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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Griffin & Ors v Qantas Airlines Ltd [1993] UKEAT 836_92_1110 (11 October 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/836_92_1110.html
Cite as: [1993] UKEAT 836_92_1110
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I N T E R N A L
At the Tribunal
Before
HIS HONOUR JUDGE J HULL QC
MR T S BATHO
MRS E HART
(2) P HOWARD (3) C HUGHES
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants The Appellants
in Person
For the Respondents MR D GRIFFITH-JONES
(Of Counsel)
Richards Butler
Beaufort House
15 St Botolph Street
London
EC3A 7EE
JUDGE J HULL QC: This is an appeal to us by Mr Griffin, Mr Hughes and Mr Howard against the decision of the Industrial Tribunal for London (South) on 6th October 1992. By that decision the Industrial Tribunal rejected claims by each of these three gentlemen in respect of dismissals which occurred at the end of October 1990 when their employers, Qantas Airways Limited, reduced their staff in circumstances where it was said there was a redundancy situation. The employers also said that they were not only reducing their staff, but reorganising their staff, so that one person might be more appropriately made redundant than others. If I may go ahead considerably, the Industrial Tribunal found that there was an informal agreement between the employers and the Trade Union that in the circumstances it would not be very useful to apply some blanket principle, such as "last in first out", but that each employee should be looked at on his merits.
Although the applications to the Industrial Tribunal raised similar points, they were not identical. Mr Griffin, the first in order both before the Tribunal and here, is a gentleman who is now aged 56. He was first employed by Qantas on 1st July 1986 and at the material time he was a Security Investigator for Europe and the Middle East. There is some difference about what he earned, but it was somewhere between £24,000 and £26,000 a year basic; in addition he received bonuses of more than £4,000 a year. According to the employers his entitlement, if he had received both his full notice pay, which he was entitled to, and his redundancy money, which he was entitled to, would have been about £3,134. We have not heard any argument about that figure, but it is clearly approximately right. In fact he was paid nearly four times as much by way of a concluding payment £12,106.
Mr Hughes is younger; he is now aged 46. He was first employed on the 31st July 1973. Again, there is unfortunately a difference as to exactly what his pay was. He said he was paid £25,000 a year and Qantas said it was £23,000 a year. There is no doubt that he was entitled to bonuses, of between £1,500 and £2,000 a year; again there is a difference about the figure. He was a Sales Services Administrator with the Company. According to the Company his entitlement to redundancy pay and money in lieu of notice was £9,000 odd, and he was in fact paid £42,136 as a severance payment, which is of course more than 41/2 times the amount which the Company thought that it owed him.
Finally, Mr Howard, who is aged 58 was first employed in 1976. He was Airport Duty Controller and again there is a difference as to salary. He says that he was paid a salary of £23,240 a year and the Airline says that it was less than that it was £21,452. There is agreement about the bonus in his case, he was paid £816. He was dismissed on the 30th October 1990. In his case, according to the employers, they thought that he was entitled to a total of £8,988 for money in lieu of notice and redundancy pay. He was actually paid £34,000 odd. So he was paid nearly four times what the Company believed he was entitled to.
There were various applications made to the Industrial Tribunal. I do not propose to go through them all because only two matters have been raised with us expressly. It was said that the Company had erred in its calculations. The method of salary payment was, as the Industrial Tribunal said, somewhat unusual. At one stage, salary was paid monthly and, as one would expect, the annual salary was divided by 12 for the purpose of arriving at the monthly payment. But there came a time, it may very well be at a time of pay restraint or something of that sort, when in fact a thirteenth month, so to speak, was added. Every July each member of staff was paid an additional payment and, from that time or perhaps from a time rather later than that, it came to be said that the salary for the purpose of devising the monthly payment was to be divided by 13 and was stated as an annual figure to include the full amount. That is rather puzzling, at any rate to a newcomer who is unfamiliar with it, and of course when the question of redundancy arose and the question of a "week's pay" arose there was room for argument about whether the annual salary should be divided by 56 to get a week's pay (by parity of reasoning with the way in which a month's pay was devised) or whether it should be divided by 52, as Mr Griffin and his colleagues suggested. The Industrial Tribunal appears to have thought that the employees were right about that and in arriving at a week's pay, what ought to be done was to divide the annual salary by 52.
The Industrial Tribunal dismissed all the applications. There were hearings which lasted two days, then there was adjournment and a further day's hearing, and then they reserved their decision. They reached conclusions about a number of matters. First of all, they said that a number of the claims which were put before them - for example, the details which I have just mentioned about the calculation of a week's pay - were matters of contract. They said there could be no claim under the Wages Act 1986 here because no pay had been withheld; everything that was due to the employees up to the date of their dismissal was, in fact, paid. The Tribunal therefore had no jurisdiction to decide the claims under the Wages Act 1986 but they said there might nonetheless be claims in contract here. It might be, for example, that the negotiations between the Staff Association and the employers were not faithfully interpreted in the payments. It might be that the Industrial Tribunal cast their eye on the provisions for apportioning this "bonus thirteenth month" payment and thought that there might be something due there on dismissal of the employees which had not been properly paid. But the overwhelming fact was that there had been enormously larger payments than the Applicants could, on any view, be entitled to and they were being paid on an ex-gratia basis, what the Industrial Tribunal called "a generous basis" consistent with the approach of a generous employer.
Then they went on to consider, which was really the important point, the allegation that these employees had been unfairly dismissed. The employers said that it was redundancy, but they also made the contention, which I have mentioned, that this was reorganisation as well. The Industrial Tribunal heard the evidence of each of the Applicants about that and came to the conclusion that the dismissals were fair. They had to consider whether the employers had adequately consulted the employees. If dismissal for redundancy is to be fair, an employer must in general consult the employees to see whether there is some way in which redundancy can be avoided. These particular employees were not consulted in person, but, said the Tribunal, there were sufficient consultations in our view with the Trade Union. There was also some sort of brief consultation with the Staff Association to which these gentlemen belonged. To say whether that consultation was sufficient and whether there was unfairness in some other way were matters for the Tribunal; the Tribunal heard the evidence, the Tribunal considered the arguments, and we are not entitled to interfere on the basis that we might have reached a different conclusion, or even to affirm the decision on the basis that we think that it is the right conclusion. What we have to do is to look and see whether there is any error of law in the decision and, subject to what I say in a little while, we are unable to find an error of law there.
The other matter, of course, was the size of the redundancy payments. Clearly, an Industrial Tribunal has jurisdiction to say whether a redundancy payment is payable and, if so, what the amount of that payment should be. There was no dispute that a redundancy payment was due and payable. There was no dispute that on any view a sum very much larger than any conceivable redundancy payment had in fact been paid. In those circumstances, the Tribunal was not, in our view, obliged to do the necessary calculations to see exactly what the size of the redundancy payment should be. The Industrial Tribunal decided that there were no unfair dismissals; and that the employers had acted fairly and had paid a great deal more than any redundancy payment which could possibly be ordered. They therefore dismissed the applications. Now, Mr Griffin, Mr Howard and Mr Hughes appeal to this Tribunal and as I pointed out, and as I think they understand very well, we can only deal with points of law and not with questions of fact.
Mr Griffin complains, and so do each of his colleagues, that there was bias on the part of the Chairman and the Members of this Tribunal. At first it was alleged to be bias on the part of the Chairman, but Mr Griffin made it clear that he included the Members in this. He said they were prejudicial in their attitude; first of all, he said, they considered the amount of money which was paid to us; and, he said, we accept that we were paid a great deal more than any sum required by Statute but the Industrial Tribunal had no right to consider that prior to its decision on the fairness or unfairness of the dismissal and the other matters which were laid before it. It gave them a biased view, biased in favour of the employers, and indeed the Chairman is alleged to have told the Applicants at one stage, "you should consider yourselves fortunate". Mr Griffin said "this is all irrelevant to the question of unfair dismissal, we were not asking for money, we sought re-instatement." I must say that there his colleagues are not really entitled to adopt his argument because they said they were asking for compensation and not re-instatement.
The Tribunal were considering all the matters which I have referred to and not just unfairness at this point. In particular they were considering the complaint concerning the redundancy payments. They were certainly entitled to consider this and they were certainly entitled to consider all the circumstances surrounding the dismissal, including the summary nature of the dismissal and the sums which were paid, in deciding whether the employers acted fairly and justly and reasonably in treating the reason which they put forward as a reason for dismissing the employees. We do not think that the Tribunal was either considering an irrelevant matter or showing bias in bringing that matter in. The matter was properly laid before the Tribunal among all the other evidence.
Secondly, Mr Griffin refers to matters which occurred before the actual trial by the Tribunal. This case has been going on for a long time and he said that two of the gentlemen, Mr Howard and himself, Mr Griffin, had their cases listed for the Tribunal for London (North) and then they were informed that a transfer had been sought to London (South) so that the cases could be tried together. He says "we were not consulted about this" but eventually, of course, there was a hearing where it was agreed that the cases should be consolidated into this one which involved four employees and another case with (I suppose) somewhat different issues, where six other employees would be heard together. Part of his complaint is that there was inordinate delay and that even when the two day hearing was held it had to be adjourned. He says all that shows bias by the Chairman and Members, but it appears to be a complaint against the administrative staff. A complaint of bias, that is to say prejudicial feeling against one party or the other on some improper ground, is a serious complaint. It appears to us that this complaint gives no evidence of bias whatever. The fact is that these cases were very properly tried together because they raised so many common issues. They could not be tried together if they were proceeding before different tribunals and so a transfer was ordered. As I said in the course of argument Orders made either by the Tribunal of its own motion or on the application of just one of the parties are commonly made at an interlocutory stage, and if the other party says "well, this is wrong, this Order should not be made and I want it fully considered" that other party is fully entitled to come forward at once and say "I want this reconsidered, it was considered without my submissions being heard". It is not alleged that any prejudice was caused by this Order, on the contrary it appears to us that a great deal of benefit was derived from it. In those circumstances it appears to us quite impossible to say that this shows any bias on the part of the Chairman, who we do not think was actually concerned in this matter, or his Members, they certainly were not concerned in the matter.
Then there comes a further complaint. After the two day hearing, when the case had not been finished, it was necessary to fix another day. A day was fixed provisionally in June, it could not be completely final because Mr Griffith-Jones, Counsel for the Respondents, whose attendance was clearly as near essential as anything could be in the course of a part-heard case, said that he had an important case in the High Court which was provisionally fixed in June and which might come in then or at some other time. That was mentioned at the time to the Tribunal; the Tribunal took note of it and said "well, June then". Then it appeared that Mr Griffith-Jones could, indeed, not attend before the Tribunal on that day because he had a case that had come in in the High Court. It was a long and difficult case, in which Mr Griffith-Jones could not simply say "well, I am not going to do that case"; the case had been prepared for years. So the Tribunal was faced with a choice of evils, either it could adjourn the case further, which of course was undesirable or it could hold the hearing on the day which had been fixed in June and Mr Griffith-Jones could not attend. That would be another serious evil. It would mean that some other Counsel would have to come in two-thirds of the way through the case, get it all up and then give such assistance as he could to his clients and to the Tribunal. Faced with that alternative the Tribunal, evidently ex parte (that is to say, without hearing Mr Griffin and his colleagues) put the case back to a date in September. If Mr Griffin and his colleagues had felt that that had seriously prejudiced their interests, or indeed prejudiced them at all, they could have applied to the Tribunal and said, "no, we say that in spite of the situation regarding Counsel we feel that this case ought to proceed in June." That was not done. Mr Griffin tells us that, in fact, he had to rearrange his own appointments in September. He was able to do that, but that would have been a matter which he would have been entitled to put before the Tribunal. This was a decision they did not like, it did not suit them, but they took no steps to have it set aside.
We think, in the circumstances, it is quite impossible to say that this decision showed bias by the Chairman and the Members of this Tribunal. Any objective person who was told about these facts would say "well, this Tribunal has had a difficult choice to make, but it does seem right that they should try to make sure that Counsel attends before them. "Particularly", I think such a person might say, "where there are three Applicants `in person'". As is well known it is the duty of Counsel to make quite sure that litigants "in person" are not taken advantage of and not unfairly untreated, and to put in front of the Tribunal matters which he might not otherwise do because the Applicants are "in person". So the attendance of Mr Griffith-Jones was in those circumstances thought, obviously, a paramount consideration by the Tribunal. It was a matter of inconvenience to Mr Griffin and possibly to his colleagues, but we do not think that shows any evidence of bias.
Then Mr Griffin addressed us on the question of unfairness. He said, first of all, that the Tribunal were under a misapprehension or mistook the true nature of the evidence about consultation. He said there was no consultation between the Staff Association and the Respondents on the 4th October and then there was a consultation on the 10th October, but the evidence was that this was hardly a consultation and that the consultation was not within the statutory time scale. Those were important matters for the Industrial Tribunal to consider. They did consider them.
Then, said Mr Griffin, he produced a letter from the Chairman of Qantas which said that he, Mr Griffin, could have been retained until the end of the Gulf Crisis and need not have been dismissed at the time that he was. He produced the letter to the Tribunal. That, again, was a matter for them. There are certainly cases in the books in which this Tribunal has said that if a dismissal is fair, on the face of it, and all else is fair about it then the mere fact that it happens on one occasion rather than another, earlier rather than later, or later rather than earlier, does not by itself make it unfair. But, as I say, the Tribunal did consider that and it was a matter for them, not for us.
Mr Griffin says Qantas elected not to pay money in lieu of notice because they were making such a large payment and we looked at the letter in which that was referred to. That letter says:
"(4)No payment in lieu of statutory notice will be paid to you, in that the calculated redundancy settlement in (1) far exceeds that statutory minimum payment."
He says, they should have elected to pay us money in lieu of notice and this calculation made the dismissal unfair. He says, the actual amount we were given is irrelevant but we should have received money in lieu of notice.
The reason given by the Company, which on the face of it is full of commonsense, is that as they were paying a much larger sum than any possible sum they could be asked to pay in lieu of notice, in addition to redundancy pay, they were not going to make a payment in lieu of notice in addition. Again, we do not think that that makes the dismissal unfair as a matter of law. It was for the Tribunal to say whether it could possibly make the dismissal unfair as a question of fact and they considered that matter.
Then there was a matter which Mr Griffin did not persist in, saying that it was not a "restructuring exercise", but that was obviously a matter of fact for the Tribunal. Then, he refers to paragraph 7 of his Affidavit and he says, "we agree that they, the Company, paid the statutory redundancy payment but they failed to comply with the statutory requirements. The divisor should have been 52 and not 56, this is the crux of our argument, the Industrial Tribunal declined to decide how many weeks there were in the year."
It was for the Industrial Tribunal to say whether this error of calculation, as they thought it was, made any difference to the fairness of the dismissal; once again, because it made a difference of at most 7% or 8% in the calculation, there was still an overwhelmingly large and generous payment being made, well above any statutory requirements. The Tribunal was perfectly entitled as a question of fact to say that this miscalculation made no difference whatever to the fairness.
Those are the arguments that Mr Griffin put before us. Mr Hughes, who adopted broadly what had been said by Mr Griffin, said that there was an unfair dismissal. He also referred to the meeting with the Staff Association which did not take place until the 10th October and was hardly a meeting at all. Again, a question of fact for the Tribunal. He said that there was evidence, which the Tribunal accepted, that this was a staff reduction exercise but that it was a restructuring too. But, says Mr Hughes, the evidence was that the employers then took on seven new employees. The Tribunal considered that. These employees were in junior positions or temporary positions, apparently, but the Tribunal had that evidence in front of it and it is entirely a matter for the Tribunal and not for us.
Then, says Mr Hughes, considering the question of unfair selection for redundancy, the Tribunal allowed evidence about matters which had gone wrong; something to do with Mr Hughes' character and behaviour as an employee. If you look at paragraph 17 of the decision, they say they have considered that evidence and it would not be in Mr Hughes' interest to set it all out. The Tribunal is not bound to state each and every detail of the evidence which it finds proved or all its reasons; it must state the principal reasons. In our view, they were entitled to admit that evidence in considering the question whether it was fair of the employers to select Mr Hughes from among his colleagues for redundancy. It was put in evidence and they were entitled, as a matter of law, to accept that in evidence. They were entitled, as a matter of law, to regard that as demonstrating fairness and as being a reason on which the employers could act. Again, whether we would have done the same is not a matter on which we are entitled to express any view.
So those were Mr Hughes' submissions.
Mr Howard adopted the allegations of bias, about which I think we have said all we need, but he said that it was the administrative side of the Industrial Tribunal that was guilty of bias, "we felt no one was listening to us". If Mr Howard felt that, that is very unfortunate. I have tried to explain how Tribunals have an administrative structure which sometimes works at the request of one party without hearing the other and I have explained what the rights of each party are when that happens. Suffice it to say that in our view nothing that happened is evidence of bias.
With regard to unfair dismissal, Mr Howard refers to his Affidavit. He says that he had a signed letter, of which he put an unsigned copy before the Tribunal, in which a different employee said that he would like to volunteer for redundancy, or had said that at the material time. Mr Howard said that the Industrial Tribunal did not face that issue. But the fact was that the Industrial Tribunal had considered, in the case of Mr Howard also, evidence which in their view justified the employers in choosing Mr Howard as being the person whom they proposed to make redundant. If, in the Tribunal's view, that was fair behaviour on the part of the employers we cannot go behind that and say that we would have formed a different view, whether or not there had been any intimation that some other employee was prepared to volunteer for redundancy.
Then, finally, Mr Howard referred to a document which is in the Respondents' bundle numbered 250, in which the employers set out their case on the amounts of statutory redundancy pay and pay in lieu of notice which should have been given to each man, and the totals which they had in fact paid. This was apparently handed in towards the end of hearing, as an aide memoire by Mr Griffith-Jones. Nothing was said by these Applicants at the time and it was thought by the Respondents that they had copies of this document. If a piece of paper is shown to a Court or Tribunal by one party and the other party does not know what is in it, it is the easiest thing to say "may I have look at that bit of paper" and of course it is a matter of right; nothing must be handed to a Tribunal which is not shown to the other side. It was all a misunderstanding. Mr Griffith-Jones and those instructing him thought that this bit of paper was common property. The Applicants knew that it was not but did not say so. The Tribunal acted on the basis that it was. If this had contained something important and controversial it would be a serious matter, the Tribunal would have acted on a controversial matter without the Applicants knowing what had happened. The Applicants have said, and we accept it, that they did not make any enquiry about the paper at the time because they were not experienced in forensic matters. But the fact is that this paper, which Mr Howard has looked at today for the first time apparently, appears to contain nothing controversial. It almost certainly does contain the arithmetical error which is complained of by the Applicants, I have already dealt with that, but it simply sets out in a convenient tabular form, what can be gleaned from many other documents in the papers, namely, what would have been paid and what was paid; what would have been paid under the statutory minimum. When one looks, it does include the words "notice pay" and Mr Howard says, "well, here they are saying they have paid money in lieu of notice" but it was quite clear, on documents which were laid before the Tribunal, that the employers were saying "we are not paying in lieu of notice because we are paying so very much more." It is inconceivable that that could have affected the minds of the Industrial Tribunal in any way. It is unfortunate that there was a misunderstanding. Misunderstandings, unfortunately, do occur. The great merit of having Mr Griffith-Jones there and the solicitors for the Respondents was that it was their duty to make sure, so far as they could, that there were no misunderstandings and it appears that this is the only one which slipped through the net. Happily, it does not appear to us that it can have made any difference and having seen it, the Applicants have not alleged to us that this led to any unfairness. We cannot see how it could have done so, unfortunate as it was that they had not got a copy of the document.
Looking at the decision of the Industrial Tribunal, it appears to us that they correctly decided that a number of matters which the Applicants sought to raise with them were outside their jurisdiction. There is no error of law that we can discover in their finding that these dismissals were fair and that the amounts paid so greatly exceeded the amounts of any conceivable redundancy payments, that they had no need to embark on the calculations and the difficulty over those. They therefore acted in accordance with law in dismissing the applications.
In those circumstances, without hearing Mr Griffith-Jones whose submissions would no doubt have been of great assistance to us, we say that we can see no points in this appeal on which we could conceivably help Mr Griffin, Mr Hughes and Mr Howard and we are obliged to dismiss the appeal as disclosing no complaint in law.