United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 663_94_1511

Appeal No. EAT/663/94


 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 November 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MR J C RAMSAY

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TAYMECH LIMITED          APPELLANTS

MRS G RYAN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants Mr I W Leake

Group Industrial Relations

Manager

Taywood Construction (Services) Ltd

Taywood House

345 Ruislip Road, Southall

Middx. UB1 2QX


 


MR JUSTICE MUMMERY (PRESIDENT): This is a Preliminary Hearing of an Appeal from the Decision of the Industrial Tribunal held at Liverpool on 3rd May 1994.

The Decision was in proceedings started by Mrs G Ryan against Taymech Limited, her former employers. She had started proceedings in October 1993 complaining of unfair selection for redundancy, unfair dismissal and sex discrimination.

For Full Reasons notified to the parties on the 31st May, the Tribunal unanimously decided that Mrs Ryan was unfairly dismissed by Taymech, but her claim for sex discrimination under the 1975 Act failed. We are not concerned with the sex discrimination claim since, on this aspect, Taymech succeeded, though we note from the documents before us that there has apparently been a request by Mrs Ryans' representative for a review of the sex discrimination ruling.

Taymech were disappointed with the Decision on unfair dismissal and appealed by Notice of Appeal dated 6th July 1994. The grounds of appeal were stated in such general terms that the Appeal Tribunal directed that this should be listed as a Preliminary Hearing to decide whether in fact a point of law was raised on the Appeal.

The ground of appeal simply stated that the Industrial Tribunal erred in law, in that they omitted to take account of relevant evidence, misapplied the facts, and substituted their view of what should have happened. Grounds of appeal stated in such general, uninformative terms do not in themselves disclose a point of law.

The effect of setting this down as a Preliminary Hearing has been that Taymech have now submitted on the Preliminary Hearing, a written outline argument which amplifies each of the three stated grounds. At the Appeal hearing, Mr Leake has appeared on behalf of Taymech to make oral submissions on those points.

In order to test whether the grounds, as amplified, raise a question of law, it is necessary to look at the Decision of the Tribunal, at the facts found by the Tribunal and at their reasoning. The Tribunal correctly stated in the opening paragraphs of their Decision that the relevant provisions relating to Unfair Dismissal were to be found in Section 57 and they specifically mentioned sub section 1, 2 and 3, and the well-known Decision of Iceland Frozen Foods Limited v Jones [1982] IRLR 439.

They summarised the facts which they had found. For the purposes of the appeal the important points are these:

They found that Mrs Ryan worked in the Warrington Design office. She was employed from the 1st November 1989. Her employment came to an end on the 28th July 1993. Although she was employed as a receptionist/telephonist, the Tribunal said:

"It has been established to our satisfaction, that, in addition to the strict duties of a telephonist/receptionist, the Applicant did become involved during the course of her service in other activities within the office. The Respondent accepts that when time allowed, she did provide general typing assistance, for example, typing orders and goods received notes as well as some work for an associate company called Taymel Limited, whose offices were upstairs. This was, of course of general assistance to the company in running its affairs and, no doubt, they were glad for her to do this work. She, for her part, saw it as an opportunity to develop secretarial skills and thereby enhance her career prospects."

The important point is that the Tribunal found as a fact, that she was doing work outside the strict duties of a telephonist/receptionist.

The Tribunal dealt with the Decision by Taymech that some reconstructing was necessary. That would involve a number of staff changes including whether there was a real need for a telephonist/receptionist.

The trading position of the company in the spring and summer of 1993 showed a decline in prospects. Evidence was given by Mr Jordan, that a decision was made to dispense with the position of a telephonist/receptionist. There was an interview with

Mrs Ryan on the 24th June. She was advised of the situation that her position of telephonist/receptionist was potentially redundant, but, in accordance with normal procedure, every effort would be made to re-deploy her within the group.

At this point in the Decision, the Tribunal made a statement which is not accepted by Mr Leake, on behalf of Taymech, as a correct reflection of the evidence given. The Tribunal said that in the afternoon Mr Jordan called the rest of the staff together and informed them that Mrs Ryan was to be made redundant. Whether there was evidence to that effect before the Tribunal or not, we cannot determine. For the purposes of deciding this Appeal we put that statement on one side.

The Tribunal went through the steps taken by Taymech in relation to the re-deployment of Mrs Ryan. They say that, on the 25th June, Mrs Ryan sought to raise with

Mr Jordan the question of re-deployment within the office, but, on that occasion, the matter appears not to have received indepth consideration.

In the circumstances described, Mrs Ryan sought to appeal against the decision to make her redundant. She unsuccessfully appealed. The decision to make her redundant was confirmed at the end of July. Mrs Ryan confirmed in her evidence that, if offered it, she would have considered part-time employment on the basis that any job was better than no job. Equally she would have considered a lower paid full-time job.

The Tribunal sought to apply the relevant law. The decision against the contentions of Taymech, was that at first they did not think that there had been consultation on the question of selection for redundancy, in the sense defined by Mr Justice Hutchison in The Queen v Brent Borough Council ex parte Gunning [1986] LGR168. They found that, although Mr Jordan spoke of potential redundancy, what he was doing in fact was looking at the telephonist/receptionist post in isolation, not in the context of the offer as a whole.

In other words, the Tribunal concluded, a decision had already been made to dispense with that post, and a further conclusion, which appears to have been reached, was that ipso facto the person to go must be the occupant of that post.

Allied with that point was the next conclusion by the Tribunal in relation to the pool from which selection would be made for redundancy. The Tribunal said that the label attached to a particular job is not conclusive when it comes to assessing the employee's job. In this case, although designated originally as telephonist/receptionist, Mrs Ryan had clearly carried out other duties.

The Tribunal made this significant finding or conclusion: (page 10)

"Therefore, the "pool" for purposes of selection for redundancy should have been the larger group and not just the position of telephonist/receptionist, in isolation. In terms, therefore, of what the reasonable employer would have done, in this situation, there would have been meaningful consultation, in line with the definition referred to...Mrs Ryan would have been considered in the context of the group of 4 or 5 administrative workers in the office, and not in isolation. The "pool" was not correct."

Taking all those matters into account, the Tribunal found that the dismissal was unfair.

Mr Leake attacks that conclusion on a number of grounds which, in our view, when considered overall, all return to the same central theme. He set out his outline arguments under three headings, omission to take account of relevant evidence; mis-application of facts; and substitution of views.

As to the relevant evidence point, the crucial part of the submission is that the evidence given by Mr Jordan was that Taymech looked at redundancy on a job by job basis. The job of receptionist/telephonist was identified as redundant and was a post that would be dispensed with. That evidence was not contradicted. Although the Tribunal accepted the evidence of Mrs Ryan, that she did other other clerical work, they ignored the evidence of Taymech that she did not and could not do much of the work which was done by other members of the office staff.

Mr Leake submitted that the requirement, in these circumstances, is to look at the jobs and situations that apply equally to one or more employees. The position, in his view, was that Mrs Ryan was not able to do much of the work of other members of the office; and therefore, could not form the subject of a pool.

As to the misapplication of facts, he submitted that too much reliance was placed on decisions which referred to selection for redundancy among workers of like skills or doing similar work. Mr Leake emphasised the importance of looking at skills which were interchangeable. The conditions which must be applied, should apply equally to all relevant workers. This was the recurring theme of his submissions, based principally on the case of

Powers & Villiers v Clarke [1981] IRLR 483.

On the third point of substitution of view, he honed in on the pool. The statement by the Tribunal was:

"The "pool" for the purpose of selection for redundancy should have been the larger group and not just the position of telephonist/receptionist in isolation."

Mr Leake seized on the words "should have been" as an indication that the Tribunal had erroneously substituted its own view of what should have happened. It was not the function of a Tribunal to substitute its own view for that of the employer. The Tribunal had come to this conclusion without evidence as to what pool arrangement was appropriate? What jobs in the pool were similar? Whether the pool was capable of flexibility both ways for the job in the pool?

Mr Leake's submission was that the Tribunal had misapplied the facts and the evidential material and had reached a conclusion that no consultation took place, when the evidence showed that the potential redundancy was first notified on the 24th June to Mrs Ryan. Dismissal did not actually take place until the 28th July. During that time an appeal was heard and correspondence took place. Finally, assuming that a pool had been created, they had, without evidence, come to a conclusion as to what that pool should have been.

He mentions specifically that no evidence was introduced that skills in the suggested pool were transferrable and that work was interchangeable both ways. Indeed, the company's evidence was that it was not interchangeable.

Having considered all those different ways of putting the case, we have reached the conclusion that the main criticism is not such as to raise a question of law. The main point made by Mr Leake came to this, that Mrs Ryan's job was a telephonist/receptionist. There was not a need for that job. It was redundant. The company had looked for re-deployment but had not been able to re-deploy her. In those circumstances here dismissal was fair.

No question arose of selecting her from the pool. No pool could be created which satisfied the requirements defined by Mr Leake as it must consist of people who have equally interchangeable skills.

In our view, this is a misunderstanding of the legal position. There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind the problem.

This is a case where the Tribunal concluded that the employers had not even applied their mind to the question of a pool, consisting of people doing similar administrative jobs. As the employers had never applied their mind to anything, except Mrs Ryan's actual job of telephonist/receptionist, they had not applied their mind to a pool and therefore there was no meaningful consultation as to who was in the pool, with whom comparisons should be made with Mrs Ryan's position, and as to who should be selected.

In a sentence, there was no process of selection from a pool. Mrs Ryan was told she was redundant because she was the only person who occupied the position as telephonist/receptionist. The evidence accepted by the Tribunal was to the effect that she was doing more than that job and was in a position where there could be a meaningful comparison between her skill and those of four or five other administrative workers in the office.

It is our view that no arguable point of law is raised by the Appeal. The Tribunal were entitled to come to the conclusions they did about the other work done by Mrs Ryan and that this is a case where the employers should have applied their minds to the creation of a pool for the purpose of deciding who to select for redundancy. As they did not go through that process, they had not made a fair selection for the purposes of Section 57(3) and therefore the Tribunal were entitled to come to the conclusion that this was a case of unfair selection for redundancy.

In those circumstances, there is no arguable legal point for Full Hearing of the Tribunal. The Appeal will be dismissed at this stage.