MR RABOULD SMITH & TETSILL LTD v MR ALAN THOMAS PEDLEY [2000] UKEAT 85_00_1705
[1]APPEARANCES For the Appellant MISS S MOOR (of Counsel) Instructed by: Messrs Nabarro Nathanson Solicitors Lacon House Theobolds Road London WC1X 8RW JUDGE H WILSON This hearing has been the preliminary hearing of the proposed appeal against the decision by the Employment Tribunal that the Applicant was unfairly selected for redundancy and was unfairly dismissed. There was a merits hearing, at which quantum was dealt with, in the course of which at paragraph 4, the Tribunal said that the dismissal was unfair, having regard to the criteria in s.98 (4) of the 1996 Act because there was an absence of consultation and a failure to consider or to take steps to avoid redundancy. No reasonable employer would have treated the redundancy as a sufficient reason for dismissal, given that the expectation was that the falloff of work would be short-lived.[2]Miss Moor on behalf of the proposed Appellant submits that there was a conflict of evidence before the Tribunal about the intended use of the advertisement which is referred to in the Respondent's appearance and which was stated to be for the provision of a database and not for the identification of a successor to the Applicant. She says that that is not dealt with by the Tribunal and the Respondent company does not know why they lost the case. She complains too about the "hindsight" thinking involved in the mention by the Tribunal in its decision of the short nature of the diminution of work, because the Mercedes contract was recovering and by the date of the hearing 90% had been recovered. Overall, more work was being done in 1999 than in November 1998 when Mr Pedley was dismissed.[3]The Employment Tribunal found that Mr Fowler, having been told of the withdrawal of the work from Mercedes clients, had a weekend during which he decided to dismiss Mr Pedley for reasons of redundancy because of the loss of the Mercedes repairs. He did not consider consulting Mr Pedley and did not consider alternatives to making him redundant. He did give urgent thought to alternative sources of work for the company. He caused a letter to be given to Mr Pedley on the morning of Monday 2 November and resolutely refused to speak to Mr Pedley, who wanted to talk to him.[4]The Tribunal found in its conclusions that, having regard to the matters in s.98 (4) of the Employment Rights Act 1996, the dismissal was unfair. The expectation was that the diminution in the work would be short-lived. That was borne out by the placing of the advertisement for a job which Mr Pedley could have done, and for other jobs, in the week of his dismissal. No reasonable employer would have treated the loss of the Mercedes work as a sufficient reason for dismissal, without consultation and without exploring alternatives. Dismissal was not within the band of responses which a reasonable employer would have made. The employer acted unreasonably in treating the loss of the Mercedes work as a sufficient reason for dismissing Mr Pedley.[5]It seems to us that the foregoing extract from the Extended Reasons is a perfectly plain and adequate explanation of why the employer lost in this case. The requirement to make things plain does not involve the crossing of all 'T's' and the dotting of all 'I's'. So far as the conflict of evidence is concerned, it seems to us that that is irrelevant because the thrust of the decision was the manifest unfairness of the manner of dismissal.[6]Accordingly, in our view, if this matter were to proceed to full argument, it would not succeed and should be dismissed at this stage, which is what we do.