United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 469_93_1301

Appeal No. EAT/469/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th January 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

MR G H WRIGHT MBE

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BUCKINGHAMSHIRE COUNTY COUNCIL          APPELLANTS

MR P LYNCH          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR P THOMAS

(Solicitor)

County Secretary

& Solicitor

County Hall

Aylesbury

Bucks

HP20 1UA


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by the Buckinghamshire County Council against a decision of the Industrial Tribunal held at Reading on the 5th May 1993. The Industrial Tribunal held that the Applicant, Mr Lynch, had been unfairly dismissed. The reasons for the Tribunal's decision were fully set out in the decision document notified to the parties on the 11th May 1993.

The background to the claim is that Mr Lynch was a Recycling Foreman with the Council. He was employed from the 29th May 1987 until the 30th September 1992. He claimed by his Originating Application on the 25th November 1992 that he had been unfairly dismissed on the 30th September 1992 by reason of unfair selection for redundancy. His claim was accepted by the Tribunal.

On the 15th June 1993 the Council appealed. The only ground of appeal stated is that:

"The Industrial Tribunal in this case acted on its own view of what would be reasonable in the particular circumstances, rather than considering whether the employer had acted reasonably. The Tribunal substituted its own view of what was reasonable for that of the employer."

That was amplified in a skeleton argument submitted and in the oral submissions helpfully made by Mr Thomas on behalf of the Council.

In paragraph 28, the Tribunal found that the reason for Mr Lynch's dismissal was redundancy. The Tribunal went on correctly to consider whether or not, in all the circumstances of the case, Mr Lynch had been fairly or unfairly selected for redundancy. In asking themselves that question they stated at the end of paragraph 28:

"We accept the evidence from both parties that by far the greater part of his [Mr Lynch] work was spent on CFC operations. That job still exists and it was the bulk of the applicant's work for some years."

In paragraph 29 the Tribunal stated their decision:

"It seems to this Tribunal that, bearing in mind how much of the applicant's [Mr Lynch's] job had been concerned with CFC operations and that there had never been any shadow of doubt on his ability or indeed on his record, he should have been given the first opportunity for the CFC van driver's job."

That job was available, Mr Lynch applied first but, as explained earlier in the decision, it was given to a junior employee of lesser service and of nothing like the same experience in this field as Mr Lynch. The Tribunal therefore stated that their conclusion was that Mr Lynch could have easily been slotted into the job. Instead the Council decided to appoint someone else who did not have the experience Mr Lynch had built up. The Tribunal stated:

"We find unanimously that the applicant was unfairly dismissed by reason of unfair selection for redundancy."

In his oral submissions and skeleton argument Mr Thomas sought to argue two points. First, that the Tribunal had, in coming to this conclusion, misunderstood the facts relating to the agreed redundancy and redeployment procedure. They had not, he said, fully understood the factual position relating to the new job into which the Tribunal thought Mr Lynch should have been slotted.

Those complaints, in our view, are both complaints about the facts found by the Tribunal. They do not disclose an error of law on the part of the Tribunal. An assault on the factual findings of an industrial tribunal can be made in the Employment Appeal Tribunal if it is shown that there is no evidence to support the factual findings. If there is some evidence to support the findings the fact that those findings are not ones which the Council wish the Tribunal to make do not make the decision perverse. The difficulty which the Council has on this appeal, on this point, was amply illustrated by the letter on page 11 of the Applicant's Tribunal bundle. It was before the Tribunal. Mr Thomas referred us to it. That was a letter sent to the Assistant Divisional Officer of NUPE. It stated at the end of it, in relation to the reason for Mr Lynch's dismissal,:

"His post will become redundant on the 30th September, due to the County Council's requirements for the work which Mr Lynch was employed to do diminishing from that date. The reason for Mr Lynch's dismissal is quite clearly laid out in the Principal Assistant County Engineer's letter to him of the 2nd July which followed a letter to him dated 13th May, also attached, which gave reasons for the diminution of the work.

I hope you find the above information helpful, in addition it should be remembered that the post of Waste/Recycling Operative is a new post and although it contains elements of work currently undertaken by Mr Lynch it is a much less responsible job. That is, Mr Lynch is currently a foreman. It is for this reason that the decision was arrived at that all potentially redundant employees should be allowed to compete for the position on equal terms."

That letter discloses that, in the Council's view, the new job contained elements of the previous work, but it was a different job. It was less responsible than the position of Recycling Foreman which Mr Lynch had. That is the view of the Council. It does not follow that, because the Industrial Tribunal took a different view on the nature of the new job, they committed an error of law. The Industrial Tribunal not only saw that letter. They saw other documents and heard evidence from seven witnesses. There was, in our view, evidence on which the Tribunal could come to that decision, even though another Tribunal might have formed a different view of the facts. There is no error of law in relation to that complaint. It is also, we would comment, a ground of appeal which is not stated in the Notice of Appeal dated 15th June 1993.

As to the second point and the ground which is stated, that there has been an error in applying the wrong legal test, we were referred by Mr Thomas to the decision of this Tribunal in Iceland Frozen Foods Limited v. Jones [1982] IRLR 439 which summarises the effect of the previous authorities on the correct construction of Section 57(3) of the 1978 Act. That case makes clear that, in applying the section, the Industrial Tribunal must consider the reasonableness of the employer's conduct. They must not simply consider whether they, as Members of the Industrial Tribunal, consider the dismissal to be fair. In judging the reasonableness of the employer's conduct an industrial tribunal must not substitute their decision as to what was the right course to adopt for that of the employer. What they have to consider are whether what the employer did is within the band of reasonable responses. One employer might reasonably take one view, another employer a different view.

In support of that submission Mr Thomas referred not only to paragraph 28 of the decision but also to paragraph 29 and, in particular, the second sentence:

"It seems to this Tribunal that, bearing in mind how much of the applicant's job had been concerned with CFC operations and that there had never been any shadow of doubt on his ability or indeed on his record, he should have been given the first opportunity for the CFC van driver's job. We find that he could easily have been slotted in to that job."

That sentence taken in isolation from the other 29 paragraphs of the decision might lend some support to Mr Thomas' complaint that the Tribunal were expressing their view about what they would have done. It is, however, clear when one reads the rest of that paragraph and the rest of the decision (in particular, paragraph 4, 5 and 18) that the Tribunal, although not using the language of the Iceland Frozen Foods, were correctly addressing themselves to what was reasonable conduct on the part of the employer. They were applying an objective test and not simply expressing the subjective views of Members of the Tribunal as to what course they would have taken had they been the employer.

There is no error of law on the part of the Tribunal either in findings of fact or in relation to the application of Section 57(3) to the facts found by the Tribunal. On this Preliminary Hearing we have decided that this appeal should be dismissed.