Moore v Clares Equipment Ltd [1994] UKEAT 322_94_1306

EAT
Moore v Clares Equipment Ltd
[1994] UKEAT 322_94_1306 · 1994-06-13

JUDGE HULL QC :

Mr Moore is an electrician fitter and he was employed by the Respondent employers, who are part of a larger group of companies. Their work consists primarily of shopfitting and installation. They have a head office in Swindon but Mr Moore was employed at their Washington depot in the North of the country, one of two electrician fitters and was first employed on 8 December 1980; he is a gentleman now aged 45, with considerable seniority in the job.There came a time when work was diminishing owing to the economic situation and continuing to diminish and it became necessary for his employers to consider the question of redundancy. They identified it as being in that small group of two, the electrician fitters and accordingly they felt they had to choose between them. This was a task which was shared between three mangers, the divisional manager, Mr Griffiths, the manager at the depot Mr Armstrong and his assistant, Mr Waddle. They all played a part. They had a system of assessment which they introduced. Mr Waddle first gave marks according to a pre-appointed system to each of the two electricians. Then that was considered by Mr Griffiths and Mr Armstrong and having done that it was apparent to them that of the two men Mr Moore was the one who should be dismissed. His marks were very different from those of the other electrician fitter. They saw him. He protested about it and said he wanted to appeal. They then reconsidered the matter and they saw him again and adhered to the decision which had been reached and he was accordingly dismissed for redundancy.He applied to the Industrial Tribunal on 25 July 1993 complaining of unfairness and the Respondents, on 1 October, put in their answer saying that there was no unfairness. On 21 January 1994 the Industrial Tribunal sat at Newcastle under the Chairmanship of Mr Record with his two Industrial Members. The Industrial Tribunal obviously considered the case very carefully. They considered the facts in detail and the way in which the marks were allotted under the assessment procedure and went on to say, which we consider a vital part of the decision in paragraph 11:
"We therefore have to consider the question whether in the circumstances, (including the size and administrative resources of the respondent) the respondent acted fairly in dismissing the applicant for the reason that it did. It is well established by long authority that in general for a dismissal on these grounds to be fair the selection must be made from a reasonably chosen pool of employees on the basis of reasonable criteria fairly and objectively applied, but there must be reasonable consultation and also, where appropriate, a proper consideration of alternative work. Now here the applicant was not shown the basis on which the selection was made or given any opportunity to put his own point of view. The very process of consultation is one where parties attempt to reach an agreement on a fair exchange of views and by reason of the fact that the applicant did not see the basis of the decision against him and have an opportunity of challenging it and putting his own side of the matter and indeed any further or wider suggestions that he wished to make, we hold that there was not proper and effective consultation in this case and therefore that the dismissal was unfair."
They then go on to consider what the effect of the unfairness had been. They were obliged to do that. They said:
"We then have to consider the question what would have been the likelihood of dismissal in any event had the procedures been followed by the respondent been satisfactory... Having heard the evidence and forming the best estimate that we can, our view is that had procedures been correct in every possible respect, then even though the applicant may have established a number of points, there is a 75% chance that he would properly have been dismissed in preference to Mr Johnstone. [That was his colleague, the other electrician fitter]
The Tribunal having made that finding, the parties had some discussion and it was agreed between them that the applicant would accept a sum of £1,750 offered by the respondent in full and final settlement of his claim. The application will therefore be adjourned generally until further order."That was rather strange on the face of it. It was designed to meet this situation, that Mr Moore was dissatisfied with the decision but was settling on a conditional basis namely that if that decision stood, he would settle on that basis; but he wished to consider an appeal.He has appealed and this case is put into our list under the practice direction for us to see whether we can discover any point of law, because we can only consider points of law, not questions of fact. We have not been assisted by Mr Moore, who no doubt understandably in view of the distances involved has decided not to attend in front of us, but we have looked at his Notice of Appeal and his outline argument. He complains of various matters. He complains, for example, (I will not go through them all) that the "pool" was incorrectly selected; that he should have been considered for employment not merely as against his fellow employee but also for the job of a fitter. Now it is clear from the decision that the Industrial Tribunal having heard the facts and as a question of fact decided that the pool was reasonably selected. They particularly directed their minds to that issue. No doubt the possibility, it was merely a hypothetical possibility in the view of the Tribunal, that he might have found employment in some other way, or he might have persuaded his employers to take a different course, was considered by them as part of that general assessment of 75%. He complains of that too. He says:
"Had the respondent carried out the correct procedures, including the correct application of section 59 and 81(2)(b), [of the Employment Protection Act] the Tribunal were in no position to accurately forecast the outcome of such deliberations, consequently should not have reduced the award of 75% of the total entitlement."
The answer to that is that it is the duty of the Tribunal; although they cannot accurately forecast such imponderables. They have to form the best view that they can in deciding whether procedural unfairness has led to actual loss. They were in Mr Moore's favour but only to a limited extent, because it appeared to them on the facts that it was a fairly plain case, as they said, that the chance was a good deal less than 50% that he could have persuaded his employers; and they had to put a figure on it.We have read the decision and the other papers and the Notice of Appeal and the argument which Mr Moore has kindly sent us. We are not entitled in any way to reconsider the facts. Accepting the facts found by the Tribunal we cannot say that this decision is in any way irrational, there is no evidence that this Tribunal directed itself to irrelevant matters or took into account matters which it should not have done or failed to take into account matters which it should have done. There is no error of law. They appear to us to have directed themselves entirely correctly to considering the issues. The question is not for us whether we would have reached the same conclusion but whether it is a conclusion which is wrong in law. We cannot say that it is wrong in law.In those circumstances the appeal cannot succeed and we dismiss it.