Small v Jewson Ltd [1997] UKEAT 862_96_2210

EAT
Small v Jewson Ltd
[1997] UKEAT 862_96_2210 · 1997-10-22

LORD JOHNSTON : This is an appeal at the instance of the appellant/employee against a finding of the Industrial Tribunal that he was fairly dismissed from the employment with the respondent/employer on grounds of redundancy.

The matter comes before us upon grounds of appeal stated on behalf of the appellant against a background which is disclosed in the tribunal's findings starting effectively at paragraph 2 which indicate that the appellant was employed by the respondents for a considerable number of years until his employment was terminated, allegedly on grounds of redundancy, on 21st July 1995.There is a background to the matter in as much that one year previously the appellant was involved in proceedings brought by him to the Industrial Tribunal against both his employer and a manager therein alleging race discrimination and race harassment. This case was lost but features in the matters that were discussed before the Industrial Tribunal and in the hearing before us.In approaching the matter Miss Butler on behalf of the appellant focused essentially on three issues. She was concerned first of all with the facts that the tribunal do not appear on her submissions to have properly addressed the position which she maintained consquent upon the previous litigation involving alleged race discrimination and the subsequent ill feelings that it was said existed between Mr Chamberlain and her client, which, it is said, bore upon the way in which the redundancy had been alleged and effected against Mr Small. The substance of her position in this respect was that the tribunal had failed properly to address the matter and had thus their conclusions on the question of the reasons for redundancy were flawed.She submitted in any event that the tribunal did not have proper material before it or in any event had misdirected itself on the issue of whether or not a redundancy situation in fact existed. In this respect, she maintained that there had been a failure to make proper and adequate findings on vital questions of fact in relation to this particular issue. At the end of the day, however, she concentrated strongly upon her third ground of appeal in substance which should be categorised as perversity, in the sense that on a number of basis she maintained that the tribunal had not properly addressed the issues before them and reached a conclusion upon which no tribunal properly directed reasonably could have done. In this respect she was again concerned with the issue of whether or not properly it was appropriate for Mr Chamberlain having regard to the history to be involved if not principally involved in the decision to make Mr Small redundant; secondly, she was concerned that as far as the way in which the redundancy had been effected consultation with Mr Small was wholly inadequate nothing having been put in writing until the actual decision to dismiss was identified, and furthermore, there was inadequate consultation with him once the decision had been given. In particular, she was concerned that the warning of impending redundancies had not adequately put the appellant upon notice so to enable him to react when told by Mr Chamberlain that he was being made redundant. As a matter of history, that was effected on 19th July on what was almost instantaneous result, in as much that he was told not to return to work, although in fact he attempted to do so and was told that there was no job for him. Miss Butler was also constrained to emphasise that in that process inadequate attention had been paid by the employer to whether or not Mr Small could be re-employed or retrained within the company in some other capacity. All these factors, she maintained, amounted to a failure on the part of the tribunal properly to address the issues before them and on that basis it could not be properly said that they were entitled to conclude against the background of tests of perversity that the employee had been dismissed on grounds of redundancy on a fair basis.In response to that, Mr Nicholls was concerned to remind the tribunal that their role was simply to look at the matter in the context of the findings of the tribunal and to accept without equivocation any questions of fact that were found to be proved to the tribunal's satisfaction. In essence, his position was that if the appellant was to succeed at all it would have to be upon the basis of perversity and that meant in the context of what that word means in this context that no tribunal properly instructed could have reached the conclusion it did upon the evidence that was present and available to it. He therefore submitted that effectively this appeal raised no question of law and therefore required to be dismissed upon that basis.That relatively brief summary of the argument was not intended to suggest that it was not very well presented but merely to set the background for what is the substance of our decision.We are entirely satisfied that with regard to the issue of redundancy and whether it existed, the tribunal had material before it which it plainly took into account in reaching the conclusion that a redundancy situation existed. It is sufficient for our purposes to point to what is said in paragraph 3 of the decision where the history of the matter is narrated. Therefore it was entirely within the focus and scope of the tribunal's responsibilities at first instance to determine that issue as a matter of fact. They did so and we will not interfere with their conclusion which was to effect that a genuine redundancy situation existed.It is important, we consider, to recognise, as it is clear from the papers, that before the Industrial Tribunal while the issue of whether a redundancy situation existed at all was plainly an issue, the substance of the issue was whether or not the selection process that involved Mr Small being selected was tainted by the past history of problems, to put it somewhat loosely, between Mr Chamberlain and Mr Small, climaxing perhaps in the previous application to the Industrial Tribunal but certainly circumscribed by the subsequent clearly bad relations that existed from time to time between the two men because of what had happened.We therefore would form the view upon the papers, that the tribunal was required to consider whether or not in selecting Mr Small, Mr Chamberlain and his associate who was apparently involved, were effectively deciding the matter for the reasons which were not appropriate in the circumstances viz the past history. We make that observation because it is quite clear from the findings of the tribunal that any suggestion that the decision of the company to dismiss Mr Small was tainted by or controlled by or even concerned with question of racial problems or past history was totally discounted. We refer particularly to the paragraph 8 (on page 14 of our bundle) where the tribunal say:
"8. ... we also find that the selection criteria and their application to Mr Small and the other people being considered for redundancy were fair and that they showed none of the alleged bias against Mr Small."
That, to our mind, is a clear finding of fact that the attempt by the appellant to satisfy the tribunal that the real basis for his dismissal was personal prejudice against him had not been established.There remains, however, the question of whether or not the process of consultation that followed upon the decision to make these two people redundant was fair and appropriate in the case of Mr Small. The tribunal have addressed this matter and have set out at some length the ways in which the company set about achieving what it was hoping to achieve in relation to this particular area and list again in paragraph 5 the scoring process which resulted on Mr Small doing rather badly in that respect on matters of discipline, although rather well in relation to other aspects of the matter. The tribunal record that there was a discussion prior to the final implementation of its decision to dismiss as to whether or not Mr Small would be willing accept voluntary redundancy or retirement. It had been something that had been discussed earlier and rejected by him.The substance, however, of the tribunal's decision is that:
"7 ... We find that the consultation with Mr Small was identical or better than that offered to other employees prior to the decision of who should be made redundant."
That particular finding was challenged by Miss Butler, but we have to say essentially on matters of fact, there is nothing in the papers before us which suggest that that finding was not a finding to which the tribunal were entitled to come, notwithstanding that it has to be said that the way in which the implementation of the decision was effected was somewhat draconian to say the least, in as much that Mr Small was summoned to the manager's office and simply told that he was being made redundant on effectively 48 hours notice. That is not a process which we as a tribunal would seek approve or give any substantial support to, but we are very conscious that it is not the point as far as the particular issue before us is concerned. It would have been highly desirable if the actual implementation of the decision had been done with rather more consultation at the time and less quickly. In addition an offer to refer the matter to a grievance or appeal process would have been desirable to say the least. However, these are observations we make and are nothing to the point when our task is to assess whether or not the tribunal had material before which entitled it to reach the view that the consultation process with Mr Small had been adequately carried out. We are satisfied that that is a decision they were entitled to reach upon the evidence, and that being so, it is not appropriate for us to interfere.For these reasons the appeal will be refused.