Heath v Presentation Products Ltd [1994] UKEAT 378_93_2802

EAT
Heath v Presentation Products Ltd
[1994] UKEAT 378_93_2802 · 1994-02-28
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Heath against a decision of the Industrial Tribunal sitting at Southampton on the 18th March 1993.The Tribunal heard a complaint by Mr Heath that he had been unfairly dismissed by his employers, Presentation Products Limited. The decision of the Tribunal was that he was fairly dismissed.Mr Heath feels strongly that he was unfairly dismissed. He also feels strongly that he did not receive a fair hearing of his complaint at the Industrial Tribunal. As he was dissatisfied with the decision he decided to appeal. The grounds of appeal are dated 13th May 1993, and set out six grounds.
"1. The decision of the Industrial Tribunal was perverse in that it reached a decision that no reasonable Tribunal could have reached upon the facts before it.
2. There was no ground in law or fact for the Tribunal to find that the Respondent [Presentation Products] was reasonable in making on Salesman redundant when there was evidence that the Applicant's [Mr Heath's] area was more productive than the others and the Applicant [Mr Heath] had greater experience" than the salesman who was retained.
"3. There was no basis in law or fact for the finding that this was a genuine redundancy situation bearing in mind the redundancies already announced in January 1992 and taking into account the behaviour of the Respondents towards the Applicant.
4. The Tribunal was wrong in law to provide the Applicant with an adjournment after the repeated failure of the Respondent to provide proper adequate and prompt discovery of documents to the Applicant with the corresponding result that he was not able to prepare his case properly.5. The Tribunal mis-directed itself in law and fact in failing to review their decision following the additional evidence submitted by the Applicant in his letters of 11th April and 22nd April 1993.6. That the Tribunal were wrong in law and fact to find that there was not a campaign by the Senior Director Mr Gourlay and others to drive the Applicant [Mr Heath] out of the Company so as to avoid paying compensation. . ."Mr Heath relied particularly on an internal memorandum, in April 1992, containing an advertisement for a sales vacancy with a rival firm which was sent to Mr Heath.The background to the proceedings is that Mr Heath began his employment with Presentation Products on the 14th February 1990 and was dismissed on the 2 July 1992. His position in the Company was that of Southern Area Sales Manager.He complained in his Notice of Application to the Tribunal, presented on the 21st September 1992, that he was told on the 2 July 1992 that he was made redundant. He complained that before then, as early as January and February 1992, there had been a lack of support for him, for example, with back-up on sales. That was all part of a campaign to induce him to leave employment. He complained about the advertisement for an alternative job being sent to him by the Company in an effort to induce him to leave. He complained that prior to the notification of redundancy, on the 2nd July, the Company refused to allow him to discuss his job and the Company's position. He also complained that there was a failure to provide a formal grievance procedure. Finally, he complained of considerable abuse and humiliation in the last five to six months of his employment.The complaints of Mr Heath were, as appears from the Full Reasons of the decision of the Tribunal notified to the parties on the 7th April 1993, fully investigated.The decision was that Mr Heath's employment as Southern Area Sales Manager was as he alleged. The Company was carrying on the business of specialist packaging. Mr Gourlay was the Managing Director. There was no dispute that there was a good working relationship between Mr Gourlay and Mr Heath for the early part of the period of Mr Heath's employment. But relations then started to deteriorate. The Tribunal investigated the facts relating to the various events which led up to the notice of redundancy. The Tribunal came to these conclusions: that there was a redundancy situation, that the Company was in financial difficulties; and that it was reasonable for the Company to decide which of two Sales Managers covering the Midlands and the South of England should be made redundant. The choice was between Mr Heath and Mr Stone. It was decided to accept Mr Heath's redundancy rather than Mr Stone, because, although the level of sales contributions to the Company were much on a par, Mr Stone cost the Company less and had longer service. Mr Heath had higher costs and shorter service. He was the one who was selected for redundancy. The allegation that Mr Gourlay was seeking to drive Mr Heath out of the Company was not established. They said expressly in paragraph 10 of their decision:
"The Tribunal does not accept, however, that Mr Gourlay was trying to drive the applicant [Mr Heath] out of the Company."
They said specifically, in relation to the complaint about the advertisement for a vacancy with a competing firm, that Mr Heath had misconstrued the position.The Tribunal considered the question of consultation. The period of consultation was short. Mr Heath was not informed until the 25th June that a salesman was being made redundant. That was confirmed on the 30th June. Notice of redundancy given on the 2nd July 1992. The Tribunal concluded, however, that there was no question of Mr Heath being considered for alternative employment with the Company. Longer consultation would not have produced any different conclusion. In the Tribunal's view the procedure which had been followed for redundancy was fair, his selection was fair and his dismissal was fair.Mr Heath feels strongly that that was not the case. He asked the Tribunal to review its decision in the light of the letters of the 11th and 22nd April 1993. The review was refused as having no reasonable prospect of success. The decision not to grant a review was notified on the 12th May 1993. In the reasons for refusing a review the Tribunal dealt with the points raised in the letters and concluded that they did not provide any fresh evidence which would have a bearing on the Tribunal's decision. They reiterated that Mr Heath had had an opportunity at the hearing of giving evidence and calling witnesses after he had heard the Company's witnesses and cross-examined them. The Tribunal had decided there was a genuine redundancy situation in which he was fairly selected for redundancy.In addition to the complaints made about the redundancy point Mr Heath had a complaint about the disadvantage he felt that he was under in the hearing before the Tribunal. He was representing himself. He is not trained or experienced in these matters. Presentation Products were represented by Mrs D Wood from Peninsula Business Services. The particular disadvantage that Mr Heath felt he was under was that documents were produced at the last moment. He had not had a proper opportunity to consider them or know how to deal with them. There was an error of law on the part of the Tribunal in not granting him an adjournment. He has, however, told us that he did not ask the Tribunal to grant him an adjournment for the purpose of dealing with the documents. The reason he did not ask was that he had received an indication from the Company that, if he asked for an adjournment, they would seek to make him liable for the costs of cancelling the hearing. That may be an unfortunate aspect of the case, but it is impossible for us to find that there was or an error of law in the Tribunal refusing an adjournment which it was not asked to grant.That covers all the points scheduled in the six grounds of appeal. We sympathise with Mr Heath in finding himself at his age out of this job. He undoubtedly feels aggrieved by the way that the Company has treated him. He feels aggrieved at the way that the Tribunal decided against him and refused to review the decision. Our sympathies, however, are not enough in deciding whether this case should be allowed to go further. The Employment Appeal Tribunal only has jurisdiction to allow appeals to be heard if there is an error of law. We are unable to identify, in this Tribunal's clear and thorough decision, any error of law. It is not sufficient for us to think that there was some unfairness in the way that Mr Heath was treated. As we cannot find any error of law in this decision the case must, at this preliminary stage, be dismissed. There is no arguable point which could be properly argued at a full hearing.