Second City (SW) Ltd v White [1992] UKEAT 31_90_2901

EAT
Second City (SW) Ltd v White
[1992] UKEAT 31_90_2901 · 1992-01-29
MR JUSTICE WOOD (PRESIDENT): On the 18th August 1989 Mr White was dismissed by his employers Second City (South West) Limited on the basis of redundancy. He issued proceedings before an industrial tribunal dated that same day. The matter was heard by an Industrial Tribunal sitting at Bristol under the Chairmanship of Mr Sara on the 13th October 1989 and Mr White succeeded in his allegation that he had been unfairly dismissed. Remedy was adjourned to a date to be fixed and it has not yet been heard.The Applicant appeared in person, the Company was represented by its Personnel Manager, Mr Stanford. It called as a main witness a Mr Gregory, the Construction Director. An essential basis of the finding of the Industrial Tribunal was that it did not accept the evidence of Mr Gregory as to consultation and more importantly the method of selection.The cases presented to us by Mr Moon today is on the basis, first of all, that Mr Gregory did not have specific reasons put to him why his evidence was not to be accepted, that Mr Moon had to abandon because(a) it is not in the Notice of Appeal but(b) we have no Notes of Evidence.The second way in which Mr Moon puts his case today is that the reasoning of the Tribunal for not accepting that part of the evidence of Mr Gregory erred in law. If the Tribunal had merely said "we have seen and heard Mr Gregory, we do not believe him", then Mr Moon would not be here, the basis of his submissions and his appeal is that the reasoning erred in law.That being the background the history of the matter can be stated fairly shortly thus; the respondent employers, who are the Appellants before us, are part of a well known building group of good reputation. It is also quite clear that during this redundancy dismissal the Company did try to find alternative work for Mr White and did not wish to dismiss employees; it had behaved in that way appropriately as the Tribunal themselves recognised.The Construction Department for the Company is divided into four areas, Western-super-Mare; Bristol; Gloucester and Wales. The Applicant was employed on the 20th April 1987 as a Site Foreman. He lives in Bristol, was initially based there, but shortly before his dismissal he was transferred to the Gloucester area where he worked on a site called Romans Mead, Innsworth.The Company have four Area Contracts Managers. At each site they have a Site Manager and on the larger they also have a Site Foreman. As we have said, the Applicant was in the Gloucester area, there was a Mr Cummings in the Bristol area and a Mr Nunn in the Western-super-Mare area; they were all three of them Site Foremen.A down-turn in the housing market resulted in the necessity for redundancies. The Tribunal found, indeed the evidence was perfectly clear, that this was a genuine situation where redundancies were necessary. On the 2nd August 1989, there was a meeting between Mr Gregory the Construction Director, and the Managing Director Mr Lippiatt. There was no evidence before the Tribunal as to the total number made redundant but the total number was substantial and included two site managers. Mr Gregory gave his evidence about what occurred at that meeting.As a background to the problems of redundancy in this Company there is mention of it in the conditions of employment in a booklet which has been placed before us and which was before the Tribunal and referred to in paragraph 7 of the Decision. The relevant paragraph in the booklet reads thus:
"It is policy to avoid, as far as is practicable, having to make staff redundant. Where redundancy has to take place the Directors of the company concerned will decide which employees are to be made redundant. Consideration will be given to capability, conduct, disciplinary record, skills required, future potential and location of employee. All other things being equal, length of services will be taken into account."
As a result of that meeting on the 2nd August the decision was made that Mr White, the Applicant, should be made redundant but that Mr Nunn and Mr Cummings were to be retained.On the 4th August there was a meeting at which Mr White attended. Mr Gregory indicated that at that meeting there was no reference to the way in which the selection had been carried out but clearly Mr White was told that he was being made redundant because, as we have already indicated, his employment came to an end on the 18th August and indeed before he received the letter of dismissal he had applied to an industrial tribunal. That was said to be in part due to inefficiency in administration of the Company because the letter apparently did not reach him until the 21st.The Decision of the Tribunal was that the Company, through Mr Gregory and Mr Lippiatt, had not carried out a method of selection indicated in that paragraph of the booklet; they rejected that evidence and they said this in the penultimate paragraph:
"We find that what happened was that the respondents decided that there had to be a redundancy in the Gloucester area. They decided that the right person to be made redundant was the Site Foreman and therefore Mr White was the person to go. We find that they did not go on to carry out any serious comparison between the applicant and the Site Foremen in the other areas.
In the light of our rejection of Mr Gregory's evidence we do not think that we can find that the respondents acted reasonably having regard to equity and the substantial merits of the case in choosing to dismiss Mr White even if the conditions cannot be regarded as a customary arrangement."The issue therefore is, were the Tribunal wrong in law in giving the reasons which they had in mind for the rejection of Mr Gregory's evidence.The way that the matter developed, as we understand it, is as follows. This case apparently, took most of the day. Mr White was "in person" and we are told that Mr Gregory was cross-examined at substantial length and with a certain liveliness by the Tribunal. Mr Gregory's evidence about the meeting of the 2nd August was set out in paragraph 3. But the comment is made by the Tribunal:
"Mr Lippiatt did not give evidence and there is no documentation. Apparently he did have some notes at the time but those notes have not been produced."
So that that comment is to be found there. Then the evidence of Mr Gregory is set out in this way. That the needs of the Company in the area, the Gloucester area was considered, and then citing from his evidence, in the Decision they say this:
"We then assessed the need for site foremen in the other areas by reference to the redundancy policy and all things being equal length of service. `Cornerstone' where Mr Nunn was the site foreman was still on-going. We still needed a foreman there. The Masters, in the Bristol area, where Mr Cummings was foreman was now finished. He is now at St.Mary's Rugby Club, the only site in the Bristol area. I compared the applicant with these two. I sat down in the office with the managing director and we went through the criteria. I made rough notes. We went through them item by item. We concluded that they were all very similar on all the criteria. Mr Cummings is attending college and has potential for future development. We felt all other things being equal we looked at length of service. The applicant had least service."
That is what happened, according to Mr Gregory, on the 2nd. There was the meeting on the 4th at which there was no mention of the way in which the selection had been made and the Tribunal in paragraph 8 say this about the meeting on the 4th:
"There was no reference to the fact that the applicant had been found to be equal to the other two on the relevant criteria but had been the unlucky one because his service was shorter than the others. He therefore had no opportunity to challenge the evidence as to his length of service or indeed to suggest that his capability, conduct, disciplinary record, skills required, future potential and location made him the right person to be retained in preference to the other two."
The letter of dismissal was dated the 18th August and the Tribunal then lay stress on another factor. During the evidence of Mr Gregory that he carried out the selection in accordance with the conditions of employment they mention this at paragraph 7:
"The respective lengths of service (R9) are that Mr Nunn was employed on the 22 July 1985, Mr Cummings on 27 May 1986 and Mr White on 21 April 1987. What Mr Gregory did not tell us, and what only emerged when further documentation was obtained at our insistence , is that when Mr Cummings was employed in 1986 he was a Foreman/Carpenter which was a weekly paid appointment. He became a Site Foreman which is monthly paid on 1 July 1988, only a year before this redundancy situation arose. We accept that, when all other things are equal, the length of service referred to is the length of service with the company and not the length of service in that particular employment. Nevertheless it seems most surprising that if Mr Gregory, as he suggests, was carrying out a careful balancing exercise in respect of each of these criteria and assessing the comparative talents of these three foremen he took no notice of the fact that Mr Cummings had only one year's experience as a Site Foreman whereas the applicant had at least two years and probably much more with previous employers."
In any event, the Tribunal proceed to look at the task which lay ahead of them and they say this in paragraph 11:
"We then have to consider whether the applicant was dismissed in breach of a customary arrangement and whether the respondents acted reasonably having regard to equity and the substantial merits of the case in treating this as a sufficient reason for dismissal. This requires us to decide one very important question of fact, namely whether or not we accept Mr Gregory's evidence that he selected the applicant from a group of three in accordance with the contractual procedures. Having heard Mr Gregory's evidence which did not contain any specific comparative assessment of the three candidates on the specific criteria set out in the Conditions of Employment and in the light of the following facts:-"
We will come to the following facts in a moment.
"we have come to the conclusion that we cannot accept Mr Gregory's evidence of what happened."
The Tribunal take into account the way in which they heard Mr Gregory give his evidence. They say specifically, it did not contain any specific comparative assessment of the three candidates as in the criteria. They then look at four other factors; they looked at the Notice of Appearance which does not refer to comparisons. That may be a factor which affects some tribunals more than others, it might not be thought to be very important, but they do rely on the fact that he did not refer to Mr Cumming's short service and bearing in mind the way in which that evidence was squeezed out of him, (do not forget the comment "only emerged when further documentation was attained at our insistence") they clearly took account of the attitude and the way in which Mr Gregory was giving his evidence and approached this matter. The third was that the method of selection was not referred to at the meeting at which the Applicant was told of his redundancy. Mr Moon comments that that is not necessary. Generally speaking, it might be considered to be good industrial practice when one is dealing with a small number of selections and individuals rather than with the trade union which is recognised. Then there is no reference to selection in the dismissal letter. That again, may, or may not be, of importance to some people there was no necessity to mention it but nevertheless it might have been mentioned.Are we to say, that because the Industrial Tribunal relied or mentioned those four matters in addition to their overall impression of Mr Gregory as a witness, that they erred in law in rejecting his evidence of what occurred at the meeting on the 2nd August where Mr Lippiatt did not give evidence. We are told in fact that he had left the Company, but that is perhaps no very good reason and there was no documentation because the notes were not produced. It is not a question of the notes had been destroyed, they were not produced.We find ourselves quite unable to say here that there is any error of law for one of many, or all those reasons, or the overall impression, or the way in which he was answering questions, and dealing with the matter, whatever they were, this Tribunal had the opportunity of listening to Mr Gregory, weighing him up and deciding for themselves whether as the Tribunal of fact they as an industrial jury believed what he had to say. They did not.There is no error here and this Appeal must be dismissed.