At the Tribunal
Before
THE HONOURABLE MR JUSTICE HOLLAND
MRS TERESA MARSLAND
MR R H PHIPPS
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants Mr J McMULLEN QC
(of Counsel)
Messrs Pattinson & Brewer
30 Great James Street
London WC1N 3HA
For the Respondents Mr M SHANKS
(of Counsel)
Messrs Nabarro Nathanson
City Plaza
2 Pinfold Street
Sheffield S1 2GU
MR JUSTICE HOLLAND: Re unsuccessful Applicants' appeal against a decision of an Industrial Tribunal sitting at Hull on 11 September and 25 November 1992. The decision under appeal was that each Applicant had been fairly dismissed by the Respondents.
The full reasons for that decision appear in writing dated 26 January 1993. We would pay warm tribute to the comprehensive nature of those reasons and to the style with which they have been drafted.
Turning to the facts giving rise to the applications, they are as follows. At all material times prior to a date in 1992 the Respondents had operated Immingham Terminal in conjunction with British Steel. The Applicants were employees of the Respondents. Taking the Applicants in turn, Mr Hallam had been a registered dock worker since 15 October 1973 at that terminal. On 13 October 1981 his employment had transferred to the Respondents, so as to remain continuous. At the material date in 1992, he was an operative 1 and he had a good disciplinary record. Mr Ashworth had been employed by the Respondents since 26 June 1970. He had been a registered dock worker since 1979. His position was that of supervisor and he had a good disciplinary record. Mr Taylor had been a registered dock worker since 20 April 1964. He had worked for the Respondents since 31 August 1981, so that his employment had been continuous. He, too, was an operative 1 but, unhappily, he had a less good disciplinary record.
It would seem that in January 1992, the Respondents decided to withdraw from the participating in and the conduct of Immingham Terminal with prospective redundancies thus inevitable. It would seem, further, that in February 1992 there had been meetings with, respectively, the Union and the workforce but, at those meetings, there had been no indication as to how many redundancies there would be and from what categories of employment.
For the subsequent history, we cite the findings of the Industrial Tribunal set out in paragraph 5, starting with subparagraph (e):
Consideration was then given by the respondents to the position that they then had. The management of the terminal however, was not informed of the final decision as to the make up of the number of people who were to be made redundant, until Friday 20 March 1992, when they were informed that a conclusion had been reached that of the 24 operatives and supervisors employed by the respondent corporation at the terminal some 11 would have to lose their jobs and it would only be possible to make arrangements for 13 of those 24 people to transfer to employment with British Steel. There was therefore convened a meeting with the trade union representative for Monday 23 March 1992, when a previously prepared statement was read to the meeting and the indication was given as to the method by which the respondents proposed to carry out the selection. Representations were made by the trade union that the procedure and criteria should be last in first out but none the less the respondent corporation decided that they would first ask for volunteers for redundancy, that once those volunteers had been received, if there were still further requirements for redundancy to make the total number of 11 that had to be made redundant then they would apply the criteria test that they had previously operated. It was further indicated that as the British Coal Corporation redundancy scheme had as one of its particular features an additional payment of £10,000, but as that additional payment would cease to be available to people who were selected for redundancy if they had not so had their employment terminated by 28 March 1992, therefore they were going to make the procedure somewhat more accelerated than one might have normally expected. Therefore, it was announced that volunteers had to be received by 5 pm on 24 March 1992, whereupon if selection criteria had to be applied, they would be applied that evening and an announcement made on 25 March 1992 as to who had been selected.
f) Mr Hill, who was the manager of the terminal, appointed Mr Robinson and Mr Farnsworth to carry out the selection process if one was required. There were 3 volunteers received and all those 3 volunteers were accepted. In which case Mr Robinson and Mr Farnsworth then had to deal with the selection criteria and they dealt with that during the course of a 5 hour period starting at 5 pm or thereabouts on 24 March 1992. They evaluated each of the employees from their own personal knowledge of the people concerned but they did not invite any other information or knowledge from any other people concerned in the terminal. We do not find that to be of any particular criticism as they had on the evidence indicated that they had full knowledge of the operation of the terminal and the people who were concerned in it. They applied the criterion test between them and came up with a total number of points 'scored' by each of the relevant employees on the terminal. They had applied to each of 7 criteria points between 1 and 5 the more points indicating a higher mark in each case. The criteria were applied equally to all the employees save for 2 supervisors who had as the 7th criteria a different type of criteria applied to them because of their supervisory experience and duties.
g) On 25 March 1992, having made the decision to make 8 further redundancies and selected those people 7 of them were notified personally and handed a letter telling them of the decision. One of the 8 people, Mr Ashworth, was on holiday and could not be given that personal notification and a letter was sent by hand to his house although he was interviewed on the following day. All of the employees including the 3 applicants were given the opportunity to appeal to Mr Hill but only Mr [Hallam] exercised that right. Mr. [Hallam] exercised his right having first been invited to take a representative with him which he declined to do and also having been invited to defer his appeal for a period of consideration by him, but again he elected not to do so.
...
i) After the notification had been made to the 8 employees concerned (including the 3 applicants) meetings were held and counselling took place and each of the applicants was offered the opportunity to consider transferring to other operations within the respondent corporations national operation. One of the 8 people who had been selected did indeed elect for that option and was successfully transferred to another part of the country. None of the applicants made that election, electing themselves to take a redundancy payment instead."
Turning then to the decision of the Industrial Tribunal, in paragraph 7 of the reasons, they directed themselves that redundancy was the reason for the dismissal and that it was, therefore, appropriate for them to consider the provisions of s.57(3) of the Employment Protection (Consolidation) Act 1978. They further directed themselves in paragraph 8 that guidance as to the application of those provisions in a redundancy situation was to be gained from the well-known case of Williams & Others v Compair Maxam Ltd [1982] IRLR 83. Having thus directed themselves as to law, they tackled their decision in paragraphs 9 to 13, which we cite:
9. With regard to the first of these factors, we find that the criteria were objectively chosen and that they were applied fairly and within the bands of reasonableness of a reasonable employer. They were criteria that had been used before and the employer was entitled to apply them again. We do not find any reason to question the fact that they were applied objectively and honestly.
10. We are then required to consider whether the employees were warned and consulted. The employees were warned in February 1992, but there is no consultation specifically with each employee prior to the selection for redundancy and the decision to dismiss the individual. However, in this particular case the reason that the process was carried out so quickly and in the way that it was is so that a relevant employee would not be prejudiced as to the loss of the additional £10,000 that would be available to him if he were to be compensated under the British Coal Corporation scheme. That £10,000 ceased to be available after 28 March 1992 and we have heard nothing to suggest that that period could have been extended. We find that that reason was one which in these cases allowed the respondents to deal with matters as speedily as they did.
11. The third factor is as to whether or not there was a trade union and if so whether that union's views were sought. We find that at the meeting on 23 March 1992, that that process did in fact take place.
12. We are then required to consider the factor of whether or not alternative work was available. In this case 13 of the 24 people who were considered in the pool of workers for consideration were indeed transferred to other employment with British Steel Corporation. The 8 that were selected for redundancy were offered the opportunity of alternative employment at other locations within the respondent corporation and we are therefore, satisfied that this factor was indeed applied. Indeed, as has been mentioned earlier one such person did in fact take up the opportunity to transfer and did so transfer to another location.
13. Therefore, we find that the selections on these occasions were fair and within the parameters that could be expected of a reasonable employer."
Turning then to this appeal, we have to preface our consideration of it with a reminder that our jurisdiction is provided by s.136 Employment Protection (Consolidation) Act 1978, which reads:
"(1) An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal ..."
Turning with that subsection in mind to the notice of appeal, we find that in paragraph 4 thereof it is contended that, first, the Industrial Tribunal erred in law; and second, that it came to a decision to which no reasonable tribunal properly directing itself in fact and law could have come to. Thus far the notice of appeal is drafted by reference to what is, as the cases have established, a "question of law". When, however, we return to the balance of the notice we find, first of all, that there is no contention therein that this Tribunal misdirected itself as to law. Thus it is that the case as set out in the notice of appeal and, indeed, as presented before us, has been to the effect that this decision by this Industrial Tribunal was perverse, that is, it was a decision that was arrived at when no reasonable industrial tribunal properly directed as to law and receiving the same evidence, could make a similar adjudication. We emphasize that the matter only becomes a question of law when a decision is not just "wrong" but "perverse".
Turning then to the way in which the matter was attractively developed before us by Mr McMullen, in the result he has satisfied us first, that this was not a straightforward redundancy situation. He focused particularly on the criteria as used by Mr Farnsworth and Mr Robinson and we saw the points that he was seeking to make. This Tribunal has a concern about the compressed time-scale against which these redundancies were achieved. Mr McMullen has further satisfied us that had he been conducting the case before the Industrial Tribunal then the cross-examination might well have been different. It might well have been different to some force but what the ultimate effect would have been upon the Industrial Tribunal we simply cannot say.
More than that, however, Mr McMullen has simply not achieved. His essential problem is this: that he cannot demonstrate that the decision of this Industrial Tribunal was not open to it on the evidence that it heard over two days. That evidence, seemingly included the Applicants, it included also Messrs Robinson, Farnsworth and Hill, that is, the three key employees of the Respondents with respect to this matter. It follows that over a prolonged period of time that Tribunal had evidence before it from those with a major contribution to make as to the resolution of the issue.
We can see no evidence whatsoever that the reaction of this Industrial Tribunal to that evidence could in any way be condemned as "perverse". Indeed, on the state of the papers before us we are not even in a position to say that it was "wrong". Had the evidence been differently put before it, then different arguments may have arisen. We can only see with the situation as is.
Coming back to the notice of appeal, we have to say that there never was here an arguable "question of law". Indeed, one would have thought that that would have been apparent at the drafting of that document. We return to s.136 and we underline the point that we are dealing here with a matter of jurisdiction but we are bold enough to add to it the comment that we are also dealing with a matter of commonsense. We are in no position to speculate as to how this witnesses put the matter to the Industrial Tribunal over that prolonged period of time, nor are we in a position to speculate as to the effect that it either might or should have had upon us as an alternative Tribunal.
In all those circumstances we have to dismiss this appeal.