Appeal No. EAT/222/92

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12 April 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MR L D COWAN

	MS S R CORBY

MR N CUMMINGS	APPELLANT

A B CONNECTORS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS M COOMBE-DAVIES
(OF COUNSEL)
Christopher Short
Solicitor
3rd Floor
USDAW Buildings
42 Charles Street
Cardiff CF1 4EE

For the Respondents	MR J BACON
(OF COUNSEL)
Warner Cranston
Pickfords Wharf
Clink Street
London SE19 9DG

	HIS HONOUR JUDGE PEPPITT QC:     This is an appeal from a decision of the Cardiff Industrial Tribunal made on the 18 December 1991.  The Tribunal's unanimous decision was that the Appellant had not been unfairly dismissed. 

	The Appellant's case before the Tribunal was that he had been unfairly selected for redundancy.  He was one of two managers in the Respondents' machine shop.  He had had twenty-one years experience and his record was unblemished.  The other manager in the machine shop was Mr Thomas.  He had had nineteen years experience.  His record too was unblemished, but the Respondents considered that he was better equipped than the Appellant to deal with the latest technological innovations.  For that reason the Appellant was selected for redundancy.

	Before the Tribunal the Appellant's submissions were confined to his allegation that his selection for redundancy had been unfair.  In summary, Miss Coombe-Davies, who represented him, submitted that her client had been made redundant by whim of the Respondents: she argued that, contrary to what the Respondents believed, the Appellant was up to date with modern technology.  The real reason for his redundancy was that his face did not fit.  
"The Respondents should have selected Mr Thomas for redundancy" 

were the concluding words of her final submissions.

	Before us Miss Coombe-Davies sought to argue three separate, but related points in support of the appeal.  First of all she submitted that there was at the time of the Appellant's dismissal no true redundancy situation.  Secondly, that the Appellant was unfairly selected for redundancy for the reasons which had been submitted to the Industrial Tribunal, and thirdly, that there were procedural irregularities which should have invalidated the Appellant's dismissal.  

	We deal with those three points in turn.  As to the submission that there was here no true redundancy situation, the evidence was that for a fortnight or so after the Appellant's dismissal, Mr Thomas carried out the functions of both himself and the Appellant.  Then a Mr O'Brien, an engineer in the employment of the Respondents was transferred to the machine shop as superintendent.  In that capacity the evidence according to the notes before us was that he carried out some, perhaps most, of the Appellant's late functions.  There is no evidence as to who carried out those of the Appellant's functions which Mr O'Brien did not carry out.  Nor is there any evidence before us at to what part, if any, of Mr O'Brien's old functions as an engineer, he continued to carry out.

	The problem we have is that this point was not taken before the Tribunal.  Nor were the Respondents witnesses cross examined to establish a framework for the submission that there was here no true redundancy situation.  We simply do not know what the true situation was.  There may well have been a perfectly satisfactory explanation for the transfer of Mr O'Brien.  The evidence called before the Tribunal was to some extent contradictory, and in our judgement is not the sort of evidence upon which a finding such as that contended for, could properly be made.  But the real obstacle, as we see it, in the Appellant's way is the decision of this Court is Jones v R M Douglas Construction Ltd [1979] ICR 278.  That was a case in which the employee, a general labourer, complained to the Industrial Tribunal that he had been unfairly dismissed in that the employers had not acted reasonably in selecting a man of his record and experience for dismissal on the grounds of redundancy.  His complaint was dismissed by the Industrial Tribunal.  Before the Employment Appeal Tribunal he sought to argue that his dismissal had been invalidated because the employers had failed to carry out the necessary consultations and it failed to warn him of the likelihood of his being made redundant before they dismissed him.

	The appeal was dismissed.  Mr Justice Arnold giving the judgement of the Employment Appeal Tribunal said at page 280G:

"So, if one finds offered to the Employment Appeal Tribunal the proposition that a case should be sent back to the industrial tribunal for consideration of a new point, which was entirely available below but was not taken (in this case, through inexperience or failure to appreciate its relevance) and that point is a point which would require evidence to enable it to be adjudicated upon and (as one must accept because plainly that is the case there) the failure to take it was not in any way attributable to the opposite party, ought we, in principle, to send the matter back for a new trial?  There is a good deal of authority in fact on this point which has not been offered to us; but our firm conclusion is that where the point is one, like this one, which does require evidence to be adjudicated upon, we ought not to send it back in those circumstances"

	In our judgement this is just such a case. It would not be possible for any firm conclusion to be reached as to the absence or presence of a true redundancy situation without our remitting the case to the Industrial Tribunal for further evidence.  We do not think it is appropriate to do that and accordingly we reject this ground of appeal.

	It is perhaps of some comfort, however, to the Appellant to know that notwithstanding the fact that the point was not pursued before the Tribunal, it was in fact considered.  In paragraph 1 of the decision the Tribunal found as follows:

"In fact however no evidence was adduced on behalf of the applicant that anything other than a redundancy situation existed in July and, therefore, we have not had to direct our minds to that question.  We are satisfied that the situation in the respondent company at the end of June/July was such as to make it essential that a cost cutting exercise be carried out and redundancies take place.  We believe that originally 81 people were selected for redundancy but as a result of discussions with the union 6 of those were saved so in fact 75 people out of workforce of approximately 450 were made redundant.  In passing we note that later this year in October, another 40 or so people had to be made redundant.  So we find no merit in the argument that there was not a redundancy situation.  Our minds have been directed principally to the question of selection"

	It seems therefore that notwithstanding the absence of any argument addressed to it, the Tribunal did in fact find that a redundancy situation existed.  There was in our judgement evidence upon which that finding could be based and accordingly on that ground too we reject the first of the three matters urged before us in this appeal.

	The second point taken by Miss Coombe-Davies on behalf of the Appellant, was that which she took before the Industrial Tribunal, namely that the Appellant was unfairly selected for redundancy.  She argued that it was clear Mr Thomas should have been selected.  She submitted to us that the Tribunal's failure to recognise this was a failure of which no reasonable Tribunal could be guilty, and accordingly the decision was perverse.

	In our judgement the selection of the Appellant, rather than Mr Thomas for redundancy, was eminently one within the ambit of a reasonable employer.  There were arguments for the retention of both men.  Both had long service, both were of unblemished record.  The only reason why Mr Thomas with marginally less service was preferred to the Respondent was that he was considered better equipped to deal with the application of the new technology.  That is a decision, which in our judgement, the employers were perfectly entitled to make.  All we have to say is that we consider it to be within the band of reasonable responses by reasonable employer.  We find it well within that band.  

	The third of the points urged in this appeal was, as we have indicated, that there were here procedural irregularities which should have invalidated the dismissal.  Specifically, said Miss Coombe-Davies, there was no warning, there was no consultation, and there was no consideration of whether alternative employment was or could have been offered to the Appellant.  This submission faces precisely the same hurdle as the first.  It was neither pursued, nor argued before the Tribunal.  The Respondents' witnesses were not given an opportunity to deal with any of those issues.  We have no idea what they would have said, if given that opportunity.  There could have been a perfectly good reason why no alternative employment was considered or offered.  There may have been justification for the absence of consultation.  We simply do not know.  We are therefore in precisely the same position as was this Court in Jones v R M Douglas Construction Ltd.  (Supra).   For the reasons given in that case we consider it would be wrong to remit this case for further consideration.  Accordingly we reject the Appellant's third ground of appeal too.  But again we record that notwithstanding that the point was not taken specifically, in paragraph 5 of its decision the Tribunal did of its own volition, consider the procedure adopted by the employers.  They came to the conclusion in the last sentence of the decision that though with the benefit of hindsight there were some steps which might have been taken differently, that did not alter their decision or their opinion that the selection of the Appellant for redundancy was not unfair.  On that ground too, we reject the third and last of Miss Coombe-Davies' submissions.

	In those circumstances this appeal must be dismissed.