United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 446_93_0411

Appeal No. EAT/446/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th November 1994

Before

HIS HONOUR JUDGE J BULL QC

MISS A MADDOCKS OBE

MR A D SCOTT

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BRIGHTON BOROUGH TRANSPORT LTD          APPELLANT

MR F GRAY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR D CLARK

Representative

IRPC Group Ltd

Stockwell House

New Buildings

Hinckley, Leicestershire

LE10 1HW

For the Respondents MR O BARRY

Solicitor

Messrs Donne Mileharn

8 Haddock

Frederick Place

Brighton

East Sussex

BN1 1AT


 


HIS HONOUR JUDGE BULL QC This is an appeal by Brighton Borough Transport Ltd against the decision of the Industrial Tribunal sitting at Brighton on 1st and 2nd February and 1st and 3rd March 1993, the Full Reasons having been sent to the parties on 5th May 1993. The Tribunal found that the dismissal of the Respondent, Mr Frederick Gray, came within the category of "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held" within S.57(1)(b) of the Employment Protection (Consolidation) Act 1978.

We do not propose to set out more than a skeleton outline of the facts which are rehearsed at length in the reasons of the Industrial Tribunal. The Appellant company decided upon a restructuring which would create two sections, each controlled by a Senior Inspector beneath whom would serve a Team Inspector, a Relief Inspector and 60 drivers. At that time Mr Gray was a Road Inspector. When in May 1991 Mr Gray was unsuccessful in his application for one of the posts of Senior Inspector, he was offered the job of Team Inspector in a letter which informed him that unless there was other alternative work available that was acceptable to him, he would be dismissed for reasons of a redundancy if he did not wish to take up that offer. The change would result in a loss of earnings of approximately £3,500 per annum, which Mr Gray was not prepared to accept. One matter which gave him concern was that one of the men who had been appointed to the post of Senior Inspector, a Mr Allen, came not from the Brighton staff, but from Lewes.

Mr Clark, who has presented the case on behalf of the Appellant Company with vigour and clarity, identified the central issue as the approach of the Industrial Tribunal to the agreement between the Company and the Union. The Company's case was that the restructuring was negotiated with and agreed by the local APEX branch of which Mr Gray was a member, and that once agreement had been reached all employees were bound by any such collective agreement. It is perhaps regrettable that it was not at that time the practice to make any written record or memorandum of the meetings between the Company and the Union. Mr Clark concedes that at paragraph 31 of the reasons the Tribunal posed for itself the appropriate questions which they had to decide, namely:

"31 Leaving aside the other matters which arose or presented themselves during this somewhat extraordinary chain of events, the real issues between the parties were whether or not there had been agreement to the re-structuring proposals; and whether the suggestion, or request, that the pool of possible applicants for the two positions of Senior Inspector be widened was only to include the Traffic Office Inspectors at Brighton or Supervisors at other locations as well."

Paragraphs 40 and 41 of the reasons of the Industrial Tribunal are in these terms:

"40 There was no written record of the meetings which took place in March and on which the Respondents sought to rely. In the particular circumstances, whilst it is well within the realm of probability that the Road Inspectors present at the meeting in March would have acquiesced in the suggestion that the pool of possible candidates for the positions of Senior Inspector be widened to include the Traffic Officer Inspectors, it is unlikely in our view that they would have agreed to further widen or enlarge the pool by the inclusion of those in supervisory capacities who were not based at the Brighton depot.

41 The contention or submission that everything, including the proposed salaries for the Senior and Team Inspectors respectively, had been accepted and confirmed by the Union branch was not established to our satisfaction. We have already referred to the absence of notes at meetings which undoubtedly did take place in March , but we do not believe that there was a properly convened meeting of the Branch of the APEX Union. As it was put before us, the chronology alone militates against the possibility. The day after the meeting with the Road Inspectors, Mr Salvage and Mr Crowther saw Mr Harman alone and then made a revised offer in respect of the salaries which he was to take back to the members. The next day, or possibly the day after that, Mr Harman confirmed to Mr Salvage that the membership had accepted the revised salaries and no longer objected to Relief Inspectors being appointed."

Mr Clark submits that the Tribunal misdirected themselves in law by substituting their own view and construction of agreements made between the Company and the recognised Trade Union rather than placing proper reliance upon the evidence of the Appellant and others upon the substance of the agreement and decisions which had been reached. He draws to our attention the phrase "in our view" in paragraph 40 and the subsequent phrases in the following paragraph, "was not established to our satisfaction" and "we do not believe that" as demonstrating such a misdirection. We accept the force of those submissions, but in our judgment it is important to consider the conclusion which the Tribunal reached at paragraph 51:

"51 Looking at this unfortunate matter in its entirety, we find that the Respondent Company did not act reasonably in treating the re-structuring as a sufficient reason for dismissing Mr Gray in all the circumstances. it is our unanimous decision that he was unfairly dismissed."

Our attention has been drawn to the decision of the Court of Appeal in Morgan v. Electrolux Ltd [1991] IRLR 89 applying Linfood Cash and Carry Ltd v. Thomsom [1989] IRLR 235 (EAT). In the case of Morgan, Lord Justice Balcombe delivering the judgment of the Court summarised the relevant principles of law at p.90.

"(1) Where the employer has shown a valid reason (as defined in S.57(2) of the 1978 Act) for dismissing an employee, then `the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances ... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case' - S.57(3) of the 1978 Act.

(2) `The correct approach for the Industrial Tribunal to adopt in answering the question posed by S.57(3) of the Act of 1978 is as follows: (1) the starting point should always be the words of S.57(3) themselves; (2) in applying the section an Industrial Tribunal must consider the reasonableness of the employers' conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employers' conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair: if the dismissal falls outside the band, it is unfair'.

- per Mr Justice Browne-Wilkinson in Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439, para.24 approved in this Court in Neale v. Hereford County Council [1986] IRLR 168."

Whilst we have given full weight to the arguments of Mr Clark in relation to paragraphs 40 and 41, in our judgment, reading the reasons as a whole, the Tribunal in paragraph 51 were considering the reasonableness of the employer's conduct, and applying the appropriate test in law, consonant with the decision in Morgan v. Electrolux Ltd.

There were further contentions in the notice of appeal that no reasonable Tribunal could have reached the conclusion which this Tribunal did which we find has not been established bearing in mind the well known test in Piggott Bros & Co Ltd v. Jackson [1991] IRLR 309 at 312. In our judgment the decision under appeal was a permissible option. The Industrial Tribunal had the privilege which is completely denied to us because we are a Tribunal of law and not of fact of seeing the witnesses give evidence, hearing their evidence and testing it. In such circumstances it would be quite idle for us to say that we have a better view than that of the Industrial Tribunal. We cannot say that in any of the respects put forward so ably by Mr Clark that this Industrial Tribunal acted in a way or reached a conclusion that no reasonable Tribunal could have done. It follows therefore that this appeal must be dismissed.