Appeal No. EAT/450/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 5 October 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR  T S BATHO

	MR D GLADWIN OBE

RACAL MILGO LTD	APPELLANTS

MR M ROSS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR C WYNTER
	(Of Counsel)
D Reed Esq
Solicitor
	Racal Group Services Ltd
	Group Legal Dept
	Richmond Court
	309 Fleet Road
	Fleet
	Hampshire GU13 8BU

	MR JUSTICE KNOX:  This is the Preliminary Hearing of an Appeal by Racal Milgo Ltd, which I will call "the company", from a decision of the Industrial Tribunal sitting at Manchester on 12 March 1992, and sent to the parties on 23 April of that year, that the Applicant before the Industrial Tribunal, Mr Ross, had been unfairly dismissed and was awarded compensation of £10,000.

	The three grounds of Appeal that are in the Notice of Appeal are in our view inadequate to ground the jurisdiction of this Tribunal in that they do not, so far as we understand them, effectively raise a question of law to which this Tribunal of course is limited by S.136 of the Employment Protection (Consolidation) Act 1978.  However, the opening of Mr Wynter who appeared on behalf of the company and did not in fact appear before the Industrial Tribunal, has made it clear to us that the points on which reliance is placed are not the points that appear to be taken in the Notice of Appeal and the two points that have been advanced in argument before us today are as follows:

	The first is that there is an error of law, it is claimed, in the treatment by the Industrial Tribunal of the question whether or not there was consultation with Mr Ross before he was dismissed for redundancy.  It is perfectly clear from the decision that the Industrial Tribunal was satisfied that there was a redundancy situation and they equally found in favour of the company, that the criteria that were used by the company to select Mr Ross as the one of three employees, one of whom had to go, were fair and reasonable.  The whole issue turns on the question of adequacy or existence of consultation and in relation to that, what the Industrial Tribunal said in paragraph 6 and at the beginning of paragraph 7 is as follows:-
"6.  There is no doubt but that there was no consultation whatsoever with the applicant.  He was summoned to a meeting and was told bluntly that he was redundant.  The respondents said that they looked for other employment for him but it is clear that they did not seek to widen the scope of their search geographically as might have been appropriate.

 7.  Save in exceptional circumstances failure to consult will make a dismissal for redundancy unfair.  There are no exceptional circumstances in this case and we are satisfied that the failure to consult makes the dismissal unfair...."

The Industrial Tribunal then went on to consider the chances of Mr Ross retaining employment had there been proper consultation and it is in connection with that that the second point arises to which I will turn in a moment.

	The first point that is raised is that the Industrial Tribunal has stated that there was no consultation whatsoever and it is submitted that that is inconsistent effectively, with the third sentence in paragraph 6 which indicates that the Industrial Tribunal had and appears to have accepted evidence that there was some attempt to find other employment for Mr Ross.  That is part of the process of consultation it is submitted, and therefore the finding that there was no consultation whatsoever is flawed.  We are satisfied that is arguable.  We express no view whether the point is a good one.  It would be quite inappropriate for us to do so.  But we are disposed to give leave (a) to amend the Notice of Appeal to raise this point which we are quite satisfied the Notice of Appeal does not, and secondly for the Appeal to go forward on the Notice of Appeal, if and when thus amended.

	I turn now to the second point that is raised and that is in connection with the 50% reduction that was made by the Industrial Tribunal in its award to reflect what they assessed as being the chance of the Applicant Mr Ross retaining employment with the Respondents or within the Respondent's group.  The company is of course a member of the Racal Group which has various other companies in it and is a large organisation.  Two have been mentioned to us - Vodaphone and Racal Datacom.  

	The Appellants before us, the company, accept that there was a limitation to the Manchester area in the search for employment which they say in fact occurred between the date 31 May 1991 when Mr Ross was told without prior notice that he was selected for redundancy and would have to go, and the 7 June which is the date when his employment terminated.  In those circumstances it was submitted to us that there was in fact no evidence before the Industrial Tribunal about the possibility of there being satisfactory employment to both sides available to Mr Ross otherwise than in the Manchester area and satisfactory also to the prospective employer, and that the assessment at 50% was no more than a guess in the absence of any evidence on the subject whatever.

	The Industrial Tribunal has found that Mr Ross had willingness to move and Mr Wynter very properly accepted that if they accepted that as they apparently did, the onus would be thrown on an employer to show that there had been some investigation of the possibility of suitable alternative employment for him in the group elsewhere than in his existing location which was the Manchester Area.  The issue that is sought to be raised is that it was not right for the Industrial Tribunal to take 50% as a reflection of the total absence of evidence on what would have happened if there had been a consideration of a wider ranging possibility of employment within the company's group.

	We are not satisfied that this is an arguable proposition.  It seems to us that the onus was thrown on the employer.  There was no attempt to obtain an adjournment to cover the question of consultation and availability of other employment and in those circumstances it seems to us that an Industrial Tribunal is placed in a somewhat invidious position of having to decide quantification of the award on the material that the parties have seen fit to put before it and we see no error in law in the Industrial Tribunal's fixing of 50% to reflect what they had to assess, the chance of the further consultation beyond that which was made and which they felt should have been made, producing a suitable employment for Mr Ross.  We do not give leave to raise that point in the amended Notice of Appeal.  

	We should mention that one of the paragraphs in the Notice of Appeal reads as follows:-
"Whether there was any or any sufficient evidence upon which the Tribunal could reasonably conclude that there was a 50% possibility of the Respondent being retained in employment if such "consultation" had taken place."

	That is getting close to the point that was sought to be made, but it is not the point,  because there is not an issue as to whether there was sufficient evidence for that.  If that was the issue then it would be a pure question of fact and not one for which this Tribunal would have any jurisdiction.  What is actually sought to be argued is that there is an error in law in reaching a conclusion in the absence of evidence on the subject and we are unpersuaded that that is an arguable point.  It seems to us desirable to state in terms the difference between the Notice of Appeal as it stands, and the point if we have understood it correctly, that was argued before us.  

	Accordingly we propose to give leave to make the alteration to raise the first issue and leave to proceed to a full hearing on that thus amended Notice of Appeal.