Marshall v British Aerospace [1997] UKEAT 1221_96_1605

EAT
Marshall v British Aerospace
[1997] UKEAT 1221_96_1605 · 1997-05-16
MR JUSTICE LINDSAY : We have before us as an ex-parte preliminary hearing an appeal by Mr P. Marshall in the matter Marshall v British Aerospace .The story begins with Mr Marshall's Originating Application in form IT1 that indicates the nature of his complaint. He says:
"I was unfairly dismissed. I was unfairly made redundant. I was unfairly selected for redundancy. Proper consideration was not given to whether the reduction in employees the Company required could be achieved by means other than compulsory redundancy. Proper consideration was not given to the numbers and grades of employees to be reduced.
There was inadequate consultation with the Unions [that is then developed]. The selection criteria was unfair in that it was subjective and unreasonable.My selection was unfair in that I was not aware as to why I was selected for redundancy. My trade union representatives were not able to properly represent me due to inadequate information as to my selection. There was no consultation with myself as to my redundancy, nor was I given any warning that I was to be selected for redundancy."So that was the nature of Mr Marshall's complaint.The Industrial Tribunal arrived at a decision which was promulgated on 13 September 1996 and it dealt with the case of 9 Applicants, all former employees of British Aerospace Plc, of whom Mr Marshall, of course, was one. That decision was arrived at after some 18 days of hearing which, broadly speaking, ran consecutively from 16 April 1996 until 7 May 1996 when there was then quite a gap and the matter then concluded over 12, 13 and 14 August 1996.The decision, so far as concerned Mr Marshall, was a unanimous decision, and it was that he was fairly dismissed. Another Applicant, a Mr Aldridge, was held to have been unfairly dismissed but, in Mr Marshall's case, that was the result.The Industrial Tribunal made comments on witnesses. It said:
"4. In this case we have heard a great deal of evidence. We have also been provided with, and read a large number of documents which have been contained in 11 bundles. The respondent called 21 witnesses who were all directly involved in the redundancy exercise. We found each of these witnesses to be honest. We also found them to be reliable, save that we found there to be some uncertainty with regard to the respondent's own evidence concerning the selection of Mr Aldridge for redundancy. We were impressed by the professionalism of the respondent's witnesses and with the honest and diligent way in which each had performed the particular task set for them during the redundancy exercise. We also heard evidence from the nine applicants. The applicants also called three further witnesses. The first of these witnesses was Mr Deans who is a member of the AEEU and was the works convenor for the respondent's Warton site. The second such witness was Mr Kirton who is also a member of the AEEU and, at the time of the dismissals, he was the manual staff convenor for the Joint Shop Stewards Committee at the respondent's Salmesbury site. The third such witness was Mr Coulton who was the chairman of the MSF Staff Union at the respondent's Warton site. Having regard to the evidence given and to the demeanour of the witnesses, we preferred, wherever a conflict occurred, the evidence of the respondent's witnesses to that of the applicants and their witnesses."
There is no doubt here, that there were dismissals; that was not disputed. Mr Marshall was dismissed and there is no doubt, also, that the reason was redundancy, and the Industrial Tribunal reminds itself of section 57(3) of the 1978 Act, and it then set about, in its Extended Reasons, first of all to deal with the general position and then to turn separately to the case of each individual Applicant.So far as concerned any individual Applicant, the judgment upon him can be arrived at only by reading both the general and the particular parts of the decision. Unhappily, the position, so far as concerns British Aerospace, was that the defence market was shrinking at the time, and markedly so, and 5,764 employees were assessed for redundancy, of whom 528 were finally selected for it. It was plainly a massive exercise.British Aerospace devised a rather structured system of assessment and appeal, and the Industrial Tribunal describes that in their paragraph 9(c):
"The assessment exercise was of such scale that 5,764 employees were assessed with 528 being selected for redundancy. The assessment form of each employee assessed was to be signed by three people. The initial assessment was undertaken by the employee's immediate supervisor. The initial assessment was then checked by the next level of supervision. The form was then approved by the third level of management. Throughout the hearing the three people involved were known as the evaluator, checker and approver (or father, grandfather and great grandfather). The forms, when signed by the three individuals, were then sent to the human resources department who carried out a statistical analysis to ensure consistency across the three sites and within the 21 units of selection."
I should have mentioned that all the 9 Applicants who were the subject of this particular hearing before the Industrial Tribunal worked at the site at Warton, near Preston.The assessment involved 7 listed factors. They are set out by the Industrial Tribunal:
"(i) Relevant job experience and/or knowledge.
(ii) Achievement of work output.(iii) Quality and accuracy of work.(iv) Flexibility/ability to do other work/jobs.

(v) Ability to contribute to effective team work

(vi) Initiative

(vii) Sickness absence."

Plainly, those are matters that do, to some inevitable extent, depend on subjective factors but they are not necessarily wrong for that reason alone.To avoid bias in the assessors, as the Industrial Tribunal found, there was extensive training for assessors, which the Tribunal found to have been of a high quality. The Industrial Tribunal found it was not unreasonable for the employer to have carried out no further analysis than it did. They say:
"We consider that the respondent behaved reasonably in carrying out the statistical analysis that it did and that it was not unreasonable for it to fail to carry out yet further analysis."
There was an internal appeals machinery in place and there were steps permissible for further fresh consultative meetings before the appeal.The Industrial Tribunal held there was no substance in the employee's allegation that British Aerospace had failed properly to engage in collective consultation with the unions. What they said on that, after describing the responses of the union as being somewhat uncooperative in this particular case, was that they held:
"We find that there is no substance in the applicants' allegation that the respondent failed to properly engage in collective consultation either with regard to the redundancies in general or to the selection criteria in particular. Indeed, we are surprised that so much time was devoted on behalf of the applicants to this particular issue"
As for individual consultation, before selection for redundancy, the Industrial Tribunal said this:
"In the circumstances of this particular case, [which they had just set out] we do not find that the respondent behaved in an unreasonable or unfair way in failing to carry out individual consultation with the applicants about their assessment before they were selected and/or before they received their dismissal letters."
Individuals could find out what their assessment had been and, on this subject, it is worth reading paragraph 16 of the Industrial Tribunal's decision:
"The next criticism of the applicants concerns the pre-assessment consultative meetings and the appeal hearings. A criticism common to both is that individuals were not given copies of their assessment sheets. This was a deliberate decision taken by the respondent. It feared that if copies of the assessment sheets were distributed it would lead to the unions collecting the sheets together and attempting to perform a re-marking exercise. Having regard to the evidence we heard, we have no doubt this is what the unions would have attempted to do. Clearly, it would have been unfortunate if individuals were not informed of the results of their assessments and of the comments made about them. However, the respondent avoided this by informing each individual, either at the pre-appeal meeting and/or at the appeal, the grades they had achieved and what comments had been made about them on their form. Such information was either read out to the individual and his representative or they were shown the form, albeit they were not allowed to take the form away with them. Moreover, once the individual was made aware of the contents of the assessment forms they were given the opportunity to have an adjournment in order to prepare their response to what appeared on the form. In failing to distribute copies of the form but in telling the individual the contents of the form, we consider that the respondent behaved reasonably in the circumstances of this case."
And, describing the process of appeal, the Industrial Tribunal held in their paragraph 17:
"The appeals were anything but a "rubber stamping" exercise. The appeals were thorough and took part over many hours and often over several days."
At the end of that paragraph, they say:
"Having regard to the evidence, we have had no hesitation in finding that the appeals in respect of all the applicants were fairly and properly conducted."
So they then turned to looking at the individual circumstances of the particular Applicant. But, before we leave the general approach, it is worth pointing out and remembering that for an individual to see his own assessment is by no means, of itself, very illuminating, because obviously, when 528 have to be selected out of 5,764, what is in course is a comparative exercise. It could hardly be expected that each man should be entitled to see information as to all and so a difficult position arises in which, if information is limited only to the individual case, it can be little more than meaningless and yet to supply information as to all would be unreasonable in the highest degree.That is the general background and that, of course, affects Mr Marshall, as it affects all the others. But, Mr Underhill, QC, who has appeared before Mr Marshall (and I should say we also heard Mr Marshall himself at length) wishes principally to concentrate on the weaknesses in the individual case.As to the individual case, what is said, is to be found in paragraph 24 of the Industrial Tribunal's decision and it says this:
"It is alleged on behalf of Mr Marshall that he was unfairly assessed, particularly by Mr Leech whom the applicant claims manipulated the system. Having regard to the evidence, we have no reason to think that the applicant was unfairly assessed or that the system was improperly manipulated so as to penalise him. We were invited to contrast the applicant's assessment with earlier appraisal reports that had been prepared about him but having done so we do not consider that such a comparison reveals any striking differences. Having regard to Section 57(3) of the said Act, we do not find that Mr Marshall was unfairly dismissed."
Mr Underhill says that that is an inadequate assessment of the case relative to Mr Marshall, but, on the other hand, when one has in mind the whole of the general background and to the preference for the evidence given on the employer's side which we have cited earlier, and to the lack of specific complaint, it is difficult to be sure that, indeed, that is an inadequate assessment of the position by the Industrial Tribunal. It does, as it seems to us, tell Mr Marshall why it is that he has failed in this case.Mr Marshall said that he had never done anything wrong in the course of his employment. Well that, of course, unhappily, when redundancy is at stake, is not necessarily the relevant question. He said that the Industrial Tribunal was "hog-washed" into accepting that what British Aerospace had showed them was a thorough going assessment procedure and redundancy selection procedure.But, we have to emphasise, we are concerned only with points of law. Whatever might have been our view of what would have been our assessment of the case, had it been left to us on the facts, is quite irrelevant. We have to find some error of law in the decision of the Industrial Tribunal relative to Mr Marshall. That we have failed to find. We have considered the points made by Mr Marshall himself and by Mr Underhill on his behalf. We do not find ourselves able to describe any of the points as disclosing any point of law that has any measurable prospect or, indeed, any prospect at all of success.It is not for us merely to allow the matter to go forward so that the facts could be re-opened in some way. All in all, whilst we have considerable sympathy for Mr Marshall, who undoubtedly feels that his claim not to be made redundant was not properly adjudged, it is for the so-called industrial jury, the Industrial Tribunal, to be the judges of fact and not for us, and, bearing that in mind, we do not permit the matter to go further.We therefore dismiss the appeal.