United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR McDONOUGH (Representative) Messrs McDonough & Associates Linburn House 342 Kilburn High Road London NW6 2QJ


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is any, and if so what, arguable point of law in relation to a prospective appeal which Mr Price and others wish to maintain against a decision of an Industrial Tribunal set out in extended reason form in writing and sent to the parties on 23rd April 1997.

The case concerns a redundancy situation. There were nine applicants who were all claiming unfair dismissal against their former employers, Critchley Label Technology Ltd. In addition to that, one of the nine, a woman, was complaining that she had been unlawfully discriminated against on the grounds of sex by reason of her pregnancy. That application was dismissed. There is no appeal in relation to it. In relation to the unfair dismissal cases, two of the applicants were judged to have been dismissed fairly and the remaining seven applicants, were judged to have been unfairly dismissed.

The decision of the Industrial Tribunal runs to some 44 paragraphs. It is clear, as it seems to us, that their attention was drawn to the relevant guideline authorities in relation to the matters in issue, those matters being what might be described as the usual factors to be taken into account when consideration has to be given to the fairness of a dismissal in a redundancy situation.

The basis on which two employees lost was that they were people who were employed in the in-house maintenance function which as at 11th April the employers had decided should be closed. In relation to the other seven, the criticism that was made of the employers which led to them being unfairly dismissed, was a lack of adequate consultation. It appears, therefore, to have been the tribunal's conclusion as they say in paragraph 33 of the decision, that the consultation in relation to Mr Stone and Mr Price, the two losers, was adequate.

The first ground of appeal is that the Industrial Tribunal in relation to those two have not adequately dealt with the question of consultation. In particular, it is said that it is arguable that consultation should have begun around February 1996 when the company were discussing, amongst themselves, the question as to whether the in-house maintenance function should be contracted out with the consequent redundancies that would be involved.

We do not wish to say anything on that issue other than it seems to us to be possibly arguable. In those circumstances, on that issue, the matter should be allowed to proceed to a full hearing.

As also on the question as to whether the tribunal have adequately dealt with the adequately of consultation. The finding in paragraph 33 to which I have referred, simply reads:

"33. ... These provisions do not affect the position of Mr Stone and Mr Price who we feel had adequate consultation."

They do not set out in any detail what that consultation was or what was to be expected from that consultation. We consider it to be arguable that Mr Stone and Mr Price can legitimately argue that they do not know really why they have lost their case.

It also seems to us to be arguable that the Industrial Tribunal, in arriving at their decision, ought to have said something about the position of Mr Stone who was to some extent dealt with differently from Mr Price. It is said that Mr Price had been offered an operators job but turned it down on the grounds that he wanted to maintain his wage rate. In relation to Mr Stone, it is said in argument that he was not accorded that facility and, in his case, if he had been he would have accepted such a job.

Again, as we read the decision, there is nothing which bears on that. We think that it is arguable on the basis of what Mr McDonough has told us that the Industrial Tribunal should have dealt with it.

Those three points, therefore, we consider to be arguable. We wish to give no indication one way or the other as to how we consider that argument will be resolved at a full hearing.

There were then a number of other arguments which were raised. The first one related to a Mr Illsley.

Mr Illsley is registered disabled. He was graded as an operator and did minor operating work but was primarily engaged in simple cleaning functions. The cleaning work was now to be done by one individual. Accordingly, he was affected by the closure of the in-house maintenance work, as the tribunal noted in paragraph 29, and was given the opportunity to see if he could obtain an operator's job by being put into the relevant pool.

Mr McDonough in a forceful submission to us said that putting Mr Illsley into a pool of people who were competing for an operator's job was as absurd as suggesting that he could be considered for position of a nuclear physicist.

It seems to us with respect to Mr McDonough, that that does less than justice to the way in which the tribunal have dealt with the issue in relation to Mr Illsley. They were very well aware of such disability as he has, and they were reviewing the employer's decision that Mr Illsley should not be regarded, because of his disability, as being in a position which was protected from redundancy. Accordingly, if the employers did not give him the opportunity of competing for an operator's position, he would have lost his job. The question therefore was whether because of his disability the employers were acting sensibly when they included him within the pool. Having regard to the fact that he was graded as an operator and did minor operating work, it seems to us that the tribunal cannot be criticised for arriving at their conclusion that it was fair and reasonable to have put Mr Illsley into the pool, even if, as Mr McDonough suggests, about which we can form no conclusion, it was improbable in the extreme that Mr Illsley would be offered such a job or could hold such a job compatibly with the Health and Safety at Work Regulations.

In relation to two of the applicants, that is Mrs Morrison and Mrs Watson, again, criticism is made of their inclusion within the operator's pool for redundancy. As we read the decision of the Industrial Tribunal, Mrs Morrison and Mrs Watson were both candidates for redundancy consequent upon the closure of the in-house maintenance department. Mr McDonough quite rightly accepts that in the case of Mrs Morrison, at any rate, and I think in the case of Mrs Watson, that they were, so to speak, truly redundant subject to there being proper arrangements made to see if there was alternative positions and subject of course to the question of volunteers and so forth.

The issue again for the employers was whether those people should be included within the pool from which the two volunteers had come; or whether because they did not possess the necessary qualifications to be operators, it was merely a sop and a charade.

The Industrial Tribunal came to the conclusion that the employers had acted reasonably in including them within the pool, it being recognised that there might be circumstances in which someone would require to be given the necessary training before they could take up an operator's position.

We are not persuaded that, as Mr McDonough submitted to us robustly, the decision in relation to these two people was perverse or obviously perverse; or that there was no foundation for the approach taken by the Industrial Tribunal. Accordingly, we do not think that that point is arguable.

Then it is said, and we can understand the basis for it, that the criteria which the employers had adopted were judged by the Industrial Tribunal to have been reasonable. It is said that that judgment of the tribunal was manifestly perverse.

It seems to us that that argument is really not possible in the light of the way the tribunal have dealt with this at paragraphs 13, 31 and 41 of their decision. Accordingly, we have to say, that it is not arguable that this decision was wrong in law in relation to the question of the criteria.

Although not mentioned this morning, but simply for economy reasons as understand it, Mr McDonough in his written skeleton argument also criticised the conclusion which was arrived at by the Industrial Tribunal at paragraph 44 of their decision. In other words, in relation to the seven successful applicants the Industrial Tribunal concluded that proper disclosure, consideration and arrangement for consultation would have taken a period of no more than two weeks which would have extended the consultation period and delayed the decision by two weeks and, therefore, the compensation should be limited on that basis.

Again, Mr McDonough would say that that was really absurd and perverse. He again recognises, as it seems to us, or must recognise, that such a submission is difficult to substantiate.

On the whole this decision, as it appears to us, has been fairly fully set out following a five day hearing. The parties had the advantage of being represented. The applicants by Mr McDonough and the respondents, I think, by a legal representative. The matter was obviously fully argued as one can tell from the decision of the Industrial Tribunal. It seems to us that in the context of the whole of the decision that an allegation of general perversity in relation to this point is not worthy of a full hearing. We unhesitatingly say in relation to that and all the other points bar the first three we have identified, that they are not fit for hearing before a full tribunal and should be dismissed.