Dalzell v Thyssen (GB) Ltd [1994] UKEAT 851_92_0606

EAT
Dalzell v Thyssen (GB) Ltd
[1994] UKEAT 851_92_0606 · 1994-06-06

JUDGE HULL QC :

Mr Dalzell was first employed by the Respondent employers on 6 July 1983. The employers are a large company engaged in the competitive business of providing engineering services at collieries and at the material time they had about 1,400 employees of whom about 1,100 were miners. There is apparently competition between the employers and other substantial contractors, in particular in gaining contracts from British Coal.Mr Dalzell was first employed as a tunneller, but he chose to become a labourer on 22 January 1991. He was employed on a long term haulage contract at British Coal's Manton Colliery. The employers had 23 men on this contract. Towards the end of 1991, they learned that British Coal intended to put the contract for that colliery out to tender; the employers were unsuccessful in this competition and when they learned of that they sent each of their 23 employees notification of proposed redundancy in accordance with their statutory obligations and their general practice.The notice dealt with the method of selection for redundancy, which took into account the relative suitability of each candidate including such matters as his ability, experience, adaptability, mobility, performance and attitude. Length of service was only to be taken into account as a deciding factor if everything else failed.Neither Mr Dalzell nor his union made any attempt to discuss the matter at this stage.The employers set about notifying other collieries in an attempt to find alternative employment for the 23 employees. By 8 December 1991, when work under the Manton Colliery contract finally came to an end, the employers' efforts had met only with limited success; 2 men had been found employment elsewhere, 13 had been dismissed through redundancy and 8, including Mr Dalzell, remained. Some at any rate of those dismissed may have found work with other contractors in this field; there was evidently a high turnover of labour among all of them.Mr Ellis was the site engineer and he telephoned and sent faxes to various collieries giving particulars of the 8 men and who were available for work. In the meantime, the employers were able to find short term work for some of them including Mr Dalzell and accordingly their periods of notice were extended. This process led Mr Ellis to get to know personally all those remaining, and he got to know about their abilities and kept them in mind for vacancies elsewhere. He also had in mind their preferences for particular sorts of work. By early 1992, however, 5 of the men had been dismissed and only Mr Dalzell and two others remained. On 28 February 1992 Mr Dalzell's various short term jobs finally ran out and although Mr Ellis made strenuous efforts to place him elsewhere these were unsuccessful and Mr Dalzell was dismissed.He complained to the Industrial Tribunal that he had been unfairly dismissed and the Industrial Tribunal (Mr Price and two Industrial Members) sat at Sheffield on 2 and 28 July 1992 to hear the complaint. He was represented by Miss Davies of Counsel, who also appeared before us, and the employers were also represented by Counsel.The Industrial Tribunal, having heard the evidence, gave a careful decision in which they set out the facts to which we have referred and other matters as well. They recorded that the employers had conceded that there was no personal consultation with Mr Dalzell and as a result the dismissal was unfair. The Tribunal agreed with this concession and on that basis alone they found that the dismissal was unfair. They further found that the period of consultation would have been 3 weeks.With regard to the more substantial averments of unfairness, which were not admitted, they said as follows:
"12. On the basis of those facts we are satisfied that the reason for dismissal was the respondents' loss of the contract with British Coal, as a result of which the requirements of the respondents' business for employees to carry out work of the sort of which the applicant was capable had diminished. That reason relates to redundancy and that is an admissible reason within section 57(2) of the Employment Protection (Consolidation) Act 1978. We therefore have had to go on to decide whether the respondents acted reasonably in treating that as a sufficient reason to dismiss the applicant. We have taken as our starting point the words of section 57(3) of the 1978 Act. We have considered the size and administrative resources of the respondents' undertaking and we have reminded ourselves that it is for us to say whether the actions of the respondent fell within the range of a reasonable employer. We find that the respondents correctly identified the unit of selection, namely, those 23 employed on the Manton contract and we find that the selection criteria to which we have already referred were objective and could be verified with reference to company records. That leaves the manner of selection which Miss Davies, on behalf of the applicant, has forcefully argued was unfair. In making the actual selection we are satisfied that the union to which Mr Dalzell belonged was invited to consult with the respondents but chose not to do so. We are satisfied that from the start, when the pool consisted of 23 men, the respondents made strenuous efforts to find suitable alternative employment. We accept that Mr Ellis, who made the decision to dismiss or deploy in all but the first two cases, got to know all the candidates personally and well. He took into account the strengths and weaknesses of each man. As he said when he gave evidence:
"Just to describe a man as a tunneller is not enough. A man can become a tunneller and get his tunneller's papers after going on a course for 20 days, that does not mean that he is a real tunneller".We find that Mr Ellis actually looked at the capabilities of each particular man. He reached his decision after considering his knowledge of each of the men and by referring to the pit records, which went back at least 2 years. In that way he was able to confirm his judgment. By his following this procedure we are satisfied that he was using the selection criteria to which we have already referred and was applying them fairly. A particular complaint has been made by Mr Dalzell that when there were only 3 men left he should have been retained at the expense of the others. Mr Ellis was questioned carefully and very properly about that aspect of the case by Miss Davies. She established and we accept that no criticism can be made of Mr Dalzell. He was an experienced man, he had done most of the jobs in the pit and he was experienced in doing those jobs. But we are satisfied that in assessing which 2 of the 3 men should be retained Mr Ellis considered [the other 2] to be the more suitable for the jobs which remained. He came to that conclusion after applying the criteria to which we have referred.13. ...Complaint has also been made that fresh employees were brought on to the Manton site and that Mr Dalzell should have been given one of those jobs. We find that other employees were taken on but in each case the position was carefully considered by Mr Ellis with reference to the capabilities to each of the men and the job that they were to do. We find that men who were taken on were taken on because they had specific skills that were required at the Manton pit. We also find that some men were taken on because they belonged to a particular team who were used to working together. We do not find that Mr Dalzell should have been offered any of those jobs."Miss Davies, who as we have said appeared before the Industrial Tribunal, supported Mr Dalzell's appeal to us on a number of grounds. She submitted that the Industrial Tribunal had erred in failing to take into account the change in circumstances between the date when notice of redundancy was given (22 October 1991) and the date when Mr Dalzell's final notice expired (28 February 1992), namely the availability of suitable alternative employment. She said that the Industrial Tribunal erred in law in finding that Mr Dalzell should not have been offered jobs that became available during his notice period and said further that the Industrial Tribunal had failed to consider the correct test namely whether Mr Dalzell was considered for these jobs. She said that fair industrial practice required the employers to offer Mr Dalzell, as a long standing employee, the opportunity of new employment before filling vacancies with fresh employees. She said that each time the notice was extended, the question of alternative employment should have been considered.We entirely accept the legal basis on which these submissions were advanced. We have no doubt that during a period of notice employers remain under a continuing obligation to consult employees whom they propose to make redundant, and their representatives, and to consider as a continuing matter the possibility of placing those employees in any posts which become available. All this comes under the general question whether the employers are behaving reasonably; so that of course these general principles must depend for their implementation on the facts of each particular case.It appears to us, however, that the Industrial Tribunal did indeed consider all these matters with care. They evidently found that Mr Ellis showed a high standard in attempting to place the men who remained with him, and continued to do so right up to the time when Mr Dalzell was finally dismissed. With regard to the vacancies which arose during the period of notice, Mr Ellis, as the Tribunal found, had good reasons to decide that they should be filled by other employees, after carefully and fairly considering the matter. Having regard to Mr Ellis' evidence, the Tribunal observed:"We do not find that Mr Dalzell should have been offered any of those jobs".It is quite obvious to us that the Tribunal found that Mr Ellis not only considered Mr Dalzell as a possible candidate for these jobs but did so with care and conscientiousness.Miss Davies also submitted that each time Mr Dalzell's notice was extended the correct unit of selection changed and should have been reconsidered by the employers. We asked Miss Davies whether there was any factual basis for this submission; after Miss Davies had taken instructions it appeared that there were at most 40 men employed by the employers at Manton Colliery, including those being taken on for fresh jobs. In view of the express findings of the Industrial Tribunal, and the apparent absence of any evidence or contentions directed to this point, we do not think that this was a point properly open to Mr Dalzell on appeal to us.Miss Davies also complained that certain findings of fact made by the Industrial Tribunal were "contrary to all the evidence", which should no doubt be taken to be an averment of irrationality or perversity on the part of the members of the Tribunal. As we did not have the Notes of the evidence it is of course impossible for us to consider what, if any, merit there might be in these contentions; and it is of course the task of Mr Dalzell and his advisors, if such points are to be pursued, to bring the evidence before the Employment Appeal Tribunal. Miss Davies explained that failure by saying that the Registrar of the Employment Appeal Tribunal had declined to request the Chairman to furnish his Notes; but that of course was on the basis of the papers then before the Registrar and if Mr Dalzell proposed through his solicitors and Counsel to pursue such averments he should have asked for the matter to be referred to the President.All we can say in addition to this is that there does not appear to be anything irrational or perverse about the careful findings of fact made by this Industrial Tribunal, which are lucid and appear to go straight to the merits of the issues they were required to determine.It therefore seems to us that there is no point of law to be found in this appeal, and that the appeal must therefore be dismissed.