Newborough v Lucas Commercial Diesel System [1996] UKEAT 256_95_0107

EAT
Newborough v Lucas Commercial Diesel System
[1996] UKEAT 256_95_0107 · 1996-07-01

JUDGE HULL Q.C. :

This is an appeal to us by Mr Malcolm Bernard Newborough, a gentleman who is now aged 48, who was employed by the respondents to the appeal, Lucas Commercial Diesel Systems of Rochester, as a "manufacturing support craft technician"; that was the title which his job had towards the end of his employment, but he was in fact a tool maker and was employed in what was called the "tool room". That is somewhat misleading expression because in fact at the respondents' premises in Rochester and Gillingham, the tool makers are divided between their two works. There were three, including Mr Newborough, who were at Rochester, and his other colleagues, also tool makers, were at Gillingham.Mr Newborough's employment began on 31st August 1964, and he was eventually dismissed for redundancy on 23rd July 1993. In other words he had been no less than 29 years with the company. A long record of loyal service. He had during that time served a five year apprenticeship and he had passed the appropriate examinations and had become a qualified craftsman in his skill.He complained to the Industrial Tribunal that he had been unfairly dismissed because he had been selected unfairly for redundancy, that was on 18th October 1993. On 23rd and 24th August and 4th October 1994, the Industrial Tribunal sat at Ashford in Kent to hear his complaint under the Chairmanship of Mr Hall-Smith with two industrial members. They clearly devoted a great deal of time and attention to the matter. The tribunal was assisted on behalf of Mr Newborough by Counsel, Mr Heywood. At the end of their deliberations, having heard evidence from a number of witnesses and studied a number of documents, they came to the conclusion that Mr Newborough had not been unfairly dismissed. They held that the requisite steps of consultation had taken place. They held that there was a genuine redundancy situation, and they held that the pool for redundancy had been fairly selected, at any rate so far as Mr Newborough was concerned.Mr Newborough appealed to our tribunal from the Industrial Tribunal on 7th February 1995, and on 2nd November 1995, that is to say nine months later, he came by Counsel before this Employment Appeal Tribunal for a preliminary hearing, as it called, in which we consider as well as we can whether there are arguable points of law . Mr Linden attended on his behalf and we have been told this morning that although they were not of course obliged to attend or entitled to be heard, the respondents were present and heard what was said on that occasion. Mr Linden explained the nature of his appeal to this tribunal, chaired by Judge Clark on that occasion. It was necessary to do so because Mr Linden wanted in effect to abandon the original Notice of Appeal and to substitute a Notice of Appeal of his own drafting which is now to be found at pages 9a onwards of our bundle. Mr Linden of course did not have the notes of evidence which were needed to support his Notice of Appeal, which contained among other things allegations of perversity in the tribunal's findings, and he therefore had to explain matters to the tribunal and did so, and this tribunal gave leave for the appeal to proceed, we gave leave to amend the Notice of Appeal to substitute Mr Linden's notice and directed that the Chairman should be asked to produce his notes of evidence which he has done, and in our bundle those notes of evidence are all now present.Today we started with an application. This hearing was fixed in March 1996, but today Mr Newborough said that he wished to ask for an adjournment. He had discharged his solicitors, he said. He has appeared in person therefore. He told us as follows; that the first ground, on which he wanted an adjournment was that Mr Philip Mead of Counsel had advised that Mr Newborough's appeal did not merit a final hearing. That advice was given on 11th June 1996. Of course Mr Mead had seen what Mr Linden had not; that is to say he had seen the notes of evidence which were proposed to be used to support the appeal. That opinion was furnished not only for the information of Mr Newborough but for the information of the Legal Aid Board which was supporting the appeal. The Legal Aid Board wrote to Mr Newborough saying that it was not considered in the light of Counsel's opinion, evidently, that he (Mr Newborough) had reasonable prospects of success. They are only allowed by law to give Legal Aid to people who have reasonable prospects of success, whether as appellants or as respondents, so that is their current view. But they have apparently said that they will reconsider the matter in a day or two's time, and that was Mr Newborough's first ground of application.He said he wanted to take legal advice. I pointed out to him that he had already had what appears to be most excellent and expert legal advice and it was wholly unfavourable to him. But he said nonetheless he wanted to take further legal advice and see whether he could persuade the Legal Aid Board that their view was wrong. That was the first ground.Then he said he had new evidence of perjury by a witness, the personnel manager it turned out of the respondents' organisation. He showed us two lines of the evidence given by Mr Onslow, and said that that was perjured evidence. So that was the second ground. There is nothing about this in the Notice of Appeal. But that, he said, was something supporting his application for an adjournment.Then thirdly, he said that a Mr Cronin had put in an affidavit in another case arising out of the same series of redundancies as this one which had been before the Employment Appeal Tribunal. He criticised that and said that it contained inaccuracies, and told us that he had been trying to collect more evidence. Why did he want to address us on that or collect evidence about that? He said the evidence is being collected in an attempt to show us that our own decision was wrong in this other case. It seemed to us that that was a quite inadmissible reason.We considered these matters as carefully as we could, and while sympathising with Mr Newborough in the predicament in which he found himself, felt that the interests of justice (and of course those include the interests of the respondents) were such that we ought not to accede to the application. The appeal proceeded.Mr Newborough then produced for us, or sought to produce for us, quite new arguments and documents which nobody, so far as we were concerned, had seen before. We told him that he must adhere to his Notice of Appeal as amended by leave of tribunal, and as settled by Mr Linden, and therefore he did so.I am not going to go right through that document. It is of course a skilful document. Of course it rests on notes of evidence which are now felt apparently to be quite insufficient to support what is said in the Notice of Appeal, and therefore no doubt quite rightly Mr Newborough did not take us any further to the notes of evidence. But he said his best points from the Notice of Appeal were these.First of all the first point:
"The Industrial Tribunal erred in law and/or reached a finding which was perverse in concluding at paragraph 21 of its decision that the Respondent "acted reasonably in its approach to consultation". As is apparent from paragraph 11 and 13 of the Decision, there was no individual consultation with the Appellant prior to the decision to dismiss him. Moreover the evidence before the Tribunal was that there had been individual consultation with all employees affected by the redundancy process other than those who worked in the toolroom because the Respondent took the view that the only option which should be open to toolroom employees was employment with Startrite [ a another firm in the Rochester area ] on substantially reduced terms and conditions. By contrast, employees who were not employed in the toolroom were individually consulted and following such consultation approximately 130 such employees who were based at Rochester were redeployed to jobs in Gillingham."
That, he says, is one of his best points. Then he refers us to ground (iv) in the amended Notice of Appeal:
"The Tribunal erred in law and/or reached a conclusion which was perverse in deciding at paragraph 13 that "the Respondent acted reasonably in making available procedures for assisting those employees such as the Applicant in finding alternative jobs". As regards the Appellant, the question of alternative employment within the Respondent's business was not discussed with him and nor did he receive any assistance to obtain such employment."
His third best point, he said is:
"The Tribunal erred in that it failed to have regard to the Appellant's complaint that he had been dismissed for redundancy whereas other employees had been refused voluntary redundancy. There was evidence before the Tribunal that there were 35 such employees and that the Appellant was capable of carrying out the job of the majority of them. Moreover the Appellant called Mr Martin, an operator, to give evidence that he had volunteered for redundancy but had been refused."
Having read out those matters, it is apparent that all of them were ones which reasonably required the attention of the Industrial Tribunal. We therefore have to look to see what the Industrial Tribunal had to say about these matters in giving the reasons for their decision.They set out the uncontested facts and Mr Cronin and the personnel manager had given evidence to them, they said. The fact was that this was a very large redundancy indeed, something of the order of 500 people were to made redundant out of a total workforce of just over 2,000 in the two works. The tribunal said:
"6 The Tribunal heard that as a result of the French takeover, the Respondent looked at its business under a microscope and concluded that there were 700 employees too many in the Gillingham reorganisation and that 510 were identified as representing over-manning.
7 There was a formal company announcement of impending redundancies on 16 February 1993 which announced a formal redundancy programme at both the Gillingham and Rochester sites and the planned closure of the Rochester site. Mr Cronin said that being a member of the Rochester workforce would not be a ground for redundancy."Then they make the first of their important findings:
"8 The Tribunal find as a fact that a genuine redundancy situation existed and the Applicant himself did not challenge the existence of a genuine redundancy situation. Consultation with the unions began on 16 February 1993. It was the Respondent's aim to encourage voluntary redundancies and a number of notice boards were installed at the Gillingham and Rochester sites in order to advertise internal and external vacancies. The Respondent also engaged a company, Coutts Career Consultants, to assist in the redundancy exercise and Coutts were involved in providing assistance in the preparation of CVs and assist the Respondent's employees in finding alternative jobs.
9 The Tribunal heard that the Respondent met the unions regularly and the outcome of the meetings was reflected in a document ... The attitude of the unions was to oppose the Respondent's proposals to reduce manning levels by compulsory means and to encourage reductions by voluntary means and natural wastage."We have been given a list of what appears not to be in contention, a list of meetings with the joint negotiating committee, and certainly in February and March 1996 there were a large number of these consultations. We can see it at page 2 of the respondents' skeleton argument, the chronology which is there. There is a failure to agree on 11th February, and then there were meetings in March, about eight or nine meetings. The tribunal go on:
"10 The reorganisation involved the contracting out of 60% of the tool room work to other contractors of which 80% was sub-contracted to local toolmakers. Mr Cronin said that because of the media coverage of the problems associated with the Respondent's business, the owner of Startrite Design, a local contractor, approached the Respondent's Factory Manager and indicated that he was prepared to take on the remainder of the Respondent's tool room work and offer employment to existing toolmakers if they wished to be employed by Startrite. On 30 March 1993 Mr Cronin announced that the Respondent was taking the option of sub-contracting the remaining tool room work to Startrite and to two other contractors, one of them being Chapmans of Bicester. This meant that the tool room would be closed down."
So there after much consultation with the trade unions, but no individual consultation with individual members of the tool room, the decision had been taken to close the tool room completely. Clearly consultation may be with individuals or it may, when there is to be, as on this occasion, the closing of an entire department, it may be with the unions or with other representatives of the entire group of men, that was the way which was followed here. As the employers pointed out, it is on the face of it for them to say how they carry out the consultation, it is of course their duty to carry it out fairly and properly and in a conscientious manner, in good faith. It is then, if there is a complaint by any individual employee, the duty of the Industrial Tribunal to find out whether that consultation was carried out fairly and properly. The tribunal go on:
"11 Mr Cronin said that the decision to sub-contract the tool room work was made independently of the closure of Rochester and the Tribunal find as a fact that such was the case."
That is of some importance, perhaps of great importance, because one of the complaints made by Mr Newborough is that the other people working at Rochester were treated in a very different way, that is to say they were treated as individuals and that there was no, so to speak, block redundancy there. They say going on:
"There were no compulsory redundancies announced at the time that the decision to out-source the tool room was made and the Applicant was informed by letter from Mr Cronin dated 25 May 1993 that he was to be made redundant on 2 July 1993. The letter informed the Applicant that:
"Coutts Career Consultants have been engaged to assist those affected by Redundancy in finding suitable alternative employment and I strongly advise that you make full use of their services. They will offer an on-site service for the next few months.
We will now enter a period of individual consultation, one of the purposes of which is to seek suitable alternative work into which you may be redeployed within Lucas."It is suggested by Mr Newborough to us today, that in truth Coutts Consultants, whose employment cost the respondents apparently something of the order of £25,000 or £30,000 or more, were not employed to help people like him, but simply staff; again, a point which no doubt the Industrial Tribunal would have considered if it had been placed before them. We come to their findings about allied matters, but there was on the face of it an offer from the employers urging him to make full use of Coutts' services. The tribunal go on:
"12 The Applicant was advised by Mr Evenden, the works convener, to appeal against the redundancy decision. The Applicant did not appeal and he told the Tribunal all appeals in front of him had failed. However, the Tribunal heard from Mr Cronin that there were a number of appeals and that two appeals were successful in that the individuals concerned obtained extensions of their leaving dates.
13 The Tribunal find that once the decision to dismiss the Applicant had been taken, the Respondent acted reasonably in making available procedures for assisting those employees such as the Applicant in finding alternative jobs. Apart from the appeal procedure, which was not undertaken by the Applicant, the services of Coutts were available and the Applicant did consult with them the day after he received his letter informing him of his redundancy. In addition, notices of any job vacancies were put on notice boards. The Tribunal find that the Applicant failed to make any reasonable attempt to take advantage of any of the available procedures in finding alternative work because as he told the Tribunal "it was up to the company"."That finding again is criticised by Mr Newborough because he says that that is in effect putting the matter back to front. It is the duty of the employer to be reasonable. The employee is not required to take any steps. There is of course an important sense in which that is true. But nonetheless, if the employer offers to consult, offers to help and so on, "it takes two to tango". If the employee is not prepared to take any advantage of the offers made, then it is hard to see what more the employer can do. That was again a matter for the Industrial Tribunal. They go on:
"14 The applicant did not consider employment with Startrite. He was asked by his immediate foreman, Mr Whybrow, if he wanted to go to Startrite and the Applicant told the Tribunal that he told Mr Whybrow that he would be committing financial suicide to work for Startrite."
Pausing there, he would have received apparently lower rewards for his work and, in addition, he was of course suffering through his pension prospects and matters of that sort through leaving the company he had served so long.
"The Applicant considered taking up employment with A W Chapman Ltd in Bicester and the Respondent agreed to extend his dismissal date from 2 July 1993 until 23 July 1993. On 9 July 1993 Chapmans wrote to the Applicant confirming an offer of employment and the Applicant started working for Chapmans on 26 July 1993. The Applicant said that the job at Bicester was a familiar job and that he was happy doing it. The Applicant thought that he was going to be offered a relocation package by Chapmans to assist with the expense involved in moving himself and his family to Bicester, but Chapmans did not agree to this and the Applicant resigned from his employment after nine weeks."
So that was the unhappy history of his attempt to take alternative employment. Chapmans of course were one of the firms to whom work was subcontracted, it was therefore familiar work, but one could quite understand the appellant's point of view; Bicester is a long way away, and it would have meant moving his family and so on.So they then went on to consider what, being wise after the event at any rate, looks like an absolutely first rate red herring. It was suggested on behalf of the appellant that what had truly happened here was not redundancy as such, but a transfer of undertaking. The tribunal went into that. They took the view that there had been no such transfer of an undertaking, and that what had happened was a genuine redundancy situation in accordance with their findings. Then they went on:
"20 Mr Heywood in the course of his submissions to the Tribunal during the hearing, maintained that the Applicant could have performed work in the Machine Tool Development Department (MDT) and that the redundancy process should have included the MDT in the "redundancy pool", rather than confining it to the Toolroom Department. The Tribunal heard from Mr Onslow that part of the job function of the MDT was to commission all new machines as they came into the factory, and that a much wider range of tasks were involved in the MDT than in the tool room. In addition, the Tribunal accepted the evidence of Mr Onslow that it would take at least two years' training to become proficient in the work involved in the MDT. The Tribunal found that the Respondent acted reasonably in confining the "pool" from which the selection was made to the tool room."
That again is a matter which is challenged by Mr Newborough. Mr Newborough says that he could very readily and very quickly have picked up enough, or indeed had the skills already, to do work in the MDT. The tribunal found the contrary and that was eminently a matter of fact for them. They go on:
"21 Mr Heywood also submitted that there was a lack of consultation. However, the Tribunal find that on 16 February 1993 the Respondent made a formal company announcement of a formal redundancy programme and that consultation with the unions started on that date. Although there was a planned shutdown of the Rochester operation, there were no announcements at that stage of compulsory redundancies. Mr Cronin had meetings and discussions with the unions. At the meeting at Gillingham on 30 March 1993 when Mr Cronin announced the out-sourcing of the tool room to Startrite, he also announced that the Respondent would consult on an individual basis with those who did not wish to work for Startrite to see whether there was alternative work within the company. The Applicant never approached Mr Cronin and the Tribunal noted that he never used any of the available procedures once he received the letter of 25 May 1993 announcing his redundancy. The applicant's position regarding the availability of consultation can be summarised by his comments in paragraph 11 of his statement annexed to his Originating Application, namely,
"I received three letters of redundancy, all stating that I would have individual consultation regarding alternative employment within the Company. None of this materialised as nobody ever bothered to contact me."
The Tribunal find that the Respondent acted reasonably in its approach to consultation and that the Applicant himself acted unreasonably by his failure to take any active part in using the available procedures and the appeal process."Therefore having found all the issues that were raised before them against the appellant, Mr Newborough, the tribunal was obliged to dismiss his application alleging unfairness.These were all findings of fact. It goes without saying that when there is contested evidence in front of an Industrial Tribunal, they, as a "jury" as they have been called, may decide it one way or the other. It may even be that they can be criticised and somebody can say "well that was a surprising decision", or "I would have reached a different decision". We cannot even do that, because we have not heard the witnesses and we have therefore no material to criticise findings of fact. The Industrial Tribunal hears the witnesses and has the duty, which may not be an easy one, of making up its mind where truth and justice lie.We have a very restricted duty. When the Employment Appeal Tribunal was set up, it was provided expressly by Parliament, and it has been the law ever since, that we can interfere only if we can find errors of law, properly so called, in the decision of the Industrial Tribunal. We have to look and see whether there are any obvious errors of law, such as a statement about the burden of proof which is contrary to the law, or something of that sort; a wrong definition, or a reference to a wrong section of the statute. We also look, if asked to do so and if we think it is right to do so, to see whether any conclusions of the Industrial Tribunal are completely contrary to the evidence or unsupported by any evidence, when it can be said that they are `perverse' to use the technical word, that is to say, conclusions which no fair minded tribunal properly directing itself on the law could reach. But apart from that we have no jurisdiction, and we cannot begin to review cases as other courts of appeal do on the basis of fact, because we have no jurisdiction to do that.We have heard everything that Mr Newborough has said. We thank him for saying it. We have had on a number of occasions I am afraid to point out to him either that these are matters which are not raised in his notice of appeal, the amended notice settled by Counsel, or matters which are entirely matters which we cannot look into. Having thought about it as carefully as we can, we have come to the conclusion that although we have a great deal of sympathy for Mr Newborough as a long-standing and loyal employee who has been made redundant in a way which must seem to him very unjust and a very poor reward for his long service, nonetheless we cannot find any error of law in the findings and decision of the Industrial Tribunal. In those circumstances we have no alternative but to dismiss the appeal now and we so order.