Dutson v Philips Components Ltd [1994] UKEAT 738_92_2706

EAT

Dutson v Philips Components Ltd

[1994] UKEAT 738_92_2706 · 1994-06-27

HIS HONOUR JUDGE LEVY QC: On the 22nd May 1972 Mr William Dutson commenced employment at the TV components factory of Philips Components Limited ("the Respondents") at the Belmont Industrial Estate in Durham.

On the 13th November 1990 there was distributed to the workforce in the factory the Respondents announced proposals for redundancy of 300 staff at the Durham factory. On the 29th November 1990, there was a meeting between the Respondents and the trade union representative as to the means by which the redundancies were to be assessed. There was a dispute below as to what criteria should have been used. In paragraph 4 of the Full Reasons, following a hearing at the Industrial Tribunal at Newcastle-Upon-Tyne on the 3rd and 17th June 1992, the Tribunal found that the management:

"were intending to rely upon the terms for selection for redundancy set out in what was known as the Durham Agreement dating back to July 1977 . . ."

and also the criteria which are set out, at the top of page 9 of our bundle, namely:

"1. Attendance/timekeeping.

2. Conduct.

3. Qualifications/skills, trainability/

4. Flexibility/

5. Commitment to the future of the company.

6. Willingness to accept change.

7. Service (all other things being equal)."

There was a dispute between the parties below as to whether an agreement for the year 1984 was to be incorporated. The Tribunal heard argument on this and concluded that the 1984 agreement had no part in the procedures to be followed.

Following that meeting, on the 11th or 12th December, the Appellant Mr Dutson, was informed of a decision that he was to be dismissed.

On the 13th December 1990 he was given a handwritten notice giving reasons for his selection of dismissal.

On 20th February 1991 there was an internal appeal against the selection.

On the 14th March 1991 he was offered an alternative post, on which nothing turns.

On the 19th July 1991 he was dismissed.

On the 30th August 1991 the Originating Application which was before the Industrial Tribunal was issued. The Notice of Appearance was put in by the Respondents on the 3rd October 1991.

In his submissions made today, Mr Field has suggested that the Industrial Tribunal have acted perversely in a large number of ways. He suggested that there were no findings of fact which should have been found that there was misdirection of law and that the whole decision was, in fact, perverse.

As against that, Mr Palmer, who appears for the Respondents, said there were findings of fact made which were cogent and in particular the Tribunal, having heard the evidence of Mr Chamberlayne, did not impugn his subjective judgment as being unfair. No Chairman's Notes have been obtained by the Appellants and Mr Palmer has reminded us of the judgment of the Court of Appeal in Piggott Brothers & Co. Ltd v. Jackson and Others

[1991] IRLR 309

and particularly the passage of the Master of the Rolls at paragraph 13:

"However, I fail to understand how if an appeal is based upon, or includes, an allegation that the industrial tribunal's decision was perverse, it is possible to contemplate allowing the appeal without having access to all the evidence bearing on the alleged perversity."

No Notes of Evidence having been sought or produced here, we cannot make a finding that there was a perverse decision on the facts as disclosed by the evidence. But that is not the end of the matter by any means, because we have carefully considered whether there can be any proper suggestion that Mr Dutson was improperly selected. We see from the paragraph 3(g) of the carefully constructed Reasons that of the people in the Department in which Mr Dutson was working a decision had been made that there had to be a reduction from 5 to 4 laboratory assistants.

It is obvious from reading the whole of the Reasons that the merits of each of the five were considered. In some parts of the Reasons we see Mr Dutson is being contrasted with Mr Local. In other parts of the decision we see Mr Dutson is being contrasted with Mr Armstrong. Finally there is this passage in paragraph 10:

"Accordingly, we find that there was nothing wrong in the shortlisting of Mr Dutson and Mr Local as, in effect, occurred. Having heard Mr Chamberlayne we consider that, while his judgement of the relative abilities of the skills, trainability and flexibility of Mr Dutson and Mr Local was of necessity subjective, we do not consider that his judgment can be impugned as being unfair. It is obvious that Mr Dutson had the best attendance and timekeeping record of all the members of the laboratory but these criteria were not given priority in the selection of what were called non direct (as opposed to production line) staff. The respondents applied only a threshold test to these criteria in the case of such staff and we do not consider that the record of the 4 other laboratory assistants in the fields and attendance and timekeeping were such that it was unreasonable not to select, for example Mr Armstrong in place of Mr Dutson."

Mr Field has referred us at some length to the decision of this Tribunal presided over by Browne-Wilkinson J., as he then was, in Williams v. Compair Maxam Ltd

[1982] ICR 156

and we have been taken through the guidelines there. We have carefully considered those guidelines in the context of this case. They are of course, only guidelines, but we do not find anything in the submissions that Mr Field has made to us to suggest that these guidelines were ignored in any way by the Respondent.

It is right to say that there is some evidence to suggest that at the hearing what the evidence of information discussed by the Respondent after the decision was taken was led as evidence which helped it form its decision. However, that evidence was rightly analysed by the Tribunal and we are satisfied that before Mr Dutson was selected for redundancy, sufficient tests had been made by the Respondent to enable the Industrial Tribunal to reach the decision it did and that we are not entitled to interfere with that decision.

In these circumstances we will dismiss this appeal.

DECISION ON COSTS

It is not the custom of this Tribunal to award costs except in very extreme cases. We do not consider this to have been a very extreme case. We can understand the difficulties the Appellant had in following the reasoning of the decision and we bear in mind the last minute amendment of the Notice of Appeal, but in the circumstances there will be no order for costs.