Harber v North London Polytechnic [1993] UKEAT 57_92_2906

EAT
Harber v North London Polytechnic
[1993] UKEAT 57_92_2906 · 1993-06-29

JUDGE J HULL QC:

Mr Harber seeks to appeal against decisions of the Industrial Tribunal in November 1990, November 1991 and February 1992. Mr Harber was employed by the North London Polytechnic and he complained of unfair dismissal.He began in 1973 as a part-time visiting lecturer in English and he went on until 1987 when his part-time employment was not renewed. He said quite correctly that that amounted to dismissal and he made a complaint of unfair dismissal. There was litigation which went to the Court of Appeal and after that there were the matters with which we are concerned.He complained to the Industrial Tribunal for London (North) that he had been unfairly dismissed and the Tribunal, after allowing the employers to amend to say that the dismissal was by reason of re-organisation, considered the matter and came to the conclusion that Mr Harber had been unfairly dismissed because there had been no consultation with him. That was in November 1990.The second decision was when the Tribunal came to consider the question of re-engagement or re-instatement and this is the first one against which Mr Harber appeals, although he says that he would wish to complain of the nature of the decision, which was in his favour in the first hearing, because it was inconsistent with evidence which was given at the second hearing. Having considered the evidence on that second occasion the Tribunal found that it was not practicable for the Respondent to comply with an order for re-instatement or re-engagement and therefore his application failed in those respects. The Tribunal referred to the basis of their decision and the changes which had taken place in the North London Polytechnic. That was a very short summary of some complex evidence which had been given. These questions of re-organisation, which are first and foremost for the employer, when they are enquired into almost always seem to involve very complex considerations and value judgments and other matters of that sort. If the employer acts reasonably and in good faith those are matters for him rather than for the Tribunal.Finally the Tribunal had to consider, having refused an order for re-engagement or re-instatement, the question of compensation. They considered that matter on the 7th February 1992. They heard evidence again from the Applicant and they considered the nature of the re-organisation and what would have happened if there had been consultation, as there should have been, with the Applicant. Having considered all the evidence again they say:
"At one time we were inclined to think that a 100 per cent reduction would be inconsistent with our finding in paragraph 13 of our first decision that Respondent `could not reasonably have concluded that consultation would be futile'. But on further consideration we think that no inconsistency arises. This is because we now see that we have to look, not only at what offer might have been made, but also at what reaction the Applicant might have shown, and we find on the evidence (1) that, at best, consultation would have yielded less than 240 hours per year, and (2) that the Applicant would not have stayed on for anything less than 240 hours per year. So we decide that there should be no compensatory award at all."
they then found that the Applicant did not fail in his duty to mitigate and therefore said that the basic award must stand and the compensatory award would be assessed at nil.Concerning those decisions Mr Harber has made a number of complaints. We have pointed out to Mr Harber that we are a Tribunal which by statute can only entertain an appeal on a matter of law. Mr Harber, in a prepared statement, which he read to us and on which he expanded from time to time, made a number of comments on the evidence that was given, on the way in which that was dealt with by the Tribunal, on the attitude of the Tribunal and on the reasons which it gave for its decision. A very great many of the points which Mr Harber made would be ones which one would expect to have been made and which probably were made at the Tribunal but we would emphasise that the decision as to which evidence is accepted, what weight is given to the evidence and what inferences are drawn from it, is for the Industrial Tribunal and not for us, and that must especially be true in complex questions of re-organisation and what would have been the effect of consultation, if that consultation had been held. That is eminently a series of questions of fact for the Tribunal itself, and if we are to interfere in any way with the decision which was reached after the long hearings which took place in this case, it must be on the basis that there is an arguable question of law. I merely cite a few points made by Mr Harber. He said that the Polytechnic had a duty of moral flexibility as a matter of law; that the Polytechnic claimed that he was not adapting to changes; and that the Chairman of the Tribunal had implied that he, Mr Harber, was not qualified to teach colonial literature. These are all matters of comment which should of course, have been considered by the Tribunal itself and there is absolutely nothing to make us think that any such matters that were put forward were not considered by the Tribunal. It has not been shown to us that there is any question of law in this appeal or that we could possibly entertain it. We are bound to dismiss the appeal.