Limb Group Of Companies v Baxter & Ors [1993] UKEAT 209_91_3007

EAT
Limb Group Of Companies v Baxter & Ors
[1993] UKEAT 209_91_3007 · 1993-06-08
MR JUSTICE WOOD (PRESIDENT) : This case gives rise to two aspects of current employment law which are of interest.Limb & Co (Goole) Ltd (the Company) operated docks at Goole on the River Ouse. The Company was part of the Limb Group of companies.The Applicants were dock workers employed by the Company at Goole. There were no written agreements of employment and Goole docks operated on piece-work, in other words dockers were paid for the task carried out and not for the time spent on that task. By the Dock Works Act 1989, which came into force on 3rd July of that year, the Dock Workers Employment Scheme 1967 made under an Act of 1946, was abolished. On 6th July the Dock Work (Compensation Payment Scheme) Regulations 1989 (S.I.1989 No.1111) came into force.During July 1989 there was a strike and on its termination efforts were made by both sides to reach agreement on future working practices. No such agreement was finalised.The history of this matter from the summer of 1989 until 2nd April 1990 is helpfully and fully set out in paragraph 7(c) - (p) of the Decision. It shows that by February and March 1990 matters were coming to a head. It is common ground that the Applicants were indulging in "industrial action". Many warnings had been given by letter and otherwise to individuals that if such industrial action continued dismissal was the almost inevitable result.On 2nd April 1990 each of the Applicants received a short letter of dismissal which read as follows:

"Dear

Despite numerous requests you have failed to resume normal working. As I have indicated to you before, this Company cannot sustain further industrial action and you are thereforedismissed from your employment with the Company with immediate effect.

Yours faithfully"

The nub of the problem was the issue over "short-hand working bonus". The Trade Union involved was the Transport & General Workers Union, which wished to proceed as far as possible with maintaining nationally agreed terms and conditions of employment for all those working in the docks. The Company was seeking to agree local terms and in particular to introduce an incentive bonus scheme for work carried out personally by an individual dock worker.There seems to have been two types of bonus as described by the Industrial Tribunal at paragraph 7(j) -
"We have said above, and we repeat, that at the end of the day the real sticking point has been this request by the applicants for the payment of shorthanded working bonus. It arises this way. In the old days, the Scheme days, numbers of dock workers for a particular cargo handling situation were set by a committee and what was set as a number of men to work a certain type of cargo remained `written in stone' so if 10 men were allocated but only 5 were truly needed, nonetheless, 10 men were allocated and had to be paid. The new requirement of the respondents was that the men would work to what was described by Captain Lindsay as `natural numbers', meaning, we think, the numbers of men that the respondent employers thought were fair and reasonable numbers for the working of a particular cargo situation. `Natural numbers' is a concept that is not easily understood, we would have thought; surely something more precise could have been found?
The requirement of the applicants was that if they were working overtime and were short handed, and other workers were brought in to work, then the bonus earnings of the other workers would not be paid to them but would be paid to the applicants. So they were working not only on their own incentive scheme but they would be getting it `topped up' by the labours of others who were working the same vessel at the same time. The respondents position, apart from the period of time from the end of November through to the early part of January 1990, was that this was really a payment for doing nothing; a dead payment, and they would not have it. This payment was what the respondents knew the applicants were seeking and were insisting on. The respondents did make concessions about holiday pay and sick pay, perhaps in an attempt (we know not) to buy off this claim for short handed working bonus. It did not succeed. The applicants position remained."We were told that if a "job" was established as a "10 man job" and in fact only 8 men were needed, the remaining 2 dockers were not only paid for that job but could at the same time be working and be paid for another job. This was referred to as "ghosting".In his Originating Application each Applicant claimed as follows:"I believe I was dismissed for allegedly taking part in industrial action because my employers wished to avoid paying me my redundancy entitlement under the Dock Work (Compensation Payment Scheme) Regulations 1989 and so they could replace me with staff who are willing to work under terms imposed on me by my employers".The Notice of Appearance in each case, first of all, raised an issue under S.62 of the Employment Protection (Consolidation) Act 1978 and secondly, denied that the dismissals were unfair or that a redundancy situation existed. It claimed:
"(iii) If contrary to the contention at Paragraph (ii) above the Industrial Tribunal has jurisdiction the Respondent acted reasonably in dismissing the Applicant. The working of overtime is essential for the efficient and economic running of the Respondent's business of loading and discharging customers' vessels on the River Ouse in the Port of Goole. There had been extensive consultation with the Applicant and his full time Trade Union Officials as to the need for overtime working and the Applicant had been warned orally and in writing on several occasions that continued refusal to work overtime could lead to his dismissal.
(iv) There was no redundancy situation and the Respondent has continued to operate in the Port of Goole."The hearing took place over 4 days in December 1990; on the third day one of the lay members became ill and thereafter the Tribunal continued with the Chairman and one lay member.Two separate decisions were reached. The first was that the Tribunal had jurisdiction, and secondly, that the dismissals were not unfair, but that a redundancy existed and that payments under the Regulations were therefore due. The sum involved is very substantial.The relevant provisions of S.62 read:
"(1) The provisions of this section shall have effect in relation to an employee, the complainant, who claims that he has been unfairly dismissed by his employer where at the date of dismissal -
...(b) the complainant was taking part in a strike or other industrial action.(2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown -(a) that one or more relevant employees of the same employer have not been dismissed, or(b) that any such employee has, before the expiry of the period of three months beginning with that employee's date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement....(4) ...

(b) "relevant employees" means -

...(ii) in relation to a strike or other industrial action, those employees at the establishment who were taking part in the action at the complainant's date of dismissal"This section has been replaced by S.238 of the Trade Union and Labour Relations (Consolidation) Act 1992, but the wording is not materially different.It was common ground that industrial action was taking place - indeed the evidence was all one way - but it was said that a Mr Coolledge was a "relevant employee", who had not been dismissed. The Industrial Tribunal so found.The facts found were that Mr Coolledge was a willing participant in the industrial action. On about 1st March 1990 he suffered a severe heart attack. It was thought at one stage that his condition was critical. He spent some two weeks or so in hospital and thereafter recuperated at home. As we have indicated letters of warning were sent by the Company to dock workers and were sent to Mr Coolledge. However his daughter indicated that further such letters were not welcomed as he was on the "danger list". Thus letters were no longer sent to him.The Company was told by a cousin of Mr Coolledge that his condition was giving cause for concern and that although he would survive ultimately, there was no question of him working again in the docks. It may be that this news came to the Company from other sources as well.The Company took the view that as Mr Coolledge could never return to work he was "out of the equation". The Company therefore took no action to dismiss him. He was paid the appropriate sick pay, and, eventually, all the documentation took place so that he was discharged from employment towards the end of August due to his health and not because he had taken part in industrial action. This no doubt involved the payment of an appropriate lump sum and a pension.Because the Applicants do not appeal against that part of the second finding of the Tribunal that they were fairly dismissed, it was pointless for the Company to appeal against this first decision, but as Mr Hand points out, this is a great pity because it would raise a matter of considerable importance and interest. The issue could be posed thus - S.62 is intended to deprive an Industrial Tribunal of jurisdiction where at the date of dismissal a complainant was taking part in other industrial action (as here), provided that all those on strike were also dismissed and are not re-engaged for a period of three months. This latter provision is in order to avoid discrimination against trade union activists. Those dismissals as we know can take place up to the last date of a Tribunal hearing - P & O European Ferries (Dover) Ltd v. Byrne [1989] ICR 779. Can it have been the intention of the legislature to discourage the humane and sympathetic treatment of a long-serving employee, who is never going to be fit to return to work, because by so doing the benefit of S.62 would be lost and very substantial financial liability incurred by that employer?At the start of the second hearing, the Applicants were alleging unfair dismissal in that there was a conspiracy by the Company to avoid making redundancy payments by alleging that the reason for dismissal was "industrial action", whereas the truth was that a redundancy situation existed. The Company denied any such conspiracy and it alleged that it had at all all times stated the true reason for the dismissal. Indeed, by a letter of 20th April 1990 when asked for the reasons of dismissal the Company had replied "You were dismissed for taking part in industrial action having previously been warned that your continued involvement in such action may lead to your dismissal."By S.91(2) of the 1978 Act there is a rebuttable presumption in favour of redundancy as the reason for dismissal, it was therefore for the Company to prove its reason.It is not disputed that these Applicants fell within the Dock Work Regulations. By Regulation 6(1) it was provided that employers should pay to employees dismissed by reason of redundancy compensation calculated in accordance with the Regulations; the maximum amount per head was £35,000. By Regulation 10 any disputes were referrable to an Industrial Tribunal. It is to Regulation 3 that we must refer in some detail. Regulations 3(1) and (2) read:
"3-(1) For the relevant purposes an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to - (a)the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease to carry on that business in the place where the employee was so employed, or (b)the fact that the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease to diminish.
In this sub-paragraph "cease" means cease either permanently or temporarily and from whatsoever cause, and "diminish" has a corresponding meaning.(2) For the relevant purposes an employee shall be taken to be dismissed if, but only if -(a)the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or (b)the employee terminates that contract with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."Save for the phrase "for the relevant purposes" replacing "for the purposes of this Act" the above wording follows that of S.81(2) and S.83(2) of the 1978 Act.On the issue whether or not a redundancy situation existed the case for the Applicants is simple to state. The vital wording is "the requirement of that business for employees to carry out work of a particular kind". (Our emphasis). Reference is made to the definition in S.153 of "employee" as "an individual who ... works under ... a contract of employment." The argument then proceeds that if, as here, the requirement of the Company is for the same amount of "work output" both before and after dismissal, the issue whether or not a redundancy situation arises depends upon whether or not the same number of "employees" replaces those dismissed - that is by direct labour. If any other kind of labour is introduced, whether sub-contractors or through arrangements made with another employer to provide workers, then a redundancy situation arises because such introduction, per se, shows that the requirement for "employees" has ceased or diminished. There are in fact fewer "employees" although there may be the same number of "workers".

We were referred to a number of authorities -

Amos v. Max-Arc Ltd [1973] ICR 46, 47G - 48B

Chapman v. Goonvean and Rostowrack China Clay Co Ltd [1973] ICR 310 , 313F -313B, 314G, 315D - G.Scarth v. Economic Forestry Ltd [1973] ICR 322, 323H - 324E, 325A - E.We were also referred to Bromby & Hoare Ltd v. Evans [1972] ICR 113, 116H - 117B.We asked Mr Clark what the position would be if these 26 Applicants were replaced by a mix of direct, indirect and sub-contracted workers. How would we decide in which of the Applicants cases redundancy had occurred? His answer was we must wait for that problem to arise on the facts before it needed to be decided.In our present case he submitted that in failing to employ direct labour employees to replace the Applicants, the Company had made a mistake and must therefore make redundancy payments. If direct labour had been engaged, the claimants would not have been before us.Mr Hand submitted that the intention of the Regulations as also S.81(2) of the 1978 Act, was to look at the work output. Any other reading of the statutory provisions, he submitted, would be a blot on the jurisprudence and could not have been the intention of the legislature.Because of the view which we have formed of another major ground of appeal, we do not need to reach a conclusion on this part of the Applicants case. It seems to us on reading those cases that the precise point has never been put in argument and that there may be passages in Hindle v. Percival Boats Ltd [1969] 1 WLR 174 (to which we will refer later) which would run against the submissions made by Mr Clark. We would also read from the cases that there would have to be sound economic reasons for the change from direct labour to indirect labour for a redundancy situation to be said to arise. However, we can appreciate the arguments on each side. This point is clearly of wide interest.We were informed that the Industrial Tribunal was not referred to any legal authorities. We take our guidance, and are bound, by the approach indicated in Hindle v. Percival Boats (supra). In that case the claimant was a highly skilled wood working craftsman who had been employed for over 20 years by one firm and their successors in the wooden boat-building and repairs business. In 1960 his present employers took over and for five years only carried out repairs. In 1965 boat building was resumed by which time fibreglass was being extensively used as an alternative to wood in the hulls, decks and superstructures of the boats. Mr Hindle continued to work on the boats until January 1967 when his employers gave him written notice of dismissal and told him orally that he was "too good and too slow". He was not replaced. He in fact found other employment without delay but claimed a redundancy payment. His case was that his dismissal was attributable wholly or mainly to a reduction in the employer's requirements for wood workers, whereas the employer's case was that because Mr Hindle was so thorough and so slow, his continued employment was uneconomical and that he was not replaced because they could not find a suitable replacement. An Industrial Tribunal accepted the employer's case. On appeal the Queen's Bench Divisional court dismissed the appeal as did the Court of Appeal (Lord Denning M.R. dissenting). The Court of Appeal accepted that the Tribunal was not only satisfied that the reason given by the employers was genuine, but had also considered the evidence fully and found that at the date of dismissal the requirements to the business for wood workers had not diminished and was not expected to diminish. Thus the dismissal was not "by reason of redundancy".

Lord Justice Sachs at p.181D says this:

"The present claim for a redundancy payment was made under section 1(2)(b) of the Act. Such a payment could only become due to the employee if it was found by the tribunal (having due regard to the onus of proof), first, that the requirements of the employer's business for employees to carry out work of a particular kind had diminished or was expected to diminish, and, secondly, that his dismissal was attributable wholly or mainly to such a diminution. It is convenient to refer to these findings as being the first and second conditions precedent to entitlement.
As regards the first of the conditions precedent the test is purely objective in the sense that the test to be applied concerns the actual requirements of the business and not the opinion of the employers or anyone else on that point. Unless the tribunal comes to a conclusion in favour of the employee on that first point the second does not arise.As regards the second condition there was much discussion in this court as to whether a tribunal ought to apply an objective or subjective test in deciding whether or not the dismissal is attributable to some established diminution in the requirements of the business. For my part I found, as did Widgery LJ, that the posing of such a question tended to confusion, at any rate when linked, as Mr Kidwell desired, with attempted distinctions between the motives of the employer and the reasons for the dismissal."

And later at p.182E - G

"The onus placed on the employer by section 9(2)(b) of the Act is simply to show (using the standard test of balance of probabilities applicable where the facts are largely within the knowledge of a party against whom a claim is made) that the dismissal of the employee was not attributable to redundancy. There are cases, as where the tribunal find in favour of the employer on the first condition precedent, when it is not necessary to inquire further into the precise ground on which the employee was dismissed. But in any event once the tribunal is satisfied that the ground put forward by the employer is genuine and is the one to which the dismissal is mainly attributable the onus is discharged - and it ceases to be in point that the ground was unwise or based on a mistaken view of facts, though such matters may well be relevant for consideration by the Tribunal when assessing the truth of the employer's evidence."
We note the stress in that passage on genuineness and truth.We would also refer to the judgment of Widgery LJ, at p.186H where he said:
"The majority of the tribunal accepted Mr Percival as a witness of truth but nevertheless considered the whole of the evidence to see if it disclosed a diminution in the requirement of the business for woodworkers, to which the dismissal might be attributed. In this connection the tribunal considered that the absence of a replacement for the appellant was not of overriding importance, and that at the date of the dismissal no diminution in the requirement of the business due to the change from wood to fibreglass was to be anticipated as that trend had been operative for a long time before this date. The tribunal also took note of the respondents' evidence that more overtime would have to be worked by the remaining men as a consequence of the appellant's dismissal and eventually held (by a majority) that the appellant's dismissal was not due to redundancy. The Divisional Court held that the tribunal had not misdirected itself in law and dismissed the appellant's appeal.
The appellant's first submission in this court is that when deciding whether his dismissal was "attributable" to a diminution in the requirements of the business within section 1(2) the test to be applied was an objective one and that the tribunal erred by applying a subjective test and considering only the state of Mr Percival's mind. I agree that the tribunal must look at the facts objectively to discover the true causes to which the dismissal is attributable but I do not find the distinction between objective and subjective tests to be either helpful or conclusive.The dismissal is attributable to the facts which caused it to occur. The tribunal must consider the evidence to see what those facts were and must bear in mind that the claimant succeeds on this issue unless the employer demonstrates that a diminution in the requirements of the business was not the main cause. The employer's evidence may be highly material because he knows what prompted to dismiss the claimant and if his evidence is believed it may go a long way to establishing the true causes of his action. It must also be remembered that the employer is often entitled to dismiss his employee on due notice without assigning any reason at all. He may think that the employee is a bad influence in the works, or suspect him of pilfering, or wish to replace him by a younger man. If dismissal then follows, the employer does not assume the obligation of proving that his suspicions were well founded or of persuading the tribunal that any reasonable employer would have acted as he did. All he must do is prove that redundancy was not the main cause and he does this by proving that the requirements of the business for workers of the relevant kind had not diminished. It is not the policy of this Act to reward long service and good conduct, as such, but only to compensate an employee who is dismissed for redundancy as defined in section 1.The tribunal must, however, be alert to realise that dismissal is often attributable to a number of causes and that an employer who has personal objections to a particular employee might still have retained him were it not for a diminution in the requirements of the business for employees of that kind. The tribunal must not only be on the look out for the dishonest employer who puts forward a false reason for the dismissal, but also for the employer who misdirects himself (to use the language of the Divisional Court) into thinking that he was influenced by the personal deficiencies of the employee when in truth the main factor was that the requirements of the business had declined."and at 188D:
"I do not feel able to draw a distinction between "motive" and "reason" in sufficiently vivid terms to be of value to tribunals who have to consider these questions hereafter, and the lesson of the MacLaughlan case in my opinion is that the tribunal must not accept the explanation put forward by the employer, however honestly, without looking at the whole of the evidence to see it is positively establishes that the dismissal was not mainly due to a diminution in the requirement of the business for employees on work of a particular kind: section 1(2). In the present case the tribunal did so inquire."
With that guidance in mind we turn to the reasoning of this Industrial Tribunal which is to be found in paragraph 8. We set it out in full and have ourselves used the sub-divisions (a), (b) and (c) for ease of reference."8(a) The Regulations and indeed section 81 of the 1978 Act, say " `cease' means `cease' either permanently or temporarily and from whatsoever cause and `diminish' has a corresponding meaning". So we look at what happened. The causation is, in a way, irrelevant. What happened in fact is that the requirements of this business for dock workers has ceased, and it has ceased permanently. The requirements for dock workers has gone, the respondents now have no dock workers as they take in labour they require from another source of supply. We find that that is the situation, and that in our judgment does amount to dismissal by reason of redundancy. These dismissals fall within Regulation 3 and Section 81 of the Act. (b) The applicants, have throughout, overtly or by implication, suggested that this has all been a scheme, a conspiracy , a `set up', call it what one will, to get the men out of their employment in such a way that the respondents are not required to contribute a penny. In other words, it has all been done to ensure that the respondents are not required to pay redundancy payments. This conspiracy theory is not proven. These respondents wanted to retain these applicants and they would have retained them; they made conciliatory moves to that very end but they were not successful; we find that a fundamental matter of principle was involved, namely, the short handed working bonus. The respondents view it (and it seems to us not without justification), as a payment of a worker is not entitled to because he was not actually doing the work, others are doing the work, so why should he be paid a bonus which others had earned. The payment scheme and the regime at Goole does show that there is, or there was, a bonus incentive payment on production and that is what the respondents wished to maintain and were insistent in the end they would maintain. It was, we find the refusal by the applicants to accept this fact that generated these dismissals. The decision to dispense with all dock workers services was a reasonable decision and for a sufficient reason. The respondents dispenses with dock workers entirely. That in our judgment means dismissals by reason of redundancy of these applicants.(c The respondents viewed this all as a matter of taking industrial action but what we find to be the reality is that they were in fact dispensing with dock workers entirely; that their requirements for dock workers had ceased. In the circumstances and unanimously we declare that these dismissals were by reason of redundancy, and were fair. If the remedy is not agreed, between the parties within 28 days from the date of promulgation of this decision or such further period as the tribunal grants for the purpose, then these matters must return to us. "There is nothing in the findings of fact up to and including 2nd April 1990, which could point to any other reason for dismissal than "industrial action". The facts were not seriously at issue - save for whether or not a final agreement had been reached - and the documentary evidence was voluminous and pointing in the same direction. The wording of the letter of dismissal of 2nd April is clear despite the use by the Industrial Tribunal of the word "purports". Thus, the case for the Applicants involves the necessity of rejecting the reason put forward by the Company. If the Tribunal accepted the evidence of the Company and its bona fides and rejected the claim of conspiracy then it would seem, on the guidance of Hindle , that the finding would inevitably be that the reason given by the employer was a truthful and genuine reason.In paragraph 8(b) of the decision - above - the bona fides of the Company is not doubted, the conspiracy allegation is rejected. This is made clear. The Company wished to retain the Applicants and would have done so. Conciliatory moves were made up to the very end. Principle was involved. Incentive payments on production were offered. There is no finding that incentive payments would not have achieved the same measure of remuneration. It is said that the decision to dispense with the Applicants was a reasonable decision for a sufficient reason. This process of thought seems also to be supported by the opening phrase of paragraph 8(c).Mr Clark relies upon the remaining four lines of paragraph 8(c) and the findings of fact in paragraph 7(q) which reads:
"What happened following the dismissal of these applicants? We find that the respondents have used, and presumably are continuing to use, workers supplied to them from another company within the EIC Group of Companies, rather than Limb Group. The men who now service the dock working needs of any of the Limb Companies within the Limb Group come from Grimsby, Immingham or elsewhere. Limb Group, these respondents, do not now employ labour. We repeat, they use labour from other parts of the Group. They have ceased to employ labour. The requirements of the respondent company for dock workers has ceased."
Mr Hand submits, and we agree, that paragraph 7(q) relates to facts that occurred after the dismissal and is not related by the Tribunal to anything that occurred before. There is no finding that due to economic considerations, this decision had been made prior to the dismissals. It could of course be said that any management would be in dereliction of its duty to its other employees and to the Company, if it did not anticipate possible dismissals and consider contingency plans, but Mr Hand submits that it is different to find that the Company has brought in contractors to deal with a situation brought about by dismissal, from deciding to dismiss in order to bring in contract labour, and he further submits that on the facts of this case it is clear that the only possible finding would be that arrangements were brought into effect to deal with the situation which was created by the necessity to dismiss because of the industrial action. Mr Hand drew our attention to the case of Sanders v. Ernest A Neal Ltd [1974] ICR 565 . That case dealt with the vexed question of self-induced repudiation. However, there was a clear distinction to be drawn, says Mr Hand, between the cause of the dismissal and the result of the dismissal. He points to p.574C where Sir John Donaldson, President, says:
"In the present appeals there was indeed a redundancy situation, but the tribunal found that it in no way caused the dismissals. The converse was true. It was the dismissals which caused the redundancy. The employees were dismissed because they persistently refused to work normally. They claim fails not because the redundancy was self-induced, but because it did not cause their dismissal."
It seems to us essential that the Tribunal should have focused its attention on the facts which existed at the date when the decision to dismiss was made and thereby sought to distil the reason for the dismissal. To look at the situation after dismissal and to infer therefrom what the situation was before requires very careful consideration of the facts and a finding of fact that the true reason for dismissal at the time the decision was made was founded upon facts existing at that time. In the present case it would necessitate the rejection of the evidence given for the Company. If one looks at the position after dismissal and then reason backwards in time to the position before the dismissal then the view taken by the employer becomes immaterial. To do so eliminates the causal or attributive factor. This is required by Hindle .In this Decision we have inconsistent findings of fact. The Industrial Tribunal was required first to consider whether or not there was a redundancy situation. It so found. It is unnecessary for us to decide that issue. However, thereafter, in considering the second stage it must find the facts and the reason of the employers at the date the decision to dismiss was made. As we have said this necessitates a finding upon the truth or genuineness of the employer's case. Merely to find what occurred afterwards and to reason backwards eliminates the necessity of the causal connection. This Tribunal accepted the evidence of the Employers in paragraph 8 of the Decision, but also found that the reason for dismissal was redundancy.For these reasons we allow the appeal and this matter must be remitted for a rehearing before a different Tribunal.Leave to appeal.