United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE A WAKEFIELD

1. This is an Ex Parte Preliminary Hearing of an appeal by Mr Mervyn Robert Cutting against a decision of an Employment Tribunal sitting at Manchester on 19 September 2001 by which his complaint of unfair dismissal was dismissed. The Appellant has not appeared before us today nor been represented and we have reached our conclusions as to the outcome of the appeal on the basis of the documents, including the Appellant's Skeleton Argument.
2. The brief background to the complaint was that the Appellant had been employed by the Respondent since 6 January 1992, latterly at least as areas sales representative in the Newspaper Sales Department. He was dismissed on 18 December 2000 following a reorganisation by the Respondent of its sales activities.
3. The Employment Tribunal found, as had been contended for by the Respondent, that the reason for the dismissal was redundancy. The Tribunal then considered whether the dismissal for that reason was fair or unfair and they said this in their paragraph 8:

"We note that there was what we have found to be a genuine consultation which took place over a period of more than four weeks. The respondents were prepared to consider the representations made by the applicant. He was considered for another job. He complains that he was better than the successful applicant for that job. We remind ourselves that this was not directly a question of selection for redundancy. This was a question of selection for a new post and it is for the respondents to demonstrate in those circumstances that they acted in a responsible and objective way, taking into account relevant factors in exercising their judgment and coming to the conclusion which they did. It is not for us to go into a minute examination of the criteria which they used to come to the conclusion as to who should be selected for that new post. It might be relevant if we were considering who should be selected to be made redundant but that is a slightly, but crucially, different question. We find on the evidence, that in selecting Mrs Kemble for that post the respondents acted reasonably and there was no unfairness in relation to the applicant."

4. That part of the decision is criticised in the Notice of Appeal at paragraphs 4 to 6 as

follows:

"4. The total office time of the three Area Sales Representatives (of whom the Appellant was one) would equal or exceed the hours of the one full-time worker. No additional duties were cited by the respondents and no questions were asked by the tribunal to establish if such duties existed. The tribunal merely accepted that they did.

5. The tribunal accepted that the post was a new one without considering if it was, instead, simply a consolidation of the office work of the three previous jobs. In doing this the tribunal effectively ruled out any consideration of selection for redundancy prior to the job selection. This was an error and it allowed the respondent to avoid the necessary selection procedures. The selection for the post was not carried out by the objective procedures that normally accompany selection for redundancy.

6. The tribunal was satisfied that consultation took place and was satisfactory but having failed to consider selection for redundancy prior to the appointment of Jean Campbell to the remaining full-time post they failed to consider that consultation should have taken place at a much earlier stage. The tribunal also failed to consider that the consultation should have included consultation about selection for redundancy, this being a result of the acceptance that the remaining post was a new one."

5. The way in which the Employment Tribunal had approached the issue as to consultation and the new job appears in paragraphs 3 and 4 of the Decision. They said this:

"3. The respondents concluded that they needed one full-time retail sales representative, who would carry out different and more responsible functions from those which the sales representatives had been fulfilling, but included some tasks which the applicant had been performing. In addition they concluded that to perform the sales functions they would employ 6 part-time representatives. An announcement was made concerning this and during November 2000 consultations took place with those who were affected by the proposed restructuring. We find, on the evidence that that was a genuine consultation where the views of the individuals possibly to be affected by what was a proposed reorganisation at that stage were genuinely considered and taken into account.

4. As a result of that process, the applicant, together with the other two previous full-time employees, applied for the new full-time post. They were all interviewed and their applications were, we consider, satisfactorily objectively and responsibly considered. In particular, we have considered the respondent's assessment of Mr Cutting and the successful applicant for that new job, who was Mrs Jean Kemble. The interviews for that post took place on 20 November and the applicant was shortly thereafter told that he was not successful."

6. We can detect no misdirection in that approach nor perversity in the conclusion. The Employment Tribunal heard the evidence. They accepted that although the proposed post of retail sales representative would include some tasks previously performed by the Appellant and the other existing sales representatives, there would in addition be other and more responsible functions. If the Appellant had wished to challenge the assertion of the Respondent as to those matters he should have done so in questions to the Respondent's witnesses at the Tribunal. These findings of fact are in the absence of error which we do not find, the sole province of the Employment Tribunal.
7. The other ground of the Appeal, is essentially, that there was inequality of arms at the Employment Tribunal, the Appellant being in person and the Respondent being represented by the Group Human Resources Manager, and that the Employment Tribunal Chairman was impatient with the Appellant in the course of the hearing and refused to allow him to present or pursue relevant issues.
8. The Appellant says in paragraphs 1, 7, 8 and 9 of his Notice of Appeal the following as to these matters:

"The applicant was inexperienced and unable to afford representation. The Tribunal failed to take this into account and failed to ask the correct questions of the respondent to establish the truth.

The applicant tried on several occasions to introduce evidence that the selection for the remaining post was tainted by bias. He attempted to introduce evidence that the person responsible for the selection had previously refused him his normal annual pay rise despite the fact that he had more than fulfilled the criteria. The same person granted a rise to Ms Campbell, although it is not suggested that she was not entitled to it. All other evidence on this line was constantly interrupted by the Chairman who remarked that if "he wanted to prove bias he would need much better evidence than that" the applicant was then instructed to "move on". These remarks were made in a distinctly exasperated tone which shattered the little confidence the applicant had.

The Chairman's refusal to attach importance to the decision of management to reject the pay increase ignored the decision of Clarke versus Nomura International Plc which decided that to exercise discretion irrationally or perversely in the award or otherwise of annual salary increases amounted to constructive dismissal (2000/RLR 766). Therefore the Chairman should have given such evidence far more weight.

This, it is submitted, is contrary to Section 6 of the Human Rights Act in that the applicant, who was already suffering an inequality of arms in the case, now suffered further detriment in the refusal to hear his evidence."

9. The Chairman of the Employment Tribunal, Mr Haslam, has been invited by this Employment Appeal Tribunal to comment on this aspect of the appeal and he has responded in this way:

"I do not for one moment accept that I "showed significant impatience with unrepresented applicant". I did my best to assist him to present his case. If there is any doubt about the way in which I assisted the applicant, I suggest that the members should be asked to comment, and indeed the representative of the respondent."

10. Having considered all the documents and in particular the decision itself, which in our view demonstrates on its face a careful analysis of the issues, we find no merit in this aspect of the appeal. While an Employment Tribunal must assist an unrepresented party to understand the procedure and must make allowances for any misunderstandings as to what is or is not relevant evidence in the light of the issues, it is not for the Tribunal to run the case for that party. We are satisfied that in this case there was no improper action by the Chairman and that the Appellant received a fair hearing. The appeal cannot succeed and it is dismissed.