Appeal No.	 EAT/476/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MRS E HART
PROFESSOR P D WICKENS OBE

MR D E FORD	APPELLANT

AMALGAMATED CONSTRUCTION CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T WITHINGTON
(Representative)
Secretary
N U M
Pontefract Branch
Prince of Wales Colliery
Parkside
Pontefract
W Yorkshire  WF8  4QB	

	JUDGE CLARK:   This is an appeal by Mr Ford, the Applicant, before the Leeds Industrial Tribunal, sitting on 8 January 1998 against that Tribunal’s decision, promulgated with extended reasons on 20 January 1998, dismissing his complaint of unfair dismissal against his former employer, Amalgamated Construction Co Ltd, the Respondent.  By way of a preliminary matter the Respondent has sought a direction that there be an Interlocutory hearing to determine whether the appeal is out of time.  In fact, the Notice of Appeal was received within time on 24 February 1998.

	The Appellant commenced employment with the Respondent on 7 July 1980.  He was, at its termination on 15 August 1997, an underground worker at Prince of Wales Colliery, Parkside, Pontefract.

	The background to his dismissal by reason of redundancy, so the Tribunal found, was as follows.  The Respondent lost its contract with the pit owners, R J Budge, and as a result looked to make those working at the pit, including the Appellant, redundant.  There was an issue between the parties as to whether consultation over the redundancies took place in March 1997.  The Tribunal resolved that dispute in favour of the Respondents, finding that consultation did take place.

	On 8 March 1997 the Appellant received two weeks notice of redundancy.  He complained that he was entitled to a longer notice period.  The Respondent agreed.  Notice was extended to twelve weeks from 30 March to 30 May.  Thereafter his employment was extended on a weekly basis until 15 August 1997, when it came to an end.

	A further issue arose as to selection for redundancy.  The Appellant contended that another man, Mr Phillips, who was recruited during the notice period served by the Appellant, ought to have been made redundant in his place.  However, the Tribunal found that the Respondent did not operate “last in first out” as its criterion for selection, but used factors directed to suitability for the remaining works, namely, capability, qualification and experience.  Applying those criteria, the Tribunal found that the Respondent acted reasonably in retaining Mr Phillips and dismissing the Appellant, since Mr Phillips was thought to be better qualified.  Overall, the Tribunal found that the dismissal was fair.

	In this appeal Mr Withington who appears on behalf of Mr Ford and who represented him below, argues that the Tribunal ought to have found that the selection for redundancy ought not to have included Mr Ford, particularly bearing in mind his long service.  He further submits that work remained available and that the Appellant was qualified to do that work.  He further takes issue with the Tribunal’s finding that the Respondent had lost the contract with the pit owners.  On the contrary, he says that the Respondent is still providing a service at the pit.  He further submits that no disciplinary code in accordance with the ACAS guidance was ever issued to the Appellant during the course of his employment, nor was there any recognised redundancy procedure which employees understood, to apply in the event of redundancies being made.

	We have considered all of these submissions but as we think Mr Withington realistically accepts, the question for us at this stage is whether or not there is an arguable point of law to go forward to a full appeal hearing.  

	Having found that the reason for dismissal was redundancy, the question of the reasonableness of that dismissal lies very much within the province of the Industrial Tribunal.  Having considered the various points made by Mr Withington, we have come to the conclusion that these are essentially matters of fact for the Tribunal to consider at the hearing before it, rather than questions of law for this Appeal Tribunal.  

	In these circumstances, with some regret since Mr Ford had plainly been a highly satisfactory employee for many years, we must dismiss this appeal.