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"Intellectual contortions" did not justify sacking

18 August 2009

A company’s reliance on “intellectual contortions” did not justify the dismissal of a manager, the Court of Appeal has ruled.

Delivering judgment in Strand Transport Services v Whitworth [2009] EWCA Civ 858, Lord Justice Mummery said Garry Whitworth was dismissed as general manager of the firm’s head office in Rochdale in September 2007.

The company, which specialises in the transport of hazardous waste, told him he was being made redundant.

An employment tribunal held that Strand’s redundancy consultation exercise was a “sham”, upheld Whitworth’s claim for unfair dismissal and awarded him £21,200.

The EAT dismissed the company’s appeal at a preliminary hearing.

Mummery LJ said that in pleading redundancy as a reason for the dismissal, the company said it was centralising its functions. During the course of the hearing he said Strand raised for the first time the argument that Whitworth’s responsibilities as general manager had been “swallowed up” by those of the depot managers.

“The ET concluded that Strand failed to make out the case of ‘swallowing up’ or that it had been discussed with Mr Whitworth. The tribunal concluded that redundancy was not established as the ground for Mr Whitworth’s dismissal. No other potentially fair ground of dismissal was advanced. It followed that his dismissal was unfair.”

Lord Justice Mummery said that Strand then invoked the Polkey principle (see Polkey v AE Dayton Services Limited [1988] 1 AC) to argue that he was not entitled to compensation for unfair dismissal because he would have been made redundant anyway.

“The Polkey point was never pleaded or even identified as an issue at the outset,” he said.

“It emerged in the course of the hearing. The context was the ‘swallowing up’ point. The ET’s findings of fact on the late case of ‘swallowing up’ meant that the Polkey argument was swallowed up with it.”

Mummery LJ went on: “Strand’s Polkey contention involved it in intellectual contortions. It was based on a hypothesis, which flatly contradicted its own evidence of what was actually in its mind at the time of discussion and dismissal.”

He concluded that the employment tribunal’s rejection of the Polkey argument was not perverse and did not amount to an error of law.

Lord Justice Mummery dismissed the appeal. Lord Justices Longmore and Lloyd agreed.

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