Ratcliffe v Elfords Engineering Ltd [1993] UKEAT 358_91_1310

EAT

Ratcliffe v Elfords Engineering Ltd

[1993] UKEAT 358_91_1310 · 1993-10-13

JUDGE J HULL QC:

This is Mr Ratcliffe's appeal against the decision of the Industrial Tribunal, promulgated on the 24th May 1991, dismissing his complaint of unfair dismissal against his employers, Elfords Engineering Limited, who were motor distributors and engineers.

He was first employed by them on the 22nd February 1988; at first, apparently, entirely as a delivery man. He is in fact a man of education; he has been a lecturer and he is well capable of dealing with computers. On occasion, when his employers required help in this direction, he has helped in various departments; he has done mechanical drawings for them and he had, in fact, an academic career: he was a lecturer in a college near to the Respondents' premises. It was when he was approaching retirement that he spoke to Mr Marchant, who is Managing Director of the Respondents, and asked whether there might be some employment available. He duly obtained employment as delivery man and later on a further task which was well within his capacity, as a parts representative, that is to say to combine selling with his delivery work. He says that his redesignation was at the instance of the employers. He wanted to do more selling, but such was the weight of work involved in delivery, which as I say was to be combined with selling, that in his view he was spending very little time, right up to the end of his employment, on selling parts and being a parts representative; he just managed to fit in a certain amount of visiting and canvassing during his trips. He did do one very major mail-shot, when he distributed thousands of leaflets to potential customers. As I say, he was taken on in 1988 and the change in his designation came at the beginning of 1990, after various negotiations.

In 1989 the employers, who had about four branches in the South of England with coach works, spare parts depots and retail departments, had a crisis. They were franchisees for Mazda, or agents as it is sometimes called, and they were in a very preferred position because of the strength of their business, and no doubt its size. Mazda supplied them with parts at a discount and that enabled them to sell to other dealers, people in the trade, and make a profit by doing so. That was a very favourable position for them but in 1989, in the middle of the year, Mazda changed their policy, and that meant that they were no longer prepared to supply parts at a discount for sale to other members of the trade. In those circumstances profits became much harder to earn. It did not stop there because at that time the depression in the motor trade was setting in. It became apparent in 1990 that so far from earning profits they were making losses and it became absolutely imperative to make economies in some way or other, to try, at any rate, to cut the losses and if possible to restore profits. There were discussions and decisions made in September 1990 and indeed, I think, before. The decision was taken that there must be certain redundancies. One of those decided on was Mr Ratcliffe, who was still engaged most of the time in delivery, and part of the time in being parts representative.

Shortly before this, in July 1990, a young woman driver had been taken on to do deliveries; apparently there was enough work to employ her part-time. She was a temporary employee. It was said, and evidently accepted by the Industrial Tribunal, that she was expected to get married fairly soon. She did not come in every day, she came in when she was needed, and she too delivered parts. Apparently, there was some apportionment of duties. She delivered parts nearby and Mr Ratcliffe went on the longer journeys. So far as he was concerned the first he heard of the plans for his own dismissal were on the 26th October when he was told by Mr Marchant that he was to be made redundant. That was the first he had heard of it. He made representations to Mr Marchant, although he was stunned by the matter which had been explained to him, and Mr Marchant did indeed, as he said he would, reconsider the matter. Nonetheless, on the 1st November, after a week-end during which Mr Marchant had spoken to Mr Vaughan (another Director who was directly responsible for the parts department) and there had been further consultations with management, Mr Ratcliffe was indeed dismissed. He had had little, if any, consultation. He says "if I had been informed of these matters earlier I could have had a job, a further academic appointment which I could have taken up, and would be employed now; but as it is it was too late, by the 26th October the academic year had started, the job had been filled, and I myself have not been able to get, from that day to this, further employment". He also says, again putting it very shortly, "if the Company had behaved rationally and fairly in the circumstances they would have made redundant this young woman, who was also doing deliveries. She was doing essentially the same work as I was. It is true that I did the longer journeys, she the shorter, but nonetheless it was essentially the same work. The employers should have chosen between us. She was the person with shorter service, she was a temporary, by definition, and a part-timer; and reason dictates that she should have been chosen rather than me." Those contentions were put before the Industrial Tribunal whose decision is before us. They found that there was a redundancy situation, they said that the employers had put forward reasons for omitting the normal period of consultation, and they went into the question of the alternative put forward by Mr Ratcliffe, which was that the young woman should have been dismissed rather than he. They said at paragraph 8 (a passage which he complains of today):

"Nonetheless we are satisfied that he continued to drive the van and did make deliveries from time to time in the course of his duties."

although he was a parts representative. They have got that wrong, says Mr Ratcliffe. So far from the deliveries being a minor part of his duties, they were the major part of his duties at the material time. (Mr Prichard, counsel for the employers, said that in the event that mistake by the Tribunal made no difference to their consideration of the matter.) Then, after going through the history which I have endeavoured to summarise, the Industrial Tribunal said what the selection criteria adopted by the Respondents were. They were:

"(i)skills relative to the possibility of jobs in other departments;

(ii)experience;

(iii)length of service."

Dealing with this question of the young woman, the Tribunal referred to Mr Marchant's evidence:

"that the driving position at the time was envisaged to be finishing in the relatively near future. He said [he expected her to be there for] `weeks not months'."

Then they went into the question of how Mr Ratcliffe was consulted, or not consulted. They referred to what happened on the 26th October when Mr Ratcliffe said that he thought this girl should be dismissed instead of him. Mr Marchant had said that he would reconsider the position, Mr Vaughan was away that day and was going to return after a long weekend. Mr Marchant saw the Chairman of the Company and discussed the position with him and on the Monday he looked at the possibility of some other employment for Mr Ratcliffe and unfortunately, say the Tribunal, he could not see any. The Tribunal went on to say:

"On Wednesday Mr Marchant and Mr Vaughan [after Mr Vaughan's return] met and had a long discussion, after which Mr Marchant saw the financial director. Again the applicant's position was considered, but nothing could be found for him by way of an alternative position."

and they recite that Mr Ratcliffe himself had telephoned Mr Vaughan over the weekend and spoken to him.

Then on the Thursday 1st November, the last day of Mr Ratcliffe's employment, Mr Marchant had a final meeting with Mr Vaughan, and Mr Ratcliffe went to the office; and he complained that he was marched out of the premises and told that he was redundant.

The Tribunal preferred Mr Marchant's evidence as to whether the reasons for dismissal had been given in writing as the Act requires, and found that they had; and they went on, in paragraph 34, to deal with the matter in the round:

"We then went on to consider as we must whether in all the circumstances of this case the applicant was the subject of a fair or an unfair decision by his employer. He complained that there was no warning at all until 26 October and that was agreed by Mr Marchant. The reason for that was that it was felt that if the company made public the fact that it was financially embarrassed and having to dismiss people, that would have a very serious effect on the future prospects of the company. It was for this reason that there was no warning to the applicant before 26 October. This Tribunal accepts that . . . as much notice and consultation should take place, as possible [I am inserting the words `as possible'] but in this case we accept the respondent's reasons for the actions which they took. Moreover we accept that following the discussion with the applicant on 26th October, Mr Marchant did exactly what he said he would do, namely, to think again and have further discussions to see whether there was any other possibility. With regard to the applicant's complaint that he was wrongly selected for redundancy and that the lady van driver should have been selected in his place, we find that the reasons advanced by the respondent for their decision were not unfair. At that time it was considered that the position was temporary in any case and it was not thought desirable to put the applicant in a position where in the foreseeable future he would once again be made redundant."

In those circumstances they dismissed the complaint of unfairness and Mr Ratcliffe appeals, acting in person, to this Tribunal. We should like to express our gratitude to him for the concise way he has made his complaints and argued his appeal, and the moderate manner in which he has done so, which has been of great assistance to us.

Mr Prichard, counsel for the Respondents, has of course had well in mind his responsibilities to this Tribunal to make sure that fair arguments are not overlooked and that Mr Ratcliffe is not overborne by the circumstances. Mr Ratcliffe complained that he was treated in a way which upset him by the Industrial Tribunal. That is not part of his appeal but I hope that he will not feel that anything like that has happened in this Tribunal. We have, as I say, heard him, he was short and to the point.

The first ground which he urges is that the Industrial Tribunal erred in failing to consider whether the criteria for selection for redundancy, stated in paragraph 17 of the decision to have been adopted by the Respondent, were in fact applied in selecting him for redundancy. Now, it is true that they did not go into the way in which those criteria were applied in detail but it is nonetheless clear to us that the Tribunal did consider that matter for the reasons pointed out to us by Mr Prichard in the passages which he referred to. They may not have considered it in the way which we would have done. That is not the point. They may not have set out their reasons as fully as might have been wished. Nonetheless it was a detailed decision and it is well settled that no Court or Tribunal is bound to set out every reason and every consideration which it has in mind, as long as it sets out the basis of its decision; and we think there is nothing in that complaint, as a matter of law.

The second ground is this:

"The Industrial Tribunal further erred in law in failing to consider whether, in the light of the Applicant's length of service and experience, he was less eligible for selection for redundancy than the retained employee" -

that is this young woman. Mr Ratcliffe complains that she was, in fact, kept on for months and months. Business looked up in fact and when she left (only recently) she was replaced by another driver. That, with respect, is not the point. Or at any rate not the point on the view which this Tribunal took of the evidence. Of course, if the Industrial Tribunal had concluded, after hearing the evidence, that that indicated quite clearly that what was being put forward by Mr Marchant and Mr Vaughan was not genuine, that would be quite different. But the question whether there was a genuine redundancy situation and whether the employers acted fairly in treating that as a reason for dismissal had to be judged at the time of the decision to dismiss and not with the benefit of hindsight. What happened afterwards is only relevant if it affects the view which the Tribunal takes of the credit and truthfulness of a particular witness or witnesses and the validity of their evidence. The reasons given by the employers, by Mr Marchant in particular, were that this young woman was not doing the same job, she was a mere driver. She had no task of selling; she was only part-time and she was only temporary. It was understood that she was to leave in a few weeks. In those circumstances, if she had been dismissed it would not have been a case of dismissing her rather than Mr Ratcliffe, it would have been a case of simply dismissing her gratuitously. Plans were made for Mr Ratcliffe's redundancy on the basis and assumption that she would be going in a few weeks, in other words that both jobs were to go.

Now, the Tribunal might very well have said we do not accept this evidence, in view of what has happened afterwards, combined with the lack of consultation, it seems to us that we ought not to credit Mr Marchant's evidence, we reject it, he has not satisfied us and the same goes for his colleagues. It can be said at once, looking at it simply on paper, that Mr Marchant and Mr Vaughan were asking the Tribunal to take a good deal on trust. The Industrial Tribunal might very easily have said, after listening to these gentlemen, "sorry, we do not accept that"; but they did not. They accepted the evidence for the employers. Now any Tribunal of fact is entitled to say which witnesses' evidence it accepts and which it does not. In a sense the more difficult it is for a witness to persuade a Tribunal of something, the more he asks the Tribunal to take on trust on the basis of his word, the less willing any Tribunal of law (like this) should be to interfere with the acceptance of such evidence; because it is of the essence of our jurisdiction here that we do not hear the witnesses and only interfere in cases where there has been an error of law. Therefore, the mere fact that the Industrial Tribunal chose to prefer evidence which the witness was asking a good deal of it to accept is not something which should cause us to be willing to interfere; on the contrary, it shows how dangerous it would be for us to interfere with the Tribunal which has had the task, the responsibility, of deciding which witnesses' evidence to accept.

Then the third ground of appeal is:

"The Industrial Tribunal erred in law in finding that the Applicant was employed as the Parts Representative and only made deliveries from time to time as part of his duties . . ."

That complaint is essentially accepted for what it is worth, that is to say that the Tribunal obviously did, on the figures that were put before it and which were not in issue, put it the wrong way round. He was mainly employed in deliveries and found less time than he wished, perhaps only 20% or 25%, for his selling activities. It may be rather artificial to split it up because of course if he was going to canvass on behalf of the Company, in the course of his deliveries, it might be rather difficult to say "well so much time was spent canvassing and so much time on delivery" because the journeys themselves, which might be long ones, would be essential to the canvassing. But Mr Prichard says that is really beside the point. On any view the difference between the young woman driver and Mr Ratcliffe (looked at as a driver) was the difference between part-time employment and full-time employment, between temporary employment and permanent employment. Again, we think that that was a conclusion which the Tribunal was entitled to draw, and they were entitled to say in the circumstances, if they accepted the evidence of Mr Marchant, that it was reasonable for the employers to proceed in the way they did. They were entitled to say that notwithstanding that it turned out that most of the assumptions on which the employer's decision was based were wrong and that in fact there was continuing employment for this young woman and she had to be replaced when she eventually went, not weeks, but long after.

Then, finally, Mr Ratcliffe's fourth ground is that the Industrial Tribunal erred in finding that the Respondents not wishing others to know of the Applicant's redundancy was sufficient reason for not consulting or advising the Applicant prior to the decision being taken. Mr Ratcliffe points out, forcefully, that that situation will very commonly arise. It is very rarely good for one's business to say "we are in terrible straits; we are laying people off". Of course that is common enough. But the question of whether the business will in fact suffer substantial damage by complying with the normal and sensible course of consulting employees and their representatives, if there are Union representatives, and considering the situation rationally, is first of all one for the employers. The employers must behave reasonably and fairly in deciding whether the situation is so extreme or so unusual that they are justified in taking an exceptional course. It is then for the Industrial Tribunal to say whether such reasons as are put forward by the employers for neglecting this normal course of consultation are, first of all, held in good faith by the employers and secondly, if they are held in good faith by the employers, whether in the view of the Industrial Tribunal they do in fact enable the employers to say that they acted fairly. First and foremost it is a matter for the employers. Then it is for the Industrial Tribunal as a judge of fact to say whether, accepting that these reasons are sincerely held, they do in fact justify the departure from the normal course. Certainly nothing we say can detract from the principle that every employer is expected to consult his employees in such a situation, consult them in a rational way and in good time, unless there are strong reasons to the contrary. It was for this Tribunal to decide that, they did consider the matter and they accepted what was said by Mr Marchant. Mr Marchant had been the friend of Mr Ratcliffe before this, and his benefactor in finding him a job. There were two possible views, clearly; one was the one which the Tribunal adopted; they accepted what was said to them. The other possible view (on paper) was that Mr Marchant and the other witness for the employers were insincere, that this was not a case which was put forward genuinely but was a case which was a smokescreen to try and save the Company some money and trouble, they wanted to get rid of Mr Ratcliffe and they did not much care how they went about it. If the Tribunal had thought, the burden being on the employers, that that might be the position then of course they would have had no hesitation in acceding to the application and saying that the dismissal was unfair, but having heard Mr Marchant they did not and it was within their competence to accept his evidence. They had advantages which we have not. It would be quite idle to say, having looked at the papers, that we might have reached a different decision or that another Tribunal might have reached a different decision, it was this Tribunal hearing these witnesses on this occasion who had sole responsibility for deciding on the facts.

Mr Prichard has taken us through those parts of the decision which he says support the view of the Tribunal, as showing that they did consider all the grounds. He referred us to authority on the need for consultation and the circumstances in which it might be possible for a Tribunal to say that dismissal was fair notwithstanding such lack of consultation. He reminded us very forcefully of our duty only to interfere if there were errors of law and he described to us the way in which errors of law could arise which we could correct in the circumstances of a case such as this and reminded us that a decision could only be said to be perverse if it was such a decision as no tribunal, properly directing itself, could rationally reach on the basis of the evidence given before it. We do not think that this is such a decision at all. We think that there was evidence which, if accepted could justify this Tribunal in saying that this was a fair dismissal, that there was redundancy, that the employers acted fairly in treating it as a ground for dismissing Mr Ratcliffe and that they did not act unfairly in selecting Mr Ratcliffe rather than the temporary and part-time employee who remained with them.

One cannot have heard this appeal or read the papers in the case without experiencing considerable sympathy for Mr Ratcliffe. He, as matters have turned out, is greatly disappointed. He could, if he had been consulted in proper time, have obtained other work. We see no reason to doubt what he says about that. If he had been retained it might very well be that it would have turned out that business looked up and that he could still have been employed today. Those are considerations which would make any normal person feel the sympathy for Mr Ratcliffe, but they do not entitle us to say that this decision of the Tribunal was a wrong decision and we do not feel that we can give effect to any of these grounds of appeal. For the reasons which were advanced by Mr Prichard, we consider that this was a decision within the competence of the Industrial Tribunal and that no error of law is shown. Therefore, with regret, we are bound to dismiss this appeal.