United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J A LLOYD Solicitor EEF Midland St James's House Frederick Street Edgbaston Birmingham B15 1JJ


 


JUDGE D PUGSLEY

1. This is an application for an appeal from a decision of the Birmingham Employment Tribunal, in which they found that:

"the applicant was unfairly dismissed by being unfairly selected for redundancy If the respondent had applied the selection criteria, there is a 50% chance he would not have been made redundant. Accordingly, the applicant's compensatory award is to be reduced by 50%"

2. We begin this brief judgment by saying that we are extremely appreciative for the charming and realistic way in which Mr Lloyd has put the case. It could be, if one may respectfully say so, a template of how advocates should approach advocacy. He has not sought to hector us, he has pointed to his grounds of appeal in the Skeleton Argument, and we are extremely grateful for the way he has put the matter.
3. In essence, the Tribunal made a decision that the Applicant was not the subject of an inherently unfair selection procedure. A union had agreed to it, and as the Tribunal say in paragraph 17, no system is perfect and whilst they found the system to be unduly complicated, and at times unsatisfactory, they did not necessarily consider it to be inherently unfair.
4. The Tribunal then go on to say at paragraph 18 and 19 of their decision, these words:

"18 We go on to consider whether the applicant was unfairly selected in the exercise of that procedure. We recognise that an inherently fair procedure can nevertheless be applied unfairly as against one or more employees. Whilst we have been careful not to replace our view of the applicant's abilities, by allocating Our marks for what we may have given, we have attempted to look carefully at the respondents' explanations for the marking system. We believe that we under a duty to do so if we are to consider the matter in accordance with "equity" under Section 98(4)."

5. They then went on to make the point that the Applicant had been employed by the company for five years at the date of selection. He was a loyal and valued employee, there was nothing against his disciplinary record; the Tribunal said that they had:

"19……considerable doubts as to the authenticity of oral warnings given on 17 December. The note was not shown to the applicant at the time. There is no indication that it was to be considered as a warning, and in any event we would consider that it is unfair for an employee to receive an oral warning without being informed this is the case. We therefore find that the applicant was unfairly penalised in respect of the disciplinary record marking."

They then point out:

"20 The applicant scored the lowest marks in the entire assessment process ……..The applicant is, therefore, some considerable way off from the majority of the other employees . The poorest in fact of all those assessed"

Yet that was inconsistent with the objective evidence

"He works on the more expensive machines, has two City & Guilds certificates in Engineering and two programming certificates unlike many of his colleagues. He has served an engineering apprenticeship. He trained other employees who were not selected for redundancy. There has never been any formal complaint or warning that he could not work on other machines when asked. He had never been warned for being uncooperative. There has been no disciplinary procedure in relation to his performance or quality of work. His absences do not appear unusually high compared to the others. All of that is difficult to reconcile with such a poor mark."

6. In a nutshell, in paragraph 22 and 23 the Tribunal sum it up in this way:

"22 We can find no logical explanation as to why the applicant should receive such a low subjective marking when compared to various objective factors when he would otherwise be expected to score well. It seems to us that this marking system, which is heavily dependent on a subjective assessment, was applied unfairly against the applicant ."

The Tribunal make what might be said to be the jury point, but why not, they are an industrial jury:

"On the respondents' own markings, there would have been a serious question marks as to why such a poor employee continued to remain in their employ if these marks were representative of his skills, performance, attendance"

It then goes on to say this:

"The applicant does badly because these are largely subjective criteria and it was clear from Mr Carley's evidence that he did not think very highly of Mr Francis. We cannot help but think that the decision to make the applicant redundant had been made before the marking rather than the other way round and that this was based on what they thought of Mr Francis as a person rather than his work record. On these marks, he ought to have been an employee close to dismissal for poor performance. We are satisfied that the procedure was used in such a way that it penalised the applicant unfairly and caused him to be unfairly selected".

7. Pausing there, it might be said that the rest of the decision would simply find that he was unfairly dismissed, full stop. It does not. Paragraph 23 goes on to say this:

"23 We have considered carefully whether we should substitute some of the markings he ought to have received if he had been marked fairly than the marks that he did receive. We resist that temptation. It seems to us that taking an overall view, there was at least a 50% chance that if the criteria had been applied fairly to the applicant, he would not have been made redundant at all. On that basis, we find that the applicant was unfairly dismissed, but that his compensatory award should be reduced by 50% to reflect the possibility that he may have been made redundant in any event."

8. It is probably obvious that the constitution of this particular Tribunal owes much to its industrial members. Both of them have experience in engineering, both of them have experience of engineering in the centre of engineering - light engineering anyway - namely the West Midlands.
9. We have to say this: we have considered very carefully, the Applicant's Skeleton Argument, especially as it has been put to us in such an attractive way. That amount to this - that really what the Tribunal did was to decide that they liked the Applicant. They therefore decided they thought they had a better assessment of his skills than the employer had; they substituted their own finding about their view of him, and thereafter jumped to saying "We do not think it is fair and therefore we have ignored those who knew him and his work"
10. It is a danger, we accept, that a Tribunal in seeking to do justice, can get swept off its feet and decide that because they take a warm view of an applicant's evidence, and feel sympathy, they know more about his performance than the employer, and misdirect themselves into substituting its own view.
11. But ultimately, we think a Tribunal can, if it so thinks it right, say "The criteria may have been perfectly fair, we do not think they were applied fairly", and there is a telling point in the decision where there is a pen-picture of him in paragraph 10, which points out his relevant skills, and those aspects in paragraph 11 that really seem to be more concerned that he was not a "clubbable" chap. He was:

"quiet, did not seem to mix in with others, came in to work, did his job and went home again but was not as versatile as the other operators".

I think the point that both Industrial members would make, if a chap is doing a good job on an expensive machine, you do not move him to another machine, and that is a management decision.

12. We have come to the view that it was open to the Tribunal to reach the decision they did; that this was a case where he was assessed more as a person than as an employee. Although, perhaps, not strictly logical, we can understand the Tribunal drawing back in paragraph 23, remembering, after all, the experience of the law as it is based on experience of life, rather than the arid dictates of logic, and saying "Well yes, but we are not substituting our own view". There was a 50% chance that he might, even if it had been applied fairly, still have been dismissed, and we really think that this is an industrial jury doing its job, as an industrial jury, not seeking to pre-empt management decisions, and trespassing on areas that are not within its province but reaching a decision on the facts, as they saw them, in an area where the Tribunal has a right to a view.
13. Therefore, despite our warm plaudits, if we may say so, for the careful, considered, comprehensive and concise way in which this case has been put, nevertheless we see there is no arguable ground to go to a full Tribunal. The appeal is dismissed.