MR JOHN ADRIAN LOWE v EVEREST LTD & OTHERS [2000] UKEAT 353_00_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 353_00_1310Case No Appeal No. EAT/353/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR JOHN ADRIAN LOWEAPPELLANTEVEREST LTD & OTHERSRESPONDENT
Before
Mr Justice Charles Ms G Mills Mr K M YoungDate 13 October 2000
[1]APPEARANCES For the Appellant MR NIGEL GIFFIN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE CHARLES : This appeal comes before us today by way of preliminary hearing pursuant to the Practice Direction of this Tribunal. We therefore have to consider whether the appeal raises a point of law that is reasonably arguable. The Appellant is a Mr J.A Lowe and the Respondent is Everest Ltd. The appeal is against a decision of the Employment Tribunal sitting at Ashford. They sat on 18, 19 and 20 January 2000. The Extended Reasons for their decision were sent to the parties on 1 March 2000. Mr Lowe was one of the four Applicants before the Employment Tribunal. The Employment Tribunal decided that one of the four was unfairly dismissed and that three of them, including Mr Lowe, were not unfairly dismissed.[2]On the face of the Extended Reasons it seems that Mr Lowe may have represented the other Applicants before the Employment Tribunal. On that occasion the Respondent was represented by Counsel. All accepted, correctly as I see it, that there was a redundancy situation.[3]In paragraphs 16 and 17 of the Extended Reasons the Employment Tribunal helpfully set out a short statement of the arguments put forward by each side. Then, they make a comment in paragraph 19 as to their assessment of the witnesses. In paragraph 20 they make a number of findings of fact. Those particularly relating to Mr Lowe appear in sub-paragraphs (16) and (17) of those findings and those two sub-paragraphs were drawn to our particular attention today. In particular the second half of sub-paragraph (17) which states as follows: " though he [that is Mr Lowe] did suggest a far higher proportion of those provisionally selected for redundancy were on Mr Billett's shift rather than on Mr Drury's shift" .[4]It has been explained to us today that Mr Lowe was on Mr Billett's shift and it was also explained to us today that the point raised and mentioned in paragraph 12 concerning Mr Lowe's assertion in relation to Mr Drury became water under the bridge, because we were told it became apparent that Mr Drury took no part in Mr Lowe's assessment.[5]The conclusions of the Employment Tribunal are set out in paragraphs 29 to 32 of their Extended Reasons. I am not going to cite from the paragraphs I have particularly mentioned, but they have all been referred to us today.[6]Today Mr Lowe has had the considerable advantage of being represented under the ELAAS Scheme. In his Notice of Appeal he set forth five grounds of appeal and an additional point. Paragraph 4, the fourth ground, was an assertion of bias and as to paragraph 5, he relied on a supporting letter or statement from a Mr Keith Robertson who was, I think, his team leader although I may have got that title incorrect.[7]Today, as I have said, Mr Lowe has been represented under the ELAAS Scheme and Counsel on his behalf has put forward two substituted grounds to which I will return in a moment. In my judgment the grounds actually raised in the Notice of Appeal do not give rise to reasonably arguable points of law, save to the extent that they cover matters raised by Counsel in the two points that he has raised. Accordingly, I turn to consider the points raised by Counsel. He helpfully has put those in a typed form and they read as follows:
"1 The Employment Tribunal erred in law because it failed to deal with the Applicant's complaint that a far higher proportion of those selected for redundancy had been persons working on his shift either by finding facts relevant to that complaint or by giving any reasons for rejecting that complaint. 2 The Employment Tribunal erred in law by failing to direct itself in accordance with the decision of the Employment Appeal Tribunal in FDR Ltd v Holloway [1995] IRLR 400 and (in consequence of that failure) in declining to permit questioning of the Respondents' witnesses directed towards the performance of individual assessments."
[8]The foundation of that argument is the following assertion of fact made by Mr Lowe, and I take it at this point, from page 29 of our bundle which in paragraph 1 of a letter from Mr Lowe dated 2 March, where he points to a 6:1 difference ratio in redundancies between the shifts, that is Mr Billett's shift and Mr Drury's shift. In that paragraph he says this:
"The 6:1 difference ratio in redundancies between the shifts this was explained by Roy Billett as 'that's just the way it went' – a totally inadequate explanation accepted without question by the Tribunal."
This point was raised in the Originating Application which is at page 40 of our bundle, where it is stated that:
"There were in total 51 redundancies – 14 voluntary and 37 compulsory. In respect of the compulsory redundancies, I believe that 7 were from the shift led by Cliff Drury. However, I believe that Cliff Drury only assessed three of those employees selected for redundancy, with the other four being assessed by Ray Double, as they were not in the Production Department. 24 compulsory redundancies were from my shift, which was led by Roy Billett. I believe that he would have assessed 19, the others not being in the Production Department."
[9]That point is not specifically responded to in the company's answer. Counsel during the course of his submissions referred us to a letter in the bundle, in which the company were asserting that the proportion between the two was 48%:52%. Underlying the argument put by Counsel is that, if the proportion was as alleged by Mr Lowe, it required an explanation to demonstrate that the procedure adopted and its application was fair.[10]Counsel goes on to point out that there is no finding of fact expressly in the Extended Reasons as to what the proportion was and no express reasoning dealing with the point raised as to the proportion of 6:1. He says that that gives rise to a reasonably arguable point based on Meek v City of Birmingham District Council [1987] IRLR 250 and, having regard to the application of the authorities that in this case there should have been further examination of the system or its application. He says that Mr Lowe's position, as indeed it is, was that the Chairman prevented him from pursuing appropriate lines of enquiry as to individual assessments based upon the potential, or possible, inference from the alleged 6:1 proportion that something had gone wrong.[11]We are satisfied that the points raised by Counsel raise points which need further consideration in the context of this appeal. What troubles us is that on the information before us we can form no informed view on the factual foundation of those points. In our judgment, in considering whether the Extended Reasons give an adequate explanation and whether reasonably arguable points of law arise, it is necessary in this case to know what was, in effect, common ground between the parties before the Employment Tribunal or what was demonstrated by the relevant documents. If, for example, those documents demonstrate that the ratio is not as suggested by Mr Lowe, or they demonstrate that assessments were not carried out simply in respect of Mr Billett's shift by Mr Billett, or that there was an overlap of assessments, it would seem to us that the matter should be reconsidered and could be reconsidered in the form of an application to strike out this appeal.[12]Accordingly, what we propose to do is to allow the matter to proceed on the two grounds identified by Counsel on behalf of Mr Lowe today. As I have said, we have found that the grounds in his notice of appeal did not (save to the extent that they overlap with the grounds put forward by Counsel) raise points that are reasonably arguable and we strike them out. Accordingly we give leave to amend the notice of appeal to put in the two grounds identified by Counsel.[13]I should add in respect of the allegation of bias that was raised that on the information before us it had no validity and has very properly been abandoned before this Tribunal today.[14]Further, we will direct that there should be a directions hearing in this case. At that directions hearing among the issues to be considered will be, what, if anything, can be agreed as to the facts relating to the basis of Mr Lowe's arguments, namely the 6:1 proportion and having regard to any such agreement what documents are needed. On that occasion the company can apply to strike out the leave to amend we have effectively given today by allowing the two grounds identified by Counsel to proceed, either on the basis that points were not argued below or on any other basis they see fit.[15]Further, if on that occasion the factual basis for the points identified by Counsel and which we have accepted give rise to reasonably arguable points of law are shown not to exist, it seems to us that the Tribunal at that stage could, and perhaps in their discretion would feel it appropriate to, entertain an application to strike out this appeal.