ANGLO BEEF PROCESSORS LIMITED v MR A P FLYNN [2001] UKEAT 0315_01_1707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0315_01_1707Case No Appeal No. EAT/0315/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ANGLO BEEF PROCESSORS LIMITEDAPPELLANTMR A P FLYNNRESPONDENT
Before
Mr Justice Douglas Brown Miss N Amin Ms H PitcherDate 17 July 2001
[1]APPEARANCES For the Appellant MR CRAIG BENNISON (Barrister in Law) instructed by First Business Support 12 Westminster Court Hipley Street Old Working Surrey GU22 4AB MR JUSTICE DOUGLAS BROWN This is the Preliminary Hearing of an appeal by Anglo Beef Processors Limited from a decision of the Employment Tribunal at Bedford, Chairman Mr D J Moore, the Extended Reasons being sent to the parties on 16 January 2001. Their decision was that Mr Flynn, the Respondent to this appeal and the Applicant below, was unfairly selected for redundancy.[2]The essential facts found by the Tribunal are these. That Mr Flynn began his employment with Anglo Beef as a butcher in 1989. Taking the facts directly from the reasons, the Tribunal described the Appellants as a significant concern, engaged in the process of manufacture of meat products. Even after reductions in their workforce they employ some 18,000 people and have personnel officers both in their branches and at head office. They refer to Mr Flynn in May 1995 suffering an injury to his arm as a result of which he was off work. He was able to resume work in October 1995. On his return he made a claim on Anglo Beef's insurance. Shortly after that he was promoted to be a department supervisor and was held in high regard. In December 1997 he was promoted again, and became manager of the department. In December 1998 he became ill and was absent throughout that month and January 1999. He met in early January his personnel officer and another member of the staff to discuss his return to work. It was agreed that in order to assist his return he would temporarily be placed in another department where the work was less arduous. Another employee on a temporary contract was then appointed to cover his position. Some 3 months later that employee was appointed to the position on a permanent basis. On Anglo Beef's own evidence it was clear that they had never notified Mr Flynn that he had lost the right to return let alone consulted him or secured his agreement. Further in March 1999 the employers posted an advertisement seeking a volunteer for a 6 month secondment as an NVQ assessor. Mr Flynn applied and was given the position. The documentary evidence before the Tribunal showed that the successful applicant had the right to return to his former duties at the end of the period.[3]Mr Flynn in his IT1 claimed unfair dismissal and/or breach of contract, and/or disability discrimination. The disability discrimination part of the case was dealt with by the Tribunal in paragraph, we refer to it only briefly, the claim was dismissed because the Section 55 of the 1995 Discrimination Act only extends to proceedings under that Act and Mr Flynn's claim was for common law damages in respect of his injury and was not brought under the Act and he thus could not rely on its protection.[4]The decision of the Tribunal which has come under critical attack by Mr Bennison, who appears for the Appellant, and appeared for them below, was in essence this: the Respondents failed to operate a fair selection process. The decision was taken without consultation with Mr Flynn who was not even notified that he was at risk prior to the decision to dismiss him. There is no evidence that the selection was made against a set of predetermined and common criteria. There was no provision for an appeal.[5]This appeal turns on a matter which was without doubt raised at the hearing before the Tribunal but which is not fully dealt with, certainly so far as the legal implications are concerned, in the reasons. It arises from a fact that the redundancy arose in October 1999, shortly before Mr Flynn employment that was offered to him described as 'temporary work' at the head office. Mr Bennison argued before the Tribunal that this secondment to the head office represented a fresh contract and the chain of 'causation' as it was described was broken. The redundancy dismissal was in October and accordingly when the IT1 was served on 27 June 2000 it was substantially out of date. Mr Bennison tells us, and we accept, that he specifically took a jurisdiction point before the Tribunal. The Tribunal did not overtly deal with a jurisdiction point. At no stage in the reasons did Mr Bennison's submission that Mr Flynn was out of time with his Application receive direct consideration. On the other hand the factual basis behind that submission was dealt with. It was dealt with clearly and decisively and it involved findings of fact, which Mr Bennison accepts his Ground of Appeal do not challenge, and he is not in a position to challenge. What the Tribunal said in paragraph 10 of their reasons is this:
"The Respondents have sought to argue that the Applicant's acceptance of the temporary work at head office in effect broke the chain of causation between the Applicant's selection for redundancy and his dismissal some six months later. We reject that argument; it is clear that the dismissal flowed from the selection for redundancy. The Applicant was told at the time he commenced that work that the outcome at its conclusion would be that his redundancy would be brought into effect and Mrs Tidd [who we interpose to say, was the group personnel officer] has confirmed that is what occurred."
Earlier the Tribunal had made a specific finding of fact in paragraph 6:
"During the first week of October 1999 the Applicant learned that he was redundant. He was however offered temporary work at head office and advised that he would receive his redundancy payment at its conclusion."
In the light of those findings of fact the argument which Mr Bennison put forward and which he renewed before us, that the Applicant was out of time, simply fails. There is no factual basis for it.[6]Mr Bennison argued a second Ground attacking the decision of the Tribunal in that they misapplied the well known principles of law contained in the case of Polkey v Dayton Services Ltd [1987] IRLR 13. But again, with respect to Mr Bennison, his submissions there, are founded upon the same case which the Tribunal rejected, and they ignore the unchallengable findings of fact which were in fact made by the Tribunal. If we agreed that this appeal should go forward because the Tribunal did not specifically mention the jurisdiction point taken by Mr Bennison, and if the Tribunal on full consideration of this matter allowed the appeal, there would in fact be no benefit. If the Tribunal found that it was a point of substance it would be immediately undermined and rendered of no value to the Appellants by the finding of fact of the Tribunal which had the Tribunal specifically referred to the time limit provisions in Section 111 of the 1996 Act would have rejected the jurisdiction point because of their finding of fact that the date of dismissal was 28 April 2000. The date of dismissal giving rise to an IT1 served just in time. So in all the circumstances there is in our view no arguable point to go further to a Full Hearing and this appeal is dismissed.