Appeal No.	EAT/1329/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 January 2002

Before
MR COMMISSIONER HOWELL QC
MS S R CORBY
MR I EZEKIEL

ROBALLO ENGINEERING CO LTD	APPELLANT

1) MR J T WILSON 2) MR K T ALCOCK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR FALKENSTEIN
(Of Counsel)
Messrs Snowball Worthy Lowe Solicitors
51 St John Street
Sunderland 
SR1 1QN

MR COMMISSIONER HOWELL QC
1.	In this case, a firm known as Roballo Engineering Co Limited seek to have set aside as erroneous in a point of law the decision of the Employment Tribunal sitting at Thornaby in March, June and July 2001 on two claims of unfair dismissal brought against it by two of its former employees, Mr Wilson and Mr Alcock. 

2.	The only aspect of the Tribunal’s decision, set out in Extended Reasons sent to the parties on 26th September 2001 at pages 5-14 of our appeal file, that concerns us on this appeal is the way the Tribunal dealt with the complaint by Mr Wilson that he had been wrongly dismissed on two stated grounds of redundancy. This the employer contended had been the true reason for his dismissal because, as it was put in their response to the Tribunal dated 13th December 2000 at page 18 

“The implementation of a new tooling system created a diminution in the requirement for employees to carry out the kind of work for which the Applicant was employed and in the circumstances it was necessary for the Respondent to implement a redundancy in the area with which the Applicant was concerned known as ‘Tooling’” 

Mr Wilson was employed as a turner, operating a turning machine manually. 

3.	The Tribunal’s decision as regards Mr Wilson was that the Respondent had failed to show that redundancy had in fact been the reason for his dismissal. Consequently, there being no other suggested reason for his dismissal, the Tribunal held that the employer had failed to discharge the burden on it under Section 98(1) of the Employment Rights Act 1996 and accordingly he had been unfairly dismissed. 

4.	That decision is sought to be challenged in this appeal by the employer, on whose behalf Mr Falkenstein has appeared. He has made numerous submissions contending that there are errors of law in the Tribunal’s decision by reference to paragraphs in the Notice of Appeal and a helpful skeleton argument. 

5.	We have concluded that in one major respect it is right for us to direct that this appeal should go forward for a full inter-parties hearing before the Employment Appeal Tribunal. That is the issue dealt with in Ground 1 of the Notice of Appeal and in the corresponding parts of Mr Falkenstein’s submissions, where it is asserted that the Employment Tribunal erred in reaching the conclusion that the employer had failed to satisfy it that a redundancy situation had arisen at the time of dismissal in the case of Mr Wilson, by reference to the particular grounds which the Tribunal referred to as leading them to that conclusion. 

6.	In paragraph 12 of their Extended Reasons, they correctly defined for themselves the question they had to address as 

“The question for the Tribunal is was there a diminution in the need for employees to carry out work of that kind?”.

They then expressed their conclusion, and the reasons for it, in the following passage 

“Subsequent to Mr Wilson’s dismissal, another worker has been transferred into the section and an apprentice has been appointed to a full time position. Accordingly the Respondent did not satisfy the Tribunal that there had been a diminution in the need for employees to carry out work of that kind. In consequence the Tribunal finds that the Respondent has not shown a reason for the dismissal of Mr Wilson” 

7.	The reasons why the conclusions expressed in that paragraph are, in our judgment, arguably open to challenge as a matter of law appear from paragraph 8,9 and 10 of the Notice of Appeal under the heading Ground 1. For present purposes it is sufficient to explain that, as we were told, the transfer of the additional worker to Mr Wilson’s former section had not taken place until three months after Mr Wilson had been dismissed, and was unrelated to the perceived need at that time for redundancies because, as identified in an earlier part of the Tribunal’s decision, paragraph 3(m), there had been an unforeseen upturn in work after Mr Wilson’s redundancy had taken place.

8.	Secondly, the reference to the apprentice. Again, as we were told, that in fact happened only some seven months after the events which needed to be analysed in order to determine whether they constituted a redundancy or not. 

9.	We accordingly will direct a full hearing under ground 1. We are not satisfied that the remaining grounds sought to be argued before us do disclose separately arguable points of law. In particular Mr Falkenstein sought in his argument to establish that the Tribunal had, in some respects, misdirected themselves by attempting to assess for themselves whether Mr Wilson had properly been redundant. 

10.	We have not been satisfied that that was an improper exercise for the Tribunal to undertake. Whether an employee is or is not redundant within the meanings of Section 98(2) and Section 139 of the Employment Rights Act  is, it appears to us, a question of fact for the Tribunal itself to determine. The determination of whether he genuinely is within the proper pool and identified as an employee who genuinely is the subject of redundancy as defined under Section 139, is a matter for the Tribunal itself; not a question analogous to the questions of “bands of reasonableness” in relation to the responses of employers, which arise later under Section 98(4). 

11.	Accordingly we reject the contention that the Tribunal erred by addressing that question and/or by deciding a question not raised expressly by the parties themselves. It appears to us that it is inherent in any redundancy dismissal case where the dismissal is alleged to be unfair that the employer must establish on the balance of probabilities that redundancy was the actual reason for the employee’s dismissal. 

12.	We have already dealt with what we are satisfied is the arguable point in relation to the reasons for the Tribunal’s conclusion under paragraph 12 of their Extended Reasons. That takes us on to Grounds 4,5, and 6 under which it is sought to make criticisms of the Employment Tribunal’s decision and its conclusion expressed in paragraph 13 of its Extended Reasons, that the selection procedure and the way in which it was operated in relation to Mr Wilson and his redundancy was defective and unreasonable.

13.	In our judgment, despite the criticisms sought to be made of it by Mr Falkenstein and in the Notice of Appeal, paragraph 13 of the Tribunal’s Extended Reasons demonstrates that the Tribunal adequately addressed the correct question, which was whether there was a fair and reasonable selection process and process of consultation before the dismissal of Mr Wilson for redundancy, and adequately expresses the Tribunal’s conclusion that the procedure adopted in his case was not reasonable. In our judgment that was a matter for the Tribunal to decide on the facts before it and is not a matter on which there is an arguable ground for this Tribunal to interfere on appeal.

14.	We reach a similar conclusion as regards the contention about the Tribunal remarking on the lack of any express notification of a right of appeal. Again, it appears to us that that was a matter for the Tribunal to determine. We are not satisfied there was any material misdirection in the way that the Tribunal approached it, as part of their determination of whether a fair and reasonable procedure of selection and consultation had been adopted in Mr Wilson’s case. 

15.	Accordingly we now dismiss the appeal as regards all the stated grounds in the Notice of Appeal except Ground 1 and we will hear Mr Falkenstein on whether alterations need to be made to Ground 1 to enable him properly to argue the contentions we have indicated we do think warrant a full hearing of the appeal.

16.	We give leave for the Notice of Appeal to be amended and direct that the amended notice is to be lodged within 14 days of today. The appeal is to be set down for a full hearing on the amended ground 1, listing category C, time estimate 4 hours. We direct that the Chairman is to be asked to produce his notes of evidence, and any comments he wishes to make, limited to the question of whether there was evidence before the Tribunal to support the finding in paragraph 12 of the Extended Reasons about another worker being transferred into Mr Wilson’s former section, and the time at which that happened.