United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TOM LINDEN (Of Counsel) Instructed by Ms J Hogarth Legal Adviser Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR S SWEENEY Instructed by Messrs Hunt Kidd Solicitors City Office Norfolk House 90 Grey Street Newcastle Upon Tyne NE1 6AG


 


JUDGE PETER CLARK

1. This is an employer's appeal against the decision of an Employment Tribunal sitting at Newcastle upon Tyne (chaired by N W Garside) promulgated with extended reasons on 9 June 2000, upholding the employee's complaint of unfair dismissal.

Background

2. The Applicant, Mr Codling was a long serving employee of the Respondent, his employment having commenced on 1 September 1970. He worked as a fitter and was extremely active in the affairs of his Trade Union, the AEEU, becoming a shop steward and then works convenor in 1990 and Health and Safety Co-ordinator in 1998.
3. The Responding Company Mitchell Bearings, a subsidiary of Rolls Royce PLC, carried out redundancy exercises in April 1998 and at the turn of that year. The Applicant survived the first but not the second. He was dismissed on 13 January 1999. Following his dismissal he presented a complaint of unfair dismissal to the Employment Tribunal alleging that he had been dismissed on grounds relating to his trade union activities, contrary to section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, alternatively that he had been selected for redundancy on grounds relating to those activities contrary to section 153 of that Act.
4. In the further alternative he contended that if he was dismissed by reason of redundancy and that dismissal was unfair applying the test of ordinary unfair dismissal contained in section 98(4) of the Employment Rights Act 1996. The claim was resisted.

Employment Tribunal decision

5. The Respondent, through its witnesses, resolutely denied that the Applicant's admitted trade union activities formed any part of the reason for his dismissal. It was a genuine redundancy following a properly conducted redundancy exercise based on a traditional point-scoring matrix. The Applicant scored the lowest within his pool for selection.
6. The Employment Tribunal rejected that case. They inferred that the reason for the Applicant's redundancy was his trade union activities. The dismissal was automatically unfair under Section 153.
7. In reaching that conclusion the Employment Tribunal took particular account of the following findings of primary fact.

(1) There was no doubt that the Applicant was an active trade unionist. He was the convenor of all unions at the Respondent's premises. He spent about 40 per cent of his time on union business. Those activities included involvement in pay negotiations, resolving day-to-day problems on site and during the 6 months preceding his dismissal arranging and supporting a ballot for industrial action.

(2) There was no evidence adduced by the Respondent that the Applicant was not good at his job as a fitter.

(3) In the April 1998 redundancy exercise the Applicant was initially scored in such a way that he was liable for dismissal. That exercise, in his case was carried out by 2 managers, Messrs Cole and Lummis. Mr Cole gave evidence on behalf of the Applicant; he said that he would have marked the Applicant higher but on 5 or 6 occasions he was asked by Mr Lummis to reduce his marking on 2 men, the Applicant and Mr Cooper (referred to by the Employment Tribunal as Mr Common at paragraph 39 of their reasons). Mr Cooper was described as a well known trouble maker. Mr Lummis was not called to give evidence by the Respondent. The Employment Tribunal accepted Mr Cole's evidence. In the event the Applicant's marks were increased following the intervention of a senior manager, Mr Hurley.

(4) The Applicant introduced into evidence a list of potentially redundant employees, including him, which had been prepared before the selection process was completed. The Applicant said it had come from the desk of the managing director, Mr Macallan. Mr Macallan said in evidence that it might have come from the finance director, although the latter did not give evidence before the Employment Tribunal. The Employment Tribunal did not think it mattered whose desk it came from. They were satisfied that it was prepared prior to the selection process and that a process of selection had been used by whoever prepared the list prior to the redundancy selection process being implemented (reasons paragraph 45).

(5) Having been told on 8 January 1999 that he was at risk of redundancy the Applicant objected to the 2 managers who had assessed him, Mr Stanley and Mr Lummis again. He asked for Mr Lummis to be present at a subsequent meeting at which he made representations about his scores, but Mr Lummis did not attend that meeting.

(6) Although the Applicant had, on previous occasions, been offered the post of Health and Safety adviser, which he had turned down, the Employment Tribunal found, due to a perceived conflict with his trade union responsibilities, that post, still vacant, was not offered to him again at the time of his dismissal. Had the Employment Tribunal not found the dismissal unfair under section 153 of the 1992 Act, they would have concluded that it was unfair by reason of redundancy under section 98(4) of the Employment Rights Act due to the Respondent's failure to offer him that alternative employment.

The Appeal

8. The Notice of Appeal raises challenges to the Employment Tribunal's findings as to the April 1998 redundancy exercise; the list of employees; the alternative employment as Health and Safety adviser and various other matters there set out. However, for the purposes of this full appeal hearing Mr Linden has focussed his attack solely on the list of employees, described by the Applicant in evidence as a 'hit list', which he submits was central to the Employment Tribunal's conclusion that an inference of trade union discrimination should be drawn in this case. He contends, first that the Employment Tribunal failed to make primary findings of fact which it ought to have made before drawing the inference that the list was somehow sinister. Secondly, that the findings which it did make concerning the list were unsupported by evidence and thirdly that the list was an irrelevant factor which the Employment Tribunal wrongly took into account in reaching its conclusion, thus vitiating the inference of discrimination, in the section 153 sense, which the Employment Tribunal ultimately drew.
9. In order to consider those submissions it is necessary to identify precisely what it was that the Employment Tribunal found as fact, and on what evidence those findings were made.
10. The Applicant said in evidence that on 4 January 1999, the day after the Christmas shutdown ended, he was given a hand-written copy of a list of names of employees by a fellow employee, said to have been copied from a document lying on the managing director's desk. It was a hit list.
11. For our part we are satisfied that the Employment Tribunal found no more than that such a list existed as at 4 January, which was 3 days before the formal announcement by Mr Macallan of the number of jobs to be made compulsorily redundant.
12. Since no evidence was given by the Respondent to challenge the Applicant's evidence on the point; Mr Macallan said that he did not recognise such a list, but thought one may have been prepared by the finance director who, in the event, was not called to give evidence, we have no doubt but that the Employment Tribunal was entitled to make that finding.
13. As to the significance of the finding, it was one of a number of facts which the Employment Tribunal took into account in drawing the inference of selection for redundancy due to the Applicant's trade union activities. It was not a central plank, as Mr Linden suggests, but it was a state of affairs which the Employment Tribunal found to be unsatisfactory; it suggested that before the at risk consultation interviews took place the Applicant had been firmly identified, at senior management level, as one of those to be made redundant. No more than that.
14. In these circumstances, reverting to the errors of law one or more of which Mr Linden must establish before we can interfere with this Employment Tribunal decision, we have concluded that the Employment Tribunal made the necessary findings of fact, supported by evidence to find that the list, not adequately explained by the Respondent, was a relevant, although not determinative factor to be taken into account in the overall assessment of the evidence, heard over 3 days, leading to a permissible conclusion that, as a matter of inference, the reason for the Applicant's selection for redundancy was his trade union activities.
15. It follows that there are no grounds in law for us to interfere with this decision. The appeal is dismissed.