Long v Memory Lane Cakes [1995] UKEAT 224_94_0610

EAT

Long v Memory Lane Cakes

[1995] UKEAT 224_94_0610 · 1995-10-06

JUDGE HICKS QC:

The Appellant Mr Long was a Section Leader in the work place of the employers and Respondents, Memory Lane Cakes. He was one of 52 Section Leaders in a total workforce of substantially more than that. The employers had to deal with a situation in which, as the Industrial Tribunal found (and this is not challenged), only 33 Section Leaders were needed, so that 19 places would be redundant. In those circumstances the employers embarked upon negotiations with the Union which represented the Section Leaders and indeed all the employees. As the Industrial Tribunal found those negotiations were protracted and difficult. They did reach an agreed procedure. It is quite plain from the Industrial Tribunal bundle that that in a sense was done by stages as the employer and Union gradually narrowed the gap between them, which was centred largely on the difference between the Union's initial attitude that the best course would be to follow a "last in first out" principle, without regard to distinctions of section, department, the efficient running of the employers business and so on and so forth, the employers' natural wish to bring into play management considerations such as skills and aptitudes and so on and proper staffing of each section. The Tribunal found that a procedure was in the end agreed.

The first ground of appeal which the Appellant wishes to pursue (I say, wishes, because it would involve an amendment to the present Notice of Appeal, but we have dealt with this Preliminary Hearing on the basis that if there were a full hearing, the Appellant would apply for leave to make these amendments) - the first criticism is that there were no clear and/or objective selection criteria or they were not applied to Mr Long or they were unfair and unreasonable. We find no ground on which that way of putting the appeal could possibly be argued, bearing in mind of course, as throughout this appeal to us, that we are not the Industrial Tribunal. We are concerned with whether the Industrial Tribunal erred in law and no mis-direction is in fact alleged in this part of the proposed amended Notice of Appeal. Effectively, the error alleged would have to be perversity or nothing, because it concerns conclusions which it is alleged that the Tribunal should not have reached. We are quite clear that there is no error of law either in mis-direction or in perversity in that field.

Secondly, it is alleged that the Industrial Tribunal mis-directed itself in that it took into account the following irrelevant considerations, alternatively gave undue weight to the following considerations that:

a) Memory Lane was bound by its agreement with the Union.

b) If Memory Lane had insisted on the selection of someone other than Mr Long, it would have faced a claim of automatically unfair selection of another employee.

It is therefore important to see how the Tribunal deals with that aspect, because if the Industrial Tribunal did in fact take into account irrelevant considerations that would no doubt be an error in law. The relevant passage is at paragraph E7 of the Tribunal's reasons. The Tribunal had in fact canvassed this area before but this is their summary of this particular point:

"Any finding other than that the respondents acted reasonably would be, in our view, unreal. If the respondents had departed from the agreement which they had reached with the Trade Union, and insisted upon Mr Durnford taking the job of the junior Section Leader, Mr Woodford, they would have laid themselves open to a possible claim by Mr Woodford under Section 59(1)(b)."...

The background to that section of the Tribunal's reasons is that under the agreed procedure with the Union Mr Durnford, whose position had become redundant, being a Senior Section Leader, had the right to take the job of a Junior Section Leader under what is normally and quite graphically called "bumping". Mr Durnford had exercised that right by choosing to take Mr Long's position. There was in fact a Junior Section Leader, Mr Woodford, who had even less service than Mr Long and it is one of Mr Long's main complaints of the substance of the result, as distinct from the procedure, that that was unfair. That is the background to that sentence.

(b) to which the Tribunal refers provides that:

"Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him [and all that clearly applied here] and who have not been dismissed by the employer and -- (b) that he [the employee] was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy [and the Tribunal found there was an agreed procedure] and there were no special reasons justifying a departure from that arrangement or procedure in his case,

then, for the purposes of this Part, the dismissal shall be regarded as unfair."

So if Mr Woodford had been displaced, contrary to the procedure which had been agreed between the employers and the Union, then the Industrial Tribunal found (and for the reasons which we have given we see no error of law in this finding) that would have been contrary to the agreement. Then, faced with a claim by Mr Woodford, the employers would have had to try to justify that by "special reasons". What the Tribunal say is that they would have laid themselves open to a possible claim. In other words, the Tribunal is not saying "we find that as a matter of fact and law a claim by Mr Woodford would be unanswerable"; they say that the employers would have been faced with "a possible claim", as plainly they would, and that is one of the factors they take into account in deciding whether the employers' conduct was within the band of reasonable responses of a reasonable employer. In our view that approach is impeccable and discloses no mis-direction of the kind sought to be alleged in the amended Notice of Appeal.

The third group of grounds which the Appellant seeks to raise concerns the area of consultation. The allegation is that the Industrial Tribunal failed to conclude that Memory Lane acted unfairly and unreasonably in treating Mr Long's alleged redundancy as a sufficient reason for his dismissal in circumstances in which, as it had found, Memory Lane had failed to:

(a) Consult with Mr Long individually prior to informing him of his redundancy.

(b) Inform Mr Long that he was to be "bumped" before he found out for himself.

The first comment to be made about this group of grounds is that again we must be back in the area of perversity, because no mis-direction is or could be alleged in this regard. Secondly, the alleged failure to consult with Mr Long prior to informing him of his redundancy has to be seen against the background of the agreed procedure, which inevitably meant that any consultation with Mr Long would arise at the point at which some other person, in this case Mr Durnford, had chosen to take his job. In that sense it could not have preceded his being the person whom the procedure had selected to be displaced because of redundancy. There was in fact consultation with Mr Long at that stage. Because of the next point to which I am about to come it arose in the most unhappy circumstances, because he was extremely aggrieved, and although he plainly did raise the sort of points which Mr Gatt has urged upon us that he ought to have been entitled to raise, he did so in those circumstances and in the result decided to leave rather than accept any of the other possibilities that was open to him and which, in the event, might well have resulted in his being restored to the position of Section Leader either immediately or within a period of time. In no way does that point amount to perversity on the part of the Industrial Tribunal in our view.

The second part, (b), of that section of grounds is the one that I have referred to already but not described yet. It is that they failed to inform Mr Long that he was to be "bumped" before he found out for himself and that happened because the news, by some means, leaked out and was publicised by some fellow employee, plainly without particular goodwill toward Mr Long, in circumstances which gave him a great deal of quite understandable and unnecessary distress. The Industrial Tribunal clearly had that fact in the forefront of their mind and found - and it was a matter for them - that although unfortunate it did not amount to unfairness or unreasonableness for the purposes of the statutory provisions, or take the employers' conduct outside the range of reasonable responses.

The third part, (c), is the failure to inform him that if he stayed he would be able to apply for a Section Leader vacancy as they arose, but that is really a totally unarguable point, because as Mr Long very fairly and properly agreed in evidence to the Industrial Tribunal he, although not specifically told that during the consultation, was perfectly well aware of it and therefore had it in mind when making his choice.

Those are the reasons advanced in the proposed Notice of Appeal. For the reasons we have given we find none of them arguable and we therefore have come to the conclusion that this appeal must be dismissed at this stage.