Matveeff v Link Miles Ltd [1994] UKEAT 125_93_2809

EAT
Matveeff v Link Miles Ltd
[1994] UKEAT 125_93_2809 · 1994-09-28

JUDGE HICKS QC:

The Appellant, Mr Matveeff, was employed by the Respondent company, Link Miles Limited, as a projects inventory controller. He had been employed by them for some 20 years when he was dismissed on 26 February 1991. It is not in dispute that dismissal was for redundancy and that there was a redundancy situation.The Appellant complained to the Industrial Tribunal that that dismissal was unfair, but the tribunal dismissed that complaint and he now appeals.The background to the events was a substantial restructuring of the company's business connected with a take-over by a French company and following a period of adverse trading. There was a 25% reduction in the work force overall, involving 325 redundancies in total. In the stores, where Mr Matveeff worked, the ratio was 50% - 10 out of 20.The method of selection was to assess each employee under four heads with up to 10 points scored under each head: skills, quality and quantity of output or performance and attendance. The first three were assessed by Mr Wall, the supervisor. He applied criteria used for selecting persons for retraining and did not know that the results were to be used to select for redundancy. His pencilled remarks were discussed with, and his reasons examined by, Mr Coates, the works manager, but his marks were not in the event altered before being inked in. Attendance was dealt with separately on the basis of the company's records. Ties in the total scores resulting from this process were resolved by applying the "last in, first out" rule. The scores, in the event, ranged from 29.1 to 18.3 and the "last in, first out" rule had to be applied to choose between three persons on a score of 25.1, the median score. The Appellant's score was 23.8, placing him 14th and obviating any need to take into account his length of service, which was of course high. (I think, but it does not matter, that he may well have been the longest serving member of the work-force in the store).The decisions were announced (without names) and explanations given to union representatives on 28 November 1990. Letters dated 3 December were sent to the persons made redundant, including the Appellant, Mr Matveeff, and they dealt with such matters as what payments would be made upon redundancies, pensions, the setting up of a job shop, time off for seeking work and so on, and they announced the company's intention to dismiss the redundant employees on 26 February 1991, unless circumstances changed.Mr Oppenheim, for the Appellant, repeatedly referred to that as a notice of dismissal, but the Industrial Tribunal describe it as "informing the employees that unless circumstances changed, it was the company's intention to give notice of dismissal by reason of redundancy on 26 February 1991", and in our view they were entitled to take that view of the letter. The employers, as we read it, were plainly reserving the right not to dismiss any particular employee if circumstances did not require it, and it was certainly not treated as notice when the employment terminated because each employee received, inter alia, a payment in lieu of notice.On 5 December 1990 the employers invited volunteers for redundancy. On 28 December Mr Matveeff wrote a letter to them asking why he had been selected, whether consideration would be given to re-engaging or re-employing him, and reminding the employers of his long service. That was answered on 7 January 1991 by the employers. The tribunal's reasons describe that letter as explaining briefly to Mr Matveeff how the selection for redundancy had been made. In fact, as we see it, it was a quite full explanation, specifying the full criteria and the point at which length of service would become the determining factor, and it also answered his other questions.Paragraph 19 of the tribunal's Reasons then go on as follows:"With the assistance of his Union Mr Matveeff then made arrangements to appeal against his selection and the letter written to him by the District Secretary dated 12 February (1A18) confirmed the arrangements for the meeting with management on 18 February. At that meeting with Mr Brown and Mr Adams, [they were two members of the management] there were present the Union District Secretary, the Union Convener and his deputy, Mr Matveeff and another employee. Mr Adams' evidence that the meeting took up most of the morning and that selection was discussed in depth was not challenged".Two complaints about the scoring process were canvassed before the Industrial Tribunal, because by the time of the hearing at the Industrial Tribunal Mr Matveeff was in possession of the documents recording the assessment and scoring. Under the question of quality of output he contended that he should have had a higher score for driving what were called counter-balance trucks and under attendance he maintained that he was not absent on the one occasion recorded against him.In paragraph 8 of their Reasons the Industrial Tribunal say, in terms which could not be criticised by Mr Oppenheim:"In accordance with sub-Section (3) of Section 57 of the Act, we have to decide whether the dismissals were fair or unfair, having regard to the size and administrative resources of the Respondent's business or undertaking and in accordance with equity and the substantial merits of the case".And then after a number of paragraphs dealing with findings of fact, including the matters which I have mentioned but going into more detail than I have done, the tribunal conclude in paragraph 27 that they were unanimous in finding that the criteria applied were fair and that they were honestly applied. That is not actually a word-for-word quotation but it is the substance and core of the tribunal's decision on the issue of reasonableness under section 57(3).We remind ourselves that the function of this appeal tribunal is to deal with errors of law on the part of Industrial Tribunals and that appeals to this tribunal lie only on that ground, and in the case of Williams v Compair Maxam Ltd [1982] IRLR 83 , cited to us for other reasons, there appears in paragraph 35 (having dealt with the facts of that case and the factors which the appeal tribunal considered should be taken into account there) this statement of principle:
"The factors we have stated are not principles of law but standards of behaviour. In future cases before this Appeal Tribunal there should be no attempt to say that an Industrial Tribunal which did not have regard to or give effect to one of these factors has misdirected itself in law. Only in cases such as the present where a genuine case for perversity on the grounds that the decision flies in the face of commonly accepted standards of fairness can be made out, are these factors directly relevant"
And in the case of Duffy v Yeomans (1994) "The Times" Law Reports 26 July, Dillon L.J. in a judgment with which the other members of the Court of Appeal agreed or concurred, said that:"There was a grave danger that the area of law in question was becoming over-sophisticated and there was an attempt to lay down as rules of law matters which were no more than factors which an Industrial Tribunal should take into account in reaching its decision whether the employer had acted reasonably in the circumstances of the particular case".Dealing on that basis with the grounds of appeal as argued before us, the first submission by Mr Oppenheim on behalf of the Appellant was that there was a misdirection on the part of the Industrial Tribunal in the words which I have quoted from paragraph 27 of their Reasons, where they say:"....it was a fair criteria and we find that it was honestly applied".He submits in substance that the question should have been whether they were not only fair, but were fairly applied. I say "in substance" because the classic statement of the Industrial Tribunal's function, as set out for example again in Williams v Compair at paragraph 18 is:"....that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted".It cannot however, be unfair or adverse to the employee if the Industrial Tribunal frames the question in the stricter form, nor indeed should this tribunal lightly assume that that form of words implies that the Industrial Tribunal has not the fuller expression of the test in mind. So this point, in our view, resolves itself into the bare question whether by using the word "honestly" instead of "fairly" or "reasonably" the Industrial Tribunal misdirected itself. In our view that would be the sort of nitpicking which the Court of Appeal has so often deprecated. Moreover there are in the Reasons, first, ascertainable indications why the Industrial Tribunal should use the word "honestly" and, secondly, clear evidence that it was not considering only honesty in the narrow sense of untruthfulness or bias which Mr Oppenheim criticises and which might justify those criticisms.As to the first point, that the reasons for using the word "honestly" appear on the face of the document, that appears from the context of the whole of paragraph 27, from which it is apparent that the Industrial Tribunal had it in mind that in the forefront of the Applicant's case, Mr Matveeff's case, as conducted before that tribunal, was an attack on the honesty of the assessment by Mr Wall in at least two respects. First, on his impartiality in the conduct of the assessment, it being suggested that he had favoured those whom he knew better or liked better than Mr Matveeff and, secondly, on his truthfulness in asserting that he did not know that the purpose of the assessment was that it was to be used for redundancy, as to which the Industrial Tribunal believed him, as indeed it did on both of those criticisms. It is not surprising that the concept of honesty was in the Industrial Tribunal's mind when setting out its Reasons in that paragraph.As to the second point, that does not imply that the Industrial Tribunal did not have the wider considerations in mind that go to reasonableness in the procedure of the employers. The tribunal canvass in their findings of fact and their response to the Applicant's submissions the very points on which Mr Oppenheim relies as going beyond the issue of honesty in the narrow sense, and in particular the criticisms of the scores for attendance and for ability in truck driving. We were referred to the case of Meek v City of Birmingham Council [1987] IRLR 250 , paragraph 8, where the judgment of Bingham L.J. reads:"It has on a number of occasions made plain that the decision of an Industrial Tribunal does not require to be an elaborate formalistic product of fine legal draughtsmanship",and that is another point which we have in mind throughout our consideration of this decision, but he goes on:".....it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which led them to reach the conclusion which they do on those basic facts". The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and the reasoning to enable the EAT or on further appeal this court to see whether any question of law arises".We take that statement of principle into account but it does not, in our view, help Mr Oppenheim on this point because in our view it is plain from the Reasons given by the Industrial Tribunal that they were taking all the matters which they had canvassed into account in their decision on reasonableness for the purposes of section 57(3).Secondly, Mr Oppenheim submits specifically that the tribunal misdirected itself in failing to consider on the issue of reasonableness the question of consultation. He cited in that regard the case of Duffy to which I have already referred but that does not seem to us to be of any assistance because that concerned the much discussed question whether, if there is no consultation at all, the employer must show that it has considered the question and concluded that there was no point in consultation, or whether it is sufficient that on the objective facts that was the situation. The case of the Respondent here was never conducted on the basis that there had been no consultation. It was conducted on the basis that there had indeed been consultation and that it was reasonable in the circumstances.There was a discussion before us of section 99 of what was, at the time, the Employment Protection (Consolidation) Act 1978, the substance of which is now to be found in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which concerns the duty of an employer to consult trade union representatives, but that is not directly applicable here because the sanction for non-compliance with that is a complaint by the trade union, which did not occur, and because in any event that matter was not canvassed before the Industrial Tribunal, the direct application or indeed the implications of section 99. The involvement of the unions, in our view, was simply one aspect of the question for the Industrial Tribunal whether the consultation process used by the employers was within the band of conduct of reasonable employers, acting reasonably, and for us the question is whether the Industrial Tribunal misdirected itself in that regard. We do not therefore find any assistance in authorities as to the interpretation of section 99 where that section is directly in issue.This point, therefore, turns simply on the absence of any express reference to consultation in the finding and conclusion at paragraph 27 to which we have already referred, that the criteria were fair and were honestly applied, for the reasons which we have given read as meaning "fairly and reasonably applied". It is clear that the issue of consultation was canvassed before the Industrial Tribunal. They found the facts relevant to that issue to which we have already referred, in particular the warning of nearly three months, the involvement of the unions from 28 November 1990 before letters were sent to individual employees, the exchange of letters between the Appellant and the Respondents at the end of December and beginning of January 1991, and the meeting of 18 February 1991. In our view it would be quite wrong for this tribunal to assume that in making those findings and in reaching their conclusion under section 57(3) at paragraph 27 the Industrial Tribunal failed to take into account the need for appropriate consultation if the procedure is to be fair on the question whether this employer's conduct was within the band of what a reasonable employer could reasonably do.Mr Oppenheim also submits that the Industrial Tribunal's decision was perverse, that is to say it was a decision which no reasonable tribunal properly directing itself could have reached. The Amended Notice of Appeal sets out a number of allegations of perversity. They are set out in paragraph 5(ii) from (a) to (f) and we first observe that they all take the form that the tribunal "failed to consider", or to "take account of" and then a number of listed matters. As we understand it failure to take into account a relevant matter is not strictly a perversity point, it is a misdirection point and is therefore covered by what we have already said about the way in which this tribunal should approach a decision of an Industrial Tribunal, and by the general consideration that an Industrial Tribunal is not required to set out in detail every sort of item that is listed here in its conclusion if it is apparent from its Reasons taken as a whole that it has found the necessary facts and it can be reasonably inferred that it had the appropriate considerations in mind.Turning to the individual heads (a) is an allegation that the tribunal "failed to take account of the fact that the formulation of criteria for selecting employees for training courses", (and then to summarise) was a different exercise from that required for selection for redundancy. Apart from the general point that I have already made there is no requirement of law that matters which this head says the employers should have taken into account under an assessment for redundancy should have any particular priority. It lists experience and length of service, and it is clear that there is simply no requirement of law that they must have any particular priority in the assessment. It lists attendance record, but that of course was taken into account.Item (b) is abandoned and I need say nothing about it. Item (c) is covered by the general observations I have already made; it is an allegation that the tribunal failed to consider whether the criteria were sufficiently objective, unambiguous, fair and apt for the purpose of which they were used.Item (d) alleges that the tribunal failed to consider whether the criteria formulated in respect of attendance records were fair in that no regard could be had to the reasons of absence. There are a number of answers to that allegation. Firstly, the authority on which Mr Oppenheim relied was the case of Paine and Moore v Grundy [1991] IRLR 267, but what was actually said in the judgment there was in general terms, that if employers are going to rely on what we can describe briefly as an attendance record criterion, it is desirable that they should seek to ascertain the reasons for the absences etc., and that is certainly therefore not a binding requirement of law of the kind alleged in the grounds of appeal. But, secondly, this Industrial Tribunal did consider the point raised by the Appellant in regard to the attendance record and, thirdly, the point whether regard should be had to reasons for absence was in any event totally irrelevant, because Mr Matveeff's point about the attendance record was not that he had a good reason to be absent but that he was not absent at all, a totally different matter.Head (e) is abandoned and I need say nothing about it. Head (f) is concerned with the alleged failure of the tribunal to consider, to put it shortly, the question of whether the right "pool" (to use the technical word that is used in this context) was considered for the purposes of selection for redundancy, the point presumably being that the store was too small a pool and a larger range of jobs should have been considered. But Mr Oppenheim accepts that his ability to take that point depends on whether it was ever put to the Industrial Tribunal, and Mr Barry who was there tells us - and Mr Oppenheim of course accepts his recollection - that it was not, so that point falls.The second limb of Mr Oppenheim's case as to perversity comes back to the specific point of consultation. He alleges that if, contrary to his submission of misdirection, the Industrial Tribunal must be taken to have found that there was adequate consultation then there was no evidence to support that finding. The answer to that is that quite plainly there was such evidence. I have already recited the matters actually found as facts in the tribunal's Reasons, but in addition to those Mr Barry has pointed us to further evidence that was before the tribunal which amplifies the picture as to the way in which the union was consulted and shows, for example, that after the first disclosure to the union on 28 November, the proposed letter to employees selected for redundancy was held back until the union's representative agreed that it could be released and that it was in fact released on 4 December, not on the date which it bore, 3 December, and there are further details which appear from the correspondence and from the so-called "management brief", which it seems was the basis of the public announcement made on 28 November and which, it seems fairly clear, was about general principles and not disclosing particular names. So there was apparently a period of six days, from 28 November to 4 December, between the initial consultation with the unions and the actual notices to employees of the intention of the employers to select them for redundancy.Those matters are not dealt with in such detail in the tribunal's Reasons, but on an argument of perversity it is of course relevant to note that that evidence as well as the evidence accepted in the tribunal's findings of fact was before them on that issue.The other point which Mr Oppenheim makes under this head, or at least we understand it to be under this head, is that the last sentence of paragraph 19 of the tribunal's Reasons concerning the meeting of 18 February, that "Mr Adams' evidence that the meeting took up most of the morning and that selection was discussed in depth was not challenged", was contrary to the evidence. The position there was that Mr Adams did indeed give evidence to that effect, that he was not cross-examined and that the Applicant, Mr Matveeff, who of course as would be the normal procedure gave evidence later, dealt with the matter (being at the second adjourned day of the hearing unrepresented) by reading a prepared statement with amplifications and corrections, which is perfectly normal and understandable, and the note of his evidence records (in a context which seems to suggest it was in the prepared statement) about that meeting, "No way was anyone to discuss in depth and no papers produced on my selection for redundancy".Whether that was intended to be or understood by the tribunal to be a contradiction of Mr Adams is really entirely a matter for the tribunal who heard it; it is not apparent on the face of it - especially in the context which I have described of a prepared statement and of no cross-examination of Mr Adams - it is not at all apparent simply on the face of the documents whether it should be described as a challenge or not, and we see no reason to go behind the tribunal's interpretation of the evidence which they themselves had heard, and which is plainly a finding on that issue of fact, that the meeting of 18 February was one as described at the end of paragraph 19 as being one which took up most of the morning and one at which selection was discussed in depth.For those reasons we see no error of law in the Decision of the Industrial Tribunal and accordingly dismiss this appeal.