Herbert v Air UK Engineering [1998] UKEAT 575_97_0302

EAT
Herbert v Air UK Engineering
[1998] UKEAT 575_97_0302 · 1998-02-03

JUDGE C SMITH QC:

This is an appeal by the Applicant before the Industrial Tribunal, Mr D R Herbert, against the decision of an Industrial Tribunal held at Norwich on 17 January 1997, of which extended reasons were sent to the parties on 27 February 1997, when the Industrial Tribunal decided unanimously that the Appellant's application for unfair dismissal should be dismissed.It appears from the Appellant's skeleton arguments and the helpful submissions addressed to us by Counsel for the Appellant that, putting the matter very shortly, the submissions are that the Industrial Tribunal erred in law in failing to find on the facts established and found by them, that the Appellant had been unfairly selected for redundancy on grounds related to his activities as a shop steward within s.153 of the 1992 Act or, alternatively, that the selection criteria were unfair due to his inability to meet them together with a subsidiary argument that the Industrial Tribunal failed to take into account relevant factors in concluding that the Respondents had acted reasonably in selecting the pool from which the Appellant had been selected for redundancy.The Respondents submit by Counsel that, on the contrary, the Industrial Tribunal were entirely right to conclude that the Appellant had not been dismissed for a reason within s.153 of the 1992 Act since they were entitled to find that the Respondents' reason for the decision was lack of qualifications and failure to score well on this criterion and nothing more and, further, that the Industrial Tribunal were entitled to hold that the criteria selected and the pool selected were fair within s.98(4).We were helpfully referred by Counsel for the Appellant to the case of Dundon v GPT Ltd [1995] IRLR 403 which he submitted to us was a very similar factual situation to the present case but which Counsel for the Respondents submitted could be sharply distinguished on the facts from the present case, and by Counsel for the Respondents to the case of CGB Publishing v Killey [1993] IRLR 520 where the EAT held that a "but for" test of the reason for dismissal is both wrong in principle and inadequate. The proper approach for the Industrial Tribunal is to consider the set of beliefs held by the employer which causes him to dismiss. Counsel for the Respondents submitted that is exactly the approach which the Industrial Tribunal correctly took in this case. Those, briefly, were the respective submissions.By their findings of fact, the Industrial Tribunal found that the Appellant had been dismissed from his employment as a workshops tradesman on 4 September 1996 after three years' employment on the grounds of redundancy. The Industrial Tribunal found that most of the Appellant's working time was spent in the mechanical workshop, working on aeroplane catering trolleys, with a Mr Thompson. In addition, the Industrial Tribunal found that the Appellant spent about three-and-a-half hours a day as a negotiating shop steward. In addition, he was the health and safety representative.By July 1996, as appears from the findings of the Industrial Tribunal, a redundancy situation had developed at the Respondents' place of business and the Industrial Tribunal found it was agreed with the Union after negotiation that the basis of selection was to be an agreed set of criteria. The three criteria were qualifications, attendance record and length of service, putting the matter shortly.The Industrial Tribunal found that the selection of the pool, as far as the Appellant was concerned, consisted of himself and Mr Thompson, his fellow tradesman on the catering trolleys, in that section of the workshop. Whilst the Appellant and Mr Thompson scored equally on attendance and service, on one view of the matter, on the findings of the Industrial Tribunal, the important finding was - and there was no dispute about it - that Mr Thompson greatly out-scored the Appellant on the qualification scale by 21 points to 5. At paragraph 6 of the extended reasons, the Industrial Tribunal expressly rejected the submission which was made to them that the case fell within s.152 of the 1992 Act, as they put it. In our judgment, that amounted to a finding by the Industrial Tribunal that the reason for the dismissal by the Respondents was not due to trade union activities falling within s.152(1)(b) of the 1992 Act.The Industrial Tribunal went on in paragraph 8 to hold that the criteria chosen by the Respondents were reasonably fair and were applied fairly. They expressly found that the Appellant had not been targeted and that there was no suggestion of fraud or malice. They then went on to accept the evidence of Mr Beale as to the reasoning behind the pool selected in the case of the Appellant, namely, himself and Mr Thompson, and made their findings in reliance upon that evidence. They obviously accepted the points made by Mr Beale at paragraph 30 of his written statement, which was before them.Finally, and importantly in the context of this appeal, they made the findings they did in paragraph 10:
"The applicant does make the further point that really he had no hope because he needed to have qualifications to succeed to avoid being made redundant and he had no chance of gaining those qualifications because of his trade union activities. Our reply to that is that, regretfully, it is a matter of distinction that his colleagues should have put their trust in him as their shop steward and of course all the evidence is that he discharged his office with distinction but regretfully that does mean that sacrifices had to be made - those sacrifices were of his choosing not the employer's impelling - and the fact that he was not able to gain qualifications over his six or seven years service means that he was not so well placed when the time came for redundancies. That is the way we see it and there is nothing unfair about it."
The Appellant's argument is that in the light of that finding the Industrial Tribunal should have gone to on to find and, indeed, were bound to go on to find, so it is submitted, that the reason for the dismissal was within s.153 of the 1992 Act and, therefore, automatically unfair or, alternatively, that the dismissal was unfair even judged by reference to section 98(4) of the 1996 Act. Reliance was placed on the approach of the EAT in Dundon . In our judgment, such reliance was misplaced. It is clear that in Dundon the Industrial Tribunal had there found that the feature of Mr Dundon's working life that made the employers select him for redundancy was that he was spending far too much time on trade union duties. The Employment Appeal Tribunal held that in the light of that finding by the Industrial Tribunal, the Industrial Tribunal should have concluded and would have been bound to conclude that the reason for the dismissal was participation in trade union activity, applying the well-known test of reason laid down as long ago by the Court of Appeal in the case of Abernethy v Mott, Hay and Anderson [1974] IRLR 213 .In the instant case, on the other hand, no such finding was made by the Industrial Tribunal. On the contrary, the Industrial Tribunal found that the criteria had been applied fairly and that the Appellant had been selected due to his lack of qualifications and implicitly for no other reason. Putting the Appellant's argument at its highest, the most favourable finding that the Industrial Tribunal made to the Appellant was a finding that he was not able to gain qualifications because he had chosen to perform duties as a shop steward. The Industrial Tribunal do not find that had he not been a shop steward he would not have been dismissed. Such a finding would, in any event, have been wrong in principle, as held by the Employment Appeal Tribunal, in the CGB case.In our judgment, the finding that he did not gain qualifications because of his trade union activities is not at all inconsistent with the Industrial Tribunal's finding that he was fairly dismissed, not for those activities, but because he lacked qualifications and thus was fairly selected by the Respondents for that reason on the fair application of the agreed criteria. In other words, the Industrial Tribunal held that the employer reasonably believed that the reason he was selected was because he lacked qualifications. In our judgment this was a correct approach for the Industrial Tribunal to follow and thus we must reject the submission that the Industrial Tribunal erred in any way in the approach that they took.To the extent that it was suggested that it might have been possible to apply a weighting factor to the qualification criterion in the case of the Appellant, in our judgment this has considerable practical difficulties apart from not being a sufficient ground for upsetting the Industrial Tribunal's finding that the criteria were reasonably fair without such a weighting factor. Thus, it is one thing to incorporate a weighting factor into an output criterion to allow for time spent on trade union activities and quite another to do so in the case of a qualifications criteria. In any event, in our judgment, an employer must be entitled to regard qualifications for a skilled job, such as that in the instant case, of the highest priority to the successful running of the business. In our judgment this important priority, very well recognized by both sides of industry, should not be at risk of being diluted by appeals to time spent by workers who choose to engage in union activities. Important as they are and vital as are the legislative safeguards against dismissals for taking part in such activities, in our judgment they cannot legitimately be invoked to seek to compensate for lack of qualifications. The Industrial Tribunal were right to reject any such submission.For those reasons this appeal must be dismissed.