McEvoy v Marsh Plant Hire Ltd [1994] UKEAT 462_92_2704

EAT
McEvoy v Marsh Plant Hire Ltd
[1994] UKEAT 462_92_2704 · 1994-04-27

JUDGE HULL QC:

The decision which I am about to announce is the decision of us all. In this case Mr McEvoy was made redundant by his employers, Marsh Plant Hire Limited, on the 9 September 1991. He was Depot Manager of the Marsh Plant Hire depot at Long Crendon, in Buckinghamshire. He had been employed earlier by another firm which was taken over. The total period of his service was from 1972 to 1991, more than 19 years, and accordingly he would expect to be treated as a trusted and tried employee should be. He must have had a very substantial responsibility because this Plant is extremely valuable, and quite apart from its intrinsic value, it is very important that it should be kept working economically and regularly; and so a considerable organisation is required.In 1991 the employers were in difficulties in the sense that orders were falling off. Business had been expected to improve during the Summer of 1991, but unhappily that expectation was disappointed, business did not improve and it was absolutely essential to make economies. They did make economies. Various members of management and staff, and I think operatives, were all laid off or dismissed for redundancy. It was essential to reduce labour because the work was diminishing or at any rate not increasing as had been hoped.Those were the circumstances in which, after four or five months of consideration at the top level of management, it was decided that Mr McEvoy should be dismissed. There is no suggestion that the decision was not reached in good faith, or that it was simply a bogus decision. As I have said, there really could not be. It was necessary to reduce the strength of the Company in terms of manpower and Mr McEvoy was one of the senior men who was selected. He was given no warning. Certainly he was not drawn into the discussions which were taking place about his future and the future of others, and he was not consulted in any way.At this particular site there was a Mr Cowell, a Director, who was one of those involved in the discussions which I have mentioned. On the morning of the 9 September there was a slight awkwardness between the men, apparently. Mr Cowell asked Mr McEvoy to come in and see him, and Mr McEvoy was told that he was to be made redundant. This of course was a very great shock to him in the circumstances. He had had no inkling of what was likely to happen. He was so upset that he felt unable to have sensible and intelligent discussion with Mr Cowell. Of course that cannot be held against him, and certainly discussions at that stage would not rank as consultation because the decision had already been taken.There was no criticism of Mr McEvoy, but amongst other things it was felt that he was not so good at the sales side as another employee, another senior man. There was reorganisation, I will not go into the details, but it was possible to deploy management so that Mr McEvoy's tasks could be done by others and so his job in effect disappeared, although of course the depot still had to be managed. It was in those circumstances that he was dismissed. He received of course his redundancy money. He was given the necessary length of notice and told that he need not work out that notice and that he could leave straight away, and indeed he did leave within half-an-hour.In due course he applied to the Industrial Tribunal saying that he had been unfairly dismissed. The reply of course was that the reason for his dismissal was redundancy. That was not accepted by him, although it is not the subject of the appeal here. The Industrial Tribunal in due course decided that it was a genuine case of redundancy.The Tribunal sat at Reading on the 7 May 1992 under the Chairmanship of Mr Leese, and their decision was promulgated in full on the 10 June 1992. Very shortly before that an application for a review was made and that was refused, and now Mr McEvoy appeals by Notice of Appeal dated 2 July 1992 to us. His alternative case in front the Tribunal was that he had not been warned, or consulted. Had he been, of course that might very well have made a difference. He said he was unfairly selected for redundancy in the first place, and he said that there was this lack of warning and consultation.Warning and consultation are matters for which any Tribunal will look, where somebody has been made redundant, because although unfortunately the facts which underlie redundancy are dictated by economic forces which are commonly quite outside the control of either employer or employee, it is necessary for the employer, if he is acting fairly as he must, to consider not only his choice, but whether he should, in the light of anything that his employees or their representatives say to him, change his plans, adjust matters so that perhaps a redundancy is unnecessary, and choose fairly between those who are to be made redundant.These matters are set out in the speeches of Lord Mackay and Lord Bridge in Polkey vAE Dayton Services Ltd [1988] ICR 142 , and our attention has been invited to a number of things which were said there. We entirely accept, as was said, that an employer will normally be expected to consult and warn and then pay proper attention to the results of such consultation and warning. But neither Lord Mackay nor Lord Bridge in Polkey said that that must always take place. In any particular case what is required of the employer is to act fairly and reasonably in all the circumstances of the case. What Lords of Appeal, or any eminent Judge may say, even with the assistance of Industrial Members, about what is looked for, can only be in the nature of guidance based on experience and wisdom and common sense, as to what fairness in the particular situation requires.Here, in the circumstances of this particular case, it appears that the employers took the view after this very long period of discussion at the highest level, that there was no way in which, bearing in mind the Company's situation, they could offer suitable alternative employment to Mr McEvoy. His job was to go. You could not ask a man of that seniority to step down to some humble job. The Company was looking for people to try and increase its business, in particular salesmen; salesmen who could sell in the very unpromising circumstances.Those were the matters which had to be considered by the Industrial Tribunal. They heard Mr McEvoy himself and they heard Mr Cowell. They made a number of findings. Mr McEvoy is represented here today by Mr Naylor, and was so represented before the Tribunal, so he was not without assistance. The Tribunal heard the evidence, and of course had to say what they made of it. They record in their decision that the employers had conceded that there was no prior warning given to the Applicant and that there was no consultation in this case. So that was something they had to consider very carefully.First of all the considered the question whether there was indeed a redundancy situation, whether he was in fact redundant. As I say, they found that he was. In paragraph 25 of their decision they say:
"Having considered the evidence and the contentions of the parties, we first of all came to the conclusion that we are satisfied that the reason for the dismissal here was that of redundancy. We accept that Mr Cowell, who was the Director on site, was able to be in overall command of the depot and Mr Read would combine overseeing Uxbridge with Long Crendon and in those circumstances the applicant became redundant."
Mr Read was the manager of another depot, and he and Mr Cowell divided the duties which had previously been carried out by Mr McEvoy between themselves. The Tribunal went on to say:
"We went on to consider whether or not in all the circumstances of this particular case, the dismissal decision was that of a fair and reasonable employer. It is correct that ideally in case of a redundancy there should, where possible, be prior consultation and indeed prior warning. Nonetheless that lack does not of itself make the decision an unfair one. Moreover, although the applicant said to us that he would in fact have taken any position had it been offered, we do not accept that evidence [it was for the Tribunal to say what evidence they accepted and what they rejected]. Mr McEvoy was very proud as having been the Depot Manager at Long Crendon, which, as he told us, he had built up over a number of years. In those circumstances we do not accept that he would have taken a lower job had one been offered."
They went on to say:
"Whilst one could make a comment that perhaps the dismissal could have been handled more tactfully, nonetheless, we do accept, on the evidence, that the applicant found it impossible to discuss his departure with Mr Cowell and listen to the explanation which Mr Cowell wanted to give. In all the circumstances of this particular case, we have unanimously come to the conclusion that the decision to dismiss on the grounds of redundancy was not an unfair one."
It is not for us to say whether the decision was a fair or unfair one. That is the task, which is fundamentally one of fact, which is placed upon the shoulders of the Industrial Tribunal. They are the sole Tribunal of fact. We cannot hear appeals on fact, we can only hear appeals if there is a point of law. The point of law taken by Mr Naylor, shortly and to the point, for McEvoy is this: that in the passage which we have read this Tribunal was misdirecting itself in law by showing that it was not taking into account what was said by Lord Mackay and Lord Bridge in the Polkey case and what has been said so often by other Judges in other cases: namely, that any Tribunal will in such circumstances look to see whether there has been consultation and warning, and will normally expect to see such consultation and warning. So here he says is a misdirection of law. He does not go further and say this decision is one to which no rational Tribunal could come.As we have said there are a great many cases on this topic. We ask ourselves: does the Tribunal, as though they were citing some sort of mantra, have to set out these decisions to show that they have carefully read them through? Are we to say that an experienced Tribunal, an experienced Chairman, who would certainly be expected to read these decisions and have them well in mind, and perhaps have them cited to him several times a month, has to set them out each time? The answer to that is no. We are quite sure that no Tribunal has to recite the authorities or indeed particular sections of the Statute. Do we think that paragraph 26 shows that this Tribunal did not have in mind the guidelines? Do we think that it shows that they do not have in mind the requirements of Section 57 of the Act?What Tribunals are in fact required to do is exercise their powers and their discretions in accordance with the Employment Protection Act. Having considered these matters as carefully as we can, we are quite sure that we cannot say that there is anything here to indicate that this Tribunal overlooked either the provisions of the Statute or what is said about them in the famous cases and in particular in the Polkey decision, and what is said there by Lord Mackay and by Lord Bridge. Although this is not part of the Appellant's case we are quite sure that it cannot be said that this is a decision at which no rational Tribunal could arrive. We think it was within this Tribunal's discretion and power to say that they did not think that in this case the failure to warn and the failure to consult rendered this dismissal unfair.We would echo what is said by the Tribunal that this dismissal could have been handled more tactfully, indeed it could be put more strongly than that. It is a strange thing to call in a man who has served for nineteen years and tell him abruptly, and without any qualifications, that he is to be made redundant. One cannot go further than that, because we do not know the personalities concerned. But tactlessness, or rudeness, or whatever one calls it, is not the same thing as unfairness, and in any event these are not matters for us but for the Tribunal. Finding no error of law in the Tribunal's decision, we are obliged to say that the appeal must fail and in those circumstances must be dismissed.