United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 91_93_1811

Appeal No. EAT/91/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18th November 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D G DAVIES

MR J C RAMSAY

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MRS S LOVE          APPELLANT

CRAWLEY BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P EPSTEIN

(Of Counsel)

Bruce Piper & Co

1 Mabledon Place

LONDON

WC1H 9AJ


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal brought against a decision of the Industrial Tribunal sitting at Brighton on the 20th October and 30th November 1992.

The Tribunal decided that the application by Mrs Love for unfair dismissal against the Crawley Borough Council should be dismissed. She appeals against that dismissal of her application.

The grounds of appeal set out criticisms of the Tribunal. Mr Epstein, on behalf of Mrs Love, has helpfully amplified the grounds of appeal in oral submission and by reference to authority. It appears from the submissions that the essential complaint which Mrs Love wishes to raise on the appeal concerns the application of the criteria contained in the Council's Employment Stability Policy at a Board of Selection. Mr Epstein refers to a passage in the decision of this Tribunal, given by Mr Justice Browne-Wilkinson in BL Cars Ltd v. Lewis [1983] IRLR 58, paragraph 15, where in dealing for selection for redundancy he states:

"In approaching their decision, the Industrial Tribunal will have to consider the criteria that were adopted and whether the employers have demonstrated that they have fairly applied those criteria to this redundancy."

It is accepted, on behalf of Mrs Love, that there is no objection to the Employment Stability Policy as such or to the inclusion of the six factors set out in paragraph 2(k) of the decision or to the objectivity of those criteria. It is accepted that the Tribunal was correct in saying that it is inevitable that there will always be a subjective element in assessment by the application of objective criteria in any particular case.

The point that Mrs Love wishes to raise on this appeal is that there was no evidence, or insufficient evidence, on which the Tribunal could conclude, as it did in paragraph 5, that those criteria were:

"objectively applied in so far as is humanly possible."

The difficulty with that submission is that it is accepted. That evidence was given on behalf of the Council, in an attempt to discharge the burden on showing fairness, by those involved in the selection process. Their evidence included a summary of the scores of the three members of the panel who decided, on the various criteria, between Mrs Love and the only other relevant contender for the position, a Mrs Bushell. The result of the scoring was that Mrs Bushell scored one more point than Mrs Love. She therefore got the job.

It was open to those representing Mrs Love to cross-examine those witnesses in order to bring out facts be relevant to the decision of the Tribunal, such as whether the criteria had been fairly applied. The real complaint, it seems to us, sought to be raised on this appeal, is that the Tribunal should not have decided that the scoring was fairly carried out. That was a decision they came to on the evidence before them. This is not a case where the Council failed to call anyone to give evidence in relation to the application of criteria. Evidence was called. The evidence was accepted. So the Tribunal came to conclusion that there was objective application, so far as is humanly possible; and that conclusion in paragraph 5 of their decision is complemented by the more general statement in 2(m) of their decision:

"there is no evidence before us to substantiate the general allegation made by the Applicant that the scoring had not been fairly carried out."

In those circumstances there is a decision of fact. There was evidence from the relevant persons before the Tribunal. No point of law is raised on the appeal. For that reason this appeal will be dismissed.