At the Tribunal | |
On 20 May 2003 | |
Before
HIS HONOUR JUDGE J BURKE QC
MR D CHADWICK
MR P R A JACQUES CBE
(2) MR S CRESSWELL (3) MR E SUDIARTRAR (4) MR K TIPPAYANASA (5) MR A HARRIS |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellants | MS A PALMER (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST |
For the Respondents | MR T KIBLING (of Counsel) Instructed by: Messrs Rawlison & Butler Solicitors Griffin House 135 High Street Crawley West Sussex RH10 1DQ |
HIS HONOUR JUDGE J BURKE QC
The Appeal
The facts
(1) the compelling evidence of the decline in fortunes of the business, which was not the subject of serious challenge;
(2) those dismissed had not been replaced, indicating that the redundancies corresponded with demand;
(3) the dismissal of five employees from the production staff would not have reduced the number of union members in the relevant bargaining unit to below the level at which the right to union recognition could be asserted.
(1) that none of the five survivors, i.e. the five of the ten production staff who did not have one year's service who were not selected for redundancy, had been marked over- generously.
(2) None of the five employees should have been given marks in the selection process which would have meant that he would have escaped selection; in other words, the employees had been genuinely placed in the bottom half of the scores of the ten production staff under consideration.
The grounds of appeal - general
"31 … where ….. the alleged misunderstanding of fact depends upon a decision of fact open to the Tribunal to make, and which it did make, then an attack on that finding cannot be converted into an error of law unless it can be shown that there was no evidence to support it, or that the conclusion was perverse."
The Master of the Rolls, at paragraphs 34 and 35 said:
"34 …… Any court with the experience of the members of the Employment Appeal Tribunal, and in particular that of the industrial members, will in the nature of things from time to time find themselves disagreeing with or having grave doubts about the decisions of Industrial Tribunals. When that happens, they should proceed with great care. To start with, they do not have the benefit of seeing and hearing the witnesses, but, quite apart from that, Parliament has given the Employment Appeal Tribunal only a limited role. Its jurisdiction is limited to a consideration of questions of law.
35. On all questions of fact, the Industrial Tribunal is the final and only judge, and to that extent it is like an industrial jury. The Employment Appeal Tribunal can indeed interfere if it is satisfied that the Tribunal has misdirected itself as to the applicable law, or if there is no evidence to support a particular finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. It can also interfere if the decision is perverse, in the sense explained by Lord Justice May in Neale v Hereford & Worcester County Council 1986] ICR 471 at 483."
93 Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 ….
94 Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the Extended Reasons of an Employment Tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.
95 Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal….."
Hostility to the Union: grounds 6.6 and 6.7
"The selection of the five Applicants as the persons to be dismissed pursuant to the decision of 20 February 2001 was based on Mr Attenborough's operation of the redundancy policy."
They specifically considered whether the scoring of the employees or any of them was influenced by trade union grounds, as to which Ms Palmer in her closing submissions had made a number of detailed points; and they said, further into paragraph 12(3):
"Despite the powerful points which she had made, Ms Palmer has failed to persuade us on this aspect."
And they then set out their reasons for that conclusion, summarised earlier in this judgment, namely that the five survivors were not marked unduly generously and that the abilities of the employees under the three criteria were not such as to enable them to survive. In other words they represented the lower five of the ten.
Evidence as to knowledge and interest in union membership: Amended Grounds of Appeal paragraph 6.8 and 6.9
The assessments: Amended Notice of Appeal paragraphs 6.10 and 6.11
Timing - Amended Notice of Appeal paragraph 6.12
The general points again
Result