Shah & Anor v John Laing Services Ltd [1993] UKEAT 64_92_1802

EAT
Shah & Anor v John Laing Services Ltd
[1993] UKEAT 64_92_1802 · 1993-02-18
MR JUSTICE MAY: This is a preliminary hearing in the case of Mr Shah and Mr Chapman under the special procedure to show cause why their appeal should not be dismissed on the ground that it discloses no point of law.They were employed by the Respondents, John Laing Services Ltd, and were dismissed on the grounds of alleged redundancy on the 24th May 1991. They complained of unfair dismissal. Their complaint was heard by an Industrial Tribunal at Bedford on the 22nd November 1991 and the decision was sent to the parties on the 5th December 1991.In short substance what the Tribunal held in their Full Reasons was that this construction company in recessional times had the need to reduce numbers drastically by means of compulsory redundancy. They heard evidence from Mr Begbie, Finance Director, and Mr Ross, Personnel Director, to the effect that the part of the organisation in which Mr Shah and Mr Chapman were employed was to be reduced by means of a reorganisation eliminating six people, four of whom were made redundant, and two of whom resigned. Those made redundant included Mr Shah and Mr Chapman. The Industrial Tribunal, having heard the evidence, found as a fact that the Respondents requirement for employees to carry out work of their particular kind had ceased. What in fact happened was that the Respondents created what they referred to as a new job, of a Senior Financial Manager, which was to combine the function of three of the four people who were made redundant and certain other functions, and which was to be made more senior and more demanding. Those again are findings of fact of the Industrial Tribunal. In those circumstances there was an acceptance by the Tribunal that there had been redundancy. That of course was a finding of fact.The decision then goes on to deal with the procedure whereby Mr Shah and Mr Chapman were dismissed and, without setting it out, it is right to point out that the Industrial Tribunal came to the view, which they expressed in their paragraph 9 that procedures adopted by the respondents in this respect left something to be desired. They considered the factual basis for that carefully and in full. What they actually said in paragraph 9 was:
"While in our view the procedure adopted by the respondents in this respect leaves something to be desired, we are not prepared to go so far as to say that this defect is so serious as to render the dismissals of Mr Chapman and Mr Shah unfair."
and they consider that and then conclude later on in the paragraph:
"This means that our conclusion must be that the decision to dismiss them was not unreasonable."
Mr Reuben seeks to persuade us on essentially three grounds that this appeal should be allowed to go forward. The first two grounds are essentially that the finding that there was a redundancy and the finding that the procedures were not so serious as to render the dismissals unfair were findings which, on the evidence, were perverse.We have listened very carefully to his arguments in this respect. He says that there was clearly a question to be investigated under Section 81(2)(b) of the 1978 Act as to whether there had been redundancies and whether it was indeed the case that the requirement for this kind of work had ceased and he urges us that the failure by the Respondents to follow their own procedure was such that the Tribunal ought to have concluded that the dismissals were unfair.We have considered this matter and reached the conclusion that whereas, needless to say, these were points to be argued, with force no doubt, on the evidence before the Industrial Tribunal, they are in the end findings of fact and we are quite satisfied that they are findings which can not be characterised as perverse.The third basis of appeal suggests that the Tribunal refused to allow the Appellants to adduce evidence regarding their own suitability to perform the newly created post. Mr Reuben is in some difficulty because he did not represent Mr Shah and Mr Chapman before the Industrial Tribunal and, therefore, was not there. But he tells us that his instructions are that the Appellants were not permitted to have Discovery of the qualifications on paper of the person who was appointed to the new post, for which they were not considered, and he further says that his instructions are that the Appellants were cut short in giving evidence as to their own suitability for that appointment. As to the Discovery point, it seems to us that there is no force in this at all. The question which the Industrial Tribunal had to decide was, whether this was a new upgraded post and whether the Appellants were, on the face of it, suitable or not for that post, and that that has no bearing on the job qualifications of the person who was, in the end, appointed. As to the second point we hear what Mr Reuben says his instructions are. We observe that the central basis of each of these Appellants' complaints in writing to the Industrial Tribunal included the proposition that they were themselves suitable for the new job which had been advertised. They did give evidence themselves and we have to say that we are sure in our own minds that they must have been permitted to give their own evidence as to why they were bringing this claim for unfair dismissal, that is to say that they were in their own view at any rate, suitable for the job that had been advertised. We do not see that this third ground of appeal is one that has any force at all and accordingly, for those reasons, we conclude that Mr Reuben unfortunately has not persuaded us that there is a point of law to take forward and in accordance with the special procedure, the appeal is dismissed.