United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 881_94_3110

Appeal No. EAT/881/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 October 1995

HIS HONOUR JUDGE CLARK

MR J H GALBRAITH

MRS T A MARSLAND

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MRS M CURTIS          APPELLANT

FARNSWORTH LTD T/A PORK FARMS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R JONES

(Of Counsel)

Young & Pearce

58 Talbot Street

Nottingham

NG1 5GL

For the Respondents Mr A Korin

(Solicitor's In-House Counsel)

Dibb Lupton Broomhead

Fountain Precinct

Balm Green

Sheffield

S1 1RZ


 


JUDGE CLARK: This is an appeal by the employee Mrs Curtis, against a unanimous decision of the Nottingham Industrial Tribunal, following a hearing held on 9 June 1994, that she was not unfairly dismissed by the Respondent. The Appellant had been employed as one of three management accounts clerks in the Cost Office in the Respondent's factory at Queens Drive, Nottingham. The other two clerks in that office were Helen Pikett and Karen Thorpe. Both of those ladies had 3 years service at the relevant time. The Appellant had 4 years service.

The Industrial Tribunal found in paragraph 2 of the full reasons that each of the three ladies had their own separate tasks. That finding appears to be based on the evidence of Mr Minnis, an accountant with responsibility for overseeing the Cost Office and among other departments, the Sales Ledger department. Miss Pikett produced butchery daily variance analysis and Miss Thorpe dealt with hot pie variances. He said in evidence that there was minimal interchange between those jobs and that performed by the Appellant. It seems that the management decision was taken to make the job done by the Appellant redundant. Part of her tasks, the Industrial Tribunal found, were to be absorbed by remaining Cost Office staff and part were to go to the Purchase Ledger department. That decision having been reached, the Appellant was seen first on 4 October 1993. That meeting was followed by four further meetings, prior to notice of dismissal being given to her by letter dated 22 October 1993. At those meetings, the question of whether the Appellant could do Helen Pikett's job was raised. The Respondent decided that she could not without extensive training. She was offered alternative employment in the Sales Ledger department, but she declined that offer.

There was a redundancy agreement which covered the Appellant's employment. Paragraph 3 of that agreement read:

"Selection for compulsory redundancy will be `last in, first out basis' on a departmental basis taking into account the skills required"

It is, and always has been, common ground between the parties that the reason for dismissal was redundancy. Before the Industrial Tribunal it was argued that the Respondent was in breach of that agreement, and thus dismissal was automatically unfair under Section 59(1)(b) of the 1978 Act, then in force. Alternatively, it was said that the dismissal was unfair under Section 57(3) in that there was a lack of proper consultation, and that the Respondent's motive for dismissing the Appellant was her age, and/or her pursuit of a grievance under the company's grievance procedure earlier in 1993.

In its summary reasons the Industrial Tribunal expressly found that it accepted the Respondent's witnesses' evidence. In the extended reasons given by the Tribunal, it concluded first that the Appellant was not selected for redundancy in contravention of the agreed procedure, after skills were taken into account. Alternatively, that skill considerations amounted to a special reason for departing from that procedure or arrangement. Secondly, that the Respondent acted reasonably under Section 57(3). In particular, they thought that her age and use of the grievance procedure had nothing to do with her dismissal: that she was fairly selected, and that there was adequate consultation and, we should add, there was evidence before it of an offer of alternative employment.

In this appeal, Mr Jones argues on behalf of the Appellant that, on the evidence, Mr Minnis was not able to assess the skills of the Appellant. Having seen the Chairman's Notes, we do not think that this submission is made out. Accordingly, his attack under Section 59 fails. It seems to us that the Industrial Tribunal was entitled to find that the Appellant was properly selected for redundancy, after considering the skills required in the Cost Office. The other substantial point taken by Mr Jones relates to inadequate personal consultation. Mr Korin for the Respondent acknowledges a weakness, in that the Respondent failed to give advance warning, or to consult the Appellant before making the decision to reallocate her work in the Cost Office.

We have carefully considered this submission, but we have to look at the Industrial Tribunal's conclusion under Section 57(3) in the round. We have decided that there was sufficient material to allow the Tribunal to conclude that overall the Respondents had acted reasonably in dismissing, in all the circumstances of this case. Put another way, we cannot say, in our judgement, the Industrial Tribunal's conclusion was perverse, in the sense of it being irrational or an impermissible option. Accordingly we must dismiss this appeal.