United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CLIVE SHELDON (of Counsel) EEF Broadway House Tothill Street London SW1H 9NQ


 


JUDGE CLARK

1. This appeal raises a challenge to the approach of the Birmingham Employment Tribunal, sitting on 29 – 30 November 1999 under the Chairmanship of Mr J Van Gelder, in deciding that the Applicant below, Mr Radford had been unfairly dismissed by reason of redundancy by his former employer L T I Ltd (the company).
2. The Employment Tribunal's decision, promulgated with extended reasons on 13 December 1999, sets out the Employment Tribunal's findings of fact and the conclusions which they drew with conspicuous care and attention to detail. We need not repeat those findings for the purpose of this judgment at this preliminary hearing. In essence the company, which manufactured 'Black Cab' Taxis, carried out a redundancy exercise in 1998 affecting of the Applicant among others. In total, some 75 redundancies were made. The Applicant was employed as a press shop operator and he was one of 11 press operators ultimately made redundant out of a total of 23.
3. The Company was a party to a multi-union recognition agreement with 3 Trade Unions. As a result of the Collective Bargaining process a procedure was agreed, among other things, between the company and the Trade Unions for the handling of redundancies. The Employment Tribunal found that that procedure, reduced into writing, was not incorporated into the Applicant's individual contract of employment.
4. As a result of the redundancy exercise the Applicant was identified for redundancy and dismissed for that reason on 27 November 1998.
5. The Employment Tribunal found that his dismissal was unfair, applying the test set out in Section 98(4) of the Employment Rights Act, on the following grounds: -

(1) The company applied a skill test to the Applicant which resulted in his being adversely effected under this head of the points scoring matrix employed by the company.

(2) The individual consultation process undertaken in his case was flawed, in particular no proper consideration was given to the possibility of redeploying him to other work.

(3) The internal appeal process was unnecessarily limited in its scope.

6. In this appeal Mr Sheldon attacks the first 2 findings by the Employment Tribunal. Having raised the question of the Employment Tribunal's finding in relation to the internal appeal process, we are satisfied that that finding will not be material to the outcome of this appeal, whatever it may be. On the first 2 points taken by Mr Sheldon, as for the question of selection and the criteria used, the Employment Tribunal deal in some detail with the negotiations between the company and the trade unions as to a variation in the skill factor criterion which appeared in the original written agreement. Put shortly, Mr Sheldon's submission is that in their conclusion the Tribunal has substituted its own view for management as to what was a proper selection criterion to be included among the other criteria. We think that this point is at the least arguable and on this basis we shall allow the appeal to proceed to a full hearing.
7. As to the individual consultation process we have considered Mr Sheldons submissions. We are far from convinced that they will succeed at the end of the day, but we consider that it would be appropriate to allow this point to go forward also so that at the full inter partes hearing the Appeal Tribunal may consider both limbs of the appeal.
8. In these circumstances we shall direct that the appeal be listed for a full inter partes hearing. Time estimate 1 day, following a preliminary hearing. Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this Tribunal at the same time. There are no further directions.