United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 308_95_0811

Appeal No. EAT/308/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th November 1995

Before

HIS HONOUR JUDGE P CLARK

MR D G DAVIES

MR A E R MANNERS

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MR A DUCKWORTH          APPELLANT

COLNE ANODISING LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR D McCARTHY

(Representative)

T.G.W.U.

Transport House

1 Crescent

Salford

M5 4PR


 


JUDGE CLARK: The appellant was employed by the respondent as a jigger/packer from 6th December 1993 until 9th August 1994.

It is accepted that at the time of dismissal a genuine redundancy situation existed and that the appellant was one of three employees selected for redundancy. It will also be seen that at the time of the dismissal, he had not completed two years continuous service for the purpose of qualifying for ordinary unfair dismissal protection.

However, he brought a complaint before the Industrial Tribunal under Section 153 of Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that he was selected for redundancy on grounds related to his trade union membership or activities within the meaning of Section 152 of that Act.

Since he had not completed two years service, the onus was on him to prove that the reason for his selection for redundancy was a `trade union' reason as defined in Section 152.

The matter came before the Manchester Industrial Tribunal on 20th December 1994, and in its extended reasons that Tribunal accepted, first, that the respondent's managing director, Mr Bruce Pickles had set his face against recognising the appellant's trade union, the Transport and General Workers Union (T.G.W.U.), and that the appellant was regarded by management as being the instigator of employee interest in that union.

Despite this antipathy, the Tribunal accepted Mr Pickles' evidence that the reason for selection of the appellant for redundancy related to a genuine consideration of the respective skills of those in the pool for redundancy, and on that basis the appellant was selected. They rejected his claim that the reason for his selection was based on his trade union activities or membership. They therefore dismissed the complaint.

Against that decision the appellant now appeals. This is a preliminary hearing heard to determine whether or not that appeal gives rise to an arguable point of law which should go to a full hearing of this Appeal Tribunal.

On his behalf, Mr McCarthy has invited our attention to the following findings of fact by the Industrial Tribunal. At paragraph 5 of the decision:

"5. ... At all material times the respondents did not recognise any union and it is still and always has been the firm intention of the Managing Director, Mr Pickles, to resist the recognition of any trade union within the respondents' organisation and to deter as far as is lawfully possible any interest in trade unions or trade union activities on the part of its employees."

At paragraph 8:

"8. Throughout all this, the applicant was regarded by the management as having in effect been the instigator of employee interest in a trade union and the Tribunal is satisfied that management, in particular Mr Pickles, was antipathetic towards the applicant and annoyed at what was seen as his attempt to disrupt what they regarded as satisfactory employer/employee relations by attempting to involve a trade union."

At paragraph 12:

"12. It being clear, and indeed accepted by the respondents and by Mr Pickles in evidence, that Mr Pickles was vigorously antipathetic towards trade unions in general, towards TGWU in particular and towards the actions and aspirations of the applicant personally, ..."

At paragraph 13, the Tribunal record:

"13. ... [Mr Pickles] went so far, when asked, as saying that, whilst he was always sad to see any employee of his Company made redundant, he was not unhappy that one of those employees who was made redundant was the applicant and this was principally because he had been the instigator of union activities and interest. He was adamant, ..."

Our attention was also drawn to an affidavit put before the Industrial Tribunal and the contents were not in dispute, from Mr David Ralph who had formerly been a production supervisor employed by the respondent. He said in that affidavit:

"On a more personal level, in my opinion, I always found Mr Duckworth to be a good worker, punctual and reliable, kept himself to himself and performed any task set for him in a responsible manner.

In my opinion things did deteriorate between Arthur [that is the appellant] and Mr Bruce Pickles because of Union activities, ..."

The other aspect of the evidence to which Mr McCarthy referred was put by way of this proposition that there was no evidence that the appellant was not a good worker, and did not fulfil the criteria for redundancy, and that he takes from the evidence of Mr Ralph. He also submits that the respondent produced no evidence about the respective merits of various candidates for redundancy.

We cannot agree with that submission on the facts. We look at the respondents' Notice of Appearance, which sets out their case on selection in these terms:

"The two packing employees who remain had received 3 months and 6 months training and experience on the inspection process, which is part of the company's BS5750 procedures, and the company did not want to lose that expertise. In addition, Mr Duckworth was a slow worked compared to these two employees. This was not critical with the BT ladder racks but it was critical for "jigging" and packing these smaller items. Also he had not had the training and experience on inspection. The Jig Maker has a range of engineering skills which are necessary to make jigs which Mr Duckworth does not have. He had also received a warning when two members of staff complained about him, but that was only a marginal factor in making the selection. He was therefore selected for redundancy. ..."

Now evidence to that effect was given by the respondents' witnesses who included Mr Bruce Pickles, the managing director, and two other members of management, Mrs Jean Howorth, team supervisor and Mr Stephen Land, production controller. The Industrial Tribunal dealt with this in paragraphs 13 and 14 of their decision. They record in paragraph 13 Mr Pickles evidence that the reason that the appellant was selected was because:

"... with the advice he had been given, he was satisfied that other employees (including employees with marginally shorter service) were better trained, more skilful, more flexible and, in particular, quicker than the applicant in carrying out the tasks involved. The Tribunal accepted his evidence."

At paragraph 14, they refer to the evidence from the two other members of management, I have mentioned, and say that they:

"... supported Mr Pickles so far as the reason for the selection of the applicant for redundancy was concerned and the Tribunal also accepted that their evidence was truthful."

It seems to us that the Industrial Tribunal considered all these matters put on both sides. They asked themselves whether they should draw the inference that the appellant's trade union membership or activities provided the basis for the employer's decision to select him redundancy. They decided not, and accepted the respondent's case that this was a genuine selection for redundancy and was not influenced by his trade union activities or membership.

Mr McCarthy seeks to argue that looking at all of the evidence, this Tribunal's decision was perverse, by that we understand him to mean that it was an irrational decision, that their conclusion was an impermissible option, or put in the more traditional way: "no reasonable industrial tribunal could reach the decision which this tribunal reached." We have considered whether there is any merit in that argument in this case. We conclude that there is not. We do not think there is an arguable perversity appeal here and in those circumstances we shall dismiss the appeal now.