United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 307_93_2111

Appeal No. EAT/307/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 November 1994

I N T E R N A L

Before

HIS HONOUR MR JUSTICE HOLLAND

MR D J JENKINS MBE

MR J A SCOULLER

---

MRS K RILEY          APPELLANT

THE MEAT AND LIVESTOCK COMMISSION          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR W A BURLEY

(Representative)

For the Respondents MR A SENDALL

(of Counsel)

Geoffrey Leaver

251 Upper Third Street

Central Milton Keynes

MK9 1DR


 


MR JUSTICE HOLLAND: Mrs Karen Riley appeals from so much of a decision of an Industrial Tribunal sitting at Birmingham on 26 February 1993 as adjudged that she should not receive a compensatory award for dismissal that was found by the same Tribunal to be unfair. The relevant chronology is as follows.

On 13 February of 1984, Mrs Riley started work in the Stafford office of the Respondents, The Meat and Livestock Commission, working as a clerk. By 1991 at the outset of the year (working in the same office), she was a Grade 2 Senior Clerk. In the same office were three other clerks, each of those other clerks being Grade I. By April of that year, it was apparent to the Respondents that one of their functions was due to come to an end. That function was the administration of the Sheep Variable Premium Scheme. The evidence was that this Scheme was due to end in January 1992 and that it was manifest that redundancies would be necessary within the organisation, having regard to the resultant contraction. There was already in existence, a Redundancy Monitoring Committee, the composition, function and procedures of which appear from a memorandum of 27 July of 1989. So far as material, that memorandum specifies as follows:

".... 6. All proposed redundancies shall be submitted to the Committee for consideration. When considering situations, the Committee shall be guided by the principles:

(a) that where a redundancy had been accepted as unavoidable, the unit of a redundancy shall be in the grade of staff within the Commission;

(b) that volunteers shall be sought from within the grade concerned;

(c) that in the absence of other factors which the Committee might decide in individual cases, seniority in Commission service shall afford priority, should a surplus of voluntary applications for redundancy be received;

(d) that should there be a shortage of volunteers, the unit of redundancy may be extended to include other grades as the Committee might decide and that volunteers for redundancy from these additional grades shall be sought;...

(f) that should enforced redundancies be unavoidable staff should be selected on the basis of those with the least Commission service shall be made redundant first;...

On 18 April 1991, there was a meeting of this Redundancy Monitoring Committee. On 24 April, Mrs Riley commenced maternity leave and on 17 May 1991, she gave birth. There appeared to have been some complications attendant upon her confinement, with a result that she remained in hospital for a period of time.

On 11 June of 1991, there was a meeting of this Redundancy Monitoring Committee's sub-group namely that which dealt with clerical and administrative staff. The minutes of their meeting are in evidence and they record the decision that in Regional offices of the Commission, the post of Administrative Officer was to be made redundant and pertinently, paragraph 4 reads:

...."4. In addition to the loss of the Administrative's Officer's Post, there would also be a need to lose one post in each of the other regions and a further two to bring the staffing to the required level. IGM is to contact the Regional General Managers to determine the clerical structure that they will require and to decide which clerical posts should be made redundant..."

The consequent approach at Stafford emerges from the findings of the Industrial Tribunal. Those findings, so far as relevant to this point, are as follows:

"It was decided to eliminate the post of administrative officer and to reduce the clerical staff to 3, responsible directly to the office manager, at each of the 6 regional offices. At Stafford there were 4 clerical staff, one, Mrs Riley, on Grade 2 and the other three on the lower grade. The regional general managers, at Stafford Mr Nicholson, were left to decide what grades of staff to retain for the future in the light of local requirements and how they meant to organise their offices. There was an established redundancy procedure selection being within grades of staff by length of service after volunteers, and there were settled policies against "bumping" and compulsory relocation.

At Stafford, Mr Nicholson decided to dispose with grade 2 and have only one grade, grade 1, for his clerical staff. As Mrs Riley was the only grade 2 clerk the selection process went no further and she was indicated as the one to have a [to] go. Mr Nicholson's reasons were that the higher grade implied a supervisory role, which was no longer needed, the office staff having already been reduced from 10 or 12. Mrs Riley had been working interchangeably with the other 3, which demonstrated that her grade was superfluous. The nature of the work had changed with computerisation, keyboard entry replacing former manual methods of recording and handling data. Most of the other regions did retain their grade 2 clerks, but there was generally some local reason for this. Mr Nicholson was unusually familiar with what was needed as the office manager, Mr Woollams, had been away ill for a protracted period and Mrs Riley herself had been on maternity leave from 24 April 1991; her baby was born on 17 May."

Turning then from the Reasons to the sequence of events, the next development was the sending of a letter to Mrs Riley of 28 June 1991. This read as follows:

"...Dear Mrs Riley,

With the Sheep Variable Premium Scheme (SVPS) coming to an end on 5 January 1992 it will, regrettably, be necessary to declare some redundancies. These will not only affect a considerable number of technical staff but also some administrative and clerical staff. One of the posts to be made redundant is the senior clerical post at Stafford.

Although you are currently on maternity leave, and I do hope everything is going very well in that direction, you clearly must be informed of this development as it will affect your future plans should you decide to return to work after your maternity leave.

It is with regret that I therefore have to give you six month's notice that your employment with the Commission will terminate on 5 January 1992 on compulsory redundancy terms.

Enclosed with this letter is a statement of the redundancy compensation to which you will be entitled. Any individual or general salary increases in the interim will be reflected in the amounts finally payable.

If you have any queries on this letter or the redundancy terms, please do not hesitate to contact your Regional General Manager or myself.

Finally, may I say how sorry I am to have to write to you along these lines. If there is any way in which you think we can be of assistance at this juncture, please do ask.

Yours sincerely,

I G Mortimer

Chief Establishment Officer"

There were findings which we interpose here made by the Tribunal, as to this somewhat abrupt issue of a Notice of Dismissal, given its proximity to the meeting of 11 June. These findings are as follows:

"The first intimation Mrs Riley had was a letter out of the blue from the chief establishment officer, Mr Mortimer, dated 28 June, informing her that her post was being made redundant and giving her six months notice to expire on 5 January. There had been no prior warning or consultation with her and there was no mention of possible appeal, beyond an invitation to contact Mr Mortimer or Mr Nicholson with any queries. Mr Mortimer was under some pressure on 28 June, if he was to give the 6 months notice, as the funding for the post would end on 5 January. He arranged for Mrs Riley to be visited at home by Mr Woollams as soon as possible after the letter."

Turning then back from the findings to the sequence of events, there was a short exchange of correspondence between Mrs Riley and the Respondents, she herself wrote on 5 July 1991:

..."Dear Mr Mortimer,

I am in receipt of your letter of 28th June 1991 in which you inform me of your decision to make me redundant.

I wish to raise points with your arising from that letter.

You tell me that I am now under six months notice of termination of my contract of employment under the compulsory redundancy scheme. I would like to know what the arrangements are for the payment of my salary during this period of notice.

Accepting that I was on maternity leave at the time the decision on redundancies at Stafford was made I nevertheless feel aggrieved that the first I was aware of the redundancy was on receiving your letter.

I would like to ask what criteria was used to determine the number of redundancies at Stafford and the procedure used to select those chosen for redundancy. There is no redundancy procedural agreement contained in the current conditions of service handbook. Could you please tell me if such a procedure exists and if it has been agreed with the recognised trade union. If an agreement exists would you please enclose a copy with your reply.

I would appreciate an early reply to this letter so that I can consider my position on an earlier return to work than I had anticipated..."

There was a response from Mr Mortimer on 12 July, the terms of which are not material for present purposes, save that he intimates that the pay during the six month period would be as would be the case were she not under notice, that is, she would receive her maternity pay for as long as she was entitled and then full pay on the return to work. The only other material matter in the chronology in the course of the Summer of 1991, was a further letter to Mrs Riley of 14 August 1991, in which the following paragraph appears:

"...as regards your enquiry about clause 6 of the Redundancy Agreement, the position is that there are no suitable alternative posts available to offer to you at the present time. I can confirm that the usual enquiries were made in this respect prior to your being given notice of redundancy. We have not sought volunteers for the redundancy at Stafford from other staff in your grade throughout the Commission as it has been a long-standing principle of the Redundancy Monitoring Committee that no-one should be faced with a compulsory and permanent transfer as a result of our accepting a volunteer from another part of the country. Apart from anything else, any such post would be at a considerable distance from your present place of residence and therefore not necessarily suitable. Non-mobile staff such as yourself have to transfer at their own expense. If, however, you are saying that you would be prepared to relocate anything within the country if a volunteer in your grade could be found elsewhere within the Commission, then I would be prepared to seek the Intervention Board's agreement to us 'trawling' your redundancy amongst other grade 2s in the Commission. Please let me have a specific response on this point as soon as possible..."

It would seem that either there was no specific response from Mrs Riley to that suggestion; further or alternatively, any response as to that point was understandably negative.

It was then on 5 December that she returned to work at the end of her maternity leave and her dismissal took place on 5 January as foreshadowed by the letter of the 28 June.

Turning then to the approach of the Tribunal, it emerges from the last two paragraphs of the Reasons:

..."5 The decision to abolish the grade 2 post and to select Mrs Riley for redundancy as the holder of it was not unreasonable; other reasonable employers might well have come to the same conclusion. However, we find that the dismissal was unfair because of the lack of consultation before the dismissal decision was made. It is a cardinal principle of industrial relations that there should normally be such consultation and there is no good reason why Mrs Riley should not have been warned that her job was at risk and given the opportunity to express her views when that was perceived to be the situation, even though she was on maternity leave and had been experiencing difficulties from the birth.

6 We have to consider what would have happened if consultation had taken place and estimate the chance that the decision would have been different. Mrs. Riley could have argued that the 4 clerks in the 2 grades should be pooled as the unit for selection as they had all come to be doing the same work with the higher grade merely reflecting seniority and competence; she had the longest service of the 4 and one had only about one year's service. However, that would have been contrary to the principle of selection by grade and would have led to protests from the grade one clerks. She could have stressed the value of her experience and her ability to supervise and take responsibility if the need arose, but Mr Nicholson must have been well aware of these factors and already have considered them. She was willing to accept down grading, and a volunteer could have been sought among the grade one clerks, but there is no sign that any would have volunteered and it is not likely in present conditions. We conclude that we can see no prospect whatever that the outcome for Mrs Riley would have been any different whatever consultation had taken place. With the long notice period the dismissal would not have been delayed. In the circumstances, we can award no compensation, the basic award being offset by the redundancy payment."

Those findings seek to reflect the provisions in the Employment Protection Consolidation Act [1978], which flow from a finding of unfair dismissal. By Section 72(1) it is provided where a Tribunal makes an award of compensation for unfair dismissal, the award shall consist of:

(a) a basic award, calculated in accordance with Section 73; and

(b) a compensatory award, calculated in accordance with Section 74.

As is apparent from the Reasons that we have cited from the findings of the Tribunal, there was no room here for a basic award, having regard to the redundancy payments that had been made to Mrs Riley. This limited the scope to Section 74(1) which reads as follows:

"...the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as the loss is attributable to action taken by the employer..."

The Notice of Appeal against the finding of the Industrial Tribunal asserts that, the grounds upon which the Appellant brings this Appeal are that:

"...the Industrial Tribunal, whilst finding her dismissal unfair, erred in reaching its conclusion that there was no prospect whatsoever of an alternative outcome to her dismissal on the grounds of redundancy, even if the consultation had taken place with her personally, and that therefore no compensation should be awarded..."

That short statement of the Appeal, has to be considered in conjunction with the close reasoning of the ensuing pages and with a Summary, which concludes the Notice, and which queries the following:

"... 21 The written reasons set out by the Industrial Tribunal in reaching its decision make reference only to evidence given by Mr Nicholson the respondents Regional General Manager and called as witness by the respondent.

22 The written reasons make no reference to, nor give any consideration of, evidence for the applicant obtained by cross examination of Mr Mortimer, the respondents Establishments Officer..."

It further complains:

"... 23 The written reasons do not record, nor show consideration of evidence given on the applicants behalf by her witness Mr Woollams, the Office Manager at the Regional Office in Stafford, and fails to set out reasons why it should reject the very relevant evidence of this witness..."

There are other points taken in the course of the Summary which then lead to this proposition, or of the points raised above on behalf of the Applicant have been ignored by the Industrial Tribunal in it's written reasons for it's decision.

"The Industrial Tribunal have an obligation to note and set down their view on these very relevant points in reaching a decision that no different outcome would have ensued. By failing to take into account all of the evidence presented to it the Industrial Tribunal made a serious error in its judgment and therefore it's decision.

The Applicant invites the Employment Appeal Tribunal to overturn the decision of the Industrial Tribunal in respect of its nil award on compensation and submits this is quite clearly a case where proper consultation should have led to more favourable outcome on her behalf. She asksa that the original claim be returned to be heard by a newly constituted Tribunal or alternatively that the EAT asks the original Tribunal to make a compensatory award on the basis that on all the evidence presented, a substantial difference to the eventual outcome of the redundancy exercise was likely and that the applicant was not in any way responsible for the company's failings in this area.

On behalf of the Respondents, the immediate point is taken based upon Section 136(1) 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 under, or by virtue of, the following Acts-..."

Submits Mr Sendall, on behalf of the Respondents, the Notice of Appeal does not raise any point of law at all: it does not therefore raise a matter for the consideration of this Appeal Tribunal.

As to that, there have been a number of decisions of the Court of Appeal, supplemented by decisions of this Tribunal, drawing firm attention to that limitation on the powers of this body.

In British Telecommunications v Sheridan [1990] 1RLR 27. At page 29, Lord Justice McCowan drew attention to a passage in the Judgment of Mr Justice Phillips in the case of Watling v William Bird & Son Contractors Ltd [1976] 1ITR 70 at 71. The passage cited reads as follows:

"... There is only an appeal on this court on a point of law and that is the difficulty in his way. The authorities on what is a point of law are endless, and they express the matter in all sorts of different ways, but it all in the end comes down to the same thing. An appellant who claims that there is an error of law must establish one of three things: he must establish either that the Tribunal mis-directed itself in law, or misunderstood the law, or mis-applied the law; or, secondly, that the Tribunal misunderstood the facts, or misapplied the facts; or, thirdly - and this again was put in all sorts of different ways - that although they apparently directed themselves properly in law, and did not mis-state, or misunderstand, or misapply the facts, the decision was "perverse", to use a word which to modern ears sounds harsh, or (which is another way of saying the same thing) that there was no evidence to justify the conclusion which they reached..."

Lord Justice McCowan himself went on at p.29:

"... I have no difficulty in understanding and accepting the first and third, but I am bound to say for my part I have difficulty in accepting the second as a separate category. Either the second means nothing more than the third, or it means something less. If the latter, I would respectfully doubt if it can be right, since this would suggest that the Employment Appeal Tribunal is entitled to allow an appeal if it takes a different view of the facts from that of the Industrial Tribunal..."

A further judgment in the same case was given by Lord Justice Gibson, who dealt with this point in this way at p.30:

"Misunderstanding or misapplying the facts may, in my view, amount to an error of law where the Tribunal has got a relevant undisputed or indisputable fact wrong and has then proceeded to consider the evidence and reach further conclusions of fact based upon that demonstrable initial error. Such may be an error of law because the Tribunal is required by law to consider the case in accordance with agreed or undisputed facts. Where, however, the alleged misunderstanding of fact, depends upon a decision of fact open to the Tribunal to make, and which it did make, then an attack on that finding cannot be converted into an error of Law, unless it can be shown that there was no evidence to support it, or the conclusion was perverse."

The third Judgment was given by Lord Donaldson, M.R. and his observations at p.30 are of assistance. He said:

"... Any court with the experience of the members of the Employment Appeal Tribunal, and in particular that of the industrial members, will in the nature of things from time to time find themselves disagreeing with or having doubts about the decisions of Industrial Tribunals. When that happens, they should proceed with great care. To start with, they do not have the benefit of seeing and hearing the witnesses, but, quite apart from that, Parliament has given the Employment Appeal Tribunal only a limited role . Its jurisdiction is limited to a consideration of questions of law.

On all questions of fact, the Industrial Tribunal is the final and only judge, and to that extent it is like an industrial jury. The Employment Appeal Tribunal can indeed interfere if it is satisfied that the tribunal has misdirected itself as to the applicable law, or if there is no evidence to support a particular finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. It can also interfere if the decision is perverse, in the sense explained by Lord Justice May in Neale v. Hereford & Worcester County Council [1986] ICR 471 at 483.

But that is not the case here. The Employment Appeal Tribunal does not appear to have identified any error of law and they certainly have not held that the finding was perverse. Mr Wilkie, as my Lords have pointed out, has sought to uphold its judgment on the footing of the second category of jurisdiction adumbrated by Mr Justice Phillips, sitting in the Queen's Bench Division, not the Employment Appeal Tribunal, in Watling v. William Bird & Son Contractors Ltd [1976] 1 ITR 70, when he said that an appellant who claims that there is an error of law must establish one of three things, the second of which was that the Tribunal misunderstood the facts or misapplied the facts. Unless the misunderstanding or misapplication amounts to an error of law, there is no such jurisdiction in my judgment..."

Before seeking to apply those principles to the Appeal that is before us, it is important immediately to mention one other facet of this matter, which facet relates to the Reasons given by the Industrial Tribunal. There are two cases which assist about this and upon which we have relied. The first is the well-known authority of Retarded Children's Aid Society Ltd. v. Day [1978] ICR 437, a decision of the Court of Appeal. At pp 443, Lord Denning M.R. said:

"... The decision is entrusted in the ordinary way by Parliament to the tribunal. I do not think it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning. Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and they have not gone wrong in law, it seems to me that the Employment Appeal Tribunal should not interfere with their decision event though they would themselves have come to a different decision. After all, the Employment Appeal Tribunal did not see the witnesses. They did not see Mr. Day and his reactions. They did not see the matron, and so forth. One gets a very different impression from reading the notes than one gets from hearing oral evidence. It seems to me that this is a case where the industrial tribunal's decision should be upheld. They did not go wrong in point of law, this appeal should be allowed accordingly..."

Lord Russell of Killowen put the matter thus at p.444:

"... The function of the Employment Appeal Tribunal is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid in the case where the Employment Appeal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial trunal, searching around with a fine tooth comb for some point of law..."

The other decision, bearing upon the Reasons that has been put before us by Mr Burley who has said everything possible on behalf of his friend, Mrs Riley is Meek v The City of Birmingham District Council [1987], IRLR, 250. The headnote says in summarising the judgment of the Court which was given by Lord Justice Bingham:

"... Although the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftmanship, it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basis factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basis facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable an appellate court to see whether any question of law arises. It is also highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted..."

We need not, we think, read further for the purposes of this Judgment.

Averting then to the decision under Appeal and in particular to the reason given for that decision, we focus upon the potential for there being here a point of law that would found an Appeal. The first question that we have to ask ourselves is as to whether this Industrial Tribunal, misdirected itself in Law, misunderstood the Law, or misapplied the Law. In particular, we have to ask that question in connection with the issue raised in this matter, pursuant to Section 74(1), that is, as to the quantum, if any, of a compensatory award.

The direction that the Tribunal gave itself is in the words already cited "We have to consider what would have happened if consultation had taken place and estimate the chance that decision would have been different". This Tribunal has no hesitation in finding that that was a succinct and proper direction made to the Tribunal by itself as to the principle of Law that it had to apply. There as a matter of Law was clearly defined the issue that it had to decide. Mr. Burley has not suggested that there was any further passages relevant to this issue and nor has he suggested that in that passage, this Tribunal misdirected itself. Therefore it follows that first, the reasons were adequate as indicating the legal principles that the Tribunal considered applied and, second, in adverting to the way in which that principle is set out, is impossible to say that a point of Law arises as to it.

That then leads on to the other two possible ways in which a point of Law can arise. In the particular circumstances of this case, that essentially amounts to a consideration of what was discussed as the third point, that is as to whether the decision of the Tribunal could be condemned as perverse, that is, on the basis that it was a decision made on the basis of no evidence in justification. For that purpose, we have adverted very carefully to the Reasons. There are, in our judgment, two important features of those Reasons. The first is that in paragraph 3 the Industrial Tribunal indicated the importance that it attached to the evidence of Mr Nicholson, given the particular acquaintance that he had with the office in question. The second we draw attention to is the finding made in paragraph 5 that the decision to abolish the Grade 2 post and select Mrs Riley for redundancy was not unreasonable. That finding can only reflect a decision on the part of the Tribunal to accept Mr Nicholson's evidence in preference to any evidence that there was to the contrary.

Moving on then, we refer to the review of the considerations taken into account by the Tribunal in paragraph 6, which has already been set out in this Judgment. Taking all those matters into conjunction, this Tribunal is quite unable to say that the decision arrived at on 26 February could in any way be condemned as perverse in the sense that it was based other than upon the evidence that was before it. It was entirely for that Tribunal to hear the evidence, to decide which witnesses it accepted, and to make a judgment accordingly and such a judgment is set out in the passage cited. It is apparent from the way in which the matter was set out that a very careful consideration was given by that Tribunal to the question of compensation, doing so understandably by reference to the practical considerations that immediately arose, given that this was a redundancy in a small office in which there were only four employees involved in clerical work. It may well be that another Tribunal listening to the same evidence, may have taken a different view. It may, for example, have found Mr. Nicholson less impressive and Mr Woollams more impressive. But that is not the point at present in consideration. The point presently in consideration, is whether the decision of this Tribunal could be so faulted, that we sitting here could say that it is perverse. We cannot do so. We have closely considered the reasons, we have closely considered as to whether the reasons as expressed were adequate to show a proper consideration sufficient to arrive at a decision that can be sustained. In our Judgment, those reasons are adequate and the resultant decision can be sustained. Mr Burley has properly advanced various points for our consideration and I trust that he will think that those have received some careful analysis, but that careful analysis has had to be directed each time to seeing whether there was an error of law that this Tribunal could identify and on the basis of which this matter could be sent back to the Industrial Tribunal for a fresh exercise of judgment on it's part. It will be apparent that no such point of law has emerged in the course of the hearing; there is no basis upon which we can send this matter back and in those circumstances, this Appeal has to be dismissed.