United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 701_95_0805

Appeal No. EAT/701/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th May 1996

Before

HIS HONOUR JUDGE B HARGROVE Q.C.

MR D J JENKINS MBE

MISS A M WILSON

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GESTETNER MANUFACTURING LTD          APPELLANTS

MISS I BRAITHWAITE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR R ELDRIDGE

(Solicitor)

Messrs Berwin Leighton

Solicitors

Adelaide House

London Bridge

London EC4R 9HA

For the Respondent MR B CARR

(of Counsel)

Messrs Rowley Ashworth

Solicitors

247 The Broadway

Wimbledon

London SW19 2SE


 


JUDGE HARGROVE Q.C.: The respondent was employed by the appellants from 1979 to 1994 when she was dismissed by reason of redundancy. She was an assembler. She was one of 38 employees dismissed.

There was no dispute about the reasons for the dismissal. The contentious area was the fairness of the dismissal in relation to the selection criteria as applied to the respondent. After seeking voluntary retirements, the appellants decided to utilise a combination of assessment of skills and length of service. The factors they chose were skill, flexibility, productivity, quality, reliability and service. Those factors were all given different weights. Those weights were indicated by multipliers varying from 3 to 5.

In relation to skills, the employees were asked to grade themselves. At first the respondent selected a number, but that was revised upwards upon reflection. Further the management having at first rated the respondent at 2 for reliability upgraded it 1 for compassionate grounds to 3.

The tribunal held that those criteria were in themselves fair, and that the appellants approached the matter in a responsible and praiseworthy manner.

In the department where the respondent worked, her fellow employees were skilled personnel. Compared with such employees a point scoring exercise would have made her selection inevitable. Trying to be fair, the appellants decided to place her as though she was in a pool of employees in the duplicator and scanning section. In that pool, her score placed her below the safety line and after being warned in the appropriate manner, there having been consultation with the unions, she had a right of appeal which she exercised and she was eventually dismissed.

There had been an earlier series of redundancies. She had been selected, but only a short time before her dismissal date she had been told that she would not be dismissed and she continued in the appellants employ.

The method of point scoring on the previous occasion, had been one where the respondent's work had been broken down into five job categories. The categories were, in all fairness, set out quite clearly before the tribunal, they involved (and each of these was a separate key,) crimping, cable cutting, tinning, colour stripping and harness binding. One can say in passing that some would have regarded that degree of division as over-elaborate.

In the instant case, however, all those jobs counted as one category. In comparison with the previous method therefore it is said that the respondent's scores on skills and flexibility was reduced.

The tribunal's approach to this matter is set out at paragraph 15. Where after dealing with the question of the criteria being in themselves fair, the tribunal continued:

"15. ... The tribunal unanimously consider however that in their efforts to be fair to the applicant they unintentionally placed her at a disadvantage, because by consolidating all the elements of the electrical assembly section and then comparing the score for that section against the tasks that covered an entire department, namely the duplicator and scanner department, they inadvertently disadvantaged her because it limited her scoring capacity against other employees against which she was being compared. She could not score as fully as she might have done because the task within her section were consolidated where as that was not so on an earlier occasion.

The tribunal therefore unanimously find that the applicant was unfairly dismissed."

It is contended by the appellants and accepted respondent here that the tribunal was plainly taking into account the previous methods of scoring on the previous redundancy.

The appellants say that the passage I have just read contains two major errors. First, it is said, that the Industrial Tribunal substituted its own view for that of the appellants in relation to the selection of criteria. The substitution, it is said, is apparent from the decision that the skill of each element of the electrical assembly line was treated as one factor only.

The respondent replies to that, that since the tribunal found there was unfairness compared with other employees, they were entitled to find that no reasonable employer would select on that basis and that there was in fact no substitution of the Industrial Tribunal's view for those of the appellants.

The respondent also relies on what appears to be an admission which appears at page 30 of the bundle, in which Ms Burchell for management says:

"She [meaning the respondent] would have scored over 92 points and would have been safe." [Meaning thereby safe from redundancy.]

It is pointed out, on behalf of the appellants, that 92 points would not have been what she would have scored, she would have scored 91. That is denied by the respondent who estimate that she would have scored 96 points.

It is right in dealing with that aspect to remember that the answer given was given in these circumstances. That the preceding passage reads as follows:

"She was not at a disadvantage. The element s are included by consolidation by EL.

We couldn't assess her alongside setters because she would be on her won. You could argue she shouldn't be in this pool at all. She would then however have put alongside machine setters. She would have scored more if 5 elements had been included yes, but not necessarily if breakdown the others."

The latter passage, brings in the appellants reply, namely that if the respondent was entitled to have an assessment on the basis of the division of her job into component parts, the other workers with whom she was being compared would also have the same right and their scores would have gone up and it would have been a `no advantage' situation for the respondent. Here lies one of the major contentions between the parties.

The respondent claims that the previous method of assessment for her had been altered, whereas the other employees positions had remained the same. The appellants say that in any event the employer is entitled to change the criteria and that at paragraph 13 the Industrial Tribunal had recognised what had occurred in the passage which reads:

"13. The respondents in evidence indicated that the functions were included in the one section and pointed out that other hand assembly sections, for example, also consisted of different tasks. Those tasks had not been separated out either."

The second ground of appeal which was urged before us, is that the tribunal took account of irrelevant matters, namely that it considered the previous method of scoring. To some extent that overlaps with the matters to which I have already referred.

The respondent says that the previous method was a relevant factor which the tribunal was entitled to take into account, and to say that no reasonable employer would have dismissed her after, so to speak, moving the goal posts.

The third area of criticism is one of perversity, and here we can dispose of this quite shortly. In our view, on the Chairman's notes, it cannot be said that there was no evidence upon which the decision could be made.

The case law upon this topic starts with the well-known and ancient case of Bessendale Properties Ltd v Corness [1974] IRLR 338 where it was held that after an Industrial Tribunal has held the dismissal on grounds of redundancy does not contravene the procedures and customs arrangements, it must go on to consider under Section 57(3) whether the employer acted fairly and reasonably, in so deciding the tribunal is entitled to take into account any relevant factors including those relating to the criteria for establishing a redundancy.

In Atkinson v George Lindsay & Co [1990] IRLR 198, it was held that where the reason for dismissal had survived the test in Section 59, it will in most cases be extremely difficult for the Industrial Tribunal to hold that in dismissing the particular individual, the employer has acted unreasonably within the meaning of Section 57(3).

In British Aerospace Plc v Green [1995] IRLR 433, the court laid down various aspects of the approach to this sort of problem. It must be said however, of course that that is a case which was dealing principally with the problems of discovery. Waite LJ. accepting and commending Williams and others v Compair Maxam [1982] states as follows:

"... there are only two relevant principles of law arising from that subsection. First, that it is not the function of the industrial tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted."

In dealing with the question of the degree of scrutiny required of an Industrial Tribunal, he says:

"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 disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applied it without any overt sign of conduct which mars its fairness will have done all that the law requires of him."

It is proper to draw attention also Millet's LJ comment in which he says:

" Criticism of the fairness of the process of selection for redundancy may take either or both of two forms. It may take the form of a challenge to the fairness of the system of selection which the employer adopted, including the criteria for redundancy, safeguards against bias and extent of consultation; or it may take the form of a challenge to the fairness of the manner in which the system was applied in practice. It is for the applicants to make it clear whether they challenge either or both aspects of the selection process, and if so in what respects they claim that process was unfair."

In our view, the tribunal with the best of intentions fell into the error of substituting its own view for what the selection criteria should be, not in the broad sense, they found and commended the criteria, but the details of scoring. What the Industrial Tribunal was deciding was that they could devise a fairer scheme for the respondent. The tribunal had clearly strayed into the area of over-minute investigation of the selection process. Such an approach does not lead to industrial justice, it leads to the devising of minute structured formulae, which may produce problems for both employer and employee and benefit neither.

The true question which had to be asked was whether the employer so circumstanced acted reasonably in the steps taken to choose the respondent. Not whether some other scheme could have produced for the respondent a result which might have been fairer to just than one person.

The proper question to have asked in relation to the previous redundancy procedures, was not whether there had been a change in assessment, but whether as the methods stood at the date of the redundancy it was unfair. The alteration one way or another was not in itself relevant to the question which the tribunal had to decide.

For these reasons the appeal will be allowed. We consider it impossible for us to take any steps today to resolve the questions of substance and of fact, and accordingly the case will have to go back to another tribunal to be reheard. In saying that, both the industrial members have urged upon me to say to the parties, that the industrial members feel, bearing in mind the time that has occurred, the expense which had occurred, and the further draining, both financially and emotionally on both sides, that they would commend to the parties if at all possible, the settlement of the matter.