United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 628_93_3011

Appeal No. EAT/628/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30th November 1993

Before

HIS HONOUR JUDGE B HARGROVE OBE QC

MISS A MADDOCKS OBE

MR A D SCOTT

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S C A PACKAGING LIMITED          APPELLANTS

MR P W DURRANT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR B TAYLOR

Independent Personnel Officer

A W Personnel & Training Unit 12

Brunel Centre

Newton Road

Manor Royal

Crawley

West Sussex

RH10 2TU

For the Respondent MR P W DURRANT

(In Person)


 


MR JUSTICE HARGROVE OBE, QC: After a two day hearing the Industrial Tribunal held on the 29th June 1993 that the Respondent was unfairly dismissed. The circumstances were that the Appellants employed the Respondent as a stock controller in the Reel Stock Department. The business of the employers was in relation to board manufacture and we assume that those are for the purposes of packaging. That was not the Respondent's only job. He did that job from 7 o'clock in the morning until 3 o'clock in the afternoon but from 3 o'clock until 7 o'clock in the evening on Mondays to Thursdays he worked in the Design Department. He therefore had experience first of all in relation to office work and he also had some experience in work which, if I may used the hackneyed expression, of a "blue collar" more than a "white collar" nature.

The Reel Stock Department was computerised and as a result Mr Durrant found that his duties took longer, he therefore told his immediate superior that he not be able to carry out both jobs and would have to concentrate solely on the Stock Control position. The Appellant Company, which was originally in the hands of Reed the well known paper manufacturers came into the hands of this Company, which is Swedish, and it was decided that because of foreign competition that there had to be a reduction in overheads and in June and July the process of considering economies took place and Mr Bailey seems to have told his superior, Mr Adams that he could manage with one less employee in the Reel Stock Department.

Mr Durrant, in early July, approached his superior and he asked for re-grading because the computerisation had not resulted, as one might have hoped, in economy of labour but in fact was now taking longer. He was then told by his superior of the possibility of redundancy in the Reel Stock Department. We have talked of "the Department" but at Mr Durrant's level there were only two people, Mr Durrant and Mr Smith. Mr Smith was asked whether he would like to volunteer for redundancy but he refused and Mr Bailey decided that because of Mr Smith's perceived man management skills Mr Durrant was to be selected. It is right to say that the Industrial Tribunal held that that was a fair decision. That decision seems to have been made at about the 21st July. Mr Durrant at about that time was handed a slip of paper upon which it appears to have been written the terms, in the sense of the financial terms, which would result from redundancy. He attended a meeting on the 28th July and at that meeting he was handed, at the start of the meeting, a letter which had already been typed, and then announced that he was to be made redundant from the 30th September. The only discussion at that meeting seems to have been concerning the termination date, indeed, bearing in mind that he was handed the letter of redundancy as he came into the meeting, it is difficult to see what else there could have been to discuss.

Mr Durrant was not a member of the union but he approached a Mr Hope, who was the Father of the Chapel. Mr Hope agreed to help and he made enquiries and he found three volunteers for redundancy. He ascertained that there would be a job for Mr Durrant on the factory floor. Mr Bailey was contacted and he indicated that it would be possible to find alternative employment for Mr Durrant. However, he then changed his mind. The Appellants say that they were concerned about re-employing the Respondent because he had not any experience on the factory floor and secondly because of the state of his health. We pause there for a moment, because it was put before us this morning that the state of his health was that he had one bout of pneumonia that had taken him some 10 weeks to get over and that he was 54 years of age. There is no finding by the Industrial Tribunal about that aspect of the matter, but speaking for ourselves, it does not seem to us that a man who had the misfortune to have that problem and has recovered in 10 weeks really could be regarded, so to speak, as an industrial cripple. The Tribunal held that whilst the selection had been fair, and sufficient warning had been given, the procedure had been fatally flawed because there was no proper consultation. Such consultation, the Tribunal held, might well have resulted in the Respondent not being dismissed at all. The Appellants claim the Tribunal has not assessed whether the reactions of the employer came within the range of reasonable responses and, that the Tribunal had substituted a subjective view of the situation. We do not find that there is any support for that. Although the Tribunal did not use the exact words, the sense of the decision is clear enough. We do not accept that the Tribunal did anything other than apply the right test and did not substitute its own views.

In truth that is the only matter of law which is pleaded in this case or has been addressed to us. All the rest appear to us to be matters of fact but out of courtesy for the way in which it has been placed before us we will deal with those matters. The second ground is that the employers did carry out proper consultation with the union but that the Tribunal failed to understand what was the position since there had been consultation sufficient to satisfy the particular circumstances of this case. We have already indicated the occasions upon which Mr Durrant came in contact with management during this period. It is said that Mr Hope on at least three occasions was in contact with management and it is put forward that that is sufficient. First and foremost whether proper consultation took place is entirely a matter of fact. The Tribunal had the opportunity of seeing all the parties, of judging the witnesses and reaching their own conclusions, we can find nothing here which comes anywhere near perversity, which is the only ground upon which this Tribunal has any jurisdiction to upset the findings of a lower court. Thirdly, it is said that the Industrial Tribunal should not have relied upon the views of Mr Hope describing his evidence as ill-informed, dubious and unsubstantiated. Again, that is a matter of fact. Even if it were not if one stands back from the behaviour of Mr Hope he really owed no duty at all to Mr Durrant; indeed, Mr Durrant had left the union. Nonetheless Mr Hope regarding him as a member of the staff extended to him some assistance, faced with that it is difficult to see why any tribunal should have chosen to regard him as he has been described by the Appellants as ill-informed, dubious and making unsubstantial allegations.

Further it is said that the Tribunal failed to assess objectively the reasonableness of the consultations over a whole period and extensive range of events. There is no doubt that if one finds an employer who, over a period of time, has conducted himself properly, upon the question of whether or not in an individual case he conducted himself properly it is clearly relevant evidence that the employer should be entitled to say "look at this, that is my routine method of working, that is the way I always worked and I certainly worked in that way on this occasion". But it does not assist to say where there is a finding a fact by a tribunal that there was no proper consultation, that the Tribunal ought to have stood back and to have changed its mind because on previous occasions the agreement which existed at this place of work between the union and the management had always been observed.

Finally, it was urged before us that on the question of compensation the assessment had been made on the basis of certainty when the decision itself speaks in terms of "might well have occurred". That was not part of the grounds of appeal, no application has been made to amend those grounds of appeal. However, in the light of what we have previously decided that matter becomes irrelevant particularly because it is only rare occasions that this Tribunal will interfere with questions of compensation and assessment and only where it shown as clearly as possible that there has been some basic misunderstanding of the law or a basic flaw in the evidence that they have taken into account. We can find nothing of that here and accordingly we dismiss this appeal. This is a unanimous decision.

Mr Durrant then made an application for costs - in the circumstances of the case the costs were refused.