McCormick v Dave Allen Distribution Services [1995] UKEAT 913_93_0903

EAT
McCormick v Dave Allen Distribution Services
[1995] UKEAT 913_93_0903 · 1995-03-09

JUDGE LEVY QC :

Mrs McCormick, the Appellant in this appeal, was employed by Dave Allen Distribution Services which is in fact a limited company ("the Company"). On 1st July 1987 employment ended. On 2nd April 1993, when she was dismissed as redundant. She began proceedings in an Industrial Tribunal on 5th May 1993 and later the Company entered an appearance on a date unknown to us. There was a hearing before an Industrial Tribunal at Leeds on 25th August 1993 and 6th September 1993, a long hearing during which the Tribunal heard a great deal of factional evidence. The Decision of the Tribunal was given on 27th September 1993. The majority decision of the Tribunal was that the Applicant had been fairly dismissed. There was an application for a review of that decision on 7th October 1993 which was refused on 14th October 1993. A Notice of Appeal followed on 2nd October 1993.Today we learnt that in May 1994 the Company went into creditors' voluntary liquidation. A liquidator was appointed on 5th May 1994 and a Statement of Affairs provided next day. Mr Kibling has satisfied us by taking us through the appropriate sections of the Insolvency Act 1986 that we have jurisdiction to hear the appeal, notwithstanding the insolvency of the company.The Company's business was that of a distribution company. It supplied to garages most of the products except tobacco and sweets which are seen to be for sale on garage forecourts. In the recession, the Company, came into the period when its staff had very much to be slimmed down. The Industrial Tribunal found that neither side had the monopoly of the truth in the evidence presented and they were very careful in sifting the evidence which they heard.He has addressed us with some excellently presented submissions on three short points in support of the Appeal.The three short points which Mr Kibling has taken on this appeal were set out in his Skeleton Argument and are as follows. First of all there was some slight evidence that the company had a redundancy policy. There was some slight evidence also that that redundancy policy had not been put into operation when Mrs McCormick's redundancy was under consideration. Mr Kibling submitted that having regard to provisions S.59 of 1978 Act that was fatal. He went on to say that by reference to Evans and Morgan - v - A B Electronic Components Ltd 1981 IRLR 111, that the dismissal was prima facie unfair and he very properly suggested that this was something which should have been in the Decision of the Industrial Tribunal and was not there.We think that in a very full Decision might well have contained findings on these points, but when one looks at the case in the whole and in the round, it was very much on the periphery of the evidence. It may well have been considered by the Tribunal when they came to consider their decision and we are not satisfied that the failure make findings on these points is fatal to the decision and we cannot accept Mr Kibling's submission on this point.The second submission was that the decision failed properly to follow S.57(3) of the Employment Protection (Consolidation) Act 1978. Mr Kibling submitted that an error of law is apparent when it is accepted that a declared redundancy policy was not followed. This was given particular force having regard to the statute providing that a dismissal is unfair where an agreed procedure or customary arrangement has not been followed. Again, when we examine the decision of the Tribunal, we see all the facts set out, we see a reference to "Polkey" and we are satisfied that the Tribunal in formulating its decision making before the formal decision was announced had in mind the statutory provision and the reason for holding these was not in the circumstances of the case good reason for the failure to follow the proper procedures. We therefore cannot accept the validity of the submission which Mr Kibling gave to us.The third point which Mr Kibling made was really a fallback position as to what was to happen if either of his first two points were successful. As we feel he has not been successful on them it is not necessary for us to deal with that submission, but it has been so compellingly argued that we will deal with it. It arises from the last section of paragraph (b) of the Decision (page 16 of our bundle) where the Tribunal said:
"... If we are wrong about that and for some reason the procedure was defective, then according to the principles in the Polkey case there was an unfair dismissal, but applying the principles in the Sillifant case (referred to in the Polkey decision), there was no chance whatsoever of the applicant retaining her employment as we are satisfied there was no system of working which the applicant could have proposed which would have been suitable for her and reasonable as far as the respondents were concerned."
Mr Kibling's point was that you cannot use the evidence for the earlier parts of the paragraph when you are doing the test of what you have to do if you are wrong of that. We think his point is good but it does not arise here because the tribunal never came to the remedy hearing.In the circumstances while thanking Mr Kibling, for his excellent submissions we feel that we have no alternative other than to dismiss this Appeal.