Appeal No.	 EAT/339/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 June 1999

Before
HIS HONOUR JUDGE JOHN ALTMAN
MR A E R MANNERS
MR P M SMITH

MR G SMITH	APPELLANT

EAGLE PRECISION TECHNOLOGIES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR QUIGLEY
(of Counsel)
APPEARING UNDER 
THE EMPLOYMENT 
LAW APPEAL 
ADVICE SCHEME
(ELAAS)	

	JUDGE JOHN ALTMAN:	This is an appeal from the decision of the Liverpool Employment Tribunal on 5 November 1998, in which it was found that the Appellant was dismissed for redundancy and in which the application for unfair dismissal was rejected.  

1	The Appellant, Mr Smith, has had the assistance of Mr Quigley under the ELAAS scheme and we would wish to record our indebtedness to him for his assistance.  As a result of his representation of Mr Smith, Mr Smith should recognise that all the points that can be properly addressed to us in the limited context of what we have power to do, have been put before us by Mr Quigley, and of course we emphasise that our concern at this stage is to consider by way of preliminary hearing whether there is an arguable point of law to merit this appeal being heard in full by the Employment Appeal Tribunal.  

2	The hearing before the Employment Tribunal took place with the Appellant appearing in person and he has a feeling that he received short shrift in the sense that it was a very quick hearing, to his recollection, although looking at the extended reasons it is clear that the evidence from the relevant witnesses was taken by the Tribunal.  The Appellant feels that he was inhibited in asking questions and felt it was difficult to do so.  An unrepresented person often feels at a disadvantage, but subject to the specific matters to which I refer, there is no specific matter raised of disadvantage.  

3	The Notice of Appeal, which was prepared by Mr Smith himself, sets out his criticisms of what took place.  Essentially, Mr Quigley has narrowed the matter down into three grounds; first, whether the Tribunal asked itself the right question in finding that a redundancy situation existed, secondly, whether they considered properly the issue of consultation, thirdly, whether they addressed the evidence, which it is said was before the Employment Tribunal, about the availability of alternative employment. 

4	As to the first, Mr Quigley criticises the Tribunal for not, in its decision, quoting from section 139 of the Employment Rights Act 1996 the following:

“An employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.”  

5	It appears from the finding of the Employment Tribunal that the Appellant is a man familiar with computer systems.  The Tribunal made some observations about his ability in response to the criticism that was made by the Appellant.  The learned Chairman wrote a letter and recognised that it would have been better if that had not been said and recognised that it was not relevant to the decision, as indeed it was not.  We would echo the view of the Chairman in hindsight, that those words were perhaps unfortunate and unnecessarily upsetting.  In the course of giving decisions, even the most experienced of Chairmen sometimes say things, which, in retrospect, they wish they had not done.  It does not affect the issues that we have to consider – it does not impinge on any error of law.

6	The Appellant began work on 12 September 1995 and he was involved in installing and commissioning a computer system at a time when it was going to be provided by a particular company.  However, the Respondents’ parent company in Canada imposed a different approach, which involved the use of what was described as a global supplier.  There were some issues as to whether the Appellant was employed on a fixed term contract, which were resolved without any issue remaining for us to consider.  The Employment Tribunal described how the final company, that was to be the supplier of this system, was engaged.  

7	The Tribunal then find that at a meeting on 5 June 1998, there was a discussion between the parties to discuss the Appellant’s future.  There was some conflict about it and the evidence of Mr Smith, the Finance Director, was preferred.  That in itself is perhaps a limited finding but the Employment Tribunal then go on to explain what that was in terms.  They put it in this way:

“It was explained to the [Appellant] that the work for him was in Mr Smith’s (Finance Director) words “drying up” and it was not anticipated that there would be effectively any work after the end of July and if there was it would only be on a week to week basis.”

In the next paragraph the Employment Tribunal find:

“by this time the [Appellant’s] job had in all respects effectively disappeared.  The system was up and running, the maintenance of the system could clearly be dealt with by Mr Smith, the Finance Director, and major problems were dealt with by the providers of the facilities.”

8	We pause there to note that whilst in the second part of that quotation it is true that the Employment Tribunal were looking at the Appellant’s job, it is clear in the earlier part that they were speaking about the existence of any work, presumably in the area where the Appellant was working, that is in the type of work.  

9	In paragraph 12 they say this:

“The Tribunal would again say there is no difficulty in deciding the dismissal was for redundancy.  The letter of 5 June and the meeting which took place on that date made it very clear to the [Appellant] that there was no work for him and although the word “redundancy” was not used the message was unambiguous.”

They then go on to say in a passage, which seems to us, critical on this ground of appeal:

“The Tribunal is satisfied that there was no work for the applicant to do within the provisions for which he was actually employed and therefore the decision to make him redundant was reasonable within equity and the substantial merits of the case.”

10	Whilst it is true that the Employment Tribunal did not quote the wording of the statute or refer to it word for word in the course of their decision, it is clear to us that the purport of those statutory provisions were embraced and applied by the Employment Tribunal in the passages to which we have just referred.  It does not seem to us, that an argument can be mounted that there was an error of law in those passages which are relevant to this part of the case, to suggest that the Employment Tribunal was just looking at the ending of the Appellant’s job; they were clearly looking at the type of work he was doing, the requirements of the business to carry out work of a particular kind.  There was no diminishing so far as they were concerned.  They found that it had ceased.  

11	In this context we were referred to the case of Shawkat v Nottingham City Hospital NHS Trust (1999) IRLR 340, in which it was clearly established:

“It follows that the fact that the dismissed employee’s job… no longer exists will not in itself be decisive.  When this situation arises, it has to be decided whether that job was co-extensive with “work of a particular kind” within the statutory test.  Sometimes, the extent of the work that the dismissed employee actually did, or could be required to do, will identify “work of a particular kind” … but on other occasions it will not.”

We do not consider that the application of that principle to the way in which the Employment Tribunal approached the case can, as I have already said, lead to an argument that they made a mistake of law.  

12	The next matter that was referred to was the failure of the Tribunal to address the absence of proper consultation and to take sufficient account of the procedural defect that flowed from that.  From the very outset of Industrials Relation Legislation and the very first code of practice that was introduced, the requirement for genuine consultation has been at the forefront of all developments that have taken place.  In cases of redundancy, the absence of consultation is now recognised to be one of the most damaging things that can be done to the morale of an employee, and the consequences of it therefore, must be measured by a Tribunal.  But in the context of injury to feelings, which is bound to be part of the absence of consultation, the cases have shied away from erecting consultation as an absolute requirement or as a legal principle come what may.  

13	We have been referred to the case of Mugford v Midland Bank plc (1997) IRLR 208, in which the principles to be derived from the authorities were helpfully analysed and the passage of the headnote which points out that:

“where no consultation about redundancy has taken place with … the employee, the dismissal will normally be unfair, unless the industrial tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case… it will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair.  A lack of consultation in any particular respect will not automatically lead to that result.”

In paragraph 13 of their decision the Employment Tribunal said that:

“the procedure adopted by the Respondent Company was not perfect because there was no discussion in connection with alternative employment and the applicant was not consulted as to whether he could have had any alternative scheme which could have prevented a dismissal by some other re-organisation within the Company.”

14	The Employment Tribunal did consider whether consultation could, in their words “possibly have made any difference” and they came to the conclusion that it could not.  They considered that from 5 June until 4 September, the Appellant had warning of impending redundancy so as to be able to adjust to the idea of it and they conclude 

“the Tribunal are satisfied that no amount of formal consultation or discussion about alternative work would have made the slightest difference to what happened on 4 September.”

15	In those circumstances, it seems to us that no argument in law can be advanced, either that the Employment Tribunal failed to consider the absence of consultation or its impact in this particular case and subject to the question of alternative employment to which I will turn in a moment.  It seems to us that there was no failure on the part of the Tribunal to identify that issue.  In so far as the Employment Tribunal found that it would have made no difference, it seems to us that that was one that was manifestly open to them to find on the findings of fact which they had reached.  The argument that they should have made a finding of unfair dismissal because of an absence of consultation would, it seems to us, to be to erect as a principle of law what is simply a possible finding of fact open to an Employment Tribunal.

16	Finally, it is said that the Employment Tribunal did not address specific evidence put before it, in relation to the question of alternative employment.  To some extent this has puzzled us because the finding of the Employment Tribunal is that there was no alternative work and indeed the whole thrust of their decision is in effect that because of the change of policy, of taking out of the Respondent organisation the supply of the system to a global supplier, there was no one within the Respondents organisation who would have the responsibilities or work with which the Appellant was familiar or even qualified.  However in the Notice of Appeal, Mr Smith says this:

“I have written evidence from the ex-Managing Director, Mr Chris Smart, who I asked to be a witness, that there is another person doing my work, which Mr Smith denied, and which the chairman accepted; this is an important point, which proves my job is not redundant, and which the tribunal did not ask to be clarified; the chairman asked me if I knew the persons name, which I did not, and made some light comment about the wording of administrator as opposed to manager, and moved on, which I think was unfair.”

17	Although the possession of the written evidence is described in the present tense by the Appellant in his Notice of Appeal of December 1998, we note that the letter to which he is referring was dated before the hearing before the Employment Tribunal and the Appellant has told us that this letter was before the Employment Tribunal.  Were we satisfied that there was some evidence which was before the Employment Tribunal, and which may have led them to consider, if properly viewed, the possibility of other alternative work, then we would have been concerned as to whether that had not been an error of law on this matter to merit a full hearing.  

18	We would only observe however, that from what Mr Smith says in his Notice of Appeal, it does appear that this issue was explored before the Employment Tribunal.  When we look at the letter itself, although part of it has been blocked out because we are told it was not relevant, the letter says:

“With regard to my own position I have spent some time considering your position as I know it and I must reluctantly decline to attend your Tribunal on the following basis”

And it then says:

“It would be dishonest of me to argue or support your claim that you were displaced as network manager.  
I believe the function of network manager was filled and your more limited support role was therefore redundant.
My limited dealing with the new network manager clearly indicated the differences in the roles in the expert needs of the company.”

And then later he says:

“I am sorry that my understanding of your position is so negative to your needs.  I would have been happy to support you if my understanding of the situation had been more positive.”

19	It seems to us, therefore, inevitable that if it be the case that this evidence was not considered, it could only be considered in the context of disproving the contention of the Appellant that there was alternative work available.  The evidence that has been produced does not support the contention for which the Appellant argues.  We suspect that this matter was canvassed before the Employment Tribunal.  It is perhaps a pity that specific reference was not made to it in their decision.  Mr Smith may feel some concern about that.  Nonetheless, it does seem to us that, on the evidence as it stands, there was no evidence before the Employment Tribunal from which a Tribunal properly directed could conclude that there was alternative work available, or that because of the existence of that role, there was no redundancy situation.  

20	It seems to us that on the face of the decision that the Tribunal did look with some care at the ingredients of the post.  They were not taking a casual view on the face of it of the issues all of which they appear to have addressed and we can trace no inkling of bias.  Of course sometimes, parties before Tribunals, because they are strangers to them, feel in an awkward situation and themselves feel that they have not done themselves justice because there are other things that they could have said.  But coming to it from the outside as we do, and analysing it as carefully as we can, we can discern no error of law in the decision reached by the Tribunal such as to provide an argument for a full hearing before the Employment Tribunal and accordingly we dismiss the appeal at this stage.