Challita v Chequepoint (UK) Ltd [1999] UKEAT 1217_98_1201

EAT

Challita v Chequepoint (UK) Ltd

[1999] UKEAT 1217_98_1201 · 1999-01-12

JUDGE SMITH QC :

This is an application by the appellant, Mr George Challita for leave to proceed to a full hearing of his appeal against a decision of the Industrial Tribunal, sitting at London (North), deciding unanimously, after a two day hearing on 21st and 22nd May 1998, of which extended reasons were sent to the parties on 6th August 1998, that the appellant had not been unfairly dismissed from his post as Operations Manager with the respondent company, Chequepoint (UK) Ltd, but rather that he had been fairly dismissed on the grounds of redundancy, that dismissal taking effect on 21st August 1997, as a result of a written notice given on 29th May 1997.

We have carefully reminded ourselves that the appellant has only to show an arguable ground of appeal to be allowed to proceed to a full hearing of his appeal. We have had the benefit of a very skilful and precise submissions made to us on behalf of the appellant by Mr Ekwere, for which we are grateful. We have of course not only considered those oral submissions but also the Notice of Appeal. We have considered all the points taken.

Looking at the decision, it really speaks for itself and it is very clearly set out. The Industrial Tribunal correctly identified the issues relating to unfair dismissal in paragraph 3(a), namely, whether the appellant was made redundant. They go on in paragraph 4 to make very important findings of fact which are self-explanatory, and we do not think it necessary to go through all those findings of fact for our purposes today. We do note that the appellant had been the Operations Manager for some years, having been promoted to that post. We note the finding of the tribunal that there was a decline in currency exchange services due to the impending arrival of single currency in Europe; that 50 staff were going to have to be made redundant as a consequence of that, and that as far as the tribunal were concerned, they had to deal with the cases of Mr Challita and a Mr Tiba which they heard together. With regard to Mr Challita they made a finding at paragraph 4(v) that his post, that of Operations Manager, disappeared altogether in the restructuring, that was a finding of fact which the tribunal made, and, in our judgment, they were entitled to make on the evidence before them. The tribunal then, in subparagraph (vi), made findings in relation to the timetable that the respondents put into effect with regard to the redundancy process. Obviously the tribunal had in mind to look closely at that in order to see whether it was a fair and reasonable process of selection. They went through the timetable noting that there had been an informal discussion on 11th April, and then the matter of whether the appellant could become Operations Support Manager was discussed, but that was rejected for what, in our judgment, appeared to be good reasons as set out by the tribunal. There was a formal consultation on 8th May, as a result of a letter that had been sent informing the appellant of the position on 2nd May, indeed, where they find that the appellant accepted that the restructuring "maybe" made sense. There was a further consultation meeting on 20th May at which the appellant's views were sought and, amongst other things, it is clear from the findings of the tribunal that they considered the evidence that had been before them to the effect that consideration had been given by the respondents as to whether the appellant could be employed as a Regional Manager or Branch Manager, but for reasons set out by the tribunal, as a result of facts found by them, they upheld, in effect, the evidence that neither of those posts was suitable. As a result, on 29th May 1997, written notice was given with effect from 21st August 1997, terminating the appellant's employment.

Having made those findings the tribunal went on to compare and contrast the position of Mr Tiba, on the one hand, and Mr Challita on the other. In our judgment, they properly distinguished the two men's situation, in subparagraph (vii) of paragraph (4), noting that:

"... Mr Tiba's position was not the same as Mr Challita. Whilst Mr Challita's job disappeared entirely, in Mr Tiba's case the situation was one of a reduction of seven posts to two and proper selection criteria and consultation assume greater significance in this situation."

We find that that was a proper finding for the Industrial Tribunal to make. It does not carry the inference that they were in any way underplaying the importance of consultation and a fair procedure to be followed in the appellant's case.

The tribunal then rehearse the respective cases. We note that both sides were represented by Counsel. The tribunal rehearse Counsels' submissions carefully in paragraph 5. The tribunal then correctly set out the relevant law in paragraph 6(i). The tribunal noted particularly, having set out s.98(4) of the 1996 Act:

"... In relation to redundancy dismissals fairness will normally involve consideration of questions of the amount of warning given, the use of objective selection criteria and whether there has been consultation and consideration of alternative employment. The failure in any one of these areas will not of itself necessarily give rise to a finding of unfair dismissal, but the Tribunal must look at those circumstances of the case in the round, having those considerations in mind."

We consider that that was a proper and correct statement of the law.

The tribunal then went on to reach their conclusions, clearly stated in paragraph 7. Importantly, in that paragraph, they reach this conclusion:

"... So far as Mr Challita is concerned, we are satisfied that the decision to terminate his employment was in accordance with the requirements of section 98(4) and a fair procedure was followed. There was only one post of the sort and grade occupied by Mr Challita and that was the one occupied by him. Once that position became redundant he was effectively in a pool of one person for selection purposes."

and the tribunal then made this important conclusion:

"There was consultation and consideration of alternative employment and proper notice was given."

In our judgment, that was finding of fact which the Industrial Tribunal were fully entitled to make on the evidence. Really, with great respect to Mr Ekwere's very skilful argument, it is that very finding of fact which he is seeking improperly to go behind. We only say improperly in the sense that we, as an Employment Appeal Tribunal, can only consider points of law and cannot allow the Employment Appeal Tribunal to be used as a platform for a rehearing of matters of fact. It was Mr Ekwere's submission that the consultation was neither genuine nor fair and the tribunal should have so held and were perverse in not so holding. In particular, he criticised the way in which the process was followed, saying that it was too quick and that really a decision had been made and the writing was on the wall and that the consultation was no more than a sham. Now we just cannot accept those submissions in the light of the careful findings of the tribunal to which we have referred above. We note particularly that in Mr Tiba's case the tribunal did find that the decision to dismiss was taken before any objective selection criteria were put in place and before any proper consultation with Mr Tiba, and that that had rendered his dismissal procedurally unfair. In our judgment, that supports our conclusion that the tribunal were looking at the matter in an even-handed and fair way as an industrial jury.

We find that we can detect no error of law in the tribunal's approach or in its conclusions and for all those reasons and because of the unassailable findings of fact made by the tribunal, we find that there is no arguable point of law on this appeal. Accordingly, this application, despite the advocacy of Mr Ekwere, will have to stand dismissed.