Smith v Riverside Health Authority [1996] UKEAT 175_95_1803

EAT
Smith v Riverside Health Authority
[1996] UKEAT 175_95_1803 · 1996-03-18

JUDGE BUTTER Q.C. :

This is an appeal by Mr Smith against a decision of the Industrial Tribunal held at London (North). The hearing was on 4th October 1994 and 4th January 1995, the decision was sent to the parties on 12th January 1995.The unanimous decision of the tribunal below was that the applicant was not unfairly dismissed by reason of redundancy, and he was not dismissed by reason of his trade union activities.In their extended reasons the tribunal dealt in paragraph 6 onwards with the employment which Mr Smith had held with the respondents as from September 1980 until 29th OCtober 1993.In paragraph 7 of their reasons they say:
"The Applicant was dismissed by reason of redundancy pursuant to section 57(2)(c) of the Employment Protection (Consolidation) Act 1978. ... The Applicant maintained that his dismissal ... was unfair. He denied that there was a redundancy situation and he maintained that the reason why he was selected for redundancy was because he was a trade union activist and a branch secretary of NALGO. He requested compensation for his unfair dismissal."
In paragraph 8 the tribunal state:
"The Applicant was employed as a main frame software applications developer in the information systems directorate at Charing Cross Hospital."
They make no reference to the different nature of the work which he had developed over a period of time but continue:
"The Respondents maintained that, due to restructuring, the Applicant's post was declared redundant."
They go on to deal with the consultation process.In paragraph 9 they refer to a number of witnesses who they heard, including Mr Kwo. the direction of information systems. In the course of the appeal today, we have had the advantage of considering some of the evidence given to the tribunal, because we have before us the Chairman's Notes of Evidence.In paragraph 12 the tribunal deals with the memorandum, exhibit R1 to which I will make reference shortly and upon which the applicant relied. It was a memorandum from a Mr Aird to Mr Kwo dated 13th April 1993. They point out that it referred to trade union activities and to the question of redundancy. They say further:
"Mrs Coutts' evidence was that she did not have sight of this memorandum until she saw the bundle of documentation prepared for the Tribunal hearing. The Tribunal noted that this document was written to Mr Kwo and not by Mr Kwo."
In paragraph 14 the tribunal say that having considered the oral and documentary evidence they found, as a fact on this evidence, that there was a redundancy situation, and in paragraph 15 they conclude that the Respondents behaved reasonably.In paragraph 16 they deal with the question of the pool from which redundancies were to be made.In paragraph 17 they find that the employers made every attempt to find alternative employment for the applicant.Then in paragraph 18 they say:
"18 We then considered whether the dismissal was automatically unfair by reason of the Applicant's trade union activities. Having considered the oral and documentary evidence and for the reasons that have been stated we do not find that this was an automatically unfair dismissal. We do not find that the Applicant was dismissed by reason of his trade union activities. Mrs Coutts was not aware of Mr Aird's memorandum when she was advising Mr Kwo and there was no evidence that Mr Kwo took the memorandum into account when he reached his decision that the Applicant's section should cease to exist."
I shall return to the question of "no evidence" in a few minutes time.They then say in paragraph 19:
"19 We then considered section 153 of the 1992 Act and considered whether the Applicant was selected for redundancy by reason of his trade union activities. For the same reason we do not find that the Applicant was so selected for redundancy."
In paragraph 20 they summarise the conclusions which they reached.So far as the memorandum is concerned, it is dated 13th April 1993. It is to Mr Kwo from Mr Aird. It headed Subject: Review of the ISD's PS VME Requirement in Respect to John Smith. It is unnecessary for me read out the whole of the memorandum, but there are references to the time which Mr Smith spent on union work. Towards the foot there is a reference to the fact that
"7. If we have to reduce our staff then John Smith is clearly the less valuable person, especially as he only contributes 50% of his time to the department, has shown little enthusiasm towards ISD objectives.
8. Accordingly we now have to decide how to handle the situation that we the ISD no longer needs John Smith's services."Over the page there are further reference to the time which he spent on agreed union activities and then four options are set out. One of which, and only one of which refers to the question of redundancy. At the foot, the memorandum concludes:
"If you wish to pursue any of the above or have a recommendation on your own, then I suggest that we involve professional advice and assistance from Human Resource Department without delay."
It may be convenient to look for a moment at some of the evidence which Mr Kwo gave. At the foot of page 16 of the EAT bundle, he said in the course of his evidence having been referred to the memorandum, that:
"Mr Smith spent 50% of his time on union work in accordance with the union and the hospital agreement.
It did not enter as a factor in my decision to make him redundant.These views were entirely John Aird's views.

At that stage I had not made up my mind. This was an input I used."

Then moving on to page 18, he said in the course of cross-examination:
"It was not a factor in why you were made redundant.
I did not feel the need to ask him why he mentioned his trade union activities.I made my decision about the changed management proposal based on a number of factors. This memo was just one of them.Indirectly I took into account his trade union activities.I do think the trade union agreement meant something.I was not concerned with your trade union activities but with the time and quality you spent on your remaining activities."There are numerous other passages in Mr Kwo's evidence and indeed in the other evidence which the tribunal had, to which we have been referred to today.The Industrial Tribunal heard and considered that evidence. It seems to us that the overall effect was that they accepted Mr Kwo's evidence as to the reason for the dismissal, and that it was not by reason of trade union activities. It was argued today that there must have been other documents which the tribunal did not see, and that the Industrial Tribunal should have carried out a fuller investigation.There were many factors involved here, but it seems to us that there was ample evidence to justify the conclusion of the tribunal that there was a genuine redundancy situation. There were on the evidence sound business reasons why the restructuring was necessary, and it is to be noticed that all the posts within the team were lost.So far as the size of the pool is concerned, we have again considered the arguments in relation to that. We have to say once more that this was a matter which was considered by the Industrial Tribunal.There is a long line of authorities which indicate the circumstances in which the EAT can or should, cannot or should not interfere with decisions below. One often cited to us is Piggott Brothers v Jackson [1991] IRLR 309 where the phrase "permissible option" was referred to.It is not easy for a layman to understand, particularly a layman who is convinced of the rightness of his cause, that the functions of the EAT are limited to dealing with errors of law by the Industrial Tribunal or interfering in cases where they have so clearly gone wrong that it can fairly be said that they have acted perversely. In the present case no doubt criticisms can be made of some parts of the decision and certainly in relation to Section 153, the decision was briefly expressed. In the end, however, having considered all the arguments and matters presented to us, the tribunal today is unanimously clear, that no error of law has been demonstrated or perversity on the part of the tribunal. In these circumstances and for these reasons, it follows that this appeal fails and must be dismissed.