United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1205_95_0103

Appeal No. EAT/1205/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1st March 1996

Before

HIS HONOUR JUDGE N BUTTER Q.C.

MRS M T PROSSER

MRS J RUBIN

---

MR S P SMITH          APPELLANT

LAING- GTM          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant MR P A CHAMBERLAIN

(Representative)


 


JUDGE BUTTER Q.C.: This is the preliminary hearing of an appeal by Mr Smith against a decision of the Industrial Tribunal held at Bristol on 1st September 1995. The extended reasons for their decision were given on 27th September 1995.

The unanimous decision of that tribunal was that the applicant had not been unfairly dismissed.

Mr Smith had the advantage before that tribunal of being represented by Mr Chamberlain who has appeared before us today. We are grateful to him for the short, clear and courteous way in which he presented the argument on behalf of Mr Smith.

A few words about the background to the case. It concerns the second Severn crossing. Construction started in the Spring of 1992. Mr Smith was engaged as a general operative as from October 1992. Because of the variable workforce, as the tribunal expressed it, there was an agreement between the employers and unions with regard to a rather unusual streamlined redundancy procedure.

In November 1994, the applicant who had been receiving low assessments was selected for redundancy, but another job in another section came up and his redundancy notice was rescinded and he moved to a new section. He was able to see his skill and performance marks and discovered that they were only 8. He raised a grievance which was then considered. The basis of his grievance was that Mr Withers, a supervisor, was marking him low because of a personality clash. He was moved to a new section. On 12th September 1994 he was assessed this time by Mr Julia who assessed him again at the figure of 8.

In January 1995, a decision was taken by Mr Jamieson that further redundancies were required, and the applicant was apparently at the top of the list and was selected for redundancy. There was an agreed procedure whereby he was able to appeal against that decision.

The Industrial Tribunal in paragraph 9 deal with the appeal. They go on in paragraph 10 to deal with the question of redundancy and considered, in particular, Section 57(3) of the 1978 Act. They set out further matters. Then in paragraph 13 they set out the position more fully, (there is no point in my reading out the paragraph, we have all been considering it) and it is that paragraph which is particularly the subject of criticism. The tribunal went on to say that they were not prepared to accept that the difficulties which had been experienced were due to bias by Mr Withers. They concluded that the decision to dismiss was not tainted.

Today in his skeleton argument, Mr Chamberlain has drawn attention to a number of figures relating to the question of points for skill and performance. Paragraph 1(e) represents the central and fundamental part of his criticism of the tribunal's decision.

It is apparent, however, that the tribunal did consider the arguments and did consider the position with some care. Mr Chamberlain however, says, that having realised the problem, they then came to a decision which no reasonable tribunal could have come to. In other words, simply it was a perverse decision. He has reminded us of a number of authorities which deal with the question of so-called perversity. There is, incidentally, a more recent decision of the President of the Employment Appeal Tribunal, Mummery J. who in the case of Stewart v Cleveland Guest Engineers Ltd [1994] IRLR 443 at paragraph 33 dealt with various definitions of perversity. This tribunal is familiar with the test which has to be applied.

We are unanimously of the opinion that we cannot say that there was perversity here or that if the appeal were to proceed, the Employment Appeal Tribunal might at some later stage decide that there had been perversity. We are clearly of opinion that the tribunal was entitled to reach the conclusion which it did.

One other matter requires reference. That is the question of procedure. The tribunal dealt in the latter paragraphs of their decision with certain shortcomings of procedure which had caused them concern, but went on to say that on balance and after considerable thought, they came to the conclusion that the decision was within the band of reasonable responses and the procedure was not sufficiently flawed as to find it to be an unfair procedure. In the circumstances, they came to the conclusion that the application must be dismissed.

This tribunal has given consideration to this point, albeit not forming a significant part of the appeal, and in the view of this tribunal today, the Industrial Tribunal was entitled to reach the conclusion which it did and cannot be said to have erred on a matter of law or otherwise.

In these circumstances, we would do no service for Mr Smith if we decided to permit the appeal to go forward to a full hearing. For these reasons we come to the clear conclusion that the appeal fails and must be dismissed.