Appeal No. EAT/272/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 February 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MISS J W COLLERSON

	MS S R CORBY

UNIVERSAL TYRE CO LTD	APPELLANTS

P R TEMPLE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R DAVISON
(OF COUNSEL)
Messrs Royds Treadwell
2 Crane Court
Fleet Street
London EC4A 2BL

For the Respondent	IN PERSON

	JUDGE LEVY QC:  This is an appeal from the decision of a London South Industrial Tribunal held on 10 October 1991.  The facts which gave rise to this decision are set out in the Tribunal's Full Reasons which were sent to the parties on 26 February 1992. I turn to paragraph 5 which contains the facts found below:
"Having heard the evidence, we make the following findings of fact:-

(1)The applicant [Mr Temple, the Respondent to the Appeal] commenced his employment as Major Accounts Manager with the respondent [the Appellant here] on 17 October 1988"  - they then refer to the Conditions of Employment.
(2)By January 1991, there was a downturn in the respondent's business.  Their bank had been pressing for economies and there were valid economic and commercial reasons for re-organising the respondents' business on more profitable or economical lines.

(3)There was a management meeting on 23 January 1991."
	We have been taken in the course of this appeal through the agenda for and the minutes of that meeting which are at p.4 of the bundle prepared by the Appellants for this appeal.  Item 4. of the agenda is shown as `P R Temple' and the minute of that item simply reads:
"M E R Wise relayed the developments over P R Temple and his interviews with Central Tyre, and informed the meeting that the necessary action was to be taken."
	After referring to that minute, the paragraph continues: 
"At, or as a result of decisions taken at that meeting, Mr Wise decided to dismiss the applicant allegedly for redundancy."

(4)On a date prior to 23 January 1991, the applicant had been interviewed for a job by a company called Central Tyres Company.  The applicant did not conceal this fact from the respondents.  We accept the applicant's evidence on this matter.  He did not approach Central Tyres for a job;  Central Tyres approached him and he went to that interview out of curiosity and in order to find out what was on offer.  We reject the respondent's contention that he went to the said interview because he was aware that his job with the respondent's was in jeopardy due to the downturn in their business.  His interview with Central Tyres was discussed at the said management meeting ...."
The findings of fact then contain the passage from the minutes which I have read and continue:
"We infer from the above and Mr Wise's evidence to the effect that the decision to terminate the applicant's employment was taken at this meeting or as a result of what was discussed at this meeting, that the applicant's interview with Central Tyres was a significant factor in the decision to dismiss him.  We are confirmed in our view by the wording of the last part of the minute: "necessary action was to be taken".  We find that redundancy was not the reason for the applicant's dismissal because, if that had been the reason, there is nothing in the minutes of 23 January meeting to indicate that, which is particularly surprising in view of Mr Wise's evidence that the decision to dismiss the applicant was taken at or as a result of what was said at this meeting.

(5)It did not automatically follow that because there was general downturn in the respondent's business the applicant had to be made redundant.  The respondents have not satisfied us that the applicant's side of the business had been particularly badly hit or had suffered to such an extent that he had to be made redundant.  The respondents have produced no contemporaneous records to support their case, despite the applicant's requests.  On 14 October 1990, he was told that the figures were not available. ......" 
	- there is then a reference to documents which were later shown to the Appellant.  The Tribunal's findings continue:
".... At the time of his dismissal, he [Mr Temple] was engaged in at least one major negotiation.  The need for the applicant's work had neither ceased not diminished at the date of his dismissal.

(6)On 15 February 1991, Mr Wise and Mr Andrew Wright called on the applicant and simply told him that "due to pressure from the bank he would be made redundant."  No further explanations were given.

(7)There was no consultation with the applicant prior to the decision to terminate his employment for "redundancy" not was there any consultation with him between the date of the decision (23 January) and 15 February.  It came as a complete surprise to the applicant.  Mr Wise said in evidence that at the meeting on 15 February the applicant was understandably shocked and that he said "there could be more to it."  Mr Wright said that the applicant was shocked when he was told that he was being made redundant.  We find that the failure to consult the applicant was a fundamental breach of procedures.  We are unable to say that consultation would not have made any difference, as contended by the respondents.  That may well have been true in the sense that the respondents had made up their minds to dismiss the applicant therefore they would not have been amenable to any attempted persuasion by the applicant to make them change their mind.  On the other hand, if they had acted as reasonable employers, with an open mind, consultation with the applicant may well have persuaded the respondents to rescind the decision to make him redundant or to alternate employment, eg. as a salesman.  We accept the applicant's evidence that he had helped out the salesmen and we reject the respondent's contention that he did not like helping salesmen.  He never stated that it would be below his status to do so.  We also reject Mr Wise's evidence that there were frequent discussions or consultations regarding the applicant's position.  We find that discussions on the depressed state of the market.  We accept the applicant's evidence that he was never told that his area of business was not profitable.  Mr Wise said in evidence that there was no discussion on redundancy until 15 February when he presented the applicant with the decision to dismiss him.

(8)The applicant was never given any written reason for his dismissal."
	From that, there follows this paragraph:
6.In view of our findings in paragraph 5 above we find that the applicant was not dismissed due to redundancy and that his dismissal was unfair having regard to the provision in Section 57(3) of the Employment Protection (Consolidation) Act 1978.  We direct that the case be listed for a hearing on the issue of remedies at the earliest date convenient to the Tribunal and to the parties.
	In a spirited attack on the decision, Mr Davison has first said that it was a duty of the Industrial Tribunal to state what were the reasons for the unfair dismissal and he has referred us in that connection to the judgment of this Appeal Tribunal in A Archer -v- Cheshire & Northwich Building Society [1976] IRLR 424, particularly para.19 on p.425 where the Appeal Tribunal said that they found it impossible in that case to find what were the real reasons for the dismissal.  The Archer case had two possible reasons for dismissal, one was potentially fair and the other was an absolutely unfair reason for dismissal - a Trade Union inadmissible reason for dismissal.

	We have reminded ourselves that section 57 of the 1978 Act says:
"(1)  In determining for the purposes of this Part [Act] whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-

	(a)What was the reason (or, if there was more than one, the principle reason) for the dismissal, and

	(b)that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."
	On the facts of this case, the only reason put forward by the employers for the dismissal of the Respondent was redundancy.  That was a reason which the Tribunal rejected.  In such circumstances, it is not a case such as Archer where there was a valid or invalid reason on which the Tribunal below could have acted.  Here the only matter which was relied on was redundancy: that was rejected and in such circumstances it does not seem to us necessary for the Industrial Tribunal to find what was the reason for the dismissal.  The onus was on the employer to show what the reason was and what he put forward was "dismissed by reason of redundancy".

	There was no potentially fair reason for dismissal, by the Appellants of the Respondent, and in those circumstances we find that the arguments put forward by Mr Davison based on the Archer decision unhelpful to us.

	Mr Davison submitted to us that if the reason of redundancy was overlooked, he asked why should the Industrial Tribunal have gone on to consider Section 57(3) of the Act when giving their reasons.  Section 57(3) begins:
"Where the employer has fulfilled the requirements of subsection (1), ...."
 - i.e. has shown what the reason for dismissal was and that it was a reason falling into subsection (2).  It was therefore suggested that it was unnecessary for the Tribunal to go into Section 57(3) if they had found that there was no valid reason for dismissal.   It may well be that what the Tribunal was doing was putting "belt and braces" on their decision and were saying that if there was a redundancy position, which they found there was not, then nonetheless it was unfair for these reasons and then they spelt out what had to happen.  The fact that they put on "belt and braces" does not seem to be something on which they should be criticised.  

	If he failed on all that, Mr Davison went on to submit that the decision of the Tribunal was perverse: the Tribunal having given no reason for the dismissal and the Tribunal having found as facts that the Company was in difficulties, the dismissal was unjustified.  We have found no misdirection whatever by the Tribunal.  We do not find that there was a misdirection in law or in facts and we do find the decision perverse.

	In all the circumstances, there seems to be only one course open to us and that is to dismiss this appeal.