INMARSAT LIMITED v MRS B KWAN [2000] UKEAT 1062_00_0512

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1062_00_0512

Case No Appeal No. EAT/1062/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

INMARSAT LIMITEDAPPELLANT

MRS B KWANRESPONDENT

Before

His Honour Judge D M Levy

Date 5 December 2000

[1]APPEARANCES For the Appellant MISS TESS GILL (Of Counsel) Instructed by Messrs Eversheds 11-12 Queen Square Bristol BS1 4NT JUDGE D LEVY QC Following a complaint by Mrs Benjamas Kwan ("the Respondent") to an Industrial Tribunal claiming unfair dismissal and race discrimination by Inmarsat Ltd ("the Appellant"), received by that Tribunal on 27 January 2000, there was a hearing of the Respondent's complaint on 18 and 19 May 2000. The Employment Tribunal considered submissions on 23 June 2000 and promulgated their decision on 17 July 2000. At the hearing below, the Respondent was represented by Counsel and a solicitor appeared for the Appellant.

[2]The unanimous decision of the Tribunal was that the claim of direct race discrimination failed but that the Applicant was unfairly dismissed by reason of redundancy. A hearing to determine remedy was adjourned until 12 September 2000.

[3]From holding, that the Applicant was unfairly dismissed the Appellant appealed by Notice of Appeal dated 17 August. Miss Gill of Counsel appears for the Appellant on the Preliminary Hearing of its appeal. She has identified for us the main point of the Appeal that where there was a redundancy selected in this case there was only one person for it and that was the person selected namely the Respondent. She says, of eleven people of whom one had to be made redundant she was the obvious candidate. That may be so but it is the redundancy exercise of which the Tribunal found faults and we have carefully considered the judgment and have asked Miss Gill questions on certain passage of it.

[4]There are one or two flaws in the judgment. For instance, in sub paragraph (j) of paragraph 32 it is stated that the Appellant did not take steps to help the Respondent in finding alternative employment whereas earlier on it has been said that some steps were taken. But looking at the decision, the Extended Reasons in the round we are satisfied that almost all the matters which the Tribunal took into account as set out in paragraph 32 of the Extended Reasons where matters which they could properly take into account.

[5]In paragraph 10 of the Extended Reasons the memo about the redundancy exercise of 21 October 1999 is thus set out: " If there is a need to select from a group of staff with the same rules this will also be done on a fair and objective criteria. The criteria to be applied will depend on the group of staff covered within a particular area of the business but could include for example performance skills and compensation, attendance record, discipline etc.

[6]We have underlined the word 'If' to consider what it would mean to somebody in the Respondent's position. That 'If' would not have stood out. She would have expected criteria to be applied which is set out in the rest of the memorandum. We think that the conclusion of the Tribunal was entirely right, that this was not a fair redundancy exercise properly carried out and they are entirely right where they say, as they did in paragraph 32,(a) that the Respondent was a large organisation with its own personnel department and

(b) there were no clear criteria for redundancy by which the individuals were judged and no clear criteria were made known to the Respondent. The last sentence in paragraph 32 reads:

"This is an indication of method rather than criteria for redundancy."

[7]In our judgment if this matter goes to a full appeal it is bound to fail and therefore it is only right, to dismiss it at this stage. We thank Miss Gill for her submissions, which were helpful, albeit we were not persuaded by them.