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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cook v. South Thames (Wholesale) [2005] UKEAT 0349_05_2510 (25 October 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0349_05_2510.html Cite as: [2005] UKEAT 349_5_2510, [2005] UKEAT 0349_05_2510 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE RICHARDSON
MR M CLANCY
MR J C SHRIGLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR J P COOK (The Appellant in Person) |
For the Respondent | MR WHEEL (Partner) |
SUMMARY
Unfair Dismissal and Race Discrimination
When considering on a claim for unfair dismissal by reason of redundancy, the Tribunal gave no reasons relating to section 98(4) except on the Polkey issue.
The Tribunal did not err in law in rejecting a claim of race discrimination.
HIS HONOUR JUDGE RICHARDSON
"REASONS FOR THE TRIBUNAL'S JUDGMENT
1. In this case we heard the evidence of the Claimant in support of his various claims. From the Respondent we heard the evidence of one of the four directors of this small family wholesale confectionary drinks company.
2. We accepted in general terms the evidence of Mr Wheel the partner/director who described how the business was going through a very difficult cash flow crisis during the New Year spring period of 2004. The business had spent a substantial sum of money in getting printed and distributed an expensive new catalogue for all the main customers in the hope of bringing in new business. Although some new business was generated there was still a significant need we find and accept for the company to cut costs on the only obvious area for cost saving namely the staffing costs.
3. As at June 2004 the staff complement consisted of Mr Wheel himself, a young member of the family Jason Butchart (who was living with Mr Wheel at his home) a sales clerk of Indian origin, a van boy/delivery assistant of Sri. Lankan origin; and a Pakistani warehouse manager. The warehouse manager Richard (white British), another white British member of staff described as a van assistant and another Sri Lankan member of staff employed in the warehouse and on forklift duties together with the Claimant Mr Cook made up the workforce.
4. We find that with this small complement of staff Mr Wheel carried out an assessment of the main required job duties and where savings could be made came to the conclusion that he himself would take over more driving duties and that he would arrange for his nephew Jason also to qualify as an HGV driver. Mr Wheel came to the conclusion that .the best overall resolution to achieve a reduction of staff would be to remove the Claimant from driving duties and consider placing him onto warehouse duties at a lower rate of pay. The other member of staff, Richard left because of problems of selling his house and moving off to Spain and that had not in fact been completed by the time of the Claimant's termination of employment.
5. We accepted that there was a "redundancy situation" i.e. a need to reduce the total of staff overall and to reduce in particular the requirement for drivers out of this very small number of staff. In the result therefore a major element of the Claimant's job function was removed.
6. There was we find nothing really to consult the Claimant about other than whether he was prepared to take a noticeable reduction in wages and move into warehouse duties as was clearly offered to him by the correspondence within the bundle.
7. Perfectly understandably the Claimant decided that the reduction in wages and alternative duties was not acceptable and he left; He was we find formally dismissed by reason of redundancy.
8. The Claimant's case was really put on two levels. First of all there was a challenge as to whether there was a redundancy situation at all and in effect an allegation that he as a reasonably paid worker was being replaced by two "cut-price" immigrant workers.
9. We do not accept that this was anything other than a genuine redundancy situation. It is indeed correct that for a period of some weeks two East European employees were taken on but they were taken on at short notice and left we find not long after the Claimant himself.
10. There was also a more wide ranging case that the Claimant was being racially discriminated against as a native born and brought up employee who as it were was familiar with his rights and could not be taken advantage of. We found that this was an inherently difficult argument in any event but it was not necessary for us to decide this interesting question of principle. We find that from time to time on a seasonal basis casual staff had been taken on and that by the nature of the market those casual staff may well have mainly been from Eastern Europe/the immigrant community. This was not however we find any conscience policy but a symptom of the employment of casual staff. We found therefore that there was nothing in the race discrimination complaint.
Unfair dismissal
12. We had regard to the classic principles in the decision of Po/key v Dayton Services [1988] ICR 142 and many subsequent authorities. We find that there was a moderate breach of procedure in lack of consultation in this case. We find however that this was a very small company and consultation would have reasonably been completed within the space of one week. The Claimant had received his redundancy pay (i.e. the equivalent of his basic award). We found therefore that he was entitled to be compensated for one week's further pay to cover the notional period of consultation together with £1 00 for loss of statutory rights making an overall total of £365.
13. The Claimant commenced his evidence at 1 0.25am.. Mr Wheel's evidence was concluded at approximately 12.30am."
"98 General
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it-
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
"1 Racial Discrimination
(1) A person discriminates against another in any circumstances relevant for the purpose of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons if; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied;
and
(iii) which is to the detriment of that other because he cannot comply with it.
4 …Applicants and employees
(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-
(a) in the terms of employment which he affords him; or
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment."