Learnihan v TDK UK Ltd

In a redundancy dismissal, consultation is generally required as part of a fair procedure. However, a dismissal may remain fair where the tribunal finds that consultation could not have affected the selection decision and would have been pointless. That conclusion is ordinarily factual. An appeal court cannot re-try the evidence or interfere with factual findings merely because the employee disputes them. Permission to appeal requires an identifiable error of law and a real prospect of success.

Mr Learnihan appealed in person from the Employment Appeal Tribunal’s order of 3 November 2003, which dismissed his Rule 3(10) application and his appeal from the Employment Tribunal. The Employment Tribunal had decided that his redundancy dismissal by TDK UK Ltd was not unfair. It found that the selection criterion was fair and that, although there had been no consultation, consultation would have served no practical purpose.

Before the Court of Appeal, Mr Learnihan sought permission to appeal, an extension of time, and witness statements from current employees of TDK. The central issue was whether the proposed appeal disclosed an error of law rather than disagreement with factual findings concerning consultation, selection criteria and alternative employment.

1. Extension of time and permission. The court would extend time if the proposed appeal had a real prospect of success. Permission required an identifiable error of law. The court could not re-try the case, review findings of fact, or receive additional evidence in the form of witness statements.
2. Consultation. The general rule is that fair redundancy selection should ordinarily be preceded by proper consultation. Applying the principle explained in Polkey v A E Dayton Services Ltd, failure to consult can render a dismissal unfair and generally will do so. It may nevertheless be fair where the tribunal is satisfied that the employer could reasonably have concluded that consultation would not have affected whom to select and would therefore have been pointless.
3. The Employment Tribunal had found, on evidence it accepted, that consultation would have served no practical purpose because the applicant’s role had reduced and another employee could undertake his duties. That was a finding of fact. The Tribunal had correctly directed itself in law, and there was no arguable error of law.
4. The complaints about the subjectivity of the selection criteria and the absence of consideration for alternative employment were factual criticisms of the evidence and findings. They disclosed no error in the application of the Employment Rights Act 1996.
5. The application for permission to appeal was refused. The application was dismissed, with no order for costs.

• Court of Appeal (Civil Division): permission to appeal was refused and the application was dismissed.
• Employment Appeal Tribunal: on 3 November 2003, Burton J dismissed the Rule 3(10) application and the appeal from the Employment Tribunal.
• Employment Tribunal: following a hearing on 10 March 2003, with reasons sent on 25 March 2003, the Tribunal unanimously held that the redundancy dismissal was not unfair.