Appeal No.	 EAT/960/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 March 1999

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MR L D COWAN

MR C DRUMMOND t/a BEAVER GARAGE	APPELLANT

MR N RIAZ	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A G BEAMES
(Representative)
Castle Point Citizens Advice Bureau
Denham Parade
168 Long Road
Canvey Island
Essex  SS87 0JP	
For the Respondent	MR N RIAZ
(in Person)	

	JUDGE PETER CLARK:	This is an appeal by the Respondent, Mr Drummond, against a decision of the Stratford Employment Tribunal sitting on 5 May 1998, upholding the Applicant Mr Riaz’ complaint of unfair dismissal and awarding him compensation of £1,410.40.  The appeal is limited to the assessment of compensation.  That decision, with extended reasons, was promulgated on 8 June 1998.

The Facts

	It is important to note that the Respondent did not attend the Employment Tribunal hearing.  Accordingly, the Tribunal heard only from the Applicant; it also considered the contents of the Respondent’s Notice of Appearance.

	The Applicant was employed in the Respondent’s garage from May or June 1987 until his dismissal on 7 November 1997.  He was the workshop supervisor.

	The garage was an MOT testing station.  It also carried on the business of car sales, petrol sales and car repairs.

	Until December 1995 the Applicant carried out MOT tests on vehicles.  During that month he carried out a particular test without an assistant; that was a breach of the testing regulations.  As a result he was disqualified for a period of two years as an MOT examiner and the business received a warning that a further breach would lead to withdrawal of its licence to conduct MOT tests.

	The Tribunal accepted the Applicant’s evidence that it was not his decision to work without an assistant; that decision lay with the Respondent.  That finding is now challenged by the Respondent.  He says that assistance was always available.  However, he did not attend the Tribunal to give evidence.  We cannot now reopen that factual issue on appeal.  Our jurisdiction is limited to correcting errors of law.

	Thereafter testing was carried out by another employee, Mr Barclay.  The Applicant took on the role of fitter.

	The Respondent’s lease was due to expire on 26 April 1998 and the premises were then to be demolished.  On 6 November 1997, without prior warning, the Applicant was told by the Respondent that he was to be made redundant the next day.  He was not told why he had been selected for redundancy and was told that nothing he could say would make any difference.  He received ten weeks pay in lieu of notice and a statutory redundancy payment based on 10 years service.

	The Tribunal found the dismissal unfair on the basis that there was no prior consultation.  They proceeded to assess compensation.  It was the Respondent’s case, pleaded in his Notice of Appearance and set out in paragraph 2 of the Tribunal’s reasons, that one of the two workshop fitters would have to be made redundant, after he had had a discussion with his accountant.  Since the Applicant had been disqualified from acting as a MOT tester it was inevitable, said the Respondent, that he should be selected for redundancy in order to retain the other fitter, Mr Barclay, who was capable of testing vehicles.

	The Tribunal took a different view.  It found that the Applicant’s suspension from MOT testing was due to no fault of his own and would have expired shortly.  Had consultation taken place he might well have persuaded the Respondent to retain him and dismiss the other fitter who had considerably less service.  Applying the principle in Polkey v A E Dayton Services Ltd [1987] IRLR 503, the Tribunal  found that there was a strong possibility that a fair consultation process would in any event have led to dismissal.  On that basis they discounted the total net loss assessed up to 26 April 1998 by 50%.

The Appeal

	The appeal is based on the proposition that the compensatory award should be limited to the proper period of consultation, at most, two weeks, see Mining Supplies (Longwall) Ltd v Baker [1988] IRLR 417.  However, that argument presupposes that following consultation dismissal would have been inevitable.  That was the Respondent’s pleaded case, rejected by the Employment Tribunal.

	The question for us is whether on the facts as found it was open to the Tribunal to find that there was a 50 per cent chance that following proper consultation the Appellant would have retained his employment until the Respondent’s lease expired on 26 April 1998.  That is in our judgment essentially a question of fact for the Tribunal.  We can only interfere if it can properly be described as a perverse finding in any of the senses set out by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 p.443.  Just as the Tribunal presided over by Kirkwood J in the case of Taylorplan Services Ltd v Schwartzberg EAT 109 495 to which we have been referred by Mr Riaz, found that there was no perversity, so in this case, we find that it is impossible to describe the material finding by the Tribunal as perverse.

	In these circumstances we must dismiss this appeal.