United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1059_95_2604

Appeal No. EAT/1059/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26th April 1996

HIS HONOUR JUDGE PETER CLARK

MR R H PHIPPS

MRS P TURNER OBE

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MR A PARKER          APPELLANT

(1) MAYOR AND BURGESSES OF THE ROYAL BOROUGH OF KINGSTON UPON THAMES

(2) THE GOVERNING BODY OF CHESSINGTON COMMUNITY COLLEGE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MR MICHAEL COY

(of Counsel)

Messrs John Chapman & Co

Solicitors

Crown Lodge

Crown Road

Morden

Surrey

SM1 5BY


 


JUDGE CLARK: This is an appeal by Mr Alan Parker, a teacher at Chessington College until his dismissal by reason of redundancy on 31st December 1992, against a decision of the London (North) Industrial Tribunal sitting at Whittington House on 17th to 21st October 1994 and 17th March 1995, that his claim of unfair dismissal failed. Extended reasons for that decision are dated 10th August 1995.

Teaching used to be regarded as secure employment. That is no longer the case. Since the advent of Local Management of Schools following the passing of the Education Reform Act 1988 primary responsibility for the running of schools has passed from the Local Education Authority (the first respondent in this case) to the Governors of the School (here, the second respondent). Schools are now individual business units, each with their own budget, for which the Governors are responsible. The story in this case is now not uncommon.

The Governors of Chessington College anticipated a budget short fall. They looked for costs savings. The wages bill inevitably came under scrutiny. It was decided to reduce the teaching staff numbers, if necessary, by compulsory redundancies.

Mr Parker was deputy head of the Science Department. He had been continuously employed at the school since January 1980. He received a salary of around £22,000 per annum which no doubt reflected his age (he was 44 years old at the date of termination) and his experience in teaching.

The redundancy exercise was essentially carried out by the second respondents. The procedure adopted may be summarised from the Industrial Tribunal's very full decision in this way.

(1) Extensive consultation took place with staff, and no point arises on this aspect of the case.

(2) Selection criteria were drawn up.

(3) Candidates for selection were placed in selection pools.

(4) Individuals within the pool were nominated for redundancy.

(5) Following nomination individuals had a right of appeal, first to a panel of governors, then to a further panel of governors and thereafter to the first respondents Education Committee consisting of three local councillors. A total of three separate appeals.

(6) In the event those appeals failed, the identified member of staff received notice of dismissal.

That was the process applied to Mr Parker.

The selection criteria decided upon, so far as is relevant, are set out at paragraph 21 of the tribunal's reasons. We need not repeat them. They were directed to the continuing needs of the college. They do not include any reference to staff members' length of service.

Three teachers fell to be considered in the Science Department pool, Mr Parker, Mr Jones and Mr Coope, a probationary teacher. Their respective merits, set against the selection criteria were considered by the first round of governors, and Mr Parker's nomination for redundancy was confirmed. Against that nomination Mr Parker pursued the further appeal process which we have described. Those appeals in turn were unsuccessful. He was dismissed.

In this appeal Mr Coy on behalf of Mr Parker, seeks to argue two broad points. First, he says, the Industrial Tribunal erred in law in not according sufficient importance to the principle that an employee's length of service should be a major factor in the selection process.

It is clear that Mr Parker had considerably more service than his two comparators. Equally, that this played no part in the selection criteria adopted by the respondents, and further that the Industrial Tribunal found in paragraph 43 of the reasons that the selection method adopted by the respondents was fair, notwithstanding, we add, that no account is taken in that selection method of length of service. Can this amount to an erroneous approach in law?

The short answer, in our judgment, is no. Mr Coy relies upon the Court of Appeal judgment in Bessenden Properties Ltd v Corness [1974] IRLR 338. We have reminded ourselves of the judgment of Roskill LJ. in that case, decided as it was in the early years of employment protection legislation. However, we must bear in mind the development of redundancy selection methods in industry since that time, and the tenor of subsequent cases beginning with BL Cars v Lewis [1983] IRLR 58 and more recently the Court of Appeal decision in British Aerospace v Green [1995] ICR 1006, and the cases there considered.

In our judgment it is open to an employer to apply selection criteria which do not include length of service. The question for the Industrial Tribunal is whether those criteria are reasonable. That was the approach adopted by this Industrial Tribunal and we can find no fault with its conclusion to be found in paragraph 43 of the reasons.

The second ground of appeal is directed to the Industrial Tribunal's findings as to the appeal procedure adopted by the respondents which is set out in paragraph 42 of their reasons, where they say this:

"After the initial `nomination' for redundancy, Mr Parker had a full opportunity to appeal against that decision and, indeed, he was entitled to be represented by lawyers at his various hearings. Those appeal hearings appear to us to have dealt very fully with all the points that he made."

Mr Coy has raised a number of complaints about that conclusion. In particular, he says that at the appeals Mr Barker representing the second respondent said nothing, and that in an adversarial system, which he says this appeal system was, if you do not say anything then you lose. We see no substance in that point, nor indeed, in any of the other detailed points which are urged upon us by Mr Coy. In our judgment the Industrial Tribunal was entitled to reach the findings which it did in relation to the appeal process. It is not for this tribunal to interfere with findings of fact made by the Industrial Tribunal in the absence of perversity. We cannot say that an arguable case for perversity is here made out.

This is a preliminary hearing, held to determine whether or not the appeal raises any arguable point of law to go to a full hearing before this tribunal. In our judgment it does not. The appeal must be dismissed.