Hinchliffe v. John L Brierley Ltd [2001] UKEAT 1332_00_0312 (3 December 2001)

JUDGMENT Revised © Copyright 2001 APPEARANCES For the Appellant MR D IBEKWE (Friend) Instructed By: Public Transport (Staff) Consortium 87 Goldington Avenue Oakes Huddersfield HD3 3PZ For the Respondent MR DAMIEN BROWN (of Counsel) Instructed By: Messrs Baxter Caulfield Solicitors 13 Station Street Huddersfield HD1 1LY JUDGE D PUGSLEY : At the preliminary hearing again before the Employment Appeal Tribunal where all the matters relating to this redundancy exercise were set out, the Tribunal directed that leave could be given on paragraph 1(e) and 2 of the Notice of Appeal. Paragraph 1(e) of the Notice of Appeal in simple terms concerns the fact that the Tribunal made a 100% reduction. Paragraph (e) states: "… for the A to be penalised 100% and the R to be made to suffer no financial penalty other than a paper judgment against, is to absolve the R completely of any blame or wrong doing. To effectively conclude that the A would be suffered 100% loss of any entitled compensation, clearly spells that the legal burden regarding consultation and making of offer of alternative employment … are squarely placed upon the employee … as opposed to being squarely placed upon the employer … . The R was not penalised in any form or shape for its part of the blame or failings, and as such the findings of the ET are far from 'just & equitable'." There is a real issue here. The Tribunal, in what we find to be a carefully considered decision, found that the reason for the dismissal was redundancy. They consulted with the worker's representative and the Applicant on an individual basis; they considered there were other jobs which the Applicant could do against a background that other jobs were vacant at this time. In the end they decided that the Applicant should be dismissed. This was a decision they were entitled to take and they did so fairly at the time. The Applicant was told of his impending redundancy. At paragraphs 12 and 13 the Tribunal set the matter out thus: "12 Had things rested there, that would have been an end of matters. However, events moved on. The Applicant, along with his colleagues, had been told that if he wished to bring forward his leaving date and this was acceptable to the Respondents, he would be allowed to leave early and take his redundancy pay and the balance of his notice pay. In discussions between the Applicant and members of the management it was agreed that the Applicant would leave on 15 October. It may be that the Applicant's motivation in taking this option was not unconnected to the fact that he had been warned of impending disciplinary action relating to an incident quite unconnected with his redundancy. Whatever the truth of this, the Applicant did leave on 15 October 1999. The Applicant was paid all monies to which he was entitled. 13 On 11 October 1999, Stephen Mellor, who worked in the warehouse and as part of those duties drove a fork lift truck, gave notice to terminate his employment. Clearly the Respondents became aware of this as the employee gave notice. The Applicant learned of it on the works 'grapevine' and did so before he left on 15 October 1999. The Respondents say that consideration was given to the possibility of offering Mr Mellor's job to the Applicant as well as others who were being made redundant. However, it was felt that as the job done by Mr Mellor called for an experienced and qualified fork lift truck driver, none of those who were being made redundant would be suitable as it was the Respondents' belief that none fitted the role. What the Respondents did not know was that the Applicant had previously been a fork lift truck driver. This had never been mentioned by the Applicant previously. Had they consulted with the Applicant about the vacancy he could have told them of his experience and the possibility of a brief and relatively inexpensive re-training considered. The Respondents did not approach the Applicant so he could not impart that information." The Tribunal then went on to direct themselves in paragraph 16, the case of Stacey v Babcock Power Limited [1986] IRLR 3, that there is an obligation to consult an employee regarding a redundancy situation and to consider the possibility of alternative employment and that subsists during the notice period. An employer who fails to do that may well act unfairly and that is, the Tribunal note, an unfairness which arises at that stage could convert a dismissal which was potentially fair at that date to one that is unfair when the dismissal takes place. The Tribunal said that that was the result here and had the Respondents fulfilled the obligation, there was the possibility that the Applicant's previous experience would have become known to the Respondents and there was a possibility that the Respondents may have offered the opportunity to the Applicant to undertake Mr Mellor's work, albeit possibly on a trial basis. There was a chance, the Tribunal found. Having found that chance one would normally then expect that there should be some award to the Applicant. However, the Tribunal take a rather robust view. They said that although the Respondents were at fault the Applicant knew Mr Mellor was leaving. He knew his job would become available. He knew that he had many years before had experience of doing work which could have fitted him to undertake Mr Mellor's work, perhaps after some re-training. He chose not to approach the Respondents so as to provide the opportunity for him to be considered. The Tribunal did not accept the reason he gave for his silence as a valid reason. There was nothing to stop him approaching his manager. By his silence he left himself in a position where the Respondents remained in ignorance of the possibility that the Applicant might be fitted to do Mr Mellor's job. The fact that he could do Mr Mellor's job was something peculiarly within the knowledge of the Applicant. The Tribunal said that was analogous to an employee accused of misconduct on grounds which seem perfectly justifiable but where he knows that it was a colleague who was guilty yet lets his employer remain in ignorance. In that case the employee may well be found to have contributed 100% to his own downfall and that is a finding the Tribunal made in this case. We have to say quite simply, having considered the various arguments put before us and looked at the decision, we cannot identify an error of law. That was a conclusion to which this Tribunal was entitled to come. We are not saying it was a conclusion to which we would necessarily have come or other Tribunals would have reached but we do not think we can say that there is an error of law in that approach. The Applicant was also given leave, ground 2 which is concerning the question of costs. At some stage Mr Hinchliff absented himself from the hearing and the result was that although the Applicant's representative Mr Ibekwe was happy to go on the Tribunal was not, there had to be another day's hearing. We have considered the arguments, we have had the benefit of hearing Mr Ibekwe who was there at the Tribunal and we have also heard Mr Simpson's report of the matter on page 18 of the bundle. We have come to the view that it was a matter that was pre-eminently within the discretion of the Tribunal on the basis that the Chairman's sequence of events is right. Mr Ibekwe indicated that he expected the Appellant to attend, something that was not mentioned at the Employment Appeal Tribunal. The Chairman sets out the normal practice in Leeds. It is up to the Tribunal. They did not ask the wrong question and they adopted an answer which is within the range of responses of discretion of a Tribunal exercising its discretion judicially. We are bound to say that £100 would come nowhere near, we suspect, to covering the costs and we note that it is referred in the Chairman's decision as being a nominal order. We cannot find any fault in their directions of law. The way in which they exercise their discretion is a matter which came within their discretion and we see no ground for disturbing it. The appeal is therefore dismissed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII