Appeal No. EAT/470/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 April 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR D G DAVIES

	MR R H PHIPPS

H.H. SAUDI RESEARCH & MARKETING (UK) LTD	APPELLANTS

MR R K AKAY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M WEST
(PERSONNEL              CONSULTANT)
Peninsula Business             Services Ltd
2nd Floor
Stamford House
361-365 Chapel Street
Manchester M3 5JY

	

	MR JUSTICE MUMMERY PRESIDENT:    This is an appeal against a decision over the Industrial Tribunal held at London South on the 6 July, 12, 13 and 16 October 1992.  On the 7 December 1992 the Tribunal notified its decision to the parties.  It gave summary reasons for the decision.  Full reasons were requested and were provided to the parties on the 13 May 1993.  The decision was given in favour of Mr Akay, an employee of the Appellants, H.H. Saudi Research & Marketing (UK) Ltd.  H.H. Saudi Research were dissatisfied with the decision, which was a majority decision, on the question of unfair dismissal and therefore appealed by a Notice of Appeal, received at the Employment Appeal Tribunal on the 23 June 1993.

	This is the preliminary hearing of the appeal.  The purpose of the hearing is to determine whether the Notice of Appeal raises any arguable point of law, which should go to a full hearing.  If there is an arguable point of law, the matter would proceed to a full hearing.  If there is no arguable point of law, it will be dismissed now.  

	Mr West represented H.H. Saudi Research on this preliminary hearing.  During the course of his submissions it became clear that his main point of concern on the appeal, was the impact, or possible impact, that certain comments of the Tribunal in paragraph 20 of the full reasons might have on a remedies hearing, which has not yet taken place.  In order to understand that concern, it is necessary to refer to the background facts.

	Mr Akay was originally employed by H.H. Saudi Research as a Communications Technician in 1980.  H.H. Saudi Research are an Arabic Language Publishing Company, whose principal publication is a daily newspaper.  This and other publications are set in type at the offices in High Holborn, in London.  Some publications are then transmitted to be printed abroad.  Some are printed by an associate company, Satellite Graphics, whose premises are on the Blackwall Trading Estate in London.  The company also prints a newspaper for an Egyptian publishing company who transmit material for printing from Cairo.  
	Mr Akay continued as a Communications Technician, later described as a facsimile technician, down to 1988, when a Mr Whybrow was employed.  From 1988 down to May 1991 Mr Akay was used as a facsimile operator, but he was not given any fresh Contract of Employment.  The nature of the equipment did not materially change and there was no evidence that his skills as a technician diminished or changed.  

	In his Notice of Application to the Industrial Tribunal, presented on the 5 July 1991, Mr Akay sought compensation for unfair dismissal.  He stated in the grounds of complaint that the company announced that it was to move the department, in which he worked at High Holborn, to a new location of Satellite Graphics in the East End of London.  The company invited applications for alternative employment on the new site at less pay and inferior conditions.  His application for alternative work was deemed unsuccessful on the grounds that other applicants were more able to meet the criteria outlined for the vacancy offered.  He said the excuse was made that the terms and conditions of the alternative employment were unacceptable to him, when all he wanted was a chance to discuss the situation with his employers.  He was denied that.

	In the event he complained that the projected move had not taken place.  The job he was doing before being dismissed was now being done by other members of staff at High Holborn.  There had been no loss or diminution of the job he used to do.  He also complained that his Union had never been informed by the company that it contemplated making him redundant notwithstanding an existing Agreement providing that consultation should ensue when any dispute or difference arose affecting members of the Union.  He complained that no consultation of any kind took place.

	All those complaints were considered by the Tribunal at the hearing.  Decisions were reached, as notified in the document sent to the parties on the 7 December 1992.  That document was, as is the normal practice, in two parts.  First, a statement of the decision, and then a statement of the reasons, those reasons being in summary form.  It was stated clear that the unanimous decision of the Tribunal was that the Company had dismissed Mr Akay and another applicant, with whose case we are not concerned, by reason of redundancy.  The decision went on to state other matters regarding failure to consult, which are not relevant to this appeal.  

	Having stated that the dismissal of Mr Akay was for redundancy, the Tribunal went on to consider whether or not he had been unfairly selected for redundancy.  The majority reached the decision that Mr Akay was unfairly dismissed and was entitled to compensation in an amount to be fixed at a remedies hearing.  According to the summary reasons Mr Akay was dismissed and the effective date of termination of the contract of employment was the 1 May 1991.  The reason for the dismissal was that the requirement of the Company's business for facsimile operators had diminished and was expected further to diminish with the introduction of fresh technology.

	The Tribunal stated that the category of such reason for the purpose of Section 57(2) of the 1978 Act was redundancy.  The Tribunal considered the case of the other applicant, Mr Grounsell.  His dismissal was found to be fair.  When it came to consider Mr Akay's dismissal the Tribunal said this:

		"Having regard to the criteria in Section 57(3) the majority of the Tribunal find that the dismissal of the Applicant Mr F K Akay was unfair because:

		(i)		the Applicant was employed as a facsimile technician albeit that for some time he had been employed wholly or partly as a facsimile operator.

		(ii)		having informed the Applicant in a letter dated 8 March 1991 of the criteria which would be applied to the selection of a technician, the communications manager accepted that these criteria were not used;

		(iii)		there was no evidence as to the objective criteria employed in the selection of Mr J Whybrow for the post of technician rather than the Applicant;

		(iv)		the notified criteria were used only to consider the Applicants' suitability for continued employment as a facsimile operator.

	There followed a statement of the reasons why the minority member of the Tribunal found that the dismissal was fair.

	Mr West explained to us that he became concerned about the course that the remedies hearing would take when he received the full reasons for the decision, promulgated on the 7 December 1992.  The reasons for his concern are contained in paragraph 20 of the full reasons.

	The Tribunal said:

		"Dealing with the application of Mr Akay the decision at which the Tribunal arrived was that of a majority".

	I pause to comment that the majority decision was that there was unfair dismissal by reference to Section 57(3) of the 1978 Act.  The Tribunal went on:

		"Mr Akay was employed first as a Communications Technician, later described as a Facsimile Technician, and he continued in that role until Mr Whybrow was employed in 1988.  Thereafter he was used a Facsimile Operator although he was given no fresh Contract of Employment.  The nature of the equipment did not materially change and there is no evidence that his skills as a technician diminished or changed.  Indeed after dismissal he was offered a post as a technician in Jeddah, the post which Mr Whybrow filled temporarily, and Mr Stanaway accepted that he could do that job competently.  Although at Satellite Graphics there were to be two facsimile operators as opposed to four at High Holborn there was a continuing need for a technician albeit that he might spend some of his time acting as an operator".

	The Tribunal made the following remarks which have caused Mr West concern.  They said:
		"We are, therefore, not satisfied that there was a redundancy situation for the technician within the meaning of this term in Section 81 of the Employment Protection (Consolidation) Act 1978.  If Mr Akay was treated as a technician, as we believe he should have been, then his dismissal was not for a reason admitted by Section 57(2) and was automatically unfair.  Mr Stanaway gave evidence that he did consider Mr Akay for the post of technician but preferred Mr Whybrow.  Having regard to what actually took place in the selection process for redundancy we do not consider this was fairly done if done at all".

	The Tribunal went on to consider some details of the case, which is not necessary to repeat.  The Tribunal dealt in paragraph 21 with the analysis of the selection criteria for the post of facsimile operator, and concluded that it was at fault in relation to Mr Akay.  Later in paragraph 21 the Tribunal stated:

		"The majority of the Tribunal find that the selection criteria chosen by the Respondent were not applied fairly to Mr Akay and had this been done we are unable to say that he would not have been offered a post at Satellite Graphics.  Regarding Mr Akay both as a technician and an operator the Respondents did not act fairly and reasonably in dismissing him having regard to the criteria set out in Section 57(3), and having regard to equity and the substantial merits of the case".

	The full reasons set out the reasoning of the minority member as to why he concluded that the dismissal of Mr Akay was fair and reasonable within Section 57(3). 

	Mr West's concern is that the Tribunal may have made a decision in paragraph 20 that there was no redundancy situation affecting Mr Akay.  If there was no redundancy situation, there was an automatically unfair dismissal.  If there was an automatically unfair dismissal, Mr West would be unable, at the remedies hearing, to advance a Polkey argument in relation to the assessment of compensation.  In our view, Mr West's caution on this matter is unnecessary.  It is clear what the decision of the Tribunal was.  The decision was stated in the document promulgated on the 7 December 1992.  The Tribunal found that the dismissal of Mr Akay was by reason of redundancy.  The decision of the Tribunal that the dismissal was unfair was on application of Section 57(3), and not as a result of the application of Section 57(2) and the definition of redundancy Section 81(2)b of the 1978 Act.  

	In those circumstances there is no point of law arising on this appeal.  Mr West has not sought to argue that there was any error law in the conclusion of the Industrial Tribunal that the dismissal was unfair by reason of Section 57(3).  His sole source of concern was in relation to a possible finding of unfair dismissal by reason of there being no redundancy situation.  In our view, it is clear on reading the full reasons stated in paragraphs 20 and 21 and in the light of the decision notified on the 7 December 1992, that the Industrial Tribunal did not decide there was no redundancy situation.  They decided there was one, but there was an unfair selection of Mr Akay for redundancy under Section 57(3).  

	In those circumstances there is point of law for a full hearing.  This appeal will accordingly be dismissed at this stage.