United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 651_94_1406

Appeal No. EAT/651/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th June 1995

HIS HONOUR JUDGE SMITH Q.C.

MR J R CROSBY

MR D A C LAMBERT

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MR A TAYLOR & 18 OTHERS          APPELLANTS

(1) BICC BRAND REX LTD

(2) BICC CABLES LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR HOWE

(of Counsel)

For the Respondents MR MALONE

(of Counsel)

RESERVED JUDGMENT


 


JUDGE SMITH Q.C.: This is an appeal by Mr Taylor and eighteen other appellants against the decision of an Industrial Tribunal sitting at Liverpool dated 25th May 1994 when the Industrial Tribunal decided that all the appellants had been fairly selected for redundancy by the respondent employers BICC Brand Rex Ltd and BICC Cables Ltd and hence had been fairly dismissed.

The simple but important point raised on this appeal is a submission by the appellants that the Industrial Tribunal in reaching its decision failed to consider and/or give any or any proper reasons for rejecting the individual appellants' contentions in relation to the fairness of the application by the respondents of certain of the redundancy criteria to their individual circumstances.

Before dealing the detailed submissions to us by Counsel and expressing our findings in relation to those submissions, it is necessary to set out the background to the matter shortly.

The facts as found by the Industrial Tribunal are set out in full detail in paragraph 4 of the Industrial Tribunal's decision and reference is made to that paragraph for a full statement of the facts and the background relating to this matter as found by the Industrial Tribunal.

Suffice it to say that the BICC Group in its various manifestations manufactures cables. Until December 1992 each of the appellants was employed at one of two factory units operated by BICC at Leigh. In the latter half of 1992, as a result of a down turn in demand, BICC decided that it was necessary to declare a number of redundancies at the Leigh site. On 12th November 1992, they informed the relevant trade unions of this plan, and called for volunteers for redundancy. Not enough people volunteered, and, accordingly, BICC thereafter created and applied a system of selection for compulsory redundancy. This system worked by allocating points for each employee, in four categories:-

(i) Attendance (Maximum 20 points)

(ii) Time Keeping (Maximum 10 points)

(iii) Length of Service (Maximum 10 points)

(iv) Capability (Maximum 20 points).

The appellants were each amongst those selected for redundancy by this method and were so informed on 8th and 9th December 1992. The appellants were given an opportunity to appeal the decision to dismiss, and almost all of them did, but none of their appeals was successful.

Having found of course that the reason for dismissal in each case was redundancy, the Industrial Tribunal then proceeded to consider the application of Section 57(3) of 1978 Act in paragraphs 5 and 6 of its decision. Before us there is no appeal against what have been described in argument as the generic findings of the Industrial Tribunal. But what is complained about is the alleged inadequacy of the findings of the Industrial Tribunal relating to the application of the redundancy criteria to the cases of the individual appellants.

In summary, the submission by Counsel for the appellants was that in deciding whether the dismissals were fair by reference to Section 57(3) of the 1978 Act the Industrial Tribunal only reached "generic" findings (by which is meant findings which applied equally to all the appellants) and failed improperly to address at all or reach findings relating to specific matters raised by the nineteen individual appellants. In so failing it is submitted that the Industrial Tribunal fell foul of the general principle laid down by the Court of Appeal in the case of Meek v City of Birmingham [1987] IRLR 250, to the effect that an Industrial Tribunal must give sufficient reasons to enable an applicant to an Industrial Tribunal to know why he has won or, as the case maybe, why he has lost, and, as is clear from Levy v Marrable [1984] ICR 583, that an Industrial Tribunal must state a clear view one way or the other as to the evidence where there is a conflict of evidence on a significant issue of fact. Placing these general principles in the context of a redundancy selection case, it was Counsel's submission that the Industrial Tribunal's decision here failed to make findings in accordance with the well-known guidelines in Williams v Compair Maxam Ltd [1982] IRLR 83, in particular the requirement that an Industrial Tribunal must be satisfied that it was reasonable to dismiss each of the applicants on grounds of redundancy (i.e. not an "employee" but the "employee") and for it to satisfy itself that the employer had sought to ensure that the selection for redundancy had been made fairly in accordance with the criteria established, as per guideline (iv) in that case. Counsel for the appellants submitted that, looking at the decision in the light of those principles, it was fundamentally flawed by reason of the absence of any findings relating to conflicts of evidence which arose during the hearing particularly in connection with the application of the attendance and timekeeping criteria by the respondents to the cases of the individual appellants. Whilst Counsel accepted, without formally conceding the point, that it would be difficult to make good a contention that the Industrial Tribunal should involve itself in any specific findings with regard to the capability criterion, it was his submission that different considerations altogether applied to the attendance and time keeping criteria. In his submission what was required there, and what was missing from the decision of the Industrial Tribunal, was a review of the evidence, much of which was disputed, given in the case of each appellant followed by either a decision on the conflicts of evidence that arose or at least a finding that the respondents' decision in all the circumstances did or did not amount to a fair and reasonable application of those criteria to the cases of the individual appellants.

In support of this submission Counsel relied upon the approach of the Employment Appeal Tribunal in the case of Paine and Moore v Grundy (Teddington Limited) [1981] IRLR 267, to what he submitted was a not dissimilar situation. Counsel also sought to rely upon dicta from the Court of Appeal in the very recent case of British Aerospace PLC v Green and Others, (a case upon which both Counsel relied and in respect of which we were helpfully provided with a transcript of the judgment of the Court of Appeal as approved by that Court). We will have to refer in more detail to this submission later in this judgment. Thus it was Counsel for the appellants submission that the decision of the Industrial Tribunal was erroneous, should be set aside, and that there should be a fresh hearing of the appellants' cases before fresh tribunal, or alternatively that the cases should be remitted to the same Industrial Tribunal to make specific findings which Counsel submits should have been made but which the Industrial Tribunal failed to make.

Counsel for the respondents, Mr Malone, emphatically rejected the appellants' submissions. It was his submission that, far from being erroneous, the Industrial Tribunal's decision was a model decision of its kind. His key submission was that there were no specific issues before the Industrial Tribunal which called for decision as a matter of law since all the respondents had to show in a case of this kind was that the system which they had set up, and which the Industrial Tribunal had held to be a fair one, had been applied by them to the appellants without any overt bad faith or similar conduct. He relied particularly upon certain very important passages in Waite LJ's judgment, in the case of Green particularly at page 5 (where the approach of the Scottish Employment Appeal Tribunal in Buchanan v Tilcon Ltd [1983] IRLR 417, was cited with approval) page 7, where a similar approach taken by the Employment Appeal Tribunal in Eaton Limited v King [1995] IRLR 75, was approved, and finally to the general statement of principle at pages 17 and 18 of the judgment of Waite, LJ.

Counsel for the respondents drew our attention to the approach of the Court of Appeal in the case of Kearney Trecker Marwin Ltd v Varndell & Others [1983] IRLR 335, particularly the passage in Eveleigh, LJ's judgment at paragraphs 22 and 23, and 31 and 32 as authority for the proposition that in a redundancy selection situation of the kind in the instant appeal (which he points out is exactly the situation which the Court of Appeal was dealing with in Kearney), once an Industrial Tribunal has held that the employer's system is reasonably fair and that he is entitled to use it for selection for redundancy, an Industrial Tribunal is not then required to go on and examine how precisely the system was applied to each individual applicant.

Whilst Counsel for the respondents accepted of course the general principles that an Industrial Tribunal was bound to give sufficient reasons to enable a party to know why he had won or lost, and to state its view clearly on any conflict of evidence of a significant kind, he submitted that whether or not an Industrial Tribunal has in fact discharged its obligation in any given case depends crucially upon a correct analysis in the first place of what the relevant issues are since there is no requirement for an Industrial Tribunal to decide irrelevant issues and indeed to do so might have the result that the findings of an Industrial Tribunal were mutually inconsistent with one another.

Counsel for the respondents illustrated what he submitted was the correct approach by the Industrial Tribunal in the instant appeal by focusing on the Industrial Tribunal's findings in relation to the attendance criterion which he submitted also inferentially applied to the time-keeping criterion. He pointed out that the evidence before the Industrial Tribunal in respect of these criteria was that the respondents had had a warning system in place since 1979 which, unlike the system in Paine and Moore v Grundy (Teddington Limited) [1981] IRLR 267, was a flexible system which gave weight not only to objective records of absence or lateness but also to any explanations, excuses, or mitigating factors put forward at the time which might have had the result that in fact no warning was given in any particular case. In addition the established system had its own built-in right of appeal which could be exercised by the employee at the time. Counsel pointed out that it was that system, not any other system, which the Industrial Tribunal in its generic finding in paragraph 4(h) found in all the circumstances to be a fair system for the respondents to rely upon for assessing the attendance records of those being assessed for redundancy. Important additional generic findings were, he submitted, made by the Industrial Tribunal in this regard at paragraph 4(p) namely that the assessments were carried out reasonable and fairly with safeguards against subjectivity, and at paragraph 4(q) namely that the appeal system against the initial assessments was conducted by the respondents seriously and with an open mind, resulting in a number of successful appeals. It was Mr Malone's submission that these generic findings, together of course with the findings in paragraph 6(d),(e), (f) and (g) of the Industrial Tribunal's decision rendered it quite unnecessary for the Industrial Tribunal to make any specific findings of the kind contended for by the appellants on this appeal in relation to the attendance and time keeping criteria.

Thus Mr Malone pointed out, by way of answer to Counsel for the appellants submission, that had the Industrial Tribunal, for example, embarked on making specific findings with regard to a contested issue as to whether or not Mr Taylor, the first appellant, should have been given a warning for an absence which he contended to be due to an industrial accident and gone on to find in his favour that it was unreasonable for him to have been given such a warning so that his dismissal was unfair, such a finding would have been at odds with the Industrial Tribunal's generic findings in paragraph 4(h) of its decision.

Mr Malone submitted, also, that there was implicit in the generic finding of the Industrial Tribunal at paragraph 4(h) that the Industrial Tribunal, in deciding whether the system for attendance and time keeping was an inherently fair system, had given consideration to the detailed evidence of the appellants, much of it no doubt critical, as to the way the system had in fact operated in practice in relation to their particular cases, and he submitted that had the Industrial Tribunal concluded on all the evidence before them, that the working of the system was defective and unfair, the Industrial Tribunal could not have made the generic finding that they did in paragraph 4(h) of their decision.

He submitted it would be contradictory for the Industrial Tribunal to find on the one hand that the respondents were entitled to rely on the system, and yet at the same time to seek to review the system with a view to examining the defects in its working as now relied upon by the appellants. Mr Malone sought to distinguish fundamentally between evidence laid before an Industrial Tribunal to establish bad faith, victimisation, perhaps even personal dislike, or anti-trade union conduct on that part of the employer and the like, when the Industrial Tribunal must make specific findings, from, on the other hand mere disagreements, however keenly felt, as to whether a warning should or should not have been given for alleged absence or lateness.

Before we express our conclusion on these conflicting submissions before us, which we may say were very well argued by experienced Counsel on each side, there are a number of points with which we consider we should deal which arose to a greater or lesser extent in

the course of argument.

Firstly, we should record our conclusion, although Mr Howe Counsel for the appellants as we have noted earlier for obvious reasons did not concede the point, that we are quite satisfied that there was no possible obligation on the Industrial Tribunal in this case to review the findings of the respondents, and consequently the points awarded, with regard to the capability criterion. Mr Howe produced a helpful schedule annexed to his skeleton argument setting out the individual issues affecting each appellant which he submitted that the Industrial Tribunal should have made specific findings in relation to. In many cases complaint was made in regard to the capability assessment. In our judgment it is clearly established by cases such as Kearney and much more recently Eaton Limited v King, that it is not for an Industrial Tribunal, once it has decided that the criterion is fair and the system of selection is reasonably administered, to involve itself with looking in detail as to how the capability criterion was applied in any specific case. Accordingly we reject the argument that the Industrial Tribunal's decision was in any way defective in this respect.

Secondly, we should deal shortly with three other points which arose. Mr Malone specifically conceded that there were no specific findings in the Industrial Tribunal's decision with regard to the application of the attendance and time keeping criteria to the individual appellants. We mention this because it was open to him to argue that the single sentences at the end of paragraph 6(f) and (g) respectively of the decision might amount to such specific findings expressed in an omnibus manner. However, Mr Malone expressly disavowed any reliance upon these sentences; it was his case that all that was required were the generic findings.

Next, in our judgment no criticism can properly be made of the Industrial Tribunal's decision on the ground that they did not explicitly make a finding that the time-keeping system in operation at Leigh, as distinct from the attendance system, was a fair and reasonable system for the respondents to use as a criterion for redundancy selection. We are quite satisfied that the Industrial Tribunal's findings, although made explicitly in relation to the attendance criteria, were intended to apply mutatis mutandis to the time-keeping criterion. To adopt any other conclusion would be to subject the Industrial Tribunal's reasoning to a quite unreasonable degree of formulistic and over linguistic scrutiny.

Finally, in our judgment, we should say that we are quite satisfied that the Industrial Tribunal's generic findings with regard to the system in operation by the respondents in respect of attendance and time-keeping clearly embraced a system involving lapsed warnings, cancelled warnings, or withdrawn warnings. There is, in our judgment, no special category of warning which the appellants sought to give evidence about before the Industrial Tribunal which was not within the four corners of the respondent's system which was found to be fair by the Industrial Tribunal. Accordingly, the same goes for all the various individual points made by the appellants in the schedule prepared by Mr Howe which of course were exclusively based upon the evidence given by the appellants before the Industrial Tribunal.

We now turn directly to our decision on what we regard as the main issue. We accept of course that the fact that applications have been combined, as they of course commonly are in redundancy selection cases, in no way absolves an Industrial Tribunal from given reasons which sufficiently deal with the position of each individual applicant whose case has been combined with others. We of course entirely adopt the principles in case such as Meek and Levy v Maribaul with regard to the need for an Industrial Tribunal to give sufficient reasons for its decision. We are conscious of the fact that where large numbers of applications are dealt with together for proper reasons relating to the efficient disposal of a number of cases at one hearing, there is a danger that an individual's case, which might be different from that of another applicant's case, may not be dealt with adequately. We accept that such eventuality could well give rise to an understandable feeling of injustice on the part of an individual applicant and, perhaps, a sense that he or she had not had their day in court. We have taken all this into account in arriving at our decision.

Although the case concerns specifically with the powers on an Industrial Tribunal relating to discovery, we have derived very considerable help in arriving at our decision from the judgments of the Court of Appeal in the case of Green, particularly the judgment of Waite, LJ. We note particularly the citation in that judgment of the frequently approved passage in Williams v Compair Maxam and the learned Lord Justice's conclusion at page 4 of his judgment as follows:

"The Industrial Tribunal must, in short, be satisfied that redundancy selection has been achieved by adopting a fair and reasonable system and applying it fairly and reasonably as between one employee and another; and must judge that question objectively by asking whether the system and its application fall within the range of fairness and reason (regardless of whether they would have chosen to adopt such a system or applied it in that way themselves)."

Thereafter, in our judgment, Waite, LJ goes on to deal specifically with the very issue which we have to decide in the instant appeal, namely, as he helpfully calls it, the degree of scrutiny required of the Industrial Tribunal. We respectfully regard the principle laid down by Waite, LJ, at page 5 of his judgment, including the citation from the case of Buchanan,

to be of crucial importance to our decision in the instant appeal. We cite from the judgment as follows:

"Employment law recognises, pragmatically, that an over minute investigation of the selection process by the Tribunal members may run the risk of defeating the purpose which the Tribunals were called into being to discharge - namely a swift, informal disposal of dispute arising from redundancy in the work place. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him."

The learned Lord Justice then went on to cite with approval a passage from the judgment of the Lord President in Buchanan v Tilcon Limited at page 418 which we do not think it necessary to cite in this judgment.

Mr Howe sought to persuade us that the words in the passage of Waite's, LJ, judgements "applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him." indicate that in order for an Industrial Tribunal to be satisfied one way or the other as to that an Industrial Tribunal must examine and decide just the kind of issues as those which arise in the instant appeal and which were not specifically dealt with by reference to each individual appellant. We cannot accept this interpretation of what Waite, LJ, was there saying. In our judgment it is quite plain that what the Court of Appeal had in mind were situations where there was evidence of some kind of unfair conduct on the part of the employer which, if established, could mar the fairness of the system in its application to an individual employee. We are satisfied that what Waite, LJ, had in mind was, as Mr Malone submitted, cases where there was evidence of bad faith, victimisation, or discrimination due to trade union activities, or the like, as opposed to disputes as to whether a warning for non-attendance had or had not been given, whether it should have been given, whether it had lapsed, whether it should have counted, and so on. In our judgment that this interpretation of what the learned Lord Justice said is right is put beyond doubt by his statement of principle at pages 17 and 18 of his judgment in Green:

"(i) The use of a marking system of the kind that was adopted in this case has become a well recognised aid to any fair process of redundancy selection. By itself, of course, it does not render any selection automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors to its fair application, including the degree of consultation which accompanied it. One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over minute analysis. That applies both as this stage when the system is being actually applied and also at any later stage when its operation is being called in question before an Industrial Tribunal. To allow otherwise would involve a serious risk that the system itself would lose the respect of which it is at present regarded on both sides of the industry, and that tribunal hearings would become hopelessly protracted."

We note particularly that at page 24 of the transcript Millett, LJ, expressly states that:

"The tribunal is not entitled to embark upon a re-assessment exercise."

And continues in these terms:

"I would endorse the observations of the Employment Appeal Tribunal in Eaton Limited v King [1995] IRLR 75, that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based."

Stuart-Smith's, LJ, judgment dealt much more directly with the particular issue before the Court of Appeal relating to discovery.

Applying the reasoning of the Court of Appeal in Green to the best of our ability to the instant appeal we are all quite satisfied that the Industrial Tribunal's decision was entirely adequate in the circumstances and we accept Mr Malone's submissions to us in that regard.

In the particular circumstances of the instant appeal we are satisfied that none of the specific issues raised by any of the individual appellants before the Industrial Tribunal called for specific findings by the Industrial Tribunal in the light of the Tribunal's generic findings which they had made, since in our judgment none of those matters could possibly have led the Industrial Tribunal to conclude that there was any conduct on the part of the respondents which marred the overall fairness of the respondents' system as the Industrial Tribunal in its generic findings had found it to be.

We should stress that each case must depend upon its own individual circumstances, in our judgment, and we accept that there may be cases where it is necessary for the Industrial Tribunal to make specific findings as to the application of what had been held to be fair criteria to individual complainants. Sometimes it might be difficult to say upon which side of the line a given case falls. However, we are quite satisfied here that the generic findings of the Industrial Tribunal in this particular case were sufficient to determine all the relevant issues for the reasons set out in the submissions made to us by Mr Malone which we accept.

In our judgment for the Industrial Tribunal to have embarked here on specific findings relating to the individual applicants of the kind contained in the schedule to the appellant's skeleton argument as they relate to the application of the attendance and time-keeping criteria to the individual appellants would have amounted, adopting the words of Waite, LJ, to an officious and over minute scrutiny and analysis of the respondents' marking system in this case.

Accordingly the appeals are dismissed.