MRS M J HONNOR v TRI LTD [1999] UKEAT 1065_99_1412

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1065_99_1412

Case No Appeal No. EAT/1065/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS M J HONNORAPPELLANT

TRI LTDRESPONDENT

Before

His Honour Judge Peter Clark Mrs D M Palmer Mr G H Wright

Date 14 December 1999

[1]APPEARANCES For the Appellant No appearance HIS HONOUR JUDGE PETER CLARK This is, or ought to be a relatively straightforward claim of unfair dismissal by reason of redundancy. The Appellant commenced employment with the Respondent as a van driver/sales assistant in January 1988. The Company supplies paint to body shops in the motor trade with distribution branches in Birmingham and Nottingham. In due course she was promoted to Sales representative, visiting customers, selling the Company's products and taking orders.

[2]In March 1998 she suffered injury in an accident at the premises of one of the Respondent's customer's. She was off work until 1 st September 1998. During that period her work was covered by a young colleague, Simon Magee, who was employed as a warehouseman and colour technician. He did well in the role and was regarded as ambitious with greater technical knowledge than had the Appellant. By the end of 1998 it became clear to the Directors that the Appellant was under employed, they resolved to reduce the workforce. For this purpose the selection pool consisted just of the Appellant and Mr Magee. The Directors decided to retain Mr Magee. Either the Appellant was to be made redundant or be re-deployed within the business. That selection decision was reached without consultation with or warning to the Appellant. Thereafter consultation took place with the Appellant over an alternative position, less well paid, as customer service co-ordinator, a new post created at the Birmingham branch. After some hesitation the Appellant decided not to take the alternative post offered.

[3]Her employment was terminated by reason of redundancy effective on 31 st March 1999. She then presented a complaint of unfair dismissal to the Leicester Employment Tribunal on 8 th May 1999. The claim was resisted and came on for hearing before an Employment Tribunal chaired by Mr J S Walker on 29 th July 1999. In a decision promulgated with extended reasons on 17 th August, the Tribunal found that the dismissal was fair and dismissed the complaint. Against that decision this appeal is brought. This is a preliminary hearing, held to determine whether or not the appeal raises any arguable point or points of law which ought to proceed to a full hearing. The Appellant's representative, Mr Naylor has indicated that he will not be attending before us today to advance oral submissions and invites us to deal with the matter on the papers. That we have done.

[4]Having set out the facts as found and directed to themselves as to the law, referring in particular to the House of Lords decision in Polkey –v- A E Dayton

(1987) IRLR 503

, the Employment Tribunal expressed their conclusions at paragraphs 23-27 of their reasons. They found that the reason for dismissal was redundancy, that the Appellant's selection for redundancy was not unfair and that the Respondent had taken reasonable steps to find her alternative employment. However, at paragraph 25 they said this: "However, the respondent did not warn or consult reasonably and if the matter was left there, the applicant's dismissal would have been procedurally fair. However, we find that even if reasonable consultation had taken place it would have made no difference to the decision. In so far as that consultation would we find have reasonably been of about two weeks duration, that period was subsumed within the period of the two meetings which took place with the applicant in early February and a letter of dismissal dated 26 th February 1999".

[5]In the Notice of Appeal, Mr Naylor has advanced a number of arguments. The first of which is this, that although the Tribunal reminded themselves of the case of Polkey, they failed to take note of it. Their finding in paragraph 25 indicated, applying the principals in Polkey a finding of unfair dismissal, but they nevertheless went on to conclude that it would have made no difference if reasonable consultation had taken place. We should have thought that it was well understood that the purpose of the House of Lords judgment in Polkey was to over rule the previous principal in British Labour Pump – v – Byrne

(1979) ICR 347

to the effect that if proper procedural steps had been taken it would make no difference to the result, that the dismissal could be classified as fair. On the face of it and for the purpose of this preliminary hearing it is necessary only to find that the point is arguable. It seems that at paragraph 25 this Tribunal has done precisely what the House of Lords in Polkey said that they must not do. On this ground we think that the appeal must proceed to a full hearing. There are further grounds set out in the Notice of Appeal and we have considered each of them separately and carefully and have concluded that they each raise no arguable point of law and accordingly those further grounds of appeal are hereby dismissed. It follows in these circumstances that the matter will proceed to a full hearing on paragraph 1 of the grounds of appeal, the Polkey point, only. For that purpose we shall list the case for one and a half hours, Category C, there will be exchange of skeleton arguments not less than 14 days before the dated fixed for the full appeal hearing, copies of those skeleton arguments to be lodged with this Court at the same time. No further directions are necessary, in particular, this is not a case in which Chairman's notes or evidence will be required.