Arun Estate Agencies Ltd v Parish [1993] UKEAT 590_92_3006

EAT
Arun Estate Agencies Ltd v Parish
[1993] UKEAT 590_92_3006 · 1993-06-30
MR JUSTICE WOOD (PRESIDENT): This is a preliminary hearing during which we look to see whether there is a point of law that merits argument inter partes. At these preliminary hearings only the Appellant is represented. Mr Newbold is representing the Appellants, Arun Estate Agencies Limited. The Company appeals against a decision of an Industrial Tribunal sitting at Brighton under the Chairmanship of Mr Starkey, who on the 11th May 1992 found unanimously that Mr Parish, the Applicant, had been dismissed by reason of redundancy and that such dismissal was unfair. The decision, drafted by the learned Chairman, sets out the history and the facts with great clarity and we are grateful to him. We can therefore deal with the issue quite shortly.Mr Parish was employed to manage a group of estate agents. There was to be a re-grouping, not only of those branches for which he was responsible, but also some others. There was a question of whether Mr Parish or another person was to be in charge of the group after re-grouping. We can leave it as simply as that.Mr Rooney was responsible for the re-organisation and he, on the 23rd August, a Friday, simply had a conversation with Mr Parish and as a result of that he was told that he was to go. In a telephone conversation on the following Tuesday that was confirmed. There was a letter of 4th September and that again really confirmed it. He was offered other employment, that is not material for our present purposes.The Tribunal found in paragraph 21 of the decision:
"There was no consultation whatsoever with Mr Parish before he was informed by Mr Rooney at the interview on 23 August that he no longer had the job . . ."
It took a few minutes and the evidence of Mr Parish was preferred to that of Mr Rooney, who thought that the interview had taken some 20 minutes or maybe 30. So that the Tribunal on the evidence found as a fact that this was a very short conversation and that Mr Parish was just told that he no longer had his job. Therefore there was no consultation. They found that the dismissal was therefore unfair although, as we have already indicated, they found that it was on the grounds of redundancy.Mr Newbold submits that the Tribunal was not entitled to make that finding on the evidence and even if they were entitled to make that finding, nevertheless, they were wrong in law in deciding that that rendered the dismissal unfair. He relied on the passage in the speech of Lord Mackay of Clashfern, the learned Lord Chancellor, in the well known case of Polkey v. A E Dayton Services Ltd [1988] ICR 142 and the passage is at page 153F. He cited the sentence:
"Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair."
however, I would read on, the next sentence:
"Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."
So that this is essentially a question of fact for the Industrial Tribunal and for them to give such weight to the evidence before them having found the facts as they thought fit to decide whether under Section 57(3) the dismissal was unfair.In the present case they found the facts. They preferred the evidence of Mr Parish to Mr Rooney and they decided that there was wholly insufficient consultation, in fact they found there was no consultation.There is no point of law here, it is a hopeless appeal, and must be dismissed at this juncture.