Appeal No.	 EAT/1243/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 March 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MRS J M MATTHIAS
MS B SWITZER

MR H ORITSEJARO	APPELLANT

VIRGIN TRAINS LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR H ORITSEJARO
the Appellant in person

	MR JUSTICE HOLLAND QC	The history of this matter in brief is as follows. From 5 July 1993 to 4  April 1998 Mr Oritsejaro was employed by Virgin Trains as a Revenue Protection Assistant.  He was one of 18 persons who were employed in that capacity.  In early 1998 Virgin Trains decided that they would withdraw that Class of employee altogether.  The reasons they proffered for this decision were cost saving and changing the emphasis of the role of untrained staff from a policing type role to one of customer care.  We shall return to those reasons shortly.  

	Inevitably there followed discussion and correspondence directed as to the future of those 18 persons and we have had put before us the correspondence that refers to Mr Oritsejaro.  It is plain from that there was some suggestion that he might divert to employment within the Virgin Trains organisation on the catering side.  For reasons that were no doubt good, he decided that he did not want to become involved in this and thus it was that inevitably discussions came to centre upon the terms and circumstances in which he would leave the employment.

	Crucial was a letter that he wrote on 26 March 1998 in which among other things, he plainly requested that he be made specifically redundant and that indeed a letter should be provided indicating that such was the case.  It may well be that he had in mind, having some material to show to others, for example the Building Society, demonstrating the circumstances in which he had left this employment.  The end result was a letter of 31 March confirming that he was redundant and specifying the terms; there was then some other subsequent correspondence dealing with those terms.  

	All that then leads on to these proceedings which were initiated by a complaint by an IT1 of 2 April 1998, the essential complaint being “I was made redundant but unfairly dismissed”.  The grounds initially covered two pages.  They were subsequently supplemented with other material.  It is an immediate comment that has to be made that Mr Oritsejaro, bearing in mind that he is as a litigant in person, rather tends to approach matters as it were with a ‘scatter shot’ technique, that is he seeks, perhaps understandably, to attack every single aspect of the matter.  As to this, he is perfectly entitled to take that course but it inevitably makes it very difficult for a Tribunal to focus upon the precise issues that lie within its jurisdiction.  

	The matter eventually came before an Employment Tribunal held at London (North) on 29 June 1998 and 14 September 1998.  On dealing with their understanding of the issues as they then were, they record that he complained of  being unfairly dismissed by reason of redundancy and in paragraph 4 they note:

“The issue for the Tribunal is to determine whether the applicant was unfairly dismissed by reason of the Respondent’s failure to give a reason or reasons for its decision to make him redundant, a failure to follow procedures.”

	Turning then to the balance of the extended reasons, the immediate comment is as to their clarity and as to the very careful way in which they seek to deploy the facts as found by them and the submissions as understood by them. That then leads on to the conclusion.  We cite enough of it to make our stance clear.

Paragraph 11

“The unanimous decision of the Tribunal is that the reason for the applicant’s dismissal was that of ‘redundancy’, and thereby a fair reason for dismissal within section 98(2) of the Employment Rights Act 1996.  The Respondents decided to remove that tier of employee categorised as ‘Revenue Protection Assistant’ and the Tribunal is not concerned with the economic or commercial reason for that decision.  James W Cooke v Tipper and Others 1990 ICR 716.  Further the Tribunal accepts Mr. Neeman’s submission that in the light of the EAT decision in Moon and Others v Homeworthy Furniture (Northern) 1997 ICR 117, the Tribunal has no jurisdiction to consider the reasonableness of the decision to create a redundancy situation.  Accordingly the Tribunal is satisfied that a redundancy situation existed within the statutory definition of redundancy as set out in Section 139 of the Employment Rights Act 1996. 

	In this case, the question of selection for redundancy did not arise because it was the Respondent’s decision that all employees, (18), categorised as Revenue Protection Assistants, should be dismissed by reason of redundancy.  The Respondents consulted with the Trade Union on 3 March 1998 and thereafter with the Applicant on 10 March 1998.  The situation was explained to the Applicant, and the Tribunal has concluded that he can have been in no doubt as the Respondent’s intentions, both with regard to his own position and the position of Revenue Protection Assistants generally. The possibility of alternative employment was raised with the Applicant but he was not interested in the opportunities that were available in March 1998.  At that time the Respondent had vacancies for untrained Catering Assistants.  By his letter of 26 March 1998, the Applicant clearly informed the Respondent what he wanted them to do.  They complied with his request with the only variation being that reference was made correctly to the Employment Rights Act  Section 139 as opposed to the Redundancy Act.

	Therefore having regard to the criteria in Section 98(4) of the Employment Rights Act 1996, the Tribunal is satisfied that the Applicant’s dismissal by reason of redundancy was fair because the Respondents consulted with the Applicant about its decision, considered with him the possibility of alternative employment and in the event, responded positively to the Applicant’s request to be made compulsorily redundant.  The Respondents have not sought to avoid liability for redundancy payment by contending that suitable alternative employment was available for the Respondent which he unreasonably refused.  In the circumstances, dismissal was within the range of reasonable responses of a reasonable employer.  Accordingly, the unanimous decision of the Tribunal is that the Applicant was fairly dismissed, a consequence of which his application fails and is dismissed.”

	Mr Oritsejaro was dissatisfied with that decision and has brought an appeal to this Tribunal.  Once again, his approach has been to seek to attack every aspect, in particular the Notice of Appeal focuses on the conduct of the hearing before the Employment Tribunal as well as raising other matters.  It has been listed before us today for this Tribunal to consider whether Mr Oritsejaro raises an arguable point of law that would underpin his appeal.  We have explained to him that this Tribunal has only jurisdiction to consider points of law, it has no jurisdiction to consider points of fact.  Points of fact are for the Employment Tribunal, they are not for this Tribunal.  We have also made it clear to him that our concern this morning is simply to identify whether any arguable point of law can be discerned.  If it can be discerned, we should then order that the matter be re-listed for a hearing, at which Virgin Trains would be represented so that the matter can be gone into with the benefit of arguments on both sides.  If on the other hand, we cannot identify any such point of law, then it is our task to say so and the inevitable result of that is that we shall dismiss this appeal without calling upon Virgin Trains at all.  

	Having thus made clear our position, we have sought help from Mr Oritsejaro as to the points of law that he says arise.  We have of course borne in mind that he is not legally trained, that he is a litigant in person and therefore it is important for us to give every possible consideration to this matter to ensure that there is no feature that he could properly raise of which he has overlooked.

	In the result, we have to say that we are quite unable to discern any point of law at all.  It would be surprising that there was such given the quality of the extended reasons from which we have so far cited extensively.  Turning to the points made by Mr Oritsejaro, they really seem to amount in essence to two. His first concern, looking at the matter by way of chronology, is with the circumstances which led to Virgin Trains deciding to make him and his fellow Revenue Protection Assistants redundant, and he wishes to advance before us arguments based on the documents to show that in truth there would have been no cost saving.  He wishes further to argue about the suggested change of emphasis from a policing type role to one of customer care.

	There are two problems confronting Mr Oritsejaro with this part of his submission.  The first is that the authorities that were cited by the Industrial Tribunal do make it quite clear that it is not open to an Employment Tribunal to look into the reasoning which leads to a decision to make an employee redundant.  It concerned with whether that is a genuine decision, but whether or not it was reached on good grounds is not a matter for the Employment Tribunal.  

	A further problem that he confronts is that  by raising this he is in effect raising for our consideration points of fact and that as we have indicated firmly is not something that we can look into.  Turning to what we understand to be the second leg of his concern, it is as to whether in the event he was properly dealt with, having regard to the decision to dispense with his services.  We have done our best to follow his arguments in this regard.  We have to say at the end of  it, we cannot see any good argument that would occupy this Tribunal, no more than there is any such that should have occupied the Tribunal below.  

	We have done our best to give as careful a consideration to this matter.  We have taken the trouble to look at the cases that were cited by the Employment Tribunal as underpinning their decision, and we have had the opportunity of glancing at manuscript submissions extending to some 15 pages which have been prepared by Mr Oritsejaro for this hearing.  At the end of it, there is no point of law in this.  Given that there is no point in law, we have no option but to dismiss this appeal, and this we now do.