MR NIKOLAY IVANOV v ADTRANZ SIGNAL (UK) LTD [2001] UKEAT 0220_00_0904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0220_00_0904Case No Appeal No. EAT/0220/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR NIKOLAY IVANOVAPPELLANTADTRANZ SIGNAL (UK) LTDRESPONDENT
Before
Mr Justice Hooper Miss C Holroyd Mr P R A JacquesDate 9 April 2001
[1]APPEARANCES For the Appellant MR A ELESINNLA (Representative) Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LX For the Respondent MR D BROWN (of Counsel) Messrs Morgan Cole Solicitors Apex Plaza Commercial Office PO Box 2898 Reading RG1 1GY THE HONOURABLE MR JUSTICE HOOPER This is an appeal against the unanimous decision of an Employment Tribunal, chaired by Mr J R Hardwick. The hearing took place on 3 days in December of 1999. Extended reasons were later sent to the parties. The Appellant drafted grounds of appeal, which were considered by the Employment Appeal Tribunal at a Preliminary Hearing. The Tribunal held that there was no merit in the grounds which the Appellant himself had drafted. However, Miss Robertson of counsel, drafted 4 new grounds, which were held to be arguable. It is with those 4 grounds that this appeal has been concerned today.[2]The facts are fully set out in paragraphs 3-13 of the extended reasons:
"3 The Applicant began his employment as a signalling engineer in December 1993 with Interlogic, a division of the former British Rail. This organisation was taken over in January 1996 by the Respondent. The Applicant was dismissed on the 5 March 1999 for reason stated by the Respondent to be redundancy. The Applicant complained that this dismissal was unfair and was also unlawful discrimination contrary to The Disability Discrimination Act 1995 (DDA). 4 In the summer of 1998 the Respondent had been suffering from a decrease in the level of its work. This was on account of a failure to win a number of major contracts and a change in investment focus from Railtrack, a significant customer, by reducing its spend on signalling and also the shelving of jobs already tendered for. Because of this decrease in activity and turnover the Respondent needed to reduce its overheads including reduction in its labourforce. 5 The Respondent consulted with TSSA, the relevant Trade Union, and agreed a selection criteria for redundancy based on job knowledge, quantity and quality of work, qualifications and reliability. In the event of equality between individuals length of service only then would be a determining factor. The Trade Union circulated its members with the facts of the redundancy proposals on 22 October 1998 (R276) setting out the selection criteria and the fact that there would be 90 redundancies. In the event there were in fact 98 redundancies out of a total workforce of 720. The Respondent also placed on the notice board a prepared statement of the situation (R281). Because of the reduction in signalling work approximately 50% of the redundancies would be from the Applicant's field., the engineering sector. In fact following the first round of redundancies which were effected at the latter part of 1998, save for the Applicant who was at that time on sick leave, there was a further round of redundancies in the following year so that out of an original 400 engineering employees these were reduced to 200 within a period of 12 months. 6 The assessments in the Applicant's area were done by Mr Case, who knew the Applicant but also had input from his previous Manager, Mr Hugh Roberts, over a period of time. Mr Case also consulted the Applicant's most recent Manager Mr Eldridge. The criteria referred to above is set out in R14 together with weightings and the three categories of weak competent or strong. The cut-off point score was 16 and the Applicant unfortunately achieved 14. The Tribunal saw one sheet of the selections (R17) showing various scores some above the Applicant and some below. Those unfortunate to be selected were advised that they were at risk of redundancy in November 1998. The Applicant had been away from work since July 1998 and was not told. 7 On 10 November Mr Case and Mr Church a Personnel Manager attended at the Applicant's home which was not an unusual procedure when an employee was absent from work due to ill health. Mr Case said that they were met by the Applicant's wife who said "please do not tell my husband that he is redundant it may kill him"
. This was disputed by the Applicant. The Applicant was in fact aware of the rumours of redundancy although it was not certain whether the Trade Union had sent him their letter (R276) which they had circulated to all members. The Applicant said that he had also heard of projected redundancies in the Trade Press. Mr Case thought that the Applicant was very pale and looked ill and concluded it would be wholly inappropriate to inform him at that juncture of his possible redundancy. Mr Case and his colleague focused on telling the Applicant that he had to get himself back to full health. He was to undergo an operation shortly for acoustic neuroma, which was a tumour in his ear, at a specialist hospital in Sheffield. As far as Mr Case was aware at that juncture the Applicant's problems related to angina and indeed the Applicant had had difficulties in that area. He was unaware of the acoustic neuroma problem. It seemed clear tot he Tribunal that the Company Managers were endeavouring to be positive to the Applicant at this meeting and it may have been that the Applicant thought the he was alright in respect of the redundancy situation. The Applicant referred to a comment that he was a 'golden duck' although the Respondent disputed this version. 8 The Applicant returned to work on 16 February 1999 and was seen by Mr Case on 17 February. He was consulted regarding his selection for redundancy and a letter was given to him (R61) which was, according to Mr Case, in the same format as given to those who were told of their selection in November 1998. The letter warned the Applicant of redundancy and that if no solutions could be found he would be redundant from 5 May 1999. The letter also set out a breakdown of his severance details. 9 The Respondent wrote to the Applicant on 1 March 1999 (R67) saying that no alternative work had become available and giving the Applicant formal notice of termination of his employment with effect from 5 March. The Applicant appealed against this redundancy decision (R67a) and a grievance hearing was convened on 5 March when the Applicant was represented by Mr Eddie Murphy of his Trade Union and the Respondent was represented by Mr Case, Ms Firth a personnel representative and there was also a secretary taking notes. The notes of that meeing are in R69-73 and were signed by the Applicant's Trade Union representative but not by himself. The Applicant's appeal was rejected (R74) and the matter moved to a second stage grievance on 30 March conducted by Mr A Wilson, Director of European Products and Mr Church, Personnel Manager with the Applicant being represented by Mr Murphy. Mr Wilson responded on the 9 April (R96) rejecting his appeal and dealing in some depth with the selection criteria. The Applicant had achieved the maximum points for the qualification criteria and indeed the Respondent had no truck with the Applicant's technical expertise. Where they were concerned was the application of such technical expertise taking into account customer requirements. Mr Wilson referred to an incident in July 1997 for which the Applicant had had a written warning (R24). The Applicant was cautioned for deciding to carry out work in a different way than directed. This counted against the Applicant according to Mr Wilson in the assessment under quantity/quality of work. The Applicant was advised that he could take an appeal to stage three to Mr O'Callaghan. The Applicant instituted a stage 3 grievance and referred to the fact that he had scored more than 88% in an exam at Derby which was the best score amongst all the engineers. 10 The stage 3 grievance was heard on 21 May 1999 when the Applicant was represented by Mr Smith of his Trade Union and the appeal was heard by Mr O'Callaghan with a secretary present for taking notes (R109)-112). Although the Applicant's technical qualifications were not in question for which he scored the maximum, the difficulty as far as Mr Case was concerned was the Applicant's tendency to question design requirements and a difficulty then in accepting instructions to get on with the job. It was this that made him unreliable in respect of satisfying customer demands. At this meeting it was disclosed to the Applicant his score of 14. The Applicant had referred to his 88% on the examination set by the College of Railway Technology in 1996 and asked whether any other engineer with a similar score had been made redundant. He also referred to proposals concerning the Respondent's products known as ebilock and ebicab. In relation to the latter, Mr O'Callaghan referred to a memorandum from Mr Binns, the Technical Director of 6 April (R98). He concluded that the Applicant's proposal had no place in the Respondent's development strategy, it was not fully thought through in commercial terms and Mr Binns would not want the Respondent to be associated with the publication of such a paper. He also stated that even if such a scheme were technically possible the cost would be prohibitive. 11 Mr O'Callaghan decided he needed further information from Mr Case who provided details of his rationale for the selection of the Applicant (R12-17). Accordingly the meeting was adjourned and a reconvened hearing was set for the 3 June 1999 (after some re-arrangements). Mr O'Callaghan stated that the Applicant's appeal was not successful and confirmed this in writing on 11 June (R1130). 12 The Applicant, in final conclusion, relied on the points made in his statement. He reiterated that the reason he was selected for redundancy was because he was away from work ill and because of his disability and this was why for so many months the Respondent had not told him his score. He had lost the possibility of obtaining an early retirement pension on ill health grounds. 13 Mr Brown submitted that the Respondent collectively consulted both with the Trade Union who also consulted with the membership. There were good reasons not to tell the Applicant of his selection on 10 November 1998 and if there was any error it was an error of compassion. The Respondent relied on R252 as the rationale for that meeting, a detailed dissection of the scoring was not appropriate as stated by the Employment Appeal Tribunal. The discrimination claim was not made out. Mr Case was the appropriate person to select the Applicant based on his knowledge and the input from Mr Roberts[3]We turn to ground 1. In Ground 1 it is submitted that the Employment Tribunal wholly misdirected itself in law when considering the Appellant's complaint of disability discrimination. It is submitted that the Tribunal misdirected itself on the weight of evidence and how to treat what was described as 'the unopposed evidence' in relation to the Appellant's two conditions of angina and acoustic neuroma. In paragraph 3(b) it was submitted that the evidence of Dr Forster was unopposed. There seems to be considerable doubt as to whether or not the report of Dr Forster was made part of the evidence in the case. What is clear is that the Appellant in his own statement set out the facts which, so he claimed, underpinned the complaint of disability discrimination. (Reference to that will be found in the IT1 at page 9 and also at 22 and also in the Appellant's statement at page 12 of the bundle, particularly in paragraph 4).[4]The relevance of the complaint about disability discrimination was this. It was the Appellant's case that he had been dismissed because of his absence from work due to his medical condition. His case was that whatever the Respondent might be saying about the reason for making him redundant, the real reason why he was selected for redundancy was because of his disability. In paragraph 12, which we have already read out, that point was being made strongly by the Appellant in his final submissions to the Employment Tribunal.[5]The Tribunal dealt with the complaint relating to the alleged disability in paragraph 15 of its extended reasons at page 6. That states that:
"15 We deal briefly with the complaint under DDA because we have to say we see nothing in this. For a start the Applicant had no real evidence to show that he had a disability within the ambit of section 1 and schedule 1 of the Act. It is for the Applicant on the balance of probabilities to show that he has a disability and he has not done that. Furthermore, at the time when Mr Case made the selection he had no knowledge of the Applicant's condition of acoustic neuroma for which he was to undergo surgery. Mr Case's view was that the Applicant was off work for problems related to angina. We also note that the Applicant raised no matters of discrimination under DDA at any of his grievance hearings. The claim under DDA does not get off the ground and is dismissed. We also note that had the Applicant been able to establish a disability the selection criteria for redundancy did not disadvantage him because attendance was not a factor."
As Mr Damian Brown, for the Respondent, submits, even if the Tribunal adopted an incorrect approach in the first part of paragraph 15, and that was not conceded, this ground fails, because of the last sentence of that paragraph.[6]The Tribunal heard the evidence as to why the Appellant was selected for redundancy. They make it quite clear that he was not chosen because of his failure to attend or because of his condition. They note in paragraph 22 that non attendance was not one of the factors that was being considered when "scoring" was being considered for the employees. In the light of that finding, which could not possibly be described as perverse, this ground must fail.[7]We turn to the second ground, namely:
"The Employment Tribunal misdirected itself on the effect on the fairness of the selection procedure including its grievance stages in relation to the issue of consultation of the withholding of the Appellant's scores until the final grievance stage was underway."
In a subparagraph can be found the following:
"In essence, the Appellant's scores were withheld from him until his stage 3 grievance, and that, it is contended, rendered the first 2 stages a sham."
Thereafter reference is made to an authority.[8]We have been provided with the documents that relate not only to the redundancy selection criteria but also to the scores achieved by the Appellant and others and by the detailed typewritten notes which came into existence at the stage 3 procedure. The scores show that he received a total of 14 points out of 30. Later it was determined that the cut off mark was 16. He scored badly on "job knowledge depth/breadth". He scored badly on "quantity and quality of work" and he scored badly on reliability. It was clear during the hearing that reliability did not take into account non-attendance on the part of the Appellant due to his condition. The detailed notes show why it was, in the view of Mr Case, that the scores were set as they were.[9]We have been referred in detail to the witness statement of Mr Case, which can be found at page 70 of the bundle. In paragraph 1 he sets out his "general managerial role". He explains that as a resource manager he was responsible for the organisation of the engineering and project management staff and equipment for the Plymouth and Reading offices of the Respondent. His job involved allocating people and resources to specific projects. In performing this role: "I was required to assess the professional skills of workers allocated to specific projects while considering the source levels for projects." (see paragraph 2) In his role as a resource manager he came to know of the Applicant. He had overall responsibility for allocating the Appellant to various projects. In paragraph 4 he deals with how projects are allocated and explains why the Appellant's manager would change from project to project. In paragraph 5 he explains his initial role in the redundancy selection. He explains how he "scored" the staff. In order to reach his conclusions he, in the Appellant's case, relied upon his personal knowledge as well as speaking to Mr Philip Eldridge. He applied the criteria which he had been given and he stresses something to which we have already made reference, namely that attendance records played no part in the assessment.[10]Mr Case assessed some 200 people as part of this exercise and, as in the case of the Appellant himself, he had personal knowledge of the vast majority of them. He explains how the Appellant had a sound academic pedigree and membership of the relevant professional associations, he therefore scored the Appellant with the maximum number of marks available for that "box" namely 6 out of 6. In paragraphs 13-17 Mr Case stated: "13 In terms of technical breadth and depth I assessed the Applicant as being weak and he scored three points out of a possible nine. The basis for his assessment was my view that the Applicant had difficulty in applying his technical knowledge to particular projects. I felt that where the project required specific application, the Applicant had shown a tendency to question the design or specification itself. I knew from experience that this made it difficult for me to allocate the Applicant to engineering projects because it is most important that when staff are allocated to projects they can be relied upon to perform tasks to meet specific criteria. Those criteria are established by the client and responsibility for implementation rests with the project manager. My view was that the Applicant had difficulty in matching his technical knowledge with specific commercial objectives. This view was confirmed in my discussions with Project Managers in confirming the mark I had provided on assessment. In confirming these marks I discussed my view and sought comment from other Project Managers. In particular I consulted Philip Eldridge who would have had direct experience of the work carried out by the Applicant. 14 In terms of quality of work the Applicant again scored three points out of a possible nine and was assessed as being weak. My view, which was again confirmed in subsequent discussions with Mr Eldridge, was that the Applicant's method was not conductive with the team work ethic which is essential for the successful management of engineering projects. The Applicant's tendency to modify or question established criteria meant that his work required close supervision. This was not in the context of technical supervision but rather to ensure that the Applicant's work complied with customer's requirements. This required extra work for the Project Managers. It was therefore felt that while objectively the quality of the Applicant's work could not be criticised from a purely engineering stand point it would have to be assessed poorly in terms of his work meeting commercial objectives. 15 In terms of reliability I assessed the Applicant as being weak and he scored two points out of a possible six. Reliability involved an assessment as to a worker's ability to deliver, flexibility, willingness to accept change, speed taking preventative action, punctuality and ultimate customer satisfaction. I knew from my own experience that the Applicant demonstrated an inflexible approach to his work. As I had already stated when considering the assessment the Applicant under the job knowledge criteria both myself and Project Managers considered that the Applicant inappropriately questioned the designs upon which he was required to work. It was my view that the Applicant did not appreciate that the Respondent's main obligation was to satisfy the customers. It was my view that where the Applicant had an idea which he wished to use on a particular project he would pursue his own idea rather than one stated specific objective for the project. 15 An example of this problem was an incident involving the Applicant during 1997 on a project at the Woking Fringeworks. This is referred to in the bundle of documents. On this project the Applicant questioned the nature of the work which had been allocated to him and sought approval of his own suggestions for the project outside the established lines of communications. I believe that this incident supported my assessment on both job knowledge and reliability. I felt it provided a clear example of the general experience of Project Managers with the Applicant. 17 The fact that the incident concerning the Woking Fringeworks is documented does not mean that this incident was a particularly grave or serious one and therefore worthy of documenting. Rather it was the case that such matters are rarely documented. However when discussing the Applicant with Project Managers I was of the view that this recorded incident was typical of the experiences of Project Managers had with the Applicant.[11]The thrust of the submissions before us were that the Respondent had failed in 2 particular respects. First of all it was alleged that the Respondent had not given the Appellant proper notice of the criteria that were to be applied. We find no merit in that submission. It is quite clear from the decision of the Employment Tribunal that the criteria were much discussed and that the Appellant's union was very heavily involved in drawing up the appropriate criteria. Whether or not the Appellant himself ever got a copy of the criteria, he being off sick at the time, matters not. They were clearly well known.[12]It is further alleged that the Respondent ought to have told the Appellant at some earlier stage that it intended to place some considerable weight on what happened at Woking/Weybridge. This was a reference to an incident which had occurred back in 1997. On 3 July 1997, Mr Case wrote a letter to Mr Ivanov referring to:
"some conflict of opinion about the work that you are doing for Mark [Lloyd] on the Woking project." the letter goes on: "
Mark Lloyd is the designated project engineer responsible for the Woking Fringeworks designed at the Reading office. Design strategy and planning is part of Mark's responsibility which is co-ordinated at Derby with assistance from other design officers, construction and the test department. There are good reasons why you have been allocated the work you are currently doing and how the Weybridge Fringe is being designed. The decision making process for the strategy does not concern you. You are to undertake work as directed by Mark Lloyd in his capacity as Project Engineer. You are warned that if there is another instance where you refuse to work as instructed or you decide to design something in a different way than is directed then disciplinary action could be taken against you." It is clear from what Mr Case was saying and from the decision of the Employment Tribunal that this was regarded as an example of a problem. It was not being suggested by the Respondent that this was a 'one off' incident, in the Respondent's case it was illustrative of a problem of which not only did Mr Case have knowledge but also other project managers. We have already cited paragraph 17 of Mr Case's statement, when he said that he was of the view:
"….that this recorded incident was typical of the experiences of Project Managers had with the Applicant." (page 74) What is now clear is that the Appellant came to know that some reliance at least was being placed on the Woking/Weybridge incident. That comes clear from a letter which we were shown today dated 15 April 1999, sent by the Appellant to Mr Wilson. The Appellant is complaining in the second page of the letter of the failure to mention earlier anything regarding the: "
Attitude on the Weybridge works".[13]The Tribunal reached the conclusion in paragraph 22 that the assessment was carried out in an:
"…. objective, structured and fair manner."
Mr Case was described as a fair and even handed manager whose evidence impressed the Tribunal. The Tribunal found that he had a very full knowledge of the Appellant's performance. At the stage 3 procedure the Appellant was represented by Mr Smith of his trade union. The grievance was heard by Mr O'Callahan who has also made a statement which can be found at page 60 onwards of the bundle. He explains in paragraphs 25 and 26 what happened at the hearing. Subsequently Mr O'Callahan stated that the Appellant's appeal was not successful.[14]Even assuming that the Appellant should have been told earlier about the Respondent's concerns, as expressed by Mr Case, and even if he should have been told about the reliance that was being placed to the extent to which it was upon the Woking/Weybridge incident, it seems to us that any ground of appeal relating to that is defeated by the conclusions reached by the Tribunal in paragraph 22. Given that conclusion and given that he had an opportunity at the stage 3 grievance to make his complaints, if any, known, we take the view that there is no merit on this ground.[15]The other 2 grounds can be dealt with very briefly. It is submitted as ground 3 that reliance should not have been placed at all upon the matter of the 3 July 1997, because of paragraph 19 of the relevant 1997 ACAS Code of Practice. That states:
"Except in agreed special circumstances, breaches of disciplinary rules should be disregarded after a specific period of satisfactory conduct."
We take the view that it was perfectly proper for the Respondent to take into account, as one of the factors when selecting those eligible for redundancy, events such as those described in the letter to which we have referred. In any event the letter cannot be described as a finding of a breach. We were told that there was no reply to the letter.[16]Finally it is submitted that the Tribunal erred in failing to deal with the Appellant's request on the first day of the hearing to call his wife as witness and produce a tape recording of the alleged conversation between his wife and Mr Case. This is a reference to a visit that Mr Case made to the Appellant's home on 10 November 1998. It appears that the Appellant would have been one of the 90 or so employees made redundant in November. The Respondent decided not to take that course because of the Appellant's condition at that time. Mr Case gave evidence that when he visited the home of the Appellant, Mrs Ivanov had said, "please do not tell my husband that he is redundant, it may kill him". The Tribunal accepted that words to that effect had been said. Given that it was submitted that a request had been made and had been refused, the Employment Appeal Tribunal asked for the comments of the Chairman of the Employment Tribunal which heard the case. We have seen a letter dated 21 September 2000, which will be found at page 25-26 of the bundle. Having regard to the contents of that letter, this ground also has no merit and in those circumstances this appeal is dismissed.