MR A J YOUNG v WEST OXFORDSHIRE COLLEGE [2001] UKEAT 232_01_1511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 232_01_1511Case No Appeal No. EAT/232/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A J YOUNGAPPELLANTWEST OXFORDSHIRE COLLEGERESPONDENT
Before
His Honour Judge Peter Clark Mrs T A Marsland Mrs J M MatthiasDate 15 November 2001
[1]APPEARANCES For the Appellant MS VICTORIA VON WACHTER (of Counsel) Instructed by: Messrs Oury Clark Solicitors 5 Arlington Street St James's London SW1A IRA JUDGE PETER CLARK This is an appeal by Mr Young, the Applicant before the Reading Employment Tribunal, against that Tribunal's Decision dismissing his application for review of their substantive Decision dismissing his complaint of unfair dismissal brought against his former employer, the Respondent Further Education College. The original Decision was promulgated with Extended Reasons on 3 July 2000, the Review Decision on 7 December 2000. Since the Notice of Appeal was not lodged until 10 January 2001 only the appeal against the Review Decision is in time. We are asked to extend time for the appeal against the original Decision and return to that application later.[2]The background is as follows. At the relevant time the Respondent owned and ran Warren Farm, a working farm operating commercially and used for the benefit of the college's agricultural students. Activities on the farm included keeping a herd of pedigree Holstein cows and a stud farm was also operated. The farm was run effectively by two employees, the Appellant, who was the Farm Manager and a Mr Hill, who was the Herds Manager. The Appellant had commenced his employment in November 1983.[3]In early 1999 the college found itself in financial difficulties. It had accumulated a deficit of about £500,000. This caused concern to the newly appointed Finance Director, Mr Sandhu. As a result various teams were set up to examine and report on certain areas of activity in the college, including commercial farming. As to that it was estimated that that farming enterprise would lose about £37,000 in the coming financial year. A recommendation was made that the farm close. That was accepted by the Management Board of the college, a decision to close being reached on 18 June 1999.[4]That had obvious implications for the continued employment of Messrs Young and Hill. Consultations with them then began. Nevertheless, it was decided that both were redundant and they were dismissed. An appeal against that decision failed.[5]The Tribunal held that the dismissals were by reason of redundancy and were properly and fairly carried out with one exception. Consultation with the employees on the prospect of closure had not commenced before the decision of 18 June was taken. It ought to have been. For that reason the dismissals were held to be unfair.[6]However the Tribunal then went on to consider the Polkey question; would it have made any difference to the outcome had proper consultation taken place and if so, to what extent?[7]They found that early consultation would have made no difference. Their reasoning is explained at paragraph 17 of their original decision thus:
"17………..The applicants have both accepted that there was a redundancy situation and had we had to decide the point we find it impossible to think that we would have come to any other conclusion. The respondents' financial position was very serious. A number of areas of their activities were being looked at and redundancies were made elsewhere. In his evidence to us Mr Bonner, a member of the appeals panel, said that if the applicants had been able to put forward a strong case for retaining the farm, they might have been prepared to go back to the Management Board and ask them to reconsider the matter. The applicants did put forward such a case. It was considered and rejected. The overall impression we have reached is that the practicalities of the situation were that even if the applicants, or either of them, had been involved in the decision making process at an early stage, there really was no likelihood of them being able to overturn the decision or retain the viability of the farm. We do not think that if there had been consultation in the way that we have indicated, that there is any likelihood at all that the outcome would have been any different and for that reason we would not be disposed to make any order in either case by way of remedy."
In those circumstances both the Appellant and Mr Hill, a fellow Applicant before the Tribunal, were found to have been unfairly dismissed but no remedy was awarded.[8]On 23 June the Appellant's solicitors applied for a review of the original Decision, then promulgated only with Summary Reasons. The basis of the application was that in evidence at the original hearing Mr Bonner, a member of the internal appeal panel, had stated that had the employees made an overwhelming case on appeal the college would have reconsidered its decision to close the farm. This evidence, it was submitted, disentitled the Tribunal from concluding that early consultation would have made no difference.[9]The Tribunal considered that contention at the review hearing held on 24 November 2000 and rejected it for the reasons given for the Review Decision confirming their original Decision. We have today heard argument from Ms Von Wachter in relation to both Tribunal Decisions. In effect she repeats that argument presented to the Tribunal at the review hearing, namely that in the light of Mr Bonner's evidence, recounted above, it was not open to the Tribunal to conclude that proper consultation would have made no difference to the outcome, given that proper consultation would have resulted in the Appellant being better informed so as to present his case more effectively to the Respondent. For the purposes of the Review Decision appeal she submits that the Tribunal misdirected themselves as to the evidence offered and reached a conclusion that was not based on the primary facts.[10]When asked to identify the information not given to the Appellant she told us that it was the college's overall poor financial situation. That, it seems to us, was information which made the Appellant's case for retention of the farm and therefore his job weaker rather than stronger.[11]In short we cannot accept that any arguable error of law is made out in this case. The Tribunal revisited their original Decision and confirmed it. They were entitled to do so in our judgment. All that Mr Bonner was saying was that if the Appellant had put forward a strong case for retaining the farm they, the appeal panel, might have been prepared to go back to the Board and ask its members to reconsider the Decision of 18 June. However, he did not advance a sufficiently strong case and so neither did the appeal panel go back to the Board. In these circumstances, as the Tribunal found, proper early consultation would have made no difference to the outcome.[12]It follows that the appeal must be dismissed on its merits and it further follows that the application for an extension of time for appealing the original Decision must in those circumstances also be dismissed. The Order of the Registrar dated 2 July 2001, which has since been brought to my attention, refusing an application for an extension of time for appealing the original Decision, will stand.