Addy v Powtek-Gericke Ltd [1993] UKEAT 729_92_2110

EAT

Addy v Powtek-Gericke Ltd

[1993] UKEAT 729_92_2110 · 1993-10-21

JUDGE BULL QC :

We deal first with the Preliminary Hearing of Mr Addy's appeal to us and having heard Mr S Pinder upon his behalf and upon this Appeal having been set down for an Ex Parte Preliminary Hearing pursuant to the new procedure listing directions, we order that the Appeal be allowed to proceed to a Full Hearing of the Employment Appeal Tribunal.

We further order that Skeleton Arguments be exchanged between the parties 28 days before the date of the hearing.

I turn now to the second Preliminary Hearing which for convenience we heard directly after that of Mr Addy but I emphasise that we have given quite separate consideration to it.

This is a Preliminary Hearing of the Appeal of Powtek-Gericke Ltd against Mr Addy, a decision of the Industrial Tribunal which sat at Manchester on 31 July 1993. The Summary Reasons were dated 4 August and they were sent to the parties on 11 August 1992. The Full Reasons were sent out later that month on 26 August 1992.

Mr Middleton makes these complaints. Firstly that the Industrial Tribunal's finding of a failure to consult prior to dismissal is inconsistent on the face of the two decisions; further that the Industrial Tribunal substituted its own decision for the view of the Appellants, and he makes a third criticism that the Tribunal failed properly to address itself to the Respondent's argument that the Appeal Hearing was a de novo hearing capable of correcting any procedural defect in the initial decision to dismiss. He makes a fourth complaint which is the central difficulty he suggests in the way the Tribunal looked at the selection criteria adopted by the Respondent in particular that the treatment of what is conveniently described as "business requirement" in considering that they failed to keep the criteria separate and distinct to see that a younger employee has a statistically longer working life which ought to be taken into account.

May I deal with these in sequence. First the alleged inconsistency between the Summary Decision and the Full Reasons. In the Summary Decision there is the sentence

"There was no consultation with the applicant himself".

which appears in paragraph 3 of the Summary Reasons. In the Full Reasons the phrase which appears in paragraph 10 of those Reasons at page 9 is in this form:

"The consultation with the applicant was minimal".

Mr Middleton has stressed the apparent inconstancy between these two findings but we consider that this criticism is misconceived for it fails to consider the context of the two phrases. When the whole passage is read and the reasons are taken into account, we consider that the two passages complained of are wholly consistent with each other for they refer to slightly different fields of vision and in our view there is no substance in that first complaint.

The second complaint which he makes is that the Industrial Tribunal substituted its own decision for that of the Respondents. Paragraph 8 makes it plain that the Industrial Tribunal did turn their minds to this issue. They say in that paragraph:

"We were mindful that it is not for us to substitute our own system for the respondent's but to ask was this a system which a reasonable employer might use and was it within the band of reasonable responses for the employer to dismiss the applicant having used that system."

Mr Middleton says in effect that it is not sufficient for the Industrial Tribunal to give voice to this particular criterion and then to go on and disregard it. Therefore we have spent some time anxiously considering whether in fact there is any substance in this criticism. We find there is no material to substantiate the criticism for in our view the concluding sentence in paragraph 8 and in other passages in this rather long and detailed reasoning given by the Tribunal demonstrate that the Tribunal did have in mind precisely that they should not substitute their own system for the Respondents and did adhere to that view. We can find no error of law in their approach.

Thirdly, it is said that the Tribunal failed properly to address itself to the Respondents' argument that the Appeal Hearing was a de novo hearing capable of correcting any procedural defect in the initial decision to dismiss. This really is a reference to their finding in paragraph 11 of their Reasons. It is plain to us that in paragraph 11 they did in fact address their minds sharply to the matter of which complaint is made. They say this:

"We would also say that although the respondent argues that the appeal hearing was `de novo' that the deed had been done by that stage, the applicant had been dismissed. In addition Mr Henry who conducted the appeal whilst not being involved in the scoring of points for each individual, had been involved before he went on holiday in discussions leading to the determination of the criteria, how many points each was to attract and the weighting."

We consider they did turn their minds to this issue as was their duty to do and it is not our task to substitute our view for theirs. It is our unanimous view that they did apply the appropriate test in conducting that particular part of their duties.

The fourth criticism is the way in which the Industrial Tribunal looked at the selection criteria adopted by the Respondent. This refers to paragraph 8 of the reasons given by the Industrial Tribunal. We again have considered this with care, and while we do not repeat the quotation from paragraph 8 which we have previously set out, in our view this was pre-eminently a matter for the Industrial Tribunal to determine the facts. It was further for them to apply the appropriate test which we consider that they did, and it is not our function to interfere provided no point of law arises. We have carefully considered the arguments of Mr Middleton which were advanced with force and clarity and we respect him for the way in which they were put before us. However we are driven to the conclusion that there is no point of law here which either requires or allows us to interfere in the decision reached by the Industrial Tribunal.

The result is that in our unanimous view there is no point of law here which could allow this matter to proceed to full hearing and we are driven to the conclusion that it must be dismissed and therefore we so do.