MB SUPPLY CO LTD T/A v MB BEARINGS & TRANSMISSIONS MR S RALPHS [2000] UKEAT 330_99_2709
[1]APPEARANCES For the Appellant Mr R F Ashton Solicitor Instructed by Messrs Hacking Ashton Solicitors Berkeley Court Borough Road Newcastle under Lyme Staffs ST5 ITT JUDGE PETER CLARK This appeal raises a short point on the statutory definition of redundancy contained in section 139 of the Employment Rights Act 1996 as explained by the House of Lords in Murray –v- Foyle Meats Ltd (1996) IRLR 562.[2]The Applicant before the Shrewsbury Employment Tribunal, Mr Ralphs, presented a complaint to that Tribunal on 24 June 1999. He omitted to complete box 1 of his Originating Application setting out his complaint, but it was treated as a claim for a redundancy payment/unfair dismissal. The employer put in a letter dated 8 November 1999, treated as a Notice of Appearance, contending that all payments due to Mr Ralphs, following termination of his employment, had been made and contesting any claim he might be making for unfair dismissal. Unwisely, the Respondent then failed to attend the hearing of this matter, which took place on 20 January 2000. The Applicant did attend that hearing and gave evidence before the Tribunal.[3]By a decision with extended reasons dated 27 January 2000, the Tribunal upheld the complaint of unfair dismissal and awarded him compensation in the total sum of £6,870.99.[4]In the absence of the Respondent they made the following material findings. On 1 April 1999, the Respondent's managing director, Mr Mark Bennett, came into the workshop where the Applicant was working, told him to stop his machine, get his tools and leave the premises immediately. The Applicant was told that Mr Bennett would send his 'redundancy' to him in the post.[5]The Applicant gave evidence, which, in the absence of challenge by the Respondent we infer the Tribunal accepted, that there was plenty of long term work for him to do at the time of dismissal.[6]On these facts, the Tribunal found that the Respondent has failed to establish redundancy as their reason for dismissal. No other potentially fair reason for dismissal having been advanced by or on behalf of the Respondent, the Tribunal found that the dismissal was automatically unfair, that is unfair without the need to consider the question of reasonableness under section 98(4) of the Act.[7]In this appeal it is argued by Mr Ashton on behalf of the Appellant employer that the Tribunal asked themselves the wrong question. The statutory definition of redundancy is not directed to whether there was a diminution in the work, but to the requirement of the employer for employees to carry out work of a particular kind. We think that that limited question of law requires further argument and a full hearing.[8]The difficulty facing the Appellants is that they did not attend the hearing to advance a positive case that there was a diminution in the requirement for employees to do the relevant work. However we are not prepared to say at this Preliminary Hearing stage that that difficulty is insurmountable.[9]For the purpose of the full hearing, we shall direct that the case be listed for half a day, Category C; there will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time. There are no further directions, in particular, Chairman's notes of evidence are not required.