United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A CLARKE (of Counsel) Messrs Jacksons Solicitors 1-15 Queen's Square Middlesborough TS2 1AL
For the Respondent	MR D CRYSTAL-KIRK (Attorney) Mean Business Law Attorneys 6 Agden Road Kenwood Sheffield S7 1LY


 


JUDGE BYRT QC: This is an appeal against a decision promulgated on 23rd May 1996 of the Industrial Tribunal sitting in Sheffield, when they unanimously held that the applicant, now the respondent, had been unfairly dismissed.

The appellants owned a steel mill called the Templeborough Rolling Mills, where the respondent had been employed for some considerable time, probably back until 1960. Latterly, he had been the production planner, a comparatively senior position in the establishment.

In 1994 and early 1995 the appellants acquired another mill called the Scunthorpe Rod Mills, and their plan was to integrate the two mills together and run them in tandem. Inevitably this meant that there would be substantial restructuring of the management side with new jobs being created and old jobs going. Necessarily, this meant that there would be redundancies.

They decided the best way to approach the matter was to invite all the existing employees of the two establishments to apply for the new jobs according to what they thought would best suit themselves. I stress that this applied to all employees at all levels. On 4th April 1995, the general manager, Mr Morgan, sent out a letter in which he informed all employees of this procedure, and invited applications. So far as the respondent is concerned, Mr Morgan indicated that he should apply for the new position of overall production planner. Accordingly the respondent did so.

About eight weeks later, Mr Morgan had the unpalatable task of telling the respondent that he had been unsuccessful in his application for the job of production planner. This had gone to a colleague called Mike Hare. But he said the respondent was being considered for a position as one of three team leaders, and he invited him to attend a meeting next day when he would be interviewed for that post. The respondent did so apply.

On 5th July 1995, Mr Morgan once more had to tell the respondent that he had been unsuccessful in his application for the job of team leader, and what is more, he had been unsuccessful in obtaining one of the four positions subordinate to that of team leader, as commercial assistant.

The interview process, so far as the position for team leader was concerned, was based upon some thirteen criteria which had been chosen by Mr Hare, with the approval of the personnel officer. The competition for this job was won by a Mrs Linda Lewis, who secured 41 points, as opposed to the respondent who only scored 22.

That assessment of the individual employees was also used for the purpose of selecting the assistant team leader. On that basis, a Mr Darren Swift was chosen as an assistant team leader. He scored 32 points as against the respondent who had been assessed at 22. Perhaps the surprising choice however, was of a Chris Janinski who was only 21. He had not applied for the position of team leader, and as a result he did not appear on the list of assessment, made for that particular job. He was given one of the positions as assistant team leader, notwithstanding that his experience was far less, and as the tribunal found, his commitment to the job was far less than that of the respondent. Unhappily, in this situation, whether Mr Janinski did have an assessment made of himself at all and if so, what that assessment was, is the subject of argument between the parties before us.

In any event, having failed to secure any positions at the level of senior management or indeed at the lower level either, the respondent was told by Mr Morgan that he was at risk for redundancy and on 6th September 1995 a letter was sent to him telling him that he was redundant.

Mr Morgan, in evidence before the Industrial Tribunal, said that he had known the respondent for some 19 years, that he had done his job as production planner at the Templeborough Rod Mills adequately, but his health was none too good. He indicated that although he had taken a back seat in the interviews for the positions of team leader and commercial assistant, he probably would have given the respondent more points than in fact he did receive, but at the end of the day he would not disagree with the selections made by those entrusted with the task.

Apparently each candidate was marked out of five points for a whole range of required skills, but none of the criteria used related to long service and good attendance, in which of course the respondent might have expected to have scored well. Even so, it was questioned by the Industrial Tribunal whether, had those two criteria been included, the respondent would have scored sufficiently to have secured the position of team leader, or indeed been able to displace Mr Swift.

The Industrial Tribunal applied the case of Williams v Compair Maxam [1982] IRLR 83, and stressed that the employer should seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection, but can be objectively checked against such things as attendance records, efficiency at job, experience and length of service.

Then they went on to ask the question whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicant lay within the range of conduct which a reasonable employer could have adopted. The Industrial Tribunal found that the criteria selected by the employers in this instance consisted mainly of subjective criteria, depending largely on the selection of Mr Hare who had after all himself only recently been appointed. I should mention here that the evidence before the Industrial Tribunal was that Mr Hare did not personally know the respondent.

The main point which the Industrial Tribunal stressed was that the objective criteria of length of service and attendance record had not been part of the selection process. They went on to find that the criteria adopted by the employers in this instance were for this reason flawed, and that therefore the dismissal was unfair.

The appellants' case advanced by Mr Clarke on their behalf, was to the effect that the Industrial Tribunal had approached this case on a very narrow basis. The basis on which they had done so was set out in paragraph 18 of their decision:

"18. This tribunal find that the criteria adopted for the selection for redundancy in this case consisted mainly of subjective criteria and depended largely on the assessment of Mr Mike Hare who himself had been recently appointed to the vacant post of production planner and customer services manager. The objective criteria in particular length of service and attendance record at which the applicant would undoubtedly have excelled were not part of the selection process. A reasonable selection process would have included these criteria and therefore to that extent the tribunal find that the selection criteria was flawed. In the circumstances we find the dismissal unfair."

Mr Clarke says that what is evident from that paragraph or indeed anywhere else in the reasons, is that the tribunal did not say that the criteria applied did not have objectivity. Nowhere do they say that the criteria in themselves were unfair or had been unfairly applied. The sole criticism the Industrial Tribunal had, was that the criteria did not have added to them those of long service and attendance record. He says that it was apparent from paragraph 18 that it was the omission of those particular criteria which led them to find that the selection criteria had been flawed and the dismissal unfair. He then went on to say that there was no authority he knew of that required the inclusion of these two criteria to make the selected criteria fair, or their omission, a fortiori, unfair. He said that to suggest that they should have been included in this way, the Industrial Tribunal was elevating these two particular criteria to a separate status that no other criteria enjoy. Indeed, it would be wrong for the Industrial Tribunal to legislate in this way what should be included amongst criteria.

Secondly, Mr Clarke stressed that the Industrial Tribunal failed to appreciate the difference between the situations where redundancies were being made from a pool of employees, and the situation in this case, where a senior officer had lost out in competition for a senior job, and his employers were seeking to find him alternative employment. He said that this was a distinction which had been highlighted in the case of Axo Coating Plc v S W Thompson and others decided on 14th February 1996, but which is as yet unreported. He said that, according to that authority, the considerations, which had to be taken into account in that situation by the employer were wholly different from those which appertained where redundancies were being declared from a pool. Thus, whereas long service might be relevant where two senior officers were competing for a senior job, different factors came into the equation where a redundant senior officer was competing for a comparatively humble job in the establishment. According to the Axo case, the test is whether an employer had taken reasonable steps to look for alternative employment for somebody about to be declared redundant.

Mr Crystal-Kirk for the respondent has submitted that the Industrial Tribunal did not focus on a narrow issue of what should be included amongst the criteria. He says that they were concerned about three particular matters. One was the variety of criteria chosen, the manner in which they had been applied, and the fact that Mr Janinski who won the job as commercial assistant, had not been assessed at all. When it was put to him that this ran counter to the thrust of the decision of the Industrial Tribunal, in particular at paragraph 18, he stressed the final sentence in that paragraph, which said "in the circumstances we find the dismissal unfair." He said that, in using the words "in the circumstance", it was apparent the Industrial Tribunal had very much more in mind than the criteria selected or the matters which had been left out in their selection. He says that the contrary view, submitted by Mr Clarke, comes from a over-critical analysis of the Industrial Tribunal's reasons and the phraseology used.

Secondly; he did not accept the distinction drawn by the Axo case, and as he was perfectly entitled to do, he questioned whether it was good law. He said it was indisputable that the case of Williams v Compair Maxam still applied in circumstances such as this case.

Furthermore, he said that Mr Clarke's argument amounted in effect to an argument based on perversity. He drew our attention to the case of Piggott Brothers v Jackson and said that it was inconceivable that a case in perversity could succeed without the Chairman's notes being obtained.

Those are the arguments that were advanced on both sides.

Our initial observation is that this is a sad case of where an employee who has given long service in support of a company has in his closing years missed out in competition following upon an amalgamation of businesses. Unhappily, it may well have been the case that he was unqualified by reason of personality or the experience he had gained from obtaining a position lower down in the establishment. In short, he may have been overqualified for that subordinate position. But we find that the Industrial Tribunal did not base its decision on a finding that there had been no assessment of Mr Janinski. We find that for two reasons.

First, had the Industrial Tribunal done so, they would have been obliged to have stated this as their reason for finding that the decision of the employers was unfair. It is unfortunate that there has been this dispute about the evidence relating to an assessment process relating to Mr Janinski's candidature. However, we think that, having regard to the terminology used in the decision, the probabilities are that the Industrial Tribunal found there had been assessment. But at the end of the day we do not think that that is crucial to our views about this particular issue.

The second reason why we think that the Industrial Tribunal did not base their decision in part on the absence of an assessment of Mr Janinski is because, had there been no such assessment, the Industrial Tribunal would have found unfairness, not because of the omission of the criteria of long service and good attendance, but because there had been no assessment of Mr Janinski at all. The question of what criteria were used, would not have come into the picture.

We find that the whole thrust of the tribunal's decision was that the assessment was flawed in not awarding points for long service and good attendance. In coming to that conclusion, we are of the view that the tribunal substituted their own views for those of the employers about what should have been included in the criteria, and to that extent erred.

We intend to follow the decision of Axo Coating which has been referred to earlier. We find that there is a distinction to be drawn between the situation referred to in Williams v Compair Maxam where employees are selected for redundancy from a pool, and that which appertains where a senior employee has lost out in competition for a position comparable to his status and experience, and the employers have used their best endeavours to find alternative employment.

We find some support for that view in the case of Buchanan v Tilcon Engineerng Ltd [1983] IRLR 417, which is referred to in the case of British Aerospace v Green [1995] ICR 1006. In his judgment, Lord President of the Court of Sessions, says this:

" In the event the appellant, apart from throwing out the suggestion that he might have been victimised because of dislike, merely expressed his concern that others, with even less seniority than he and employed in the same work (labouring) had been kept on. In this situation where no other complaints were made by the appellant all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision."

We ask ourselves this practical question: what would have been the relevance of the insertion of a criteria relating to a long service and good attendance record where, at the age of 50 plus, a senior officer was competing for a junior position with a 21 year old. In our judgment all the employers had to prove was that the employers had taken reasonable steps to find him alternative employment. All that they had to do was to satisfy the Industrial Tribunal that their decision was fair in general terms.

Furthermore, we find that this, strictly speaking, is not a case relating to perversity. The need for the Chairman's notes to be available, arises in situations where there is a dispute about the facts or whether there was evidence before the Industrial Tribunal entitling them to come to the conclusion they did. This is a case where, in our judgment, the Industrial Tribunal erred in law, primarily because they followed the principles set out in Williams v Compair Maxam too literally, without adapting them to the different situation that arises in a case like this, where the employers have the unpalatable task of finding a senior officer alternative employment somewhere else in the establishment.

In our judgment, the appeal in this case must be allowed. Now we have to decide what we should do about it hereafter.

This is a case in which the facts are essentially not in dispute, save on the issue of Mr Janinski's assessment. We have to ask ourselves whether there would be any sense in remitting it to be reheard by the same or by a different tribunal. We are satisfied it is abundantly clear on the facts set out here that the employer took reasonable steps to find Mr Slater alternative employment. They considered him for employment through all the grades and invited him to submit himself to a selection process which, we can understand was painful and humiliating for him to endure. But for all that, the employers went to considerable lengths to find him alternative employment and that is clear. We think that is sufficient to enable us to substitute our own finding, namely that of fair dismissal, and we do so.