INTERNAL

		Appeal No. EAT/11/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6 September 1994

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR J A SCOULLER

	MR S M SPRINGER MBE

MR J THOMAS	APPELLANT

(1) LEE & TURNER LTD
(2) LEE & TURNER (BRIDGEND) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

	MR JUSTICE TUCKER:  This is a Preliminary Hearing Ex-Parte of the Appeal by Mr John Thomas against a decision of the Industrial Tribunal held at Cardiff on 4 and 5 November last year.  The matter has been before an Industrial Tribunal on more than one occasion.  There was a hearing, also at Cardiff, on 27 May 1993.  On that occasion the decision unanimously reached by the Tribunal was that, at the time of his dismissal the Appellant, Mr Thomas, was employed jointly by two employers, those being Lee & Turner Ltd and Lee & Turner (Bridgend) Ltd., with continuity of employment, as from 14 March 1987.  That was decided as a preliminary question, the question for the Tribunal being, "Who were his true employers"?  

	It was against that background that his substantive complaint was heard on 4 and 5 November by a differently constituted Tribunal.  They record that Mr Thomas, as the first Tribunal found, was employed by both Respondents.  His title with them was Service Manager, a position which he had occupied with Lee & Turner (Bridgend) Ltd since 14 March 1987.  Let it be said at once, as the Tribunal found, he was a most competent worker and no one had ever complained about the quality of the Appellant's work, though there were other respects in which some criticism was mounted.

	The Appellant came to be dismissed on the grounds of redundancy on 19 January 1993.  He had, in November 1992, been offered the position of Supervisor.  He refused to take up that position.  He was then offered another position, that of Service Engineer.  Mr Thomas was unwilling to accept that post.  The reason for it was his belief that his employment, or his new employment was to commence with effect from 1 January 1993, which would mean that he was losing five years' continuous employment.  

	The Tribunal found that neither party to the proceedings, that is to say Mr Thomas on the one hand, and Mr Lee, the Director of the Company on the other, was aware of the legal provisions.  Those are contained in Section 140 of the Employment Protection (Consolidation) Act 1978, and those provisions prevent any rights of continuity, amongst other rights, being eliminated by any agreement.  It may be that the Appellant, who consulted ACAS was given advice which was not correct advice.  Be that as it may, as has been indicated, he thought he could not accept the new position which had been offered to him for reasons which have been explained.  

	What the Tribunal found was that unfortunately, by this time, Mr Thomas had become disturbed at what he saw as a machiavellian plot to oust him from the Company.  I am simply recording what the Tribunal found.  It is not for us to assess whether that is accurate or not.  They set out their reasons for that finding and then they said this:

		"Mr Thomas had become entrenched in his position and would only accept a position and would only accept a position in Nissan G.B. if it was on precisely the same terms and conditions as he had enjoyed with Nissan U.K".

	They then say this:

		"Time was pressing.  Lee & Turner (Bridgend) Ltd was due to cease trading on 31 December 1992".

	Pausing there, the Appellant has put before us documents which he submits suggest that that Company is still trading, or was certainly trading after that date.  The Tribunal continue:

		"Mr Lee was anxious to have some agreement with Mr Thomas which would keep him with the Company and productively engaged pending obtaining the Fiat Franchise which was becoming more and more a certainty.  Mr Thomas was intransigent".

	That is what the Tribunal in fact found.  They say he would not move from the position he had adopted.  Mr Lee could not.  He had made offers which had been rejected.  There was nothing more that he could do.  On 19 January 1993, Mr Thomas was dismissed by reason of redundancy, and the Tribunal found on the evidence presented to them that the dismissal was not unfair.

	That was not quite the end of the matter so far as the Tribunal was concerned because the Appellant applied for a review of their decision.  On 2 December 1993 the Chairman refused that application.  He found that the letters and points made by Mr Thomas contained no new evidence.  He found that all the points raised were canvassed at the hearing of the complaint of unfair dismissal and considered, and taken into account by the Tribunal, in arriving at their decision.  So there was no review and as we have said, the matter now comes before us by way of appeal.

	It is not always fully appreciated what the function of the Employment Appeal Tribunal is.  It is not to conduct a re-hearing.  It is not to allow arguments which had been presented before the Industrial Tribunal to be re-ventilated.  It is not to make its own evaluation of the facts or appraisal of the evidence.  The function of this Tribunal is to review the law.  It can entertain and will look closely at any decision on the law and if this Tribunal is persuaded that the Industrial Tribunal has been wrong, in law, then this Tribunal will correct the error.  But so far as questions of fact are concerned, those are matters for the Industrial Tribunal who have been described as the Industrial Jury.  They are not for this Tribunal and this Tribunal will only interfere with findings of fact made by Industrial Tribunals if it can be said that those findings are perverse, in other words, they are so perverse that no reasonable Tribunal, reasonably directing itself could arrive at.  That could not be said, in our view, of the findings of the Tribunal in this case.  They considered the matter carefully and they set out their reasons fully.

	Is there any error of law to which the Appellant can point?  We have listened patiently to him and we have allowed his wife also to address us and both of them have been very helpful.  We feel sympathy with Mr Thomas because it may be that he has received advice, at some stage, which was not the most appropriate advice.  But let us look at the situation in this case.  

	There is no doubt in our view that his old job had disappeared or was about to disappear.  There can be no doubt that a redundancy situation had arisen.  So unless he accepted the new job or jobs which were offered to him, Mr Thomas was bound to be dismissed and he was bound to be dismissed on grounds of redundancy.

	The only question, and it is an important question, for the Tribunal was, to consider whether that dismissal was unfair.  In particular, whether it was unfair in the light of the offers, not one but two, which had been made to him and both of which he had refused.

	The Tribunal in our opinion considered all those relevant issues and they concluded, as the Industrial Jury, that the circumstances of the dismissal were not unfair.  As we have said, it may be that Mr Thomas had received wrong advice.  That does not render the decision to dismiss him unfair.  Mr Lee cannot be criticised for that and sympathetic though we are, as we have indicated to Mr Thomas, we are quite unable to say that the Tribunal erred in law.  We feel that we have given Mr and Mrs Thomas as full a hearing and allowed them to say anything they wished and present any documents before us as if they had had a full hearing on appeal.  That is, without of course hearing any contrary argument that might have been addressed to us on behalf of the Respondents, but we regret that we are quite unable to say that there is any error here that we can redress, and accordingly this appeal must be dismissed.