MR M G WILKS v DOWTY AEROSPACE HYDRAULICS [2001] UKEAT 1276_00_0205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1276_00_0205Case No Appeal No. EAT/1276/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M G WILKSAPPELLANTDOWTY AEROSPACE HYDRAULICSRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 2 May 2001
[1]APPEARANCES For the Appellant MR BRUCE CARR (of Counsel) Messrs Rowley Ashworth Solicitors 347 The Broadway Wimbledon London SW19 1SE MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Mr Martin Wilks in the matter Wilks v Dowty Aerospace Hydraulics . Today, Mr Carr has appeared before us for Mr Martin Wilks.[2]The chronology is that on 9 May 2000 Mr Wilks presented an IT1 for unfair dismissal. He had been employed from 1977 to 2000. In his IT1 he sets out some figures that emerged from a redundancy assessment and from a performance review and, speaking of the redundancy assessment of which he complained, he said: "I believe this procedure has been unfairly applied to myself. One notices there that the chief way of expressing the complaint is against the procedure rather than the criteria themselves.[3]On 2 June 2000 Dowty put in an IT3; they said, inter alia:
"On 3 February 2000 the Respondent announced a redundancy of 14 positions. Consultation began with the AEEU, the recognised trade union on that day. [then a little later in their last paragraph, 8] The Respondent contends that they acted reasonably and the decision to dismiss the Applicant on the grounds of redundancy was fair."
There then came a hearing at the Employment Tribunal on 28 July 2000. The decision was sent to the parties on 7 August. Mr Wilks had been represented at the hearing by his union. The decision, which was the decision of the Tribunal at Bristol under the Chairmanship of Mr C G Toomer, was unanimous and was that the application was dismissed. It was, of course, a dismissal for redundancy. The Tribunal in their extended reasons say:
"On the 3 rd February 2000 the respondent announced another round of redundancies. [They say that, having set out an earlier history of redundancy situations. They continue.] There was full consultation with the recognised trade unions and an agreement was reached that selection for redundancy should be done on basically the same basis as in 1995. [a little later, speaking of the outcome of the application of the criteria, they say] The applicant's score was 34 on this exercise; the details are at page 40 of the bundle. On the 14 th February he was told that he was at risk and he subsequently met Mr Holmes to explain reasons why he felt he should not have been selected. He subsequently appealed twice against his selection but those appeals were unsuccessful and his employment came to an end on 2 nd March 2000 with payment of redundancy payment and salary in lieu of notice."
He was then interviewed for another vacancy that had cropped up but he was beaten to it by another colleague who was also otherwise about to be made redundant. His case was that his score did not reflect his work. In paragraph 8 the Tribunal says this: "The applicant's argument is really very simple. He says first of all that the marking process, in particular on such matters as output and quality of work, was subjective and that no attempt was made to verify those assessments against any objective criteria. Moreover, he says that his scores on those two areas, which are 50% of the maximum available, are inconsistent with the scores which he had achieved only 6 months or so before in his performance appraisal when he had achieved 75% and 62½% of the maximum marks available. He does not suggest that there was any bias or bad faith on the part of Mr Holmes or of Mr McMahon, {those are the individuals conducting the assessment] he simply alleges that they had so plainly got it wrong that this amounted to an unreasonable selection. That passage too, emphasises that what was being argued below was not that the criteria were false or inadequate but that they had been improperly, unfairly or unreasonably applied.[4]The company, in answer, had said, at the Tribunal, and this is a finding of the Tribunal:
"The marks on the redundancy selection form reflect an honest and reasonable opinion of two experienced and unbiased managers who knew the men involved and their skills and attributes at the exercise when it was being carried out."
The Tribunal concluded in their paragraph 12:
"At the end of the day, we were unanimously satisfied that the marking exercise was carried out in good faith by experienced managers with personal knowledge of the applicant and the others with whom they were dealing and that it reflects their genuine and reasonable perception of the applicant's performance when measured against the criteria which were laid down for them. They may be right or they may be wrong, but we cannot say that they were unreasonable in scoring as they did. We have very considerable sympathy for the applicant. He was a perfectly satisfactory employee who has lost his job and it is not his fault; but we cannot say, having regard to equity and substantial merits of the case, that to dismiss for redundancy in these circumstances was unfair. For all those reasons we have, with regret, to dismiss the originating application."
That was the decision sent to the parties on 7 August. On 20 September, Mr Wilks lodged his Notice of Appeal.[5]It was plainly possible to be critical in some respects of the company's processes but there is no suggestion that the criteria were unfairly applied as between one man or woman and another. There is no finding that the criteria operated unfairly as against Mr Wilks. There is no finding that the criteria themselves were faulty but Mr Carr does make a point, in relation, in particular, to a passage found at paragraph 10 of the decision of the Tribunal; there, looking at the criteria, the Tribunal says this:
"Moreover, one of us at least was by no means sure that Mr Holmes could give any plausible explanation of what the difference is on the redundancy selection matrix between "makes occasional mistakes" for which you score 8 and "seldom makes mistakes" for which you score 12; or for the matter of that why the applicant should have fallen into one category rather than another."
That is not a finding that the criteria were inadequate; all it is is that one at least of the three members had that real doubt, but one cannot describe that as a finding that the criteria themselves were inadequate. Mr Carr then goes on to look at a passage in paragraph 11, where the Tribunal says, contrasting performance appraisal with redundancy assessment:
"The criteria for setting marks on the performance appraisal are very nebulous whereas the redundancy selection process sets out the particular descriptions of performance which are necessary to achieve any particular grading."
He says that plainly the redundancy selection process does not set out particular descriptions of performance which are necessary to achieve any particular grading, given that when it came to giving evidence, the relevant man, Mr Holmes, could not even satisfactorily explain (at any rate so far as concerned one of the three members) the difference between "makes occasional mistakes" and scoring 8, and "seldom makes mistakes" for which you score 12. It is a fair point to make. However, against that it is quite plain, from the case as a whole, that what was being argued by Mr Wilks below, and therefore what the Tribunal directed its attention to, was not the nature of the criteria, but their application. Had more emphasis been put on the faults said to exist in the criteria, no doubt a rather fuller finding would have dealt with it. We are quite unable to read the passages as indicative of some truly unreasonable shortcoming in the criteria that were used. No one has ever suggested that a company has to have criteria which, in every possible respect, are perfect. The question is whether they are, at any rate, reasonable for the job required. There is no finding and, as it seems to us, no ground for a finding, given the argument, that was presented below, to that effect.[6]Another point that is taken very reasonably by Mr Carr - and this is a point that was plainly developed as far as it could be below - is that there is an inconsistency between Mr Wilks' scores at the performance assessment and his scores at the redundancy assessment. As it seems to us, we are unimpressed by an argument that any such inconsistency leads anywhere. Two different processes are being done. The performance assessment does not necessarily have the comparative element that a redundancy selection has. Mr Carr emphasises that, insofar as cases involving discovery of colleagues' assessments are concerned, Tribunals, from time to time, say that a redundancy exercise is not comparative. One has to accept that that is sometimes the case. Nonetheless, where ten or fifteen men are competing for three jobs, or whatever the figures happen to be, a redundancy assessment is inescapably competitive between them and competitive in a way that performance reviews are not competitive. One does not show any material inconsistency by contrasting the results of one with the results of the other. Mr Carr, for example, points out that in the performance reviews Mr Wilks was improving his scores but, against that, it could well have been that his colleagues, competitors for retention of employment at Dowty, had been improving faster. So one can readily get to a situation in which, whilst the performance tests show him improving, he nonetheless is a suitable candidate for redundancy in the sense that his colleagues have improved faster. I give that simply as a possible example, rather than an indication of what was actually the case here, but it does make the point that inconsistency between the two is not necessarily indicative of anything significant and the Tribunal expressly found in their paragraph 11 as follows:
"On the other hand we were satisfied that not only were performance appraisals and the redundancy selection exercises two different processes, but they did not even start from the same point."
[7]The Tribunal below plainly had a good deal of sympathy with Mr Wilks' position; he had, as they said, lost his job without it being his fault. But they did say, in the passage that we have read, that the two individuals administering the system:
" may be right or may be wrong, but we cannot say they were unreasonable scoring as they did."
That, as it seems to us, satisfies the element of the criteria being properly applied and insofar as the argument was raised, if at all, that the criteria themselves were ineffective, we have been unable to find anything that shows sufficiently any error of law on the part of the Tribunal on that aspect of the case. What it comes to is that, notwithstanding Mr Carr's argument, we have been unable to find any arguable error or law and hence must dismiss the appeal even at this preliminary stage.