MR D NEMBHARD v MR MARK ANDREW WHELAN T/A MAW WOODMACHINERY [2000] UKEAT 404_00_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 404_00_1310Case No Appeal No. EAT/404/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D NEMBHARDAPPELLANTMR MARK ANDREW WHELAN T/A MAW WOODMACHINERYRESPONDENT
Before
Mr Justice Charles Ms G Mills Mr K M YoungDate 13 October 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE CHARLES : This appeal comes before us today on a preliminary hearing pursuant to our Practice Direction. The issue is therefore whether the appeal raises a reasonably arguable point of law. At present the Tribunal are speaking to an empty room, empty in the sense that there are no parties to the appeal before us because the Appellant has not appeared today. Our understanding is that he lives in Manchester but does not have a contact telephone number. We do not know why he has not appeared today.[2]The parties to the appeal are a Mr Nembhard who is the Appellant and was the Applicant below and a Mr Whelan who traded as Maw Woodmachinery. He is the Respondent here and was the Respondent below.[3]The appeal is against a decision of the Employment Tribunal sitting at Liverpool on 28 January 2000. Summary Reasons for the decision were given on that day and Extended Reasons were sent on 21 March 2000. The decision that is appealed against was the dismissal of the Applicant's complaint of unfair dismissal. The Tribunal found that the dismissal was fair. The relevant section of the Employment Rights Act 1996 was therefore section 98. It is abundantly clear from the Summary and Extended Reasons that the Employment Tribunal had that section well in mind, indeed it would be very surprising if they had not. The first ground of appeal raised in the Notice of Appeal is in the following terms:
"The decision of the Tribunal is perverse on the facts for the following reasons: (a) Respondent in IT1 states reasons for dismissal, redundancy but at the Employment Tribunal hearing capability of the employee was put forward. The Respondent both at the time of the dismissal and on completion of the IT3 stated redundancy but at the Tribunal argued capability. Applicant's contention that the Employment Tribunal erred in law by assuming that the Applicant not prejudiced by the substitution of capability for redundancy."
[4]In our judgment there is no error of law in the approach taken by the Employment Tribunal in their Extended Reasons as to this point, it being accepted by them that redundancy was the reason advanced by the employer in the documents and at the time of the dismissal.[5]The conclusion reached by the Employment Tribunal is in line with a conclusion of the Court of Appeal in a case called Abernethy v Mott Hay, and Anderson [1974] ICR 323. It is clear that the Employment Tribunal did not assume, as is alleged in this ground of appeal, that the Applicant was not prejudiced. They considered the issue and found that he was not prejudiced. In our judgment there is no error of law in the approach taken by the Employment Tribunal to this issue. Indeed, we would go further and say that on the information before us it was correct.[6]The other grounds of appeal are set out in sub-paragraphs (2) to(5) of paragraph 6 of the Notice of Appeal. I shall not read them out in this judgment. In our judgment, in effect, these are allegations that the decision reached by the Employment Tribunal in the application of section 98 were wrong and not allegations that the Employment Tribunal erred in law by applying either the incorrect section or an incorrect approach under the section.[7]In our judgment, without the benefit of hearing any submissions, we can identify no reasonably arguable point of law on this appeal, namely a point such as one that the Tribunal applied the wrong section or took the wrong approach. In our judgment their decision is well within the band of decisions that were open to an Employment Tribunal in deciding, on the facts they set out and find in this case, whether the dismissal was fair or unfair. Again, we would say that having regard to the facts they found, we would go further and say not simply that the decision was in the range but, indeed, it was one which we too would have reached.[8]Accordingly, in our judgment, this appeal raises no reasonably arguable point of law and we shall dismiss it.[9]Given the fact that the Appellant has not appeared before us today, we will make an additional direction or order that we will give this Appellant liberty to apply within seven days of this order being posted by this Tribunal to the address he has provided to the Tribunal to seek to set aside this order, namely the order dismissing his appeal. On any such application he will have to provide reasons as to why he did not attend before the Tribunal today and would also, it seems to me, have to identify some point that is reasonably arguable on this appeal.[10]Accordingly, we will dismiss this appeal but with the qualification that we give Mr Nembhard liberty to apply within seven days of posting of this decision to him to discharge that order and to seek to pursue the matter further by way of preliminary hearing.