Scott & Ors v Metel [1992] UKEAT 447_91_1011

EAT

Scott & Ors v Metel

[1992] UKEAT 447_91_1011 · 1992-11-10

MR JUSTICE WOOD (PRESIDENT): As will have been apparent from the length of time we have been out we have given this case long and earnest consideration. It is, as we know all too well in these times, a miserable situation where someone is made redundant and everyone deserves sympathy in those situations, in their position. However, it is the law which we must apply and in the present case a Mr Owen, Mr Scott, Mr Mirrlees and Mr Howarth were made redundant by the Respondents, the Mersey Education Training Enterprise Limited, known for short as METEL.

The preliminary issue arose before an Industrial Chairman at Liverpool in January 1991 as to whether or not there had been a dismissal and it was decided in favour of the four Applicants that there had been. The full hearing therefore, took place before an Industrial Tribunal presided over by Mr Heppell on the 30 May 1991. The Applicants represented themselves and each of them gave evidence. METEL were represented by Counsel, and the Chief Executive and the Company Secretary gave evidence.

METEL is, as we know, a registered charity. Its purpose is the training of adults and young people. Its operations were successful prior to 1989/90 but in that financial year there was a loss. At the end of 1989 or early in 1990, METEL decided to purchase Liverpool Skillcentre for a price of £550, the agreement was dated 14th February 1990, and after its purchase the staff at that Centre were made redundant. Whether it was a subsidiary Company or what its precise legal identification was is uncertain, but it has been referred to as a subsidiary Company. In any event its staff were Civil Servants and apparently before the agreement to purchase was made there was some understanding that the staff were to receive, what might be called "Civil Service treatment" on redundancy. That is made apparent by a letter from Mr Owen of the 25th June 1991 when applying for a Review.

There having been a decision that redundancy must take place, Mr Clark, the Chief Executive, consulted the relevant Trade Union, MSF, and it was proposed that some 75 staff would be made redundant. A scheme was arranged. ACAS was consulted. Tables of new structures were prepared, they were altered from time to time, meetings took place between the Union and with others. As a result of discussions it was agreed that a process should take place which was a process of procedure proposed by the Trade Union. Volunteers were to be called for first of all and thereafter where a specific job remained and there was only one job holder, that person would be retained in the job, this was termed "roll-over". Two, where there was more than one job holder, LIFO would apply. Thirdly, where service was equal, skills and experience would apply. It was also agreed with the Trade Union that volunteers were to receive additional redundancy pay over and above the statutory limit, whereas those made redundant compulsorily would receive the statutory amount only. This scheme and the proposed tables were made known to the staff. There was a period fixed for the acceptance of applications for voluntary redundancy and those who might apply were given details of the package which was to be offered in return for voluntary redundancy. Such an application of course did not prevent those Applicants from applying for any vacancies that might exist, but if they accepted the new post it would preclude the receipt of their package.

Each of the Applicants, Mr Mirrlees, who unfortunately has since died, Mr Scott, Mr Owen and Mr Haworth put forward their cases. Each of their cases were considered by the Tribunal and the details were set out. None of the Applicants, as the Tribunal found, made representations for retention or alteration in the re-structuring plan, nor did they apply for vacant posts. The situation therefore, was that each of them accepted the offer of voluntary redundancy in return for the package of payment.

The complaints that were being made by the Applicants - and indeed it is apparent from the careful way that Mr Owen and Mr Howarth have addressed us today - one of their complaints was that they have received less than those staff from the Skillcentre who had been made redundant. They were Civil Servants, as the Tribunal commented. The Tribunal thought this matter was irrelevant because on the statutory basis for redundancy payment in any event all the Applicants received a great deal more. They found to be irrelevant, therefore, that the Civil Servants received more at the Skillcentre.

The Tribunal then looked at the findings of fact to which it must come and those are set out in paragraph 6. They say:

"The Tribunal therefore accepted that a redundancy situation existed and then had to enquire as to the procedure followed. The respondent consulted with the trade union at the earliest moment, and all the staff were informed at the same time. Consultation with the trade union continued and the selection procedure and the amounts of the redundancy payments were agreed. It was accepted that volunteers would be called for, as is normal practice, and that the "roll-over" principle would be used. It appears that the respondent followed this agreed procedure and that, not only was there consultation with the trade union but also with the individual members of staff. I therefore is clear that the dismissals, being in accordance with the agreed procedure were fair."

The Tribunal then go on and point out that all the Applicants volunteered for redundancy and that they had received higher sums through volunteering than they might have done had they been dismissed and therefore the compensation would then have been calculated on the statutory basis.

The Applicants asked for a Review, and Mr Owen in particular, argued the point that the redundancies at the Skillcentre and METEL should have been looked at one redundancy with the result that under Section 99 of the Employment Protection Act 1975 there should have been a 90 days period of consultation because the total would have exceeded one hundred. It seems doubtful whether that figure of a 100 was at one establishment, but in any event it seems to us that the attitude of the Tribunal Chairman in giving his reason for refusing the Review are valid. He said:

"The Tribunal considered that the purchase of the Skill Centre and the dismissal of the staff on that Centre were matters decided on before the redundancy situation involving the applicant arose. The two matters are therefore completely separate and there appear to be no grounds for re-considering the matter."

It seems to us that those are findings of fact and as we have pointed out we can only help if there are errors of law. In any event, here, the effect on any statutory calculation would have been such that the variation in the figure would have been much less than the amount which was voluntarily accepted by the Applicants on their departure.

The second point made before us today, was that there was a wrongful selection in that the new skeletons of the various jobs available had been altered over a very short period of days, as we have already indicated, and jobs were disappearing without the opportunity of trying to argue whether or not those particular jobs should disappear. Therefore it was argued that there was a wrong selection.

This matter was discussed by METEL with the relevant trade union and it is quite clear that the Tribunal had this in mind when they looked at the facts, indeed, they refer specifically to selection in the passage to which we have already referred. It follows therefore that that was a question of fact; they looked at it, they looked at the argument and they decided there was no unfair selection. As Mr Owen has pointed out to us he would gladly put the clock back and have 90 days in which to discuss the whole matter again. However sympathetic we may be to these two Appellants, I fear that that is impossible, in the situation in which they find themselves.

We are unable to help, we can not find any error of law in the way this matter has been approached by the Tribunal. It follows therefore that this Appeal must be dismissed.