Appeal No. EAT/1371/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR J R RIVERS CBE

MR MAKAN LALL	APPELLANT

A C TRAVEL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR J SHEPPARD
(of Counsel)
Instructed by:
Messrs Irwin Mitchell 
Solicitors
Imperial House
31 Temple Street
Birmingham B2 5DB	

JUDGE J McMULLEN QC

1	This appeal was conducted in accordance with Section 28(3), consent being given by the Applicant to have the case heard by two rather than three members.  

2	This is a case about unfair dismissal in a redundancy context.  It is an appeal by the Applicant against the Decision of an Employment Tribunal sitting at Ashford, Chairman Mr G W Davis on 5 September 2001, promulgated with Extended Reasons at the Applicant’s request on 4 October 2001.  The Applicant was represented at the hearing and the Respondent by its leading light, Mr Stanley Bacon.  

3	The Applicant complained that he was unfairly dismissed following a decision by the Respondent to make him redundant.  The issue before the Tribunal therefore was whether the employer had carried out those steps necessary in a redundancy situation to make the dismissal fair.  The Tribunal decided that the employer had not carried all of those steps, but that the decision was, nevertheless, fair, when it decided to dismiss the Applicant by reason of redundancy.  

4	The Applicant appeals against that finding essentially on two grounds as set out in a Notice of Appeal adumbrated by oral argument supplementing a helpful Skeleton Argument provided by Mr Sheppard to us.  

5	The first issue is founded upon a comment by the Tribunal that the Applicant was inflexible during the life of his employment and that this was wrongly taken into account by the Tribunal in deciding that there was nothing he was willing to do in the light of the new circumstances facing him ie this did not consider the total loss of employment.  
6	Secondly it is contended that the Tribunal failed properly to consider whether there was a possibility of alternative employment for the Applicant in the circumstances facing it.  

7	The Applicant was employed by the Respondent on 4 June 1990 until the date of his dismissal, following the working out of his notice, on 31 December 2000.  The Respondent is a small coach operator in Gravesend.  It was run for a considerable time by Mr Stanley Bacon as the sole proprietor, but who having attained the age, at the Tribunal hearing, of 76, and being in ill health, had handed over the operation of the business to his son. 

8	The Respondent operated fifteen coaches but by the end of 2000, it was operating only five and three minibuses from time to time.  At this stage, it operated with one full time driver and one full time mechanic - the Applicant.  Additionally two part-time drivers were employed and one was self-employed.  The Respondent’s business had been failing for a long time and, on taking proper advice, Mr Bacon decided that he would have to make the mechanic redundant and subcontract the mechanical work.  As it happened, other coach operators used the services of a self-employed mechanic, Mr Haynsford.  That system seemed to work well.  Mr Haynsford was only used on an ‘as and when required’ basis.  The Respondent did not need a full-time or a part-time employed mechanic.  

9	The central decision appears to us to have been made by the Respondent to subcontract its mechanic work.  The Tribunal makes reference to this decision on six occasions in its Extended Reasons.  Given that the Applicant was the only person employed in the mechanic position, the decision to go to subcontracting would mean a redundancy, as defined in section 139 of the Employment Rights Act 1996.  There was a cessation of the needs of the employer for employees to do the work of a mechanic.  The Applicant was not qualified to be a driver so no other work was available to him.  
10	The Tribunal directed itself in accordance with submissions made to it and upon the law setting out the relevant authorities.  See paragraph 27 of its Extended Reasons.  

11	The central criticism made of the Decision is that there was no discussion with the Applicant about alternative employment in the light of the new circumstances facing the business.  The Tribunal had found that the Applicant was inflexible during the life of the employment, since his timekeeping was very bad and he would not disclose his home phone number.  It is submitted that the Tribunal failed to pay attention to the changed circumstances so that the Tribunal gave a secondary reason for its decision that there had been no breach of the requirement to provide alternative employment.  

12	The Applicant was not prepared to work out of normal working hours, or ‘as and when’.  Looking solely at the paragraph in which that judgment appears, there is force in the submission. But since the Tribunal decides elsewhere on numerous occasions that the principal decision made was to subcontract the work, we do not consider that such a secondary issue did arise in this case, so, as Mr Sheppard put it, as to fundamentally taint the Decision as a matter of law.  

13	The Tribunal considered the submissions made on the Applicant’s behalf about the lack of a fair procedure and accepted them; that is it decided that there was no notice of the redundancy; there was no consultation about redundancy; there was no prior warning before the date the Applicant was told; notwithstanding the fact that the Respondent’s operations had been diminishing; there was no discussion with him about alternative employment. 

14	Nevertheless, the Tribunal considered section 98(4) of the Employment Rights Act and decided that in the circumstances, the dismissal was unfair.  It found that such consultation as is enjoined by section 98(4) would have been utterly futile in the particular circumstances of the case, there being only one person, and no other work in this very small business that the Applicant could have been deployed to do.  The Applicant could not have suggested anything which would have affected the Respondent’s decision on subcontracting.  There was no possibility of any alternative employment for the Applicant, the Tribunal found.  In those circumstances, the Tribunal decided that the lack of procedural propriety did not render the dismissal unfair.  

15	As we have explained, we find no error of law in that Decision and the Reasons given for it.  We are grateful to Mr Sheppard for his submissions to us today; the appeal is dismissed.