Fennell & Anor v Crittall Windows Ltd [1994] UKEAT 72_92_0703

EAT
Fennell & Anor v Crittall Windows Ltd
[1994] UKEAT 72_92_0703 · 1994-03-07

JUDGE HARGROVE OBE QC :

In late 1990 the Respondents suffered severely from the recession in the construction industry. Redundancies were necessary and the two Appellants were informed of their redundancy on 20 February 1991. On 22 February Mr Fennell's appeal against selection for redundancy was dismissed and the same fate befell Mr Jobson's appeal on 6 March. The Appellants claimed that they had been unfairly selected for redundancy and that the employers had acted unreasonably in making them redundant. The Industrial Tribunal held, by a majority, that the Appellants had not been unfairly dismissed and that the selection was fair.The personal positions of the Appellants were that Mr Fennell was a Grade 5 design draughtsman and Mr Jobson a Grade 4 detail draughtsman. Mr Fennell had continuous service since 1985 but had broken service since as far back as 1976. Mr Jobson joined the Respondents in 1960 and one must say at once that with two such long serving employees one has the very greatest sympathy with them in a position of redundancy such as this. It is common ground that if the only procedure which should have been applied in these circumstances was last in first out, which I will refer to by its initials of LIFO from hereon, then neither of the Appellants would have been made redundant because of their length of service.The Appellants maintain that the Tribunal erred because they should have found that LIFO was an agreed procedure but it is accepted that because of the expression which was used of "other things being equal", it may cut in in circumstances which, in this particular case, would be defined by certain criteria. In short, the point of law such as it is, is that there was a breach of section 59(1)(b) and the argument continues upon the basis that where the Tribunal erred was that it failed to find out and to define whether or not other things were equal and if they were equal, then to have applied LIFO.I have referred to other criteria and what had occurred was that there had been a meeting with the union and the union had not dissented from the management decision that 5 criteria were to be applied in relation to selection. These 5 were first, manning requirements in the function, by which we apprehend was meant in the department, second, general performance, third considerations as to longer term requirements of the business, fourth flexibility and finally attendance record. These criteria appear to have been adopted for business reasons and it is said by the Respondents that those criteria were applied.We accept that the expression "all other things being equal" which has been the subject of a decision already in the case of Camper & Nicholson Ltd v Shaw [1978] ICR 520 means as seen by a reasonable employer applying proper industrial considerations. The Respondents say that whatever may be the position to an eventual decision in relation to redundancy, LIFO was never reached as a stage in that decision in this case because other matters were not equal when each of these Appellants was judged in accordance with the five criteria which have been set forth in meetings with the union.The Industrial Tribunal dealt with this matter in two paragraphs. Paragraph 7 reads :
"The respondents decided on a selection process which is set out in the documents and had five criteria, and then fell back on "LIFO"."
The criteria which I have already referred to is then set forth.Paragraph 20 is in these terms:
"In the present case, notwithstanding the evidence of Mr Whybrow, and indeed Mr Fennell, we accept that the respondents did not break an agreement or customary arrangement over the selection criteria. We are not satisfied that "LIFO" was an agreed procedure. Indeed, if one reads the agreement, clearly "LIFO" is not the agreed procedure. Whilst it may have been followed in the past in Mr Fennell's case in 1976, we are satisfied that the written domestic agreement was in force at the time of these present redundancies and the respondents did not breach this. There is a reference to "LIFO" only being applicable "other things being equal", and they have used other criteria. We therefore find no breach of section 59. The dismissals were not contrary to that section. Of course, if we were wrong over this, then we would have to consider whether there were special reasons."
There is said to be, and indeed it is obvious that there is something of an ambiguity in the way in which the Tribunal has expressed matters. The only intelligible interpretation that can be placed upon paragraphs 7 and 20 is that LIFO does not become relevant until such time as "all things being equal" has been established according to the criteria. It seems to us that that is a finding which is in accordance with the wording used and indeed with the whole tenor of the decision.It is said by the Appellant that there is nothing in that decision to indicate what factors the Tribunal had accepted as indicating that other things were not equal. With the very greatest respect, when one looks from the decision itself towards the evidence it then becomes apparent that there is a wealth of evidence placed before the Tribunal about the way in which these criteria were applied and putting it brutally, the Appellants failed the test which those criteria imposed upon them. In saying that I hope I shall not be thought to be speaking disrespectfully of either of them. Criteria in redundancy cases should not be taken as reflecting in any way upon the individual who finds himself unfortunately in what could be called the relegation area. They are victims of a situation in which the employers hand is forced to take singularly unpalatable decisions.If one looks at the evidence it is clear that those who were charged with the duty of considering these matters by the employer Company did indeed consider each of these Appellants in relation to his fellows and came to the conclusion that they were the persons, who in the terms of the criteria, had to be made redundant. In our view it was not necessary for the Tribunal to have before it a detailed analysis of the various attributes of each and every employee and the position of them before they could make a decision whether the two Appellants were the persons who had to be found in the redundancy area. The Industrial Tribunal is entitled to accept the evidence of the Respondents, that the criteria had been applied and fairly applied and the result of that application of the record of each of the Appellants to the criteria was that they were, in the views of both the witnesses called for the employers, the persons who fell within the unfortunate band.Emphasis has been laid in this case upon the decision in Williams v Compair Maxam Ltd [1989] ICR 156. In that case there was set forth at page 162, five areas where it was said that it was a generally accepted view that where employees are represented by union, reasonable employers will seek to act in accordance with five principles. The reason for the quoting of the Williams case was to lay emphasis upon the need for objectivity in the selection of criteria. When one comes to compare those criteria selected by the employers in this case and those set forth in Williams, given the fact that Williams only seeks to set out guidelines, and bearing in mind the infinite vagaries of industrial life, it is difficult to think of any criticism of the manner in which those criteria were selected in relation to fairness and there is no doubt that the Industrial Tribunal reached the right decision on that aspect. We are further of the view that the Tribunal was perfectly entitled to reach its decision that accordingly the dismissal was fair in relation to section 57 as well as in relation to section 59.A further limb of this appeal is that in relation to Mr Jobson, the decision of the Tribunal was perverse. We remind ourselves of what has been said and often one is tempted to say over quoted in this Tribunal, by Lord Donaldson at page 92 of Piggott Bros Ltd v Jackson [1992] ICR 85. He says this:
"A finding of fact which is unsupported by any evidence clearly involves an error of law. The tribunal cannot have directed itself, as it should, that findings of fact need some evidence to support them. The danger in the approach of May L.J. is that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the tribunal which did so was "certainly wrong". Furthermore, the more dogmatic the temperament of the judges concerned, the more likely they are to take this view. However, this is a classic non sequitur. It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the industrial tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option..."
We do not propose to rehearse again the list of passages of evidence which appear from pages 25 - 30 of the Notes of Evidence, each of which refer to a greater or lesser degree the consideration of the problems which the employers considered they had with regard to the selection of Mr Jobson, suffice it to say that there was evidence here which made it a permissible option for the majority of the Industrial Tribunal to find as they did.It follows therefore that upon all these grounds this appeal fails and is dismissed.