Whiting v Galdas & Ors [1995] UKEAT 590_94_1402

EAT

Whiting v Galdas & Ors

[1995] UKEAT 590_94_1402 · 1995-02-14

JUDGE LEVY QC:

From 10 January 1989 until 13 August 1993 Mrs M.J. Whiting was employed by Taurus Leather Ltd ("the Company"). Her employment ended on the latter date, according to the Company, by reason of redundancy. According to Mrs Whiting, there was an unfair selection for redundancy, alternatively sex discrimination, which caused her employment to be brought to an end.

She made a complaint to the Industrial Tribunal which was heard at Leeds on 14 March 1994. Their Decision was promulgated on 5 April 1994. The decision was that her complaints of unfair dismissal and sex discrimination were not well founded and were dismissed.

The day after the reasons for the hearing had been made known, Mrs Dobson, Mrs Whiting's mother, wrote to the Chairman of the Tribunal a letter which he received on 6 May 1994. Among other things in that letter she said that on 15 March 1994 (ie the day after the hearing), Martin Galdas had told two employees that there would be no redundancies. Shortly before the Tribunal hearing, a memorandum had been sent from Martin Galdas to all warehouse and factory employees reading:

"As employees are already aware, the Company's Belt Factory will be closing in April 1994. The exact closure date is yet to be confirmed but will be dependant upon the run down of stock. Consequently when the factory does close there will no longer be positions within the organisation for factory operatives.

We are however currently analysing the warehouse system and its subsequent labour requirements. When these details are finalised we shall endeavour to allocate positions to all employees. However it must be stressed at this stage that the Company cannot guarantee against possible redundancies.

Nevertheless as part of the Company's commitment to teamwork and communication we shall keep you regularly informed of developments within this area".

The letter from Mrs Whiting's mother led to the Chairman reviewing his decision and the review of the decision was promulgated on 7 July 1994. So far as part of the contents of Mrs Dobson's letter is concerned, the Full Reasons for refusing a review stated that much of the potential evidence referred to in that letter could have been given at the Tribunal and was not, and therefore it was not admissible. But the Chairman went on to say that even if it had been before the Tribunal, he did not think it would alter the findings of fact made by the Tribunal.

Paragraph 2 of the Full Reasons on the decision on application for review reads:

"2. Mrs Dobson states that on the day following the tribunal hearing, Mr Martin Galdas of the respondents informed two employees that there would be no redundancies when the work on the belts, ie in the factory, ceased, as there would be work available in the warehouse".

That evidence would not, in my view, cast doubt on the Tribunal's finding that on 13 August 1993 the Appellant was fairly dismissed by reason of redundancy.

Mr Bear, who through the auspices of the Employment Law Barristers Association has appeared for Mrs Whiting today, suggests that that paragraph in the application for review, is not one which should have been found because the Chairman "was jumping the gun". He also submits that the fresh evidence which became available the day after the Tribunal Hearing contains matter upon which if Mr Galdas had been cross-examined in, the decision of the Industrial Tribunal might have been different.

With respect to Mr Bear's submissions, excellent as they were, we cannot accept that. This was a small Company. There was a considerable period between the time Mrs Whiting was made redundant and the matters canvassed immediately following the Tribunal's hearing.

The Chairman of the Tribunal is one of those who saw and heard the witnesses. We find it absolutely proper that he should have made the finding which he did make in paragraph 2 of his application for review and it seems to us this is decisive in our consideration as whether there are in fact any grounds for appeal.

We do not think there are grounds for appeal. Mrs Whiting is obviously very disappointed at losing her job and very disappointed at the result of the hearing of the Industrial Tribunal. We can well understand that and we have sympathy for her, but that sympathy does not extent to us permitting to go forward an appeal which has no hope of success. We therefore dismiss this appeal.