Appeal No.	 EAT/33/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR J D DALY
MR T C THOMAS CBE

MR K BADAMCHI-ZADEH	APPELLANT

SHEPHERD CONSTRUCTION LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF THE 
APPELLANT	

	JUDGE PETER CLARK:     This is an appeal by Mr Badamchi-Zadeh, the Applicant before the Leeds Industrial Tribunal sitting on 19 and 20 September 1996, against that Tribunal’s decision that although he was unfairly dismissed by the Respondent, Shepherd Construction Ltd, he was entitled to no compensation for that unfair dismissal, and against the Tribunal’s refusal to permit him to amend his Originating Application to add a claim of breach of contract.  That Decision with Extended Reasons was promulgated on 14 November 1996.

	The Appellant was employed by the Respondent initially as a Quantity Surveyor and later as a Senior Quantity Surveyor from 1 February 1989 until his dismissal by reason of redundancy on 19 February 1996.  The Industrial Tribunal found that due to a downturn in work the Respondent thought it necessary in the summer of 1995 to reduce the number of Quantity Surveyors, and particularly Senior Quantity Surveyors.

	The Regional Manager, Mr Webber, carried out a redundancy selection assessment using a point-scoring matrix system applied to the relevant pool for selection.  The Appellant came second last with 11 points; the lowest member of the pool, Mr Dunn, scored 9.  Both were identified for potential redundancy, and so informed.  The Appellant complained to Personnel and Mr Foreman, the Chief Personnel Services Manager, replied to him by letter of 13 January 1996, indicating that no final decision had been made and that a period of consultation would continue until 12 February 1996.  He further indicated that an appeal procedure would be followed.  The Appellant did appeal, first to Mr Webber, who increased the Appellant’s assessment in the Tribunal’s Reasons from 11 to 19 points, although the Appellant says in his Notice of Appeal that the initial increase was to 15 points; in any event it was still not sufficient to take him out of the last two places.  Thereafter, the Appellant appealed further to Mr Sellers, a Director.  On that occasion says the Appellant, his score was increased from 15 to 19 points.  That appeal was dismissed.  No alternative employment was found for the Appellant and he was dismissed by the Respondent with the following package; redundancy payment of £1,470, payment in lieu of notice in the sum of £4,570; an ex gratia payment of £190 and £1,080 compensation for loss of his car allowance over the notice period.

	The Industrial Tribunal rejected the Appellant’s contention that there was no true redundancy and found that that was the reason for dismissal.  As to the reasonableness of the dismissal under section 98(4) of the Employment Rights Act 1996 the Tribunal found that no warning of redundancy nor proper consultation had been carried out, and that in these circumstances the dismissal was unfair.  However, they went on to apply the principle laid down by the House of Lords in Polkey v A E Dayton Services Ltd [1987] IRLR 503, and held that had a proper procedure been carried out the Appellant would have been dismissed at the same time anyway and thus he was awarded nil compensation.

	As to the application to amend the Originating Application, presented on 29 March 1996, the Tribunal held that the proposed claim for breach of contract was out of time when the application was made on the first day of hearing; that the claim could have been brought within the ordinary three month time limit, and that the Respondent was prejudiced by the late amendment.  On the other hand the Appellant suffered no prejudice because it was open to him to pursue that claim through the Civil Courts where the time limits are longer.

	This appeal has been listed for an ex parte preliminary hearing today by a Notice which was sent out to the parties on 21 April 1998.  We see that the Respondent’s representatives are in attendance today.  There is no appearance by or on behalf of the Appellant, nor has he given any explanation for his absence.  

	In these circumstances we have proceeded to consider the appeal on the papers.  We have read the Notice of Appeal which is dated 20 December 1996, there having been no Skeleton Arguments submitted by the Appellant.

	The appeal against the refusal to order compensation for unfair dismissal raises a number of points which go to the factual issues which were before the Industrial Tribunal and in our judgment raise no arguable point of law.

	As to the Tribunal’s refusal to allow the amendment to allege a breach of contract claim, it seems to us applying the ordinary principles that it was open to the Tribunal in the exercise of its discretion to take into account the fact that the application would have resulted in a claim out of time being permitted to proceed.  The Tribunal’s finding of prejudice to the Respondent and the lack of prejudice to the Appellant, bearing in mind that it is open to him to pursue a breach of contract claim in the Civil Courts.

	Further, we wonder what the basis of the breach of contract claim could be.  It is clear that he received proper pay in lieu of notice and at present it is difficult to discern what additional sums could be claimed by way of breach of contract.

	In these circumstances we have reached the conclusion that this appeal raises no arguable point of law, no further representations having being made by the Appellant and accordingly we shall dismiss this appeal.