United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DAVID CURWEN (of Counsel) Messrs Lindley Johnstone 3 St Stephen Street Bristol BS1 1EF
For the Respondents	BRIAN NAPIER (of Counsel) Messrs Cartwrights Solicitors PO Box 18 Marsh House 11 Marsh Street Bristol BS99 7BB


 


LORD JOHNSTON: The matter comes before us in respect of amended grounds of appeal which were accepted late by the respondents, which focused the issue in the case as to essentially the level of compensation that should have been awarded with regard to the well-known case of Polkey -v- A E Dayton Services Ltd [1987] IRLR 5034L.

In opening the matter on behalf of the appellant, Mr Curwen sought to argue that the essential issue before this tribunal was focused in his grounds of appeal 1. (c) and (d), that the appellant should not have been considered for redundancy with regard to the pool of technical assistants, because although he had been downgraded and that was not disputed in 1992 and indeed had been transferred to a different area in the trainer and light combat group in 1993, he was still to be regarded as an ME1 mechanical engineer because of the work that he was from time to time doing. Therefore, it was argued that he should not have been even considered as eligible for the particular pool which was identified for redundancy, namely technical assistants. In any event, as a corollary to that, even within that pool assuming he should have been there, he should not have been selected for redundancy because he was in a special situation being still on graduate status and doing work of a mechanical engineer nature.

Mr Napier submitted that this argument was not open effectively to the appellant by reason of the content of his ground of appeal. He drew attention originally to IT1 and the grounds that were being alleged there, and also to the original grounds of appeal which are very extensive and did not apparently shadow this question.

In considering this matter we have regard to the fact that certainly with regard to what the tribunal say on page 7 of the extended reasons of their decision (page 51 of the bundle), whether or not this issue of selection for redundancy in the sense of eligibility to be in the pool was ever properly considered before the tribunal. We were referred to the case of Cowan v Hadin Carriere Ltd [1982] IRLR 225, but we are satisfied that the test that is enunciated in that case, however reluctantly by the Employment Appeal Tribunal, was addressed and met by the Industrial Tribunal in paragraph 19 of their decision in the last sentence:

"19 ... The requirement of the employer for employees to do the work which the applicant was then employed to do, namely that of Technical Assistant, had diminished."

Whether or not therefore, we take the view advanced by Mr Napier that this argument is not open to the appellant, or whether we take the view that the tribunal have addressed the correct question upon the evidence, our conclusion in either respect is the same. We consider the real issue that was before the tribunal was the way in which, having been placed in the pool, Mr Plettell was assessed, and in that respect he won before the tribunal and no challenge is made either to that conclusion in general or to the assessment of risk or chance of retaining his employment in particular.

It is therefore the decision of this tribunal that it is not open to us to consider or even determine the issue on the question of whether or not either the appellant was properly to be regarded as eligible for redundancy as a technical assistant, or, that he was properly in that pool as such. In our opinion, it is clear upon the findings of fact that bind us that the issue is not open for us to decide. Even if it was, we would decide it on the basis upon the basis that the tribunal met the test in the passage to which I have referred.

For these reasons this appeal is dismissed.