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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Simms v Liverpool City Council Personnel & Administrative Directorate [2002] UKEAT 1089_02_0212 (2 December 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1089_02_0212.html Cite as: [2002] UKEAT 1089_02_0212, [2002] UKEAT 1089_2_212

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APPEARANCES

 

For the Appellant	MR N GINNIFF (of Counsel) Instructed by: Messrs Lee Rigby Partnership Solicitors 25 Hough Lane Leyland Lancashire PR25 2SB


 


HIS HONOUR JUDGE J ALTMAN

1. This is an appeal from a Decision of the Employment Tribunal held at Liverpool on 21 November 2001, 11 and 12 April 2002 and 24 April 2002 which comes before us by way of a preliminary hearing to determine if there are points of law properly arguable in full before the Employment Appeal Tribunal.
2. As a result of invitations from us for the Notice of Appeal to be reconsidered, Mr Ginniff, on behalf of the Appellant sought leave to amend the grounds of appeal, in accordance with new grounds 6.1.a, 6.1.b and 6.1.c and substitution for the existing ground 6.1. It relates to the question as to whether there was a dismissal of the Appellant, or possibly whether the Tribunal directed its mind to that question. The amended grounds currently contend that that was their finding.
3. We propose to permit the appeal to go forward on those grounds, but our attention has also been directed to the remaining grounds of appeal. Ground 6.2 and 6.3 specifically complain of findings made by the majority of the Tribunal which is said to be in the face of evidence to the contrary. Of course, every case that comes before the Courts or Tribunals where there is a contest, results in findings in the face of evidence to the contrary, because that is the nature of Tribunal appearances. On the face of it, therefore, we can discern no point of law taken on those grounds of appeal.
4. This has been drawn to the attention of Mr Ginniff, and he was effectively invited to reconsider the formulation of those grounds of appeal, but he stuck by them. He suggested that the general statement at the outset of ground c, that the appeal was brought on the ground that the majority erred in law, in basing their decision on matters that were not supported by the evidence, or failed to take into account evidence that was relevant, or arrived at a decision no reasonable tribunal could have reached, covers the matters set out in grounds 6.2 and 6.3. However, it is quite clear that exactly to the contrary is the case on the face of the Notice of Appeal. Ground 6.2 and 6.3, in their own terms, refer to only part of the general grounds of appeal. They refer to the complaint that there was evidence to the contrary, which is not actually reflected at all in the general ground set out in the beginning at paragraph 6. Accordingly, those two grounds fall to be dismissed at this stage, as failing, on the face of it, to disclose an arguable point of law.
5. As to ground 6.4, the point is made that, on the face of it, there was a contradiction in the findings of the Tribunal. We have had the advantage of seeing the response of the Respondents to the Notice of Appeal, by way of written representations of 24 October. The point is that having found that no specific posts were offered, the Tribunal then inferred, on the face of it, that because the Appellant had various choices open to him, there was still the choice open to him of continued employment with redeployment. Again, whilst it may be that other points of law could have been argued, arising from that issue, as it appears on the face of it those two statements are not necessarily inconsistent, and relate to the facts and interpretation of facts. In those circumstances, it seems to us that does not disclose an arguable point of law and is also dismissed.
6. Finally, it is said that the majority found that the Applicant did not ask about alternative employment, in the light of evidence to the contrary, and found that he could not endure what would be seen as demotion, in the absence of any evidence in support of this.

That, on the face of it, does not refer back to any of the findings of fact contained in the Decision itself, and subject to the need to consider what evidence was given, we have been told by Mr Ginniff, who appeared, that there was no evidence about alternative employment, and the question of his talking about demotion, and in those circumstances, it seems to us that ground should go forward to appeal.

7. Accordingly, this matter will go forward to appeal on ground 6.1, a, b, and c, and ground 6.5. The Chairman will be asked to supply his notes of the oral evidence of those witnesses who spoke about the desire or intention to retain the Applicant in employment, that they would have found another job for him, that he was being offered continuing employment,

that there was consideration of redeployment and any alternative employment and about the Applicant's not being able to endure what would be seen as demotion. Half a day, Category C, automatic directions.