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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mitie Olscot Ltd v. Henderson & Ors [2004] UKEAT 0016_04_2806 (28 June 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0016_04_2806.html Cite as: [2004] UKEAT 0016_04_2806, [2004] UKEAT 16_4_2806

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APPEARANCES

 

 

For the Appellants	Mr M West, Representative Of- Peninsula Business Services Ltd Delphian House Riverside New Bailey Street MANCHESTER M3 5PB
For the Respondents	Mr C Simpson, Solicitor Of- Messrs Somerville & Russell Solicitors 22 Manor Place EDINBURGH EH3 7DS

SUMMARY
UNFAIR DISMISSAL

Unfair dismissal – reason for dismissal – some other substantial reason.


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer against a finding by the Employment Tribunal sitting in Edinburgh that the applicants had been unfairly dismissed. There were other issues raised initially but those were settled, albeit they are reflected in the findings of the Tribunal. This appeal, therefore, is only concerned with the issue of unfair dismissal.
2. The background to the matter was that, on the facts found by the Tribunal, the Edinburgh division of the appellants' business was in economic difficulties. The appellants sought to address this by variation of the employees' work terms and conditions in a consultation process which came to nothing since the employees declined to accept any alternative offer. They were subsequently dismissed.
3. The employers' principal position before the Tribunal was that the dismissal was related to redundancy, although the issue of some other reason was raised initially in the papers, no evidence was led before the Tribunal in that respect.
4. Mr West, appearing for the appellants, referred us to Safeway Stores v Burrell [1997] IRLR 200, Murray v Foyle Meats [1999] IRLR 562, Abernethy v Mott, Hey & Anderson [1974] IRLR 213 and Jones v Burdett Coutts School [1998] IRLR 521.
5. The substance of Mr West's position was that following Safeway the Tribunal, first, should have determined whether there had been a dismissal, secondly, the reason for that dismissal, and, thirdly, the issue of causation as between the dismissal and the so-called reason. He submitted the Tribunal had not followed this course. If, he went on to submit, the employer had mislabelled the reason for dismissal as being redundancy, this Tribunal was entitled to re-label the reason on the facts as being some substantial other reason. In this respect he referred us to Abernethy and Jones supra.
6. Mr Simpson, appearing for the respondents, referred us to the decision of the Tribunal on page 17, the first and second full paragraphs which are in the following terms:-

"While the Tribunal are grateful to Mr Moore for his carefully constructed submission the Tribunal had little hesitation in unanimously preferring the submission of Mr MacFadzean. The applicants' position put briefly was that it was for the respondents to establish the principal reason for dismissal and show that it falls within Section 98(1) and (2) supra. If the respondents rely on only one reason and fail to establish it the dismissals will be unfair even if another reason might successfully have been argued. Stuart Gardyne in his evidence on behalf of the respondents was unambiguous that the reason for dismissal was redundancy. The general thrust of the evidence related to redundancy as did the Form IT3. The respondents' position was that the applicants were not dismissed because they would not accept new terms and conditions but on the contrary because they were redundant. If the respondents failed to establish the redundancy was the principal reason for the dismissal the dismissals are unfair. In establishing the reason for dismissal the burden of proof is on the respondents. It follows therefore that the respondents required to establish that redundancy was in fact the reason relied upon for dismissal and then Maund v Penwith District Council (1984) IRLR 24.

In the unanimous opinion of the Tribunal the respondents have fallen short, on the balance of probabilities, of establishing that the principal reason for the dismissal was redundancy. The Tribunal generally noted that the documentation was contradictory. Unfortunately the respondents' two witnesses Mr Gardyne and Ms Irvine were not familiar with many of the critical documents. It might have been preferable had other witnesses been led instead of (or additional to) the witnesses that did in fact give evidence. Be that as it may the Tribunal can only make a determination from the evidence before it and are of the opinion that the real reason for dismissal was the applicants' stubborn refusal to accept the revised terms and conditions. Instead, they continued to raise their concerns – concerns which the respondents' witnesses conceded were reasonable – with the eventual result that the respondents lost patience with them."

7. Against that background, Mr Simpson submitted that the Tribunal had plainly directed themselves to the correct test and determined that the real reason was not redundancy but "some other reason" and were not prepared to determine the matter on that basis because it had not been properly explored in evidence.
8. We have no hesitation in accepting the position put forward on behalf of the respondents before us.
9. While it may be, that in certain circumstances, re-labelling or a change of reason can be imposed by this Tribunal, it is clear from the case of Burdett that such is only possible where the matter has been properly investigated in evidence and does not require any further evidential considerations at this level. That test is plainly not met in this case since the matter was not investigated in evidence at all. If the reason for dismissal is said to be some substantial other reason, which, in turn, is economic, it must be properly investigated and supported by documentary evidence showing the whole economic state of the company.
10. In any event, it is clear to us that the Tribunal were more than entitled to conclude that the real reason behind the dismissal was economic problems and an attempt to renegotiate contracts, which, if it had been successful, would not have resulted in job losses to any material extent. That does not meet the definition of redundancy since the need for the employer was not lack of work but economic improvement.
11. For these reasons we came to be of the view that the Tribunal came to a conclusion they were entitled to reach and we will not interfere with it. In this respect we emphasise the very limited application available to this Tribunal having regard to the case of Jones.
12. The appeal is dismissed.