Qureshi v Spectrol Reliance Ltd [1995] UKEAT 989_94_2605

EAT

Qureshi v Spectrol Reliance Ltd

[1995] UKEAT 989_94_2605 · 1995-05-26

JUDGE HULL QC:

This is an appeal to us by Mr Nasir Qureshi against a decision of the Industrial Tribunal sitting at Bristol under the chairmanship of Mr Berry on 23 May 1994. Mr Qureshi was employed by the Respondents at their Swindon factory. They are engaged in the manufacture of electrical components and Mr Qureshi was the stores controller. He was dismissed on 31 December 1993 and he complained that he had been unfairly dismissed. The Respondents, in their notice of appearance and thereafter, maintained that he had been dismissed by reason of redundancy and they added, for good measure, "or some other substantial reason"; but it was a case of redundancy, as it was developed. Mr Qureshi's case is one which the Tribunal must have considered with a good deal of anxiety, as we do, and sympathy, to say the least of it. He had been employed since 1964; first of all, as a storekeeper, then he was promoted to stores controller in 1979.

What was said by the employers was this (this was the essence of the case): that in 1993 there had been a good deal of reorganization and redundancy that went with it. It was something over 30 employees out of a labour force of the order of 200-odd who had been made redundant, 22 of them, I think, in a single month. So far as this particular case was concerned, the occasion of the redundancy, which the employers asserted, was that a new computer system had been installed. It was a new system of a sort with which one is becoming familiar. Indeed, in smaller concerns, at any rate, they have been introduced for something over 10 years at least, if not 20 years. It takes over many of the works accounting functions and cuts out a lot of the paper. The computer itself deals with the orders, the stores which result from those orders being fulfilled, and the use of the store's components in the manufacturing process. The whole accountancy function in effect is carried out by the computer, so that whenever, for example, goods which have been ordered for the stores are delivered, all the various ledgers which are kept in the firm will be updated. The actual state of the stores, the cash consequences, and so on. That is, as we understand it, what was introduced.

Mr Qureshi had been concerned very much with the paper side of things. I will not go into all the details. They are described at length in the evidence of Mr Creagh, the production manager, who gave evidence before the Industrial Tribunal. What it amounts to is this: something like 70 percent of Mr Qureshi's duties were, in fact, made unnecessary - entirely superfluous - by the introduction of the computer. Individuals on the staff would be ordering particular items and that would go straight onto the computer without further paper, and so on, so that Mr Qureshi's labours were very largely unnecessary. There were in the stores Mr Qureshi and an assistant storeman, Mr Choda. Mr Choda apparently carried out the more physical side of the business and his duties are more shortly and more easily described than those of Mr Qureshi. There is no doubt that there was a slight overlap in the sense that Mr Qureshi would sometimes do duties that Mr Choda carried out and, no doubt, vice versa, but Mr Choda was not responsible for the paper side. At any rate, that was the case for the employers.

Mr Qureshi complained to the Industrial Tribunal. First of all he said that there was no redundancy situation. He made other complaints, too, but the substance of it was that he had been unfairly dismissed. Either there was no redundancy situation or, on the other hand, he had been wrongly selected for redundancy. The Industrial Tribunal gave full reasons, promulgating them on 10 August 1994. One of the matters raised was that it was Mr Choda who should have been made redundant and not Mr Qureshi. They set out the facts, some of which I have already referred to. They say that there were 60 staff, of whom Mr Qureshi was one and they give the dates of his employment and so on. They tell us about the installation of the computer and that took between 60 and 70 percent of the Applicant's duties. Mr Creagh gave evidence about that. They said with regard to the remaining parts of his duties those were very largely taken over by a new post that was created, materials controller, but the materials controller had other responsibilities, too, of a much wider sort.

They then set out the facts of how the alleged redundancy was handled:

"4. On 5 November 1993 Mr Creagh had a meeting with the applicant and told him for the first time that the company was proposing to make his job redundant. The reasons for this were explained to him in detail and Mr Creagh told him that as an alternative to redundancy the company was willing to offer him an early retirement package with pension provision increased to the level it would be if he worked until aged 65."

There was a discussion about that. The Applicant was seen again and then there were no fewer than four meetings with him. Mrs Mobey, the personnel manager, attended the meetings with Mr Creagh and:

"It was explained to the applicant that there was no possibility of retaining him in employment either until aged 65 or as he requested at one stage for a further year. Mr Creagh had ascertained from enquiries that there was no alternative employment available within the company for someone of the applicant's age, qualification and experience."

They say that much of the discussion concerned the terms on which he could leave, the relative merits of a redundancy package or an enhanced early retirement package.

The employers, through those two officers, tried to persuade Mr Qureshi that the early retirement package was better but Mr Qureshi had personal circumstances which led him to think that he wanted, if it was to be anything, to be redundant. So he was in due course made redundant.

They set out the arguments that were addressed to them:

"5. On behalf of the applicant it has been argued that: (a) there was no redundancy situation; (b) the applicant was unfairly selected for redundancy because having regard to his length of service, his job skills and sickness record, Mr Chowda should have been selected; (c) the respondents failed to consider alternative employment and failed to offer re-training; (d) there was a lack of consultation to the extent that insufficient consideration was given to the ways in which the needs of the business could be arranged to avoid any redundancy."

Then they come to their vital findings of fact. They had heard Mr Creagh, who gave evidence and was cross-examined. They had also heard Mrs Mobey, who had given evidence and was cross-examined and, of course, Mr Qureshi himself. They find as follows, referring to the submissions made to them:

"6. We do not accept any of these arguments. We are entirely satisfied that there was a genuine redundancy situation and that the applicant's job ceased to exist. Mr Chowda was not an alternative candidate for selection because he provided different skills and abilities to the applicant and the respondents were entitled to use these as part of their criteria in making their selection. The respondents investigated the possibility of alternative employment but there was none. Re-training as a production worker was not a practical proposition having regard to the applicant's age and the physical criteria demanded by the respondents for their production workers. Such consultation as was feasible in the circumstances was undertaken, and having regard to the needs and objectives of the business there was no way in which the redundancy or the applicant's selection could be avoided. For those reasons this application fails."

The appeal to us was on several grounds but essentially only one is persisted in and Mr Galbraith-Marten, who has said everything that could be said, it seems to us, on behalf of Mr Qureshi, says that his essential complaint is this: that the employers did not exercise their duty of selecting a suitable pool of workers from whom to select the man or men who were to be made redundant. He says that there are no clear decisions in law on the extent of the duty on the employer in that regard but he cites to us from Harvey section D, paragraphs 1684 onwards and he referred to a case Cowen v Haden Carriers Ltd

[1982] IRLR 225

. He referred to that case but it does seem to us, with respect, that it is not directly material to our present considerations because it was a case in which it was held that a particular employee was not redundant if it could be said that there were other duties which he could be required to carry out which had not ceased or diminished, which he could be required to carry out under his contract; and here it is not suggested that that was this case. The suggestion that Mr Qureshi was not redundant at all was not persisted in nor, of course, did the Industrial Tribunal consider a submission that there were other duties under his contract that Mr Qureshi could be required to carry out, e.g., as a mere storeman or doing other duties around the factory. So that seemed to us to be somewhat beside the point but he read to us the passage at paragraph 1686:

"An important preliminary question is to determine the pool from which the selection will be made. This again is for the employer to determine, and will be difficult for the employee to challenge where the employer has genuinely applied his mind to the problem. It need not, however, be limited to employees doing the same or similar work; indeed, where jobs are interchangeable an employer might be expected to widen the pool to include all the jobs that might potentially be done."

There are several things to be said about that.

The reason why there may be very little authority, if any, on the point is because it is so obviously a question of fact. If, for example, a particular business employs 40 delivery drivers and work diminishes so much that there is only work for 20, it may be perfectly obvious that the pool to be considered is, at any rate, the 40 delivery drivers. On the other hand, self-evidently this is not that case. There may be cases in which there is no duty to seek for a pool at all, e.g., if there is a single accountant employed by a particular business and the accountancy function is contracted out, it may be quite idle to say that anybody but the accountant is the person who is to be made redundant. Nobody else can carry out his duties and it may be, as a hypothetical matter, he could not carry out anybody else's duties, so it may be that there is no duty whatever to consider a "pool".

When Mr Galbraith-Marten elaborated his submission, he said that if that duty had been carried out, the pool which they should, so far as the evidence goes, have arrived at, would have been a very small pool indeed consisting of Mr Qureshi and Mr Choda. That was what the submission amounted to.

What Mr Galbraith-Marten says is that the employers never, on a true view, thought about that problem at all. They never addressed their minds to the selection of a pool. It is true that they were asked about it in cross-examination both of Mr Creagh and of Mrs Mobey. That was, he said, a hopelessly late stage to consider the matter. They should have considered it before Mr Qureshi was dismissed, before the question even arose they should have carefully considered this question of the pool, whether there was any alternative to making Qureshi redundant by making somebody else redundant. That is one way of putting it.

The first thing to do, perhaps, is to look at what the submissions were which were made to the Tribunal.

(b) :

"the applicant was unfairly selected for redundancy because having regard to his length of service, his job skills and sickness record, Mr Chowda should have been selected;"

It seems to us that that is most likely an ellipsis on the part of the advocate; that is to say, that he did not put it in two stages. "First of all, they should have considered the pool and, secondly, having arrived at the pool, Mr Chowda should have been selected from it, on a fair view." He cut that short by saying, "Well, assuming that the pool consisted of the two of them, then it is Mr Choda who should have been selected." So, in that way, the Tribunal did consider that submission in the passage which I read from paragraph 6, in which they said, "Well, Mr Chowda was not really a suitable candidate". But one looks at the evidence, as we have done and looks, in particular, not at the witness statements, although they contain suggestions to the same effect but at the cross-examination. At page 25, at the bottom and onwards, Mr Creagh was being cross-examined, he said:

" [we] looked at possibility of displacing another person - looked at vacancies - did not think it right to displace person of lower status - no-one we could displace.

...

Did not think the applicant suitable for production work - not sufficiently skilled - operators must be able to transfer from any production unit to any other."

Mr Qureshi is now a man of 62 and he had been in this job for nearly 30 years, so it is hardly surprising if he was not fit, in the view of management, to transfer to production work.

"Considered position of Chouda - felt that function of stores controller affected by redundancy and he should be the one to be made redundant. [Mr Qureshi was the controller.]

Do not think the applicant could have carried out Chouder's duties on his own - strength. [That must he shorthand for "He did not have the strength for it".]

Applicant's length of service very important consideration. Did not consider comparative sickness records of applicant and Chouda. Criteria was that applicant's duties most affected by computer programme. Difference in wages not a relevant factor. Did not consider leaving the applicant in stores and moving Chouda. Believe Chouda with company since 1988.

Re - x

The applicant never suggested being moved to production. Do not believe the applicant could have dealt with all handling carried out by Chouda - requirements for temp labour reviewed every month."

Mrs Mobey said when she was cross-examined:

" [There was] No pool - job function affected just stores control.

Considered Chouda - did not think that the applicant could have carried out Chouda's physical duties. The applicant acknowledged this."

There one sees how artificial it is to put the matter in a single word because obviously Mrs Mobey did not think of the two men as being a pool at all, although that is the precise submission which is made by Mr Galbraith Marten. If they had considered it in that way, they would have taken Mr Qureshi and his storeman as the pool.

Looking at this broadly and sensibly, was this evidence indeed evidence that the management had considered the possibility of making others redundant or was it not? It seems to us that the comment made by Mr Galbraith-Marten, that this was all post facto, far too late, is wrong. If one looks at the evidence, here was evidence by both these senior officers of the Company that that was precisely what they had considered. It was being suggested to them that they had not considered it and they said, "We had" and "for the reasons which we give, we thought that Mr Choda should not be made redundant and that Mr Qureshi should". It was suggested, of course, that it was unfair, even if there was a redundancy situation, that this was wrong and Mr Choda should have been selected. That submission was expressly made. The Tribunal expressly considered that and, indeed, if that evidence had not shown that the employers had addressed their minds to it, the submission would have had a further element:

"They never even thought about this, they never even addressed their minds to it."

But it is quite obvious from that evidence that, on the face of it, they had thought about it and if it was going to be suggested that that evidence was false, of course that submission would have been made, too. It is quite clear that those who were present at the hearing felt that that evidence was genuine and that, so to speak, it short-circuited that part of the case. What the Tribunal had to consider was whether Mr Qureshi was right in saying, "Choda should have been made redundant, not me".

That was the matter which was fairly before the Tribunal and that was the matter which the Tribunal appear properly to have considered. As we pointed out in argument, they could have put it at greater length. They could have said, "The employers formed the view, which we think was formed in good faith and on reasonable grounds, that Mr Choda was not an alternative candidate for selection. We think they formed that view after making proper enquiries and addressing their minds fairly to the matter and it was within the range of views which they were entitled to form." They did not spell it out like that. We think that to require every Tribunal to spell that out would be quite unnecessary. It is clear to us, in spite of what is said to us by Mr Galbraith-Marten, that there is no substance in this criticism of the Industrial Tribunal's decision. Clearly, they felt, as we feel, great sympathy with Mr Qureshi because of his long and loyal service and the fact that he was being made redundant through no fault whatever of his own but because of new technology. Clearly, they considered with care, with the assistance of the witnesses and the advocates, whether it could be said that Mr Choda should have been selected and whether the employers, acting reasonably, would have selected him and they rejected that submission.

It seems to us that the submission which is being made to us today by Mr Galbraith-Marten simply is not supported by the evidence and, moreover, the reason that it can be made to us and that Mr Galbraith-Marten is able to say the Industrial Tribunal did not deal with it, is simply that it did not appear to be a viable issue before the Industrial Tribunal for the reasons that we have endeavoured to indicate. The evidence was quite overwhelming and was not challenged, that the employers had considered this and, therefore, that part of their enquiry hardly arose. They did address their minds to what arose, if that was accepted, to the question whether Mr Choda was the one out of the pool of two who should have been made redundant and that they did consider and hear submissions on.

Looked at like that, which seems to us to be the just view, this is a classic case of taking various points below and then what is, in effect, a new point on appeal; because that point was dealt with implicitly before the Tribunal, by being generally accepted.

In those circumstances, we do not think that there is any point of law disclosed by this appeal in spite of the patient and careful submissions made by Mr Galbraith-Marten, who has very sensibly abandoned grounds which were not arguable and simply argued this point. When we have analyzed it (and it has taken a good deal of analysis even with Mr Galbraith-Marten's assistance) it is apparent to us that there is nothing in the point and certainly no point of law, so we have to say that the appeal must be dismissed.