Shrimpton v Elliott Baxter & Co Ltd [1997] UKEAT 1451_96_1803

EAT
Shrimpton v Elliott Baxter & Co Ltd
[1997] UKEAT 1451_96_1803 · 1997-03-18

JUDGE PETER CLARK :

This is an appeal by the applicant employee, Miss Shrimpton, against a decision of the London (North) Industrial Tribunal sitting on 31st October 1996, which dismissed her complaint of unfair dismissal against her former employer Elliott Baxter & Co Ltd. Extended reasons for that decision are dated 11th November 1996.The facts were largely agreed. She was employed by the respondent, which is in the paper industry, as an accounts clerk from 10th February 1992 until her dismissal on 5th July 1996. She was given four weeks notice but not required to work out that notice. At the time of her dismissal she cohabited with a Mr Keri Jones, who was also employed by the respondent as a salesman.On 1st July 1996 the appellant told her manager, Una Dennett, that Mr Jones had been head hunted by a competitor. Ms Dennett took no action as a result of learning that information.On 5th July 1996, at about 10 a.m., Mr Jones informed the Managing Director of the respondent, Mr Elliott, that he was leaving to work for a competitor, Modo Ltd.Mr Elliott suggested that Mr Jones and the appellant took a long lunch break to discuss the position. He also suggested that Mr Jones might stay and the appellant should go. It was clear, the tribunal found, that Mr Elliott considered that there was a potential conflict of interest if the appellant remained with the respondent and Mr Jones went to work for a competitor.The appellant and Mr Jones spent about two hours together over lunch and on their return they jointly went in to see Mr Elliott when Mr Jones said that he maintained his decision and that he was leaving. Mr Elliott then took the decision that the appellant had to go and she was dismissed.On these facts it was argued on behalf of the appellant that any confidential information to which she had access was so low-grade as to permit her to remain in the respondent's accounts department; alternatively she ought to have been transferred to a different department.The tribunal considered and rejected those submissions.Further, the tribunal expressed its concern that the appellant was given no real opportunity to express her views on her future with the company.That point is dealt with in paragraph 15 of reasons in this way:
"15 Mr Horan [ Counsel for the appellant ] has argued that as in disciplinary procedures and/or redundancy procedures, an employee is entitled to be given some notice of what is in effect a disciplinary situation. She was given no hearing, no advance notice, there was no consultation, and in those circumstances he said the Industrial Tribunal should find that the dismissal was unfair. We cannot accept that argument. While we think that the Applicant might have been given longer notice nevertheless the situation was clear and indeed the Applicant herself had raised the issue with Ms Dennett before Mr Keri Jones had informed Mr Elliott of his decision to leave. The Applicant clearly considered there was always a risk of her employment being in jeopardy should Mr Jones decided to go and work for a competitor."
In those circumstance the tribunal concluded that the dismissal was fair.

The appeal

Mr Weekes, who now appears on behalf of the appellant, puts the point in the appeal in this way. The tribunal found that there was here no warning of dismissal, nor consultation with the appellant over possible alternatives to dismissal. Had such consultation taken place the appellant would have had a strong argument for being retained in employment. The tribunal failed to follow the principle to be found in the speech of Lord Mackay LC in Polkey vAE Dayton Ltd [1987] IRLR 503 , when he said at paragraph 5:
"If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirements of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the Industrial Tribunal to consider in the light of the circumstances known to the employer at the time her dismissed the employee."
Here, the Industrial Tribunal had not expressly referred to Polkey , although it was cited to them below by Mr Horan, and in particular no finding is made that consultation would have been utterly useless.Polkey was a redundancy case, and the importance of consultation in such cases was emphasised in the subsequent decision of the Employment Appeal Tribunal in Heron v Citylink - Nottingham [1993] IRLR 372 .Mr Weekes also referred us to Skyrail v Coleman [1980] IRLR 226 , where the Employment Appeal Tribunal upheld an Industrial Tribunal finding of unfair dismissal where a female employee was dismissed immediately after her marriage to a man employed by a competitor. On the facts of that case the appeal tribunal held that the Industrial Tribunal was entitled to conclude that consultation ought to have taken place in advance of the dismissal, and an opportunity given to the applicant to look for other work.Having considered those submissions we reject them for the following reasons:(1) We are not satisfied that the tribunal found that there was no warning or consultation. The appellant was alert to her position in the company when she spoke to Ms Dennett on 1st July. On 5th July she had a two hour lunch with Mr Jones following his initial conversation that morning with Mr Elliott. On their return from lunch she said in her form IT1, it was made clear to her that if Mr Jones went to the competitor, she would have to be dismissed. His decision was then confirmed and she in turn was dismissed by Mr Elliott.(2) Nevertheless, the tribunal were concerned at the lack of opportunity given to the appellant to make her views known. They considered the point, and the submissions made on behalf of the appellant, and concluded that overall the decision to dismiss was reasonable. That is essentially a matter of fact and degree for the Industrial Tribunal with which we will not lightly interfere.(3) The speeches in Polkey are not, and were not intended to be, a replacement for the words of s.57(3) of the Employment Protection (Consolidation) Act 1978 (now s.98(4) of the Employment Rights Act 1996 .) Not every case in which there is a lack of consultation will automatically lead to a finding of unfair dismissal.(4) In this case we are satisfied that the Industrial Tribunal had in mind the case of Polkey , to which they were referred by Counsel. They concluded that on balance the paucity of consultation did not render the dismissal unfair in all the circumstance of the case. That, in our judgment, was a permissible finding, just as the Industrial Tribunal's finding in Skyrail going the other way was a permissible option.(5) Those circumstances included findings, first that Mr Elliott was entitled to conclude that there was a problem of confidentiality if the appellant remained in the respondent's employment, and secondly that it was not unreasonable for Mr Elliott not to suggest a reorganisation so as to transfer the appellant to another part of the business.In short, we are unable to discern any error of law in the tribunal's approach. There was no patent misdirection in the light of Polkey ; nor can we characterise the decision as perverse.Accordingly, this appeal must be dismissed.