the detailed decision which this Tribunal reached that they had their minds plainly focused on the central issue as it was before them, namely was Mr Lancaster dismissed because of the difficulties which had arisen between him and the company, to use a neutral expression, or was he dismissed as part of a proper selection procedure and in circumstances in which he fairly selected for redundancy?
7. The Tribunal plainly directed itself to consider that issue. They plainly considered it. They decided it against Mr Lancaster. They gave reasons, which appear on the face of it to be substantial and satisfactory, for deciding that issue against Mr Lancaster. The decisions that they made on that issue and indeed on the issue as to the reason for dismissal were decisions of fact. We do not see any basis on which it can arguably be said that this decision which Mr Lancaster deeply, of course, believes to have been unfair to him, was in fact unfair or wrong in law. The appeal therefore must be dismissed.