Learnihan v TDK UK Ltd

The Court of Appeal considered an application for permission to appeal from an Employment Appeal Tribunal decision which had dismissed an appeal from an Employment Tribunal finding that the claimant was not unfairly dismissed for redundancy. The appellant relied on three legal complaints: lack of consultation, subjective selection criteria and failure to consider alternative employment. The court reiterated the requirement that an appeal from an Employment Tribunal to this court must identify an error of law and show a real prospect of succeeding on that point.

The Employment Tribunal had found the reason for dismissal to be redundancy and, applying section 98(2) and section 98(4) of the Employment Rights Act 1996, concluded the selection criterion was fair and that the absence of consultation did not render the dismissal unfair because consultation would have been pointless. The Employment Appeal Tribunal (Burton J) found no error of law. The Court of Appeal concluded there was no real prospect of success on appeal, declined to permit the appeal and refused the application, noting the risk of adverse costs consequences.

Background and nature of the application:

• The appellant, Mr Learnihan, brought an unfair dismissal claim arising from redundancy and lost at the Employment Tribunal (hearing on 10 March 2003; reasons sent 25 March 2003).
• He appealed to the Employment Appeal Tribunal; a Rule 3.10 application was dismissed by Burton J on 3 November 2003 (the EAT decision and related procedural correspondence are described in the judgment).
• Mr Learnihan applied to the Court of Appeal for permission to appeal and an extension of time for lodging the appeal.

Issues framed by the court:

• Whether an extension of time should be granted to permit an appeal.
• Whether the appellant identified a point of law of sufficient merit to give rise to a real prospect of success on appeal.
• Substantive complaints raised by the appellant: (i) lack of consultation before redundancy, (ii) subjectivity of the selection criteria, and (iii) failure to consider alternative employment within the employer's organisation.

Relevant facts:

• The claimant was a senior analyst/programmer whose role had reduced; he was dismissed for redundancy with effect from 9 August 2002. Evidence was given by the employer's witnesses (chairman and IT manager); the claimant gave evidence but called no witnesses.

Court's reasoning and decision:

• Procedural: The court explained that appeals from Employment Tribunals must identify an error of law and that findings of fact are not for this court to re‑try. The appellant had engaged in correspondence about transcripts and lodged material out of time; the Civil Appeals Office treated his notice as filed late and he sought an extension of time.
• Merits: The Employment Tribunal had held the dismissal was for redundancy (a potentially fair reason under section 98(2) ERA 1996) and, applying section 98(4), accepted that the selection criteria were a fair documentary reflection of duties and that consultation would have been pointless in the circumstances. The EAT (Burton J) found no error of law. The court applied the principle from Polkey that failure to consult can render a dismissal unfair but recognised the established legal exception where consultation would not have made any difference.
• Outcome on extension and permission: The judge indicated he would consider an extension if there was a real prospect of success, but concluded there was no arguable point of law and no realistic prospect of success on appeal. Accordingly permission to appeal was refused and the application dismissed; the court also noted the possible adverse costs consequences of an unsuccessful appeal.

Permission to appeal was refused (application dismissed). The court concluded that the Employment Tribunal had applied the correct legal tests under section 98(2) and section 98(4) of the Employment Rights Act 1996 and, given the factual finding that consultation would have been pointless, there was no arguable error of law and no real prospect of success on appeal. The judge therefore declined to permit the appeal and refused the extension of time effectively, noting the risk of costs if an unmeritorious appeal were pursued.

Appeal to the Court of Appeal from a decision of the Employment Appeal Tribunal (Burton J sitting alone on a Rule 3.10 application) dated 3 November 2003, which had upheld the Employment Tribunal's finding (Employment Tribunal hearing 10 March 2003; reasons sent 25 March 2003) that the claimant was not unfairly dismissed. No prior neutral citations for the EAT or ET decisions are given in the judgment.