Jones & Ors v Sealink UK Ltd [1992] UKEAT 89_92_0412

EAT
Jones & Ors v Sealink UK Ltd
[1992] UKEAT 89_92_0412 · 1992-12-04
MR JUSTICE WOOD (PRESIDENT): In this Preliminary Appeal nine Applicants appeal from a decision of an Industrial Tribunal sitting at Colwyn Bay on the 19th, 20th and 21st November 1991 under the Chairmanship of Mr Kelly, on which occasion the unanimous decision was that the Applicants' cases be dismissed. Their cases were that they had been unfairly dismissed on the grounds of redundancy. They relied on Section 59 and Section 57(3) of the Employment Protection (Consolidation) Act 1978.These are sad cases; we look to see whether there is any error of law discernible in the judgment of the Tribunal. The parties, both the Applicants and their employers Sealink UK Limited were represented by Counsel. As we have indicated the Hearing took place over 3 days. There was a substantial bundle of documents, some 90 or 100 pages, we have seen one of them today at this appeal.The reason for dismissal was agreed as redundancy. The issue was unfair selection. It is a sad case because these nine had many, many years of faithful service to the Company or its predecessors. We are told in one case as many as thirty years and, I think, the shortest something like ten.The Company operated a container terminal at Holyhead until March 1991. It was then closed due to lack of work, hence the redundancy. In the operation at Holyhead the workshop employees, initially of whom these Applicants were all members was considered separately from the general operating grades, we therefore had a craft grade as opposed to the general operation of the Port.In the early part of 1990 the Applicants in the workshop were concerned that seven temporary staff had been taken on in the SGO grades. This was a unionised operation and representatives sought a meeting in January 1990 because of their anxieties on the affect of the introduction of those seven temporary staff. An interview took place between representatives of the Applicants, those in the workshop, and Mr Ing and Mr Goodwin of management. Mr Goodwin, we can see from a letter, was the Personnel Manager. It was confirmed as a result of that that changes were pending in the workshop but because there were vacancies in the SGO grades no workshop employee would be made compulsorily redundant, and then this is set out by the Tribunal as the assurance given on that occasion:
"Temporary SGO employees would not take precedence over workshop employees transferred to SGO grades in regard to seniority, but established SGO grades would."
There existed, an agreement, a binding collective agreement between the Trade Union and the employers concerning redundancies. That agreement was quite simple. For the purposes of seniority in connection with redundancies LIFO, last in, first out, would be strictly applied, and also under the agreement temporary employees did not count as against permanent employees. Thus, there was no need for that assurance to be given in January 1990 unless the temporary employees were individually identified. Although it is not strictly so stated, it seems to us, and we accept the submission of Mr Soor on this point, that it is likely that that was so. That position, however, had to be altered when the first redundancy took place. We have seen a document of the 25th April 1990 which was referred to by the Industrial Tribunal as being crucial. That document came into being, signed by Mr Goodwin, after discussions with trade union representatives, this is abundantly clear from the face of the document. It is also quite clear that one of the crucial matters which was being discussed was seniority for the purposes of redundancy; that is rendered important by the fact that in the letter this matter is itself underlined, and it is to be found at the top of page 2 where it says this:
"Seniority in the SGO grades will be based on the date of taking up the alternative employment ."
That is abundantly clear and those who are taking up the offer of alternative employment, and there are a substantial number of terms and conditions set out in the letter which have been agreed with the representatives, must have realised that they were foregoing their earlier services for the purposes of seniority in any subsequent redundancy. Therefore, with the assurance well in mind, it must have been clear to the Applicants and their representatives that that was the situation. Of course, at that time, no one had in the forefront of their minds, the fact that the temporary staff in the SGO grades might become permanent, in which case, their temporary service would count for seniority for redundancy. That that was not in the minds of those negotiating from the trade union side is a matter for comment and those with industrial experience point to that as a grave oversight. However, that was the position. Something occurred before the second redundancy, namely, that the temporary SGO employees became permanent, as a result of which in January 1991, that is a year later when a redundancy took place, these Applicants with their long service had on the strict LIFO approach the seniority only from their joining the SGO grades. That was a tragedy for them and it is a most unfortunate situation. We have sympathy and we have done all we can to see whether the situation could be read differently from the way in which it was read by the Industrial Tribunal. We have little doubt that the Industrial Tribunal also felt themselves to be in this difficult situation.The argument being made is that the assurances of January 1990 were of legal affect. We do not think that that can be read into the facts as stated. Secondly, it is said that in any event that was itself an agreed procedure, again, in our judgment, the Tribunal were right to say that this had been superseded by the letter of the 25th April 1990.The Tribunal summarise their reasoning in paragraph 3 of their decision when they deal with the submissions, obviously made by Mr Soor. They say:
"He relied on both counts on the assurances given at the January 1990 meeting by management regarding seniority and temporary staff. That was undoubtedly correct at that time but events overtook that situation because temporary employees in SGO grades were later made permanent employees. That was not foreseen at the time and clearly misunderstandings existed in the minds of former workshop employees. The National Agreement with the Unions clearly lays down the principle to be followed, i.e. LIFO as to date of seniority and this principle was followed in selecting the applicants. It is sad to us to see that employees with may years service elsewhere should find themselves so selected but we cannot criticise an employer who follows the agreed procedures. In the face of the stated principle of LIFO, consultation would have been fruitless. Accordingly we must dismiss each of these applications."
We have expressed our sympathy, any criticism must lie not with the employers but, if any criticism is due, with those who negotiated.We are, regretfully, unable to help in this case and this appeal must be dismissed.