Bateman & Anor v Healds Foods Ltd [1994] UKEAT 919_92_3006

EAT
Bateman & Anor v Healds Foods Ltd
[1994] UKEAT 919_92_3006 · 1994-06-30
MR JUSTICE MORISON : I am going to give an ex tempore judgment in this case and as is my practice when giving such a judgment I expressly reserve to myself the right to add to, alter, vary or otherwise generally try and improve the language with which I seek to express this our decision.On 16 November 1992 an Industrial Tribunal which was held at Manchester gave a written decision setting out the full reasons why they unanimously rejected the Applicant's complaints of unfair dismissal. The dismissals arose out of a redundancy situation. The Respondent employers' business was involved in the processing of food products, mainly dairy products, and they relied for a large part of their business on a valuable contract which they held with a major supermarket customer. Unfortunately, with very little notice, that contract came to an end in October 1991. The effect of the loss of that contract was immediate and the Respondent Company had to react at once to the loss of the business according to the Tribunal and in view of the volumes involved, it was clear there would have to be savings across the board to compensate for the loss. Accordingly the Company's general manager gave evidence that the Department of Employment was to be notified of the impending redundancies and a mass meeting of the whole workforce was held when the staff were advised of the loss of the contract and the anticipated effect on the business.The following day, 10 October 1991, there was a meeting between the general manager and two full time officials of the recognised trade union. It was the evidence of the general manager that at that meeting there was a discussion between him and the full time officials as to the selection criteria intended to be used for selecting employees for redundancy bearing in mind the crisis redundancy situation which they were facing.He left the meeting and told the Tribunal that he felt that there appeared to be a broad agreement by the trade union that the procedure which the Company had decided upon was fair. The method of selection for redundancy is set out in the IT.3 (page 51 of our bundle) which shows that as opposed to operating a last in first out procedure, the employers decided that they would identify 6 separate factors, mark them and weight them and apply a factoring process to them to produce a score in relation to each of the employees who fell within this procedure. The 6 separate factors included: age, length of service, performance, capability, attendance record, disciplinary record.Four days later, on 14 October, it was the evidence for the employers that a second meeting was held with a full time trade union officer, this time a different full time officer and after some discussion, according to Mr Philpott, the general manager of the Company, the criteria and weighting were agreed.The union were concerned that certified sickness would be taken into account when evaluating absence and we read at paragraph 3(i):
"...By now, the contract for Kwiksave had ended and production had been reduced by the volumes required for that contract."
The procedure and criteria which allegedly had been agreed with the union were then implemented and following its implementation the two Applicants were amongst those who were selected for dismissal by reason of redundancy and their dismissals duly took effect. Subsequent thereto they applied to an Industrial Tribunal by presenting a complaint of unfair dismissal and the decision to which we have referred constitutes the reasons why that application was rejected.The arguments which have been raised on this appeal may be conveniently summarised from the Appellants' written Skeleton Argument. They say first that there was no evidence to support a finding of adequate consultation. The Decision of the Tribunal having recited the evidence to which I have already referred continued thus:
"11. The respondent was faced with the sudden loss of a major customer whose business contributed a substantial proportion of the profit earned. On learning of the loss, the respondent prepared a plan to address the situation and consulted with the full-time officers of the recognised Trade Union to advise them of the position and to establish the procedure and criteria to be used in the selection of those employees who would inevitably have to be made redundant. The applicants were selected for redundancy on the basis of the procedure and criteria which had been formulated in conjunction with the recognised Trade Union. All these are actions that would be expected of a reasonable employer faced with the situation that arose without any warning.
12. The Tribunal did not have the benefit of hearing evidence from the three full-time Trade Union officers who were involved. Mr Philpott gave evidence of what happened at the meetings and Mr McDermott [the shop steward] did not disagree with that evidence. We must, therefore, accept the evidence given by Mr Philpott as to the views expressed by the full-time officers. It was submitted on behalf of the applicants that the procedure and criteria were arbitrary and unfair... It was claimed on behalf of the applicants that there had been insufficient consultation... Finally, it was said that the employer had deviated from the procedure and criteria established."In relation to each of those points the Industrial Tribunal said, in effect, that that was not a point which was raised by the trade union officials at the time when the criteria and procedure was being discussed and agreed.The Tribunal concluded:
"13. The Tribunal is satisfied that the degree of consultation undertaken and the procedure and the criteria agreed with the recognised Trade Union were such as could be expected from a reasonable employer."
So the argument is that there has been an inadequate consultation with the trade union because there was no evidence to support the finding that an agreement had been arrived at with the trade union, and insofar as there was no agreement the Tribunal appear not to have asked themselves the question as to whether there had been proper consultation of the sort that normally is to be required in a mass redundancy situation.We have looked at the Industrial Tribunal decision. They recite the evidence given by Mr Philpott of proposals being put to the union which were agreed with by trade union officials, none of whom were called to rebut the evidence. It seems to us that the Industrial Tribunal was entitled on the material before them to reach the conclusion that there had not only been proper consultation with the union but that the criteria and procedures were agreed.Accordingly we reject as unsustainable the first ground of appeal.It is said secondly, that the Tribunal failed to consider whether the selection criteria were fair and reasonable. We disagree. The Industrial Tribunal expressed themselves satisfied in paragraph 13 of their decision. They found that this was a procedure which a fair employer could have adopted. They did not say, and we would not have agreed with them if they had said, that this was a procedure which every fair employer would have adopted. The question about absences, whether certificated or not, was debated at length in the Industrial Tribunal and the Industrial Tribunal were best positioned to reach a conclusion on the fairness of that as a criterion. This may be an example, we think, of an employer putting a high premium on continuity of production, or to put it negatively, a high premium on avoiding disruption.We think in the circumstances that the Industrial Tribunal was fully entitled on the material before it to arrive at the conclusion which they did. Accordingly we reject the second ground.The third ground effectively is that the Industrial Tribunal, having concluded that the criteria and procedures were agreed, should then have asked themselves the question whether there was a breach of section 59 of the 1978 Act in that there had been a departure from a previously agreed procedure.That argument was not addressed by the Industrial Tribunal because it was the burden of the contention below that there was no agreement reached and it does not appear that the alternative specific argument which is now put was put to the Industrial Tribunal. We have, despite the fact that it may not have been expressly put, looked into the point with care and suffice it to say it appears to us that the employers did not treat the three people who are alleged to constitute the deviations from the agreed procedure as being covered by their agreed procedure but rather that they were being dealt with in any event outside the scheme to the knowledge of the trade union. That is consistent with the evidence given by Mr Philpott as recorded in the Industrial Tribunal decision and in consequence we think there is nothing in the submission that there was a departure from an agreed procedure because the agreed procedure did not apply to the retention of those three people. Therefore we reject the third ground that is raised.As to the fourth ground, that is an allegation of bias. We can simply say this. We do not consider that there were any grounds in this case for the allegations of bias. Indeed we would go further and say that the allegations should never have been made in the first place.Accordingly there is nothing in any of the grounds of Appeal which have been forcefully argued before us by Mr Howe on behalf of the Applicants. It seems to us that this was a case which was decided on its facts by the Industrial Tribunal who have, we would like to say, provided us with a clear and conscientiously drawn decision.Accordingly this appeal will be dismissed.