Polypenco Ltd v Burt [1994] UKEAT 256_94_1807

EAT

Polypenco Ltd v Burt

[1994] UKEAT 256_94_1807 · 1994-07-18

MR JUSTICE MORISON : An industrial tribunal held at London (North) on 17 January 1994 considered an application for unfair dismissal brought by Mr Burt against his former employers, Polypenco Limited.

The tribunal held that the dismissal was by reason of redundancy and therefore the issue that they had to concern themselves with, there being no dispute as to the reason for the dismissal, was whether the dismissal was fair or unfair having regard to the test laid out in section 57 (3) of the Employment Protection (Consolidation) Act 1978 Act as amended. That subsection could not be expressed in terms wider than it is. It requires industrial tribunals to have regard to what is just and equitable.

This tribunal considered the facts of this case and came to the conclusion that the dismissal was unfair but having regard to the authority of Polkey vAE Dayton Services Ltd they then asked themselves the question as to whether there should be some deduction from the award based on the proposition that as he was genuinely redundant the dismissal could have taken place in any event on a fair basis had the employers complied with proper procedures.

The employers wish to appeal from that decision and Mr Henson has helpfully, if I might respectfully say so, presented the arguments on behalf of the company succinctly. He says that there are inconsistencies between the findings made by the tribunal and the established facts; that there was a lack of grasp by the industrial tribunal of some of the underlying facts; and that they did not have regard sufficiently to the limited resources of the employer; nor did they ever put to the employer, so that he could deal with it, their suggested way of handling this problem which might have avoided the employee becoming redundant.

The facts as found by the industrial tribunal can be summarized shortly. The employee had been employed for 28 years at the time of his dismissal as a quality assurance supervisor. He was the only quality assurance supervisor in the organization. He reported to a manager and, as I understand it, reporting to him were three inspectors. The company ran into difficult times and, accordingly, a decision was made that the post of quality assurance supervisor should be removed from the organizational structure and that, therefore, the position which the employee held was to be abolished.

Accordingly, on the 27 November the employee was summoned to see the manufacturing director, who was apparently accompanied by the employee's manager, and on arrival in his office he was, in effect, told that he was going to be made redundant in about a week's time and the tribunal continue:

"In our view even if the respondents were simply going to make one single person redundant, then they ought to have entered into some sort of consultation with him and not simply presented him with this fait accompli. We appreciate to that the respondents say that it was not a fait accompli on the 27 November but since the applicant was on that day handed a pre-written letter which indicated that he was going to be made redundant and that the respondents had apparently decided that apart from four jobs they had no suitable alternative employment for him we cannot accept this view of the matter. Our finding on the evidence which was presented to us is that the respondents had made up their minds by the 27 November that the applicant was to be made redundant."

What is said in answer to that by the employers is that the letter does not say that he was to be made redundant but that his position was to be made redundant. It seems to us that having regard to the terms of the IT1 and having regard to what we have been told it would have been open to the industrial tribunal to have concluded that at that interview the employee was led to believe that unless he was prepared to be considered for one of the four specific vacancies he was out and would be out of the company within a very short period of time. In other words, by the date that he was seen there was already, as the tribunal put it, a fait accompli that his position was to go and, therefore, effectively since none of the specified vacancies appeared to be at all suitable to him, he was going to have to go, too.

That being so, the industrial tribunal were entitled, in our judgment, to conclude that the employee had been unfairly dealt with. It is a common experience in this Employment Appeal Tribunal that employees are genuinely and considerably shocked if they are not given advanced warning of what is about to occur to them and it is inappropriate for employers to subject their employees to such shock unless the circumstances are such that there is really no other alternative. In the circumstances of this case, having regard to the fact that the employee had been working for 28 years at the date of this interview, it seems to us that it is simply unarguable to say that the tribunal erred in their conclusion that there was an unfair dismissal, that there should have been prior consultation.

In those circumstances, it seems to us that this is not an appeal which has any reasonable prospect of success and, accordingly, we do not think that it should go for a full hearing and, accordingly, we dismiss it. That said, we have no doubt that what has been said during the course of this discussion on this preliminary hearing will produce some benefit for the future because we are sure that lessons will have been learnt by the employer arising out of the events with which this case was concerned and we would like to thank Mr Henson for his assistance.