Rouse v Gec Marconi Avionics Ltd [1996] UKEAT 1192_95_0310

EAT
Rouse v Gec Marconi Avionics Ltd
[1996] UKEAT 1192_95_0310 · 1996-10-03
MR JUSTICE MORISON (PRESIDENT): This is an appeal against the unanimous decision of an Industrial Tribunal held at Ashford which dismissed the appellant's application for unfair dismissal. We shall call, if we may, the appellant the "employee" and the respondents, GEC Marconi Avionics Ltd ["GEC"].The employee was employed by GEC from 29th September 1969 to 5th September 1994, which was the effective date of termination of his employment. Immediately prior to the decision to dismiss him, he had been employed as Exhibitions and Publications Manager, and was responsible inter alia for managing the employers' Exhibition Unit at Rochester.GEC decided to close down their Exhibition Unit and the employee was dismissed by reason of redundancy. A warning of impending redundancy at the Rochester site was given in May 1994 involving some 85 people out of a total workforce there of some 3,200. The employee was spoken to at the end of May and advised of the grievance and appeals procedure. An employment agency was brought on site, and about 50% of the affected employees found alternative employment, but none of the displaced staff in the Exhibitions Unit, including the employee, was offered any alternative employment either by the agency or GEC, despite their attempts to do so. The essence of the tribunal's decision is contained in the following paragraphs:
"18 The Applicant himself was not in a pool for selection. The Applicant was the Manager of the unit and there was no one comparable to him. Subordinate to the Applicant were the exhibition officers. The Respondent company decided to retain two exhibition officers. In this respect there was a pool of three exhibition officers from which one was selected for redundancy. The Applicant himself never suggested that he should be retained as an exhibition officer. The exhibition officers and earned approximately £12,000.00 less that the Applicant.
19 The Applicant himself did not make use of the facilities at the Respondent's job agency.20 The Applicant did ask about the job of Public Relations Manager. The Respondent's Public Relation's Manger had resigned. At the time of the Applicant's enquiry round about June 1994, the company had not made any decision as to whether or not they would in fact replace the public relations manager. The matter was not pursued either by the Applicant or the company. The position was in fact filled in either late September or early October 1994 after the Applicant's employment had ended.21 Susan O'Grady was a manager working with the respondent group in Washington USA. She carried out a role partly as exhibitions manager in America and as Marketing and Public Relations Officer. She returned to the United Kingdom in about November 1993 and carried out work both as exhibitions manager and marketing and public relations Manager.22 On behalf of the Applicant Mr Maitland-Jones submitted that there had been a flawed procedure for this redundancy because there had been no consultation. He pointed out that consultation had to be a two way process and submitted that the company's procedure was at fault in this respect. He also submitted that the Applicant had not been offered the chance to take alternative employment either as an exhibition officer or as a public relations manager. He also submitted that there had been unfair selection of the Applicant because the Applicant and Susan O'Grady should have been together in a pool of two from which one should have been selected.. ..29 We accept the evidence of the Respondent that Susan O'Grady was not in a similar position to that of the Applicant. We do not accept that there should have been a pool containing Susan O'Grady and the Applicant and we find that it was reasonable of the Respondent to treat the Applicant as in a position on his own.30 The selection of the exhibition officers were from a pool of three and we find that the Respondent adopted a fair procedure in this respect. The Respondent did make efforts to find suitable alternative employment. The Applicant himself agreed in evidence that he did not himself make us of the Respondent's job agency.31 At the date of the termination of the applicant's employment the Respondents had not decided whether or not to fill the position of Public Relations Manager. As at the 5 September 1994, there was no vacancy. In the circumstances we do not find it unfair for the Applicant not to have been offered this position."By his Notice of Appeal, the employee contends, first, that the finding of the tribunal that there was no vacancy for the post of Public Relations Manager was perverse. In a nutshell, he says that the previous postholder had resigned in about April 1994, thus there was a vacancy for which he had asked. That vacancy was filled he thought by an outsider three to four weeks after the termination of his employment, and that with a large organisation he said that it was incredible to suggest that they did not have in mind filling the vacancy some time before then, contrary to what the company had said in their evidence. In argument before us, Mr Rouse told us that he had heard in August 1994 during the month before he left that the PR Manager's job was being filled, which contradicted what he had been told previously.It is important to note that in his IT1 the employee although represented by solicitors at that time, made no mention of the PR Manager's job. There was no complaint that he should have been considered for it, nor that he had been misled or must have been misled about its availability. Further we observe that the employee did not utilise the grievance procedure nor the appeals procedure which were both available to him, and with which as a manager he must have been familiar.When the matter came before the Industrial Tribunal the employers were represented by Mr Lynch, a Personnel Manager. Each party had prepared a bundle of documents for use at the hearing, none of the employer's documents related to the PR Manager's position nor as to the filling of the vacancy. No doubt that was because the company did not believe that the availability of that post had any bearing on the issues which fell for determination.When giving evidence, however, the employer's witnesses were cross-examined by Counsel on the employee's behalf about the PR Manager's post. The evidence appears to have been that between 26th May, when the impending redundancy had first been announced, and 13th June, when the employee had been formally notified of his selection for redundancy, there had been a discussion or more than one discussion, about possible alternative employment including the PR Manager's post.GEC have a system whereby vacant posts which are awaiting to be filled are listed on a AP Form. Mr O'Malley, a personnel manager, gave evidence before the Industrial Tribunal. He accepted that the employee had asked about the position of PR Manager. He told the Industrial Tribunal that he spoke to a responsible director who told him that the directors had not at that stage decided to fill the vacancy and the employee was so informed. It may have been his evidence, although not recorded in the Notes of Evidence, that he had not received or seen an AP form in respect of this post as at the date of termination of the employee's employment as at 5th September 1994.During the course of his submissions, the employee said that he had sought orders of discovery against GEC in connection with this appeal, and sensibly, the Registrar here asked GEC to have relevant documents available but made no order that they should be produced.We invited GEC's Counsel to make such documentation available to the employee and he agreed to do so, and further agreed that we should see them without prejudice to his contention that they were not admissible.What he disclosed was a letter from GEC to a person dated 26th July 1994 offering her the position of PR Manager. We are told that after some negotiation, she took up her position on 31st October 1994.It is clear from the Notes of Evidence that none of GEC's witnesses had this letter to hand, that none of them was able to recall precisely when the new PR Manager took up her post. The tribunal's initial decision in short form stated as follows, and I read from paragraph 8 of it:
"8 The Applicant claims he should have been offered the job of Public Relations Manager. We do have some misgivings on this aspect. The Applicant did enquire about the possibility of the Public Relations Manager's job. The position itself was filled in late September or early October 1994. Neither the Applicant nor the Respondent appear to have made any further enquiries about the matter after the initial enquiry by the Applicant. The evidence on the eventual appointment to this position has been extremely limited. The only evidence we have before us is that at the 5 September no decision had been taken whether or not to fill the position. In all the circumstances we do not find it unfair for the Applicant not to have been offered the job."
It appears to us that no witness had expressly said that as of 5th September no decision to fill the post had been taken, and there is no Note of Evidence to that effect. However, that was an inference which the tribunal wrongly, as it turns out, drew from what they had been told, and in particular, from what Mr O'Malley had said about the unavailability of the AP form. They were obviously troubled by the matter of the availability of the PR Manager's position, as they themselves recorded in the passage which I have read. That inference continued into their reasons at paragraph 31 of the full decision which I have also read. The position is that we know more than the Industrial Tribunal knew.It is submitted that this material is inadmissible on this appeal. We do not rule on that submission, because it seems to us quite unreal to suggest that we can now shut our eyes to what we already know. We ourselves have very carefully reflected as to right course for us to pursue. None of us in the end is persuaded that the new material would or could have had any bearing on the outcome of the employee's application. The Industrial Tribunal has found as a fact that the employee expressed only limited interest in the position of PR Manager, no doubt perhaps for the very good reason that neither he nor the company thought that he was qualified by training or experience for the post.The evidence was that such a post holder was required to show experience in press relations and there was a lot of lobbying skills required. Mr Rouse told us that he did not have this experience, although he told us and we accept, that he had considerable experience in dealing with the press in the job he did organising GEC's exhibition requirements, which included the avionics industry where such exhibitions make an important contribution to the company's sales efforts. We also accept that he has considerable talents in the PR field in general terms.It seems to us, that what has happened here is that rightly, Mr Rouse detected that he had not been dealt with as openly and directly as he deserved from any reputable company. He was told something which he found hard to believe, which had turned out to be wrong and which he knew to be wrong by the time he left his employment. Whether because he had found another job, or because he did not seriously consider that he could fill the post of PR Manager, he did not pursue the matter during his employment, or in his IT1. He told us that he wrote to the Chairman of GEC, but in that letter made no express reference to the PR Manager's job.We have come to the conclusion and consider that it was more the way the employee had been treated which has caused him understandable anger and distress than in not being considered for or offered the PR position.In the circumstances, we have asked ourselves whether we should remit the matter back to the Industrial Tribunal for a re-hearing. We have come to the conclusion that such would have no point. We are satisfied that on this point, Mr Rouse's complaint would not have succeeded, even if the Industrial Tribunal had known what we now know.As to the second ground of appeal, it is the employee's contention that the Industrial Tribunal failed to consider evidence which he gave of another employee who effectively took on his duties after his dismissal. Such evidence, it is contended, either suggests that there may have been no true redundancy situation vis-à-vis his position, and/or that the selection procedure was unfair.The premise upon which this ground of appeal rests is the assertion that this evidence was given by the appellant, and the Industrial Tribunal failed to consider it. The premise is not supportable. There is nothing in the Notes of Evidence to support the contention that such evidence was given, and the respondents have no recollection of it. We cannot consider a point which lacks foundation. In any event, upon examination we do not consider that the employers could be criticised for not considering the employee for a position of Exhibition Officer, whether for either of two posts retained at Rochester or for the two positions which had been retained at Chelmsford.There was, in our judgment, sufficient evidence before the Industrial Tribunal to justify them in concluding that the employee in fact never suggested that he should be retained as such an officer. Even had he suggested it, we consider on the facts that a tribunal could reasonably conclude that he was too senior and qualified for such a position.Therefore, with considerable misgivings about the way that GEC have handled this matter, we are required as a matter of law as it seems to us, to dismiss this appeal. That said, it has been indicated to us by GEC that in the circumstances they consider it appropriate that Mr Rouse's reasonable expenses caused to him in maintaining this appeal should be reimbursed to him by the company. We also express the hope that his former employers will consider it appropriate that he should be given a letter of apology for what happened at the Industrial Tribunal, signed by an a person of appropriate seniority.