United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS A HEWITT (of Counsel) Messrs Brown Cooper Solicitors 7 Southampton Place London WC1A 2DR
For the Respondent	MR A BRADLEY (of Counsel) Ms J Fogg-Elliot Free Representation Unit Room 140 49-51 Bedford Row London WC1R 4LR


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a unanimous decision of an Industrial Tribunal held at London (North) presided over by Mr Menon. The decision was entered in the Register and sent to the parties on 23rd August 1995.

By their unanimous decision, the tribunal concluded that the employee, Mr Challenger, whom we shall refer to hereafter as the "employee" had not been dismissed by reason of redundancy within the meaning of Section 81 of the Employment Protection (Consolidation) Act 1978 (as amended); and that accordingly he had been unfairly dismissed, redundancy being the reason asserted by the employers as the reason which led to his dismissal.

The employers Messrs Glazer Plastics Ltd, who we shall hereafter refer to simply as the "employers", had employed the employee from February 1973 until his employment terminated on 12th August 1994. He had been employed as a "plastic polisher" at the employer's factory at Dudden Hill Lane, Neasden, North-West London.

The circumstances giving rise to the dismissal are fully set out in the tribunal's decision at paragraph 6.

The essential facts leading to the dismissal are that following a visit to the Plastic Industry Trade Fair - held in November 1993 - Mr A H Glazer, a director of the employers, decided to see whether a machine which he had seen at the fair could be brought into use in the employer's premises.

The machine manufacturers accordingly, having persuaded the director to this point of view, installed on a trial basis the machine in the polishing room on 23rd March 1994. After about half a days training, Mr Gentry, the works director, operated the machine and spent the next two days operating it, getting the feel of it and assessing it in terms of its usefulness to their business.

At the end of two days, on 25th March 1994, the employers were happy with the machine and they decided to keep it on a permanent basis. At the same time they decided that the introduction of this machine would absorb most of the work which was done by the employee. The employee's work in the polishing room had been largely conducted with a mop, which is a device which is attached to the head of rotating machine and which was used to polish the plastic material. A proportion of his work, albeit a small proportion, was polishing plastic by using a flame. As a result of the introduction of this much more sophisticated polishing machine, they decided that there would be only two to three days of mop polishing work still to be done, and some flame polishing work albeit of a small proportion in terms of time.

At the same time as reaching those decisions, they decided that the employee did not have the necessary skills to operate such a sophisticated machine, they decided to offer to a part-timer the full-time job of operator of the polishing machine, as he held some engineering qualifications.

Having made all those decisions, Mr Glazer then held a meeting with the employee. It is to be noted that firstly, by this stage the decision had already been made to introduce the machine; secondly, a decision had already been made that the affect of the introduction of the machine would be to substantially reduce the work which the employee had been doing; thirdly, they had already made the decision that he did not have the necessary skills to operate the machine; and fourthly, that a part-timer employed by them should be offered a full-time post in the polishing room as operator of that machine.

Mr Glazer informed the employee of the decision, and explained to him that there would be no requirement for a full-time mop polisher, and that therefore he would be offered a job working with Mr Hickey, the foreman. The tribunal found as fact that the employee was not asked his views on whether he would be able to operate the machine after a period of training nor was he given any time to reflect on his position prior to being given the details of the job which Mr Glazer had in mind for him.

Following the meeting on the same day, he was written a letter setting out the job which the employers thought he could do by way of alternative employment.

There was, thereafter, protracted correspondence and we accept that this shows that the employers were endeavouring at this stage to make all attempts to save the employee from losing his job. However, that was against the background of them having confronted him, as it seems to us, with a fait accompli on 25th March 1994.

The attempts to find the employee alternative employment which he was willing to accept ultimately failed, thus he made a complaint to an Industrial Tribunal.

In paragraph 8 of their decision, the Industrial Tribunal correctly identified the issues which they had to determine.

"(8) On the same day, 25 March 1994, the Respondent decided to offer to a Mr David Gibson, who was employed by the Respondent as an engineer in a part-time job, the full-time job as the operator of the diamond edge polisher machine."

The first question they had to determine was whether there was a redundancy situation within the meaning of Section 81 of the 1978 Act:

"... (2) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly of mainly to-

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish.

For the purposes of this subsection, the business of the employer together with the business or businesses of his associated employers shall be treated as one unless either of the conditions specified in this subsection would be satisfied without so treating those businesses.

...

(3) In subsection (2) "cease" means cease either permanently or temporarily and from whatsoever cause, and "diminish" has a corresponding meaning."

It will be apparent from the facts as I have recited them, that there was no diminution in the requirements of the business for polishing work as such to be carried out. The question therefore arose as to whether there was a redundancy situation having regard to the terms of Section 81(2)(b). That, as it seems to us, depends on whether it can be said that the work of polishing to be done by the machinist was different in kind from the work which had been carried on by Mr Challenger in the course of his employment. In other words, this case is concerned with a familiar example of the introduction of new technology.

Whether work of a particular kind can be established in any particular case, is of course a pure question of fact and a matter of degree. We consider that Mr Bradley was correct in his submissions that there will be borderline cases where a tribunal is going to have to examine whether there is indeed a change in the skills of such a proportion that one can say the work is now of a different kind, or whether it is just simply a case of new skills being required from people who should be given the opportunity of trying their hand at them.

The test is set out in two decisions to which we will refer. The first is Amos & Others v Max-Arc Ltd [1973] NIRC ICR 46 at page 49 where the court said this:

"The phrase, "work of a particular kind" [and he refers to a predecessor section to Section 81(2)] means, in our judgment work which is distinguished from other work of the same general kind by requiring special aptitudes, skills or knowledge."

The second decision to which reference should be made, is the case of Cowen v Haden Ltd [1983] ICR 1, we refer to the passage at page 7F, where the Employment Appeal Tribunal said this:

" We are unable to treat the composite effect of those two decisions [that is of Nelson] of the Court of Appeal as being other than a decision binding on us that in considering section 81(2)(b) of the Act of 1978 it is not sufficient in order to establish redundancy to show merely that the requirements of the employers for employees to carry out work of the kind on which the employee was actually engaged had ceased or diminished: it is necessary to show such diminution or cessation in relation to work that he could have been asked to do."

In other words, it may be helpful to test whether the work is of a different kind or not by asking the question whether the employee could have been required under his contract to embark on the new type of work which is in issue in the particular case. In this case of course, on the facts, a pre-judgment had been made of that position by the employers without any consultation with the employee.

It would have been better, if we might respectfully say so, had the Industrial Tribunal in this case discussed more fully than they did the rival arguments that prevailed at the Industrial Tribunal as to whether the work on the new machine required such different skills that it could be described as work of a different kind from the mop polishing work. But the fact that they do not enter into that discussion and refer to any particular passages in the evidence, does not entitle us we think, to conclude that they failed to take it into account when arriving at their conclusion, that they could not draw any distinction between 'mop polishing' and other methods of polishing. The tribunal said:

"9. ... The Applicant was employed to do polishing, not solely mop polishing. He had performed flame polishing. What the Respondent proposed to do was that the greater part of the Applicant's work would in the future be performed by the use of the new machine. ..."

Despite the arguments which have been presented to us therefore, we are not satisfied that we can conclude that this was a decision which no reasonable tribunal could have arrived at on the material presented to them. That said, it may well be that the employers' judgment that was made before consultation with the employee would in the end have turned out to have been correct.

If they had approached the matter differently by consulting with the employee, talking to him about his capacity and willingness to work this machine before any decisions had been made by them as to who was to operate the machine, it might well have been the case, we speculate, that Mr Challenger would have indicated that he did not feel it within his competence to operate the machine, and had that been the position, we image that neither the Industrial Tribunal nor this court would have been troubled by the matter.

Therefore, it seems to us, that having arrived at the conclusion that there was no redundancy situation, the Industrial Tribunal were correct to conclude that thereby the dismissal was unfair as the employers had failed to establish the reason for the dismissal. Again, if we might respectfully say so, it would have been better had the tribunal gone on to mention the possibility that the dismissal was for some other substantial reason of a kind such as to justify the dismissal of the employee, but we think in shorthand terms they have gone on to consider the question of fairness in a way which the employers cannot criticise.

They have gone on to ask themselves in paragraph 10 of their decision, what would have happened had they concluded in the employer's favour that redundancy had been established. They then went on to say that even if the employee had been dismissed by reason of redundancy, a fortiori, as it seems to us by reason of some other substantial reason of a kind such as to justify dismissal, the dismissal would have been unfair.

On this aspect of the matter, we were not at all persuaded that there is any room to criticise the decision of the Industrial Tribunal. We, for our part, would also have considered that the employer's conduct in this case at the initial stage was less than fair and less than satisfactory. Having made the initial error, the employers thereafter have genuinely tried to rectify the situation, but it seems to us that there was sufficient unfairness in their earlier conduct to entitle the tribunal to conclude that the dismissal was unfair.

Accordingly, as it seems to us, we do not need to consider the additional argument which was raised as to whether technically the employers had complied with Sections 82(3) and (5) of the 1978 Act, so as to dis-entitle the employee to a redundancy payment. The tribunal have concluded that the alternative offer of employment was reasonably refused by the employee, we have no doubt that that was a finding which they could have arrived at bearing in mind the whole history of the matter as we have endeavoured to set it out.

Accordingly, and without a certain amount of misgiving about the form of the decision in this case we nonetheless are satisfied that the appeal should be dismissed. Therefore, we dismiss the appeal.