Uttlesford District Council v Savill & Anor [1993] UKEAT 847_92_3006

EAT
Uttlesford District Council v Savill & Anor
[1993] UKEAT 847_92_3006 · 1993-06-30

JUDGE HULL QC:

This is an appeal by the Uttlesford District Council against a Decision of the Industrial Tribunal sitting at Bury St Edmunds on 10 September 1992, which has been set down before us under the Special Procedure as a preliminary hearing to see whether we think, having heard Mr Berry who appears here and who appeared below for the Council, there is a point of law which is fairly arguable in the case so that we can set down the case for a full hearing.We have not, of course, seen all the evidence but we have been told by Mr Berry very broadly what evidence was given. I will not go into the facts in detail; they are set out fully in the Decision of the Industrial Tribunal. The two ladies were employed part-time as Word Processor Operators. They had been Typists originally but like most typists they had retrained and become skilled in working word processors, although Mr Berry tells us that they had only achieved the basic level of treating the computer, which a word processor is, as a high technology typewriter.There came a time in 1991 when it was decided to reorganise the departments of the Authority. New people were brought in, including Mr Berry the Personnel Manager, and a programme of reorganisation was embarked on; options were put before the Council and decisions were reached about the organisation. Again, I do not propose to go into details. As a result, the two ladies lost their jobs and it was said that they were being dismissed by reason of redundancy. It emerged shortly after their dismissal that in fact jobs for Word Processor Operators still existed and, indeed, one or two of them were advertised. That led the two ladies - the two Applicants - to think that their dismissal was not truly by reason of redundancy and they therefore made their complaint of unfair dismissal to the Industrial Tribunal.The Tribunal looked into the facts and we are told that the only evidence they heard from the Authority was that of Mr Berry and, as he says now with the wisdom of hindsight, he perhaps made a mistake in being both the advocate and the only witness for the Authority. That, of course, was entirely a matter for him and we do not criticise him in any way for that. He says that the Industrial Tribunal became somewhat emotional over the case. I interpret that to mean not all his arguments appealed to the Tribunal, on the view which they took of the facts.Since the reason given by the Authority for the dismissal was redundancy it was, of course, the duty of the Authority, if it wished to satisfy the Industrial Tribunal of that, to prove it, the burden lay clearly on them i.e. on Mr Berry. Having heard all the evidence and setting out much of it in their Decision the Tribunal say in paragraph 23:
"In our view, there was no diminution of the respondents' requirements for word processor operators. In other words, the applicants were not dismissed by reason of redundancy. The evidence has shown that they were dismissed either because of their age or because there were doubts about their competence."
That was the finding of the Tribunal. They go on in paragraphs 24 and 25:
"24 Age is not one of the reasons specified in section 57. It is not a permissable reason for dismissal. Lack of competence is one of the permissible reasons. There is, however, a proper drill which must be carried out: if an employer wishes to dismiss an employee on the grounds of lack of competence, he must point out his or her shortcomings; he must tell him or her what has to be done to improve the performance; and he must allow an opportunity for that performance to improve.
25 Our unanimous decision, therefore, is that this dismissal was not by reason of redundancy. It was for a different reason altogether and the dismissal must be unfair."I would just add, having looked briefly at the Decision and having considered what has been said to us by Mr Berry, that other reasons for this dismissal might have been upheld had they been put forward and proved to be reorganisation. It must be open to an employer to reorganise his business undertaking and that is often a reason for dismissal, but in all those circumstances, as the Tribunal well points out, it is necessary for the employer to act reasonably and fairly in treating it as a reason for dismissal, and that involves consultation.It may be that if the case had been taken a different course and if, in fact, the Authority had consulted with these ladies fully, either the dismissals would not have occurred or if they had occurred, another Tribunal with the case put in quite a different way might have reached a different decision; that is all very hypothetical.Appeals from Industrial Tribunals to this Appeal Tribunal can be entertained only if they show points of law. Only if the Industrial Tribunal has gone wrong in law can this Appeal Tribunal entertain an appeal. It is suggested here that in some way or another the Decision of the Industrial Tribunal was perverse. If that is to be proved it has to be shown either that either there was no evidence to support the conclusion of the Tribunal or else that the evidence was such that no reasonable Tribunal hearing it could have reached the decision which this Tribunal reached. That is obviously a very heavy burden and in this case it is hard to see how the burden of showing perversity in that sense can be discharged because the burden lies on the employers to satisfy the Tribunal as to the reason for dismissal. This Tribunal heard such evidence as was called by the employer and was not satisfied that the cause of dismissal was redundancy.We cannot say as a matter of law that a Tribunal is bound to accept any evidence that is put before it, on the contrary, as with a jury in a jury trial, as with a Judge in an ordinary civil trial, it is for the Tribunal to say what evidence they accept and what evidence they reject. This Tribunal heard Mr Berry, as I have said, and it is not for us to say that they should have accepted Mr Berry's evidence: it is not for us to say that they were bound to do so; they heard that evidence and they also heard the evidence and arguments of the Applicants. They were not bound to hold that the burden was discharged.Having looked as best we can at the way in which the Tribunal dealt with the evidence, we think that a number of possible views might have been taken of the evidence which the employer adduced. But however that may be we cannot say that any error of law is apparent in the Decision of this Industrial Tribunal that these Applicants were not dismissed by reason of redundancy and therefore the employer, having failed to show the Tribunal that that was the reason for the dismissal, was bound, for the reasons given by the Tribunal to fail.In those circumstances this appeal must go no further. We are satisfied that no point of law is shown and we therefore dismiss the appeal.