MS B ROGERS v SLIMMA PLC [2007] UKEAT 0168_06_2004

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0168_06_2004

Case No Appeal No. UKEAT/0168/06/MAA UKEAT/0182/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS B ROGERSAPPELLANT

SLIMMA PLCRESPONDENT

Before

His Honour Judge Reid

Date 20 April 2007

[1]APPEARANCES For the Appellant Neither present nor represented For the Respondent Miss Marina Wheeler (of Counsel) Instructed by: Messrs Pinsents Masons Solicitors 3 Colmore Circus Birmingham B4 6BH SUMMARY Redundancy – Fairness The Appellant was dismissed by reason of redundancy. The consultation period was one week. Employment Tribunal held in the circumstances this was reasonable. Held: This was a conclusion the Employment Tribunal was entitled to reach. Employment Tribunal also awarded costs in respect of the Appellant's husband's unreasonable conduct which extended the length of the Employment Tribunal hearing. Held: no error of law. Employment Tribunal entitled to do so. HIS HONOUR JUDGE REID QC This is the hearing of two appeals. The first I might describe as the substantive appeal and is an appeal against a decision of an Employment Tribunal held at London (Central) over various days in May, July and September 2005 with a day when the Tribunal was in chambers on 2 November 2005 and a judgment being sent to the parties on 13 December 2005. The second appeal is an appeal in relation to costs which arose out of a costs order made at an earlier hearing in relation to the same matter. That hearing was on 2 September 2004 and the decision was sent to the parties on 27 September 2004. By the substantive decision the Tribunal held that the Claimant's claim of unfair dismissal failed and was dismissed and by the costs decision the Tribunal ordered the applicant to pay the Respondent's costs in the sum of £1475.80.

[2]The Appellant has not appeared today. She has put in an application to the Court of Appeal for permission to appeal against the order of Judge Serota by which this appeal arrived before us on only one ground of appeal.

[3]The original Notice of Appeal contained a substantial number of matters. The President had held that none of those disclosed any arguable point. The Appellant took up her right to argue the issue orally. That was done before Judge Serota. As I said one point was allowed to come through to a full hearing, the remaining points were thought not to be of any substance and it is against that finding together with other procedural matters, I think, that the Appellant has sought to go to the Court of Appeal.

[4]She applied for the hearing of this appeal and of the costs appeal to be adjourned pending the hearing before the Court of Appeal. That application was refused but she has nonetheless not attended today nor renewed the application for an adjournment. In those circumstances, particularly given the age of the case, we have proceeded in her absence and it is fair to say that so far as the point before us is concerned it is not a point that she has embraced with any enthusiasm whatsoever.

[5]The background to the case is that the Appellant was a production manager with the Respondent. In September 2003 it became apparent that sales were falling. In the second half of September 2003 a restructuring proposal was formulated and on 1 October the gentleman that had formulated the proposal took the proposal to his superior who approved it.

[6]On Friday 3 October the proponent of the proposal met with his personal assistant who was responsible for the HR function within the employer and told her of his proposal to restructure and the two of them concluded that the role of production manager (which was the Appellant's role) was dispensable, that to remove it would achieve a significant payroll reduction and that therefore the Appellant was in pool of one for consideration for redundancy. The Appellant was informed of this on the following Tuesday, it not having been practicable to inform her on Monday since Ms Tipperman, responsible for HR functions, was away owing to a religious holiday and then followed a consultation period of a week. That consultation period was brief. The Tribunal considered it and held that a shorter period than that would not have been reasonable but that in the circumstances of the case it was appropriate. They said this. "The decision to remove the post of Production Manager from Frank Usher's manning structure was taken on Wednesday 1 October 2003 by Mr Lee and Slimma's Chief Executive. The implications for Ms Rogers were considered by Mr Lee and Ms Tipperman on Friday 3 October 2003 when the decision was taken to place Ms Rogers at risk of redundancy and to commence consultation with her. Consultation began on Tuesday 7 October 2003, Ms Tipperman being absent on Monday 6 October 2003 observing a religious holiday. There is no proper basis to criticise the time scales. We do not consider, drawing on our experience, that a reasonable employer, in these circumstances would have necessarily considered, let alone been obliged in fairness, to warn Ms Rogers during the second half in September 2003 that job losses were under consideration with Frank Usher. Accordingly, we find no merit in Mr Oduntan's, that is to say the husband of the Appellant who has represented her, criticism that there was no adequate warning." They also held that a week was a reasonable period in the circumstances that I have indicated and therefore held that there was no unfairness in the dismissal. They rejected in particular a suggestion that had been no consultation. It is fair to say that the Appellant and her husband's reaction to the announcement of the potential redundancy was such as to discourage any further attempt to consult.

[8]The decision of the rule 3(10) application by Judge Serota was in these terms. He was troubled by the manner in which the Employment Tribunal dealt with the issue of consultation before 7 October and whether having regard to that the one week off of consultation could reasonably have been considered adequate. He said this:

"I do not consider in the light of the self direction of the Employment Tribunal its finding of fact that the case is a strong one and I have expressed my doubts. This is the sort of case that might well have been referred to a preliminary hearing. However I do not think it would be right for me to refer this appeal to a preliminary hearing having regard to the history which I have recounted in my other judgments and the fact that having heard significant arguments and read Mr Oduntan's submissions I think the grounds of appeals as I shall shortly formulate them may be fairly arguable and in the circumstances it is right to writ that there should be a full hearing. I would accordingly allow the Claimant to appeal on the question of whether the Employment Tribunal misdirected itself as a matter of law in holding that the duties to warn and consult did not arise before the meeting of 7 October 2003 and as to whether in the circumstances one week could properly have been said to have been an adequate period of consultation."

[9]The Appellant, as I have indicated, did not think much of that and she wrote to the EAT on 7 February 2007 saying this:- "The main primary reason is that it is my view that the question of law advanced in the order of 5 December 2006 with respect of the Rule 3(10) Application is not arguable prior to my Appeal to the Apex Court being heard." That is a reference to her application for permission to appeal in relation to refusal to deal further with the appeal by Judge Serota to allow her other grounds to go further, which still remains unresolved.

[10]She goes on:- "It is unarguable at this point because any argument will contradict my grounds of Appeal and compromise my whole case before the Court of Appeal. It is not arguable because any argument presented at this point will seriously prejudice my prospective appeal. I am therefore unable to present any argument in support of the question of law advanced at this point. It is for this reason I request a stay of proceedings, pending the outcome of our appeal."

[11]And then again on 13 February she wrote:

"We continue to maintain the question of law advanced in the order of 5 December 2006, that is to say Judge Serota's order, with respect to the Rule 3(10) Application is unarguable at this point consequently we cannot present any argument in support of an unarguable question of law that:- 1) not only contradicts our grounds of appeal before the Court of Appeal but 2) has no prospect of success Furthermore, it is our case the question of law advanced (indicating that there was warning and consultation on 7 October 2003) contradicts the EAT's own conclusions in their judgment, which clearly supports our own case before them that there was no warning or consultation on 7 October or any other time . For these reasons we cannot present any argument in support of the question of law advanced. Our case is being passed to solicitors and we believe they will correspond with you in due course."

In fact there has been no correspondence from solicitors.

[12]The reason it appears that the Appellant is so unenthusiastic about this point is that her case, contrary to the various findings of fact, is that there was no consultation whatsoever, let alone limited consultation from 7 October. So far as we are concerned we have findings of fact and whilst we can see the point that an argument starting from the premise there was some consultation that there was inadequate consultation is inconsistent with an argument that there was no consultation we have to start from the premise of the facts that have been found and the order that has been made.

[13]We have been assisted by Miss Wheeler who appeared both below and before us on behalf of the Respondent and who has very fairly placed before us the material on which this appeal might be argued. In essence we take the view, so far as the substantive point is concerned, that whilst other Tribunals might have formed a view that the consultation process should have begun earlier and the Appellant should have been put on notice of the potential risk of redundancy at an earlier stage, the material before the Tribunal was such that they were entitled to find as an industrial jury that there was no obligation on the facts of a particular case to consult during the latter part of September (as opposed from the beginning of October) and secondly to hold, as they did, that the 7 day consultation period was in the circumstances of the case an adequate period. The Tribunal itself took the view that 7 days was the bare minimum but it was clearly a Tribunal acting as an industrial jury which weighed a set of facts carefully and found that the balance came down on the side of the line that there was adequate consultation. That was not a decision which was made with any error of law. It was a decision on the facts which was a permissible decision and is not one with which the EAT could interfere. It follows that the substantive appeal fails.

[14]So far as the appeal in relation to costs is concerned, the application for costs was made at the conclusion of an earlier hearing in the Employment Tribunal as a result of what was said to be the unreasonable conduct of the Appellant's husband in conducting the appeal. Four particular points were raised, three of those points found favour with the Tribunal which made the order for costs which it did. The order for costs which it made was in fact a fairly modest one in the context of an overall bill of costs on the part of the Respondent, well in excess of £10,000. The Notice of Appeal does not raise any question as to fairness. At one point in correspondence the Appellant, through her husband, appears to have suggested that the application for costs was sprung on them and that she and her husband were unprepared, but that point is not a point which is raised in the notice of Appeal. In the Notice of Appeal no point of law is raised. There are merely observations intended to persuade the EAT that the Employment Tribunal erred on the facts in making the decision that it did in relation to costs. As the Appellant is aware the EAT can deal only with points of law. It is not a Tribunal which can rehear issues of fact.

[15]In those circumstances we are unable to see any basis on which it would be proper to interfere with the Employment Tribunal's decision as to costs and the costs appeal also will be dismissed.