Appeal No. EAT/716/92
	I N T E R N A L	EAT/717/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1st July 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MRS M L BOYLE

	MR G R CARTER

MR P F J WINDMILL	APPELLANT

UK OPTICAL LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R WHITEHEAD
(Personnel Consultant)

For the Respondents	MR B CARR
(Of Counsel)
Messrs Lovell White & Durrant
65 Holborn Viaduct
London
EC1A 2DY

	HIS HONOUR JUDGE LEVY QC:  Mr Peter Windmill was, until 1986, working as a Warehouse Distribution Manager at the premises at Capitol Industrial Park in North London of UK Optical Company Limited ("the Company").  In 1986 Mr Peter Windmill was demoted to the position of supervisor but he still retained his salary and status.

	A time came when there was a redundancy situation within the Company.  By then Mr Windmill was an extremely long serving employee;  he had been there for some 43 years.  In about September 1991 the Company found it necessary to undertake a reorganisation of its warehousing and distribution department.  One of the effects of that was to lead to a fall in the number of supervisors required in that department.  At that time there were five supervisors so employed.  It was decided to reduce the number required to two.  One of the five, Mr Paul Collins, took the decision to leave in any event;  this left four supervisors who were in effect in competition for the two remaining posts.  Each of the four were seen and interviewed by Mr Davies, who had recently appointed as Sales and Marketing Director.  Having interviewed the four candidates, he made this decision:  Messrs Bourne and Saville would be retained in the post of supervisor;  Charles Windmill, the younger brother of Mr Peter Windmill, would be given alternative employment in a lower capacity, being simply a member of the warehousing and distribution team rather than a supervisor;  and that the Appellant should be dismissed.  He was then dismissed with effect from the 13th September 1991.

	The Appellant sent an Originating Application to an Industrial Tribunal on the 20th November 1991, complaining that he had been unfairly dismissed.

	 A Notice of Appearance was put in by the Company on the 16th December 1991.

	The matter was heard by an Industrial Tribunal at London (North) on the 15th May 1992 and promulgated on the 5th June 1992.  The Tribunal decided that it was reasonable for the Company to require four supervisors to compete for the two remaining posts; that the implementation of the decision for selection was reasonable in that each of the candidates was interviewed, and in each case the contents of their personnel file were looked at and taken into account;  and that the decision to select Messrs Bourne and Saville was taken on the basis of their ability.  The consequent decision to dismiss the Appellant was within the range of reasonable responses open to the Respondent as employer.  The Tribunal also concluded that the procedure used for arriving at their decision was a fair one.

	Following promulgation of the decision, the Appellant, by a letter dated 17th June 1992, applied for a review.  The application was refused on the 14th July 1992 under Rule 10(3) of the Industrial Tribunal (Rules of Procedure) Regulations 1985.  The grounds for the refusal was that it had no reasonable grounds of success.

	There are two appeals before us today, one is against the majority decision contained in the decision promulgated on the 5th June 1992, and one is against the Chairman's decision of the 14th July 1992 to refuse a review.  We will first approach the review decision.

	The application for review purported to be made on the basis of the interests of justice under Rule 10(1)(e) of the Industrial Tribunal Rules.  In fact, the nature of the application was such that it simply attempted to raise again matters which were dealt with at the Industrial Tribunal.  The points set out in the letter asking for review deal with matters on which the Appellant's representative, Mr Whitehead who appeared for the Appellant on his application, as he appears before us today, either did make, or could have made, at the Industrial Tribunal hearing.  On that basis the matter was not appropriate for review on the grounds stated by the Appellant.  Therefore the Chairman, we hold, was right to exercise his powers under Rule 10 of the Industrial Tribunal Rules.  The Notice of Appeal in respect of the review serves merely to underline the fact that the challenge to the Industrial Tribunal's decision was outside the scope of the review procedure in that it contends only that the Industrial Tribunal had misdirected itself in law.  If that was so, then the appropriate course is to appeal to this Tribunal.

	We now turn to the substantive decision against which the appeal has been mounted this morning.  The Notice of Appeal raises a number of criticisms of the Industrial Tribunal decision.  It is contended on behalf of the Appellant that this is an appeal on a point of law but on proper analysis the appeal is really based on a contention that the Industrial Tribunal decision was perverse.  In fact, on the basis of the evidence which it heard the majority were entitled to come to the conclusion which they did and we think that the conclusion was one that was justified in all the circumstances.  The Notice of Appeal makes a number of criticisms and some of those Mr Whitehead has developed today before us in argument.  First of all, it is said of consultation, that there was no consultation prior to taking the decision to dismiss and there was a lack of individual consultation on the question of the consideration of the Appellant for alternative employment and additionally there was no right of appeal.

	It is a matter for an Industrial Tribunal to decide whether or not in any given case consultation, or rather the lack of it, is sufficient to render the decision unfair.  In the present case, the Tribunal decided that given all the candidates were interviewed by the man taking the decision on redundancy or retention, a reasonable method was adopted.  There was evidence, (and we have got the Notes of Chairman's Evidence before us) that Mr Davies interviewed each of the four in turn and went through the reasons for the decision to reduce the number of supervisors.  The interview with the Appellant lasted for some 40 to 50 minutes.  We agree with Mr Carr that in those circumstances the majority were entitled to find that there had been adequate consultation.  There was no error of law in the majority's decision.

	So far as selection criteria are concerned at paragraph 7 of the Reasons state that:
"All the members of the Tribunal find that there was nothing wrong with the method used, namely asking all four supervisors to compete for the two jobs."

which were the jobs that were available.  The Industrial Tribunal found that the decision to appoint Messrs Bourne and Saville was based an ability.  Letters which were referred to in the Notice of Appeal were considered by the Industrial Tribunal which properly held that nothing turned on them.

	There is no error of law in the majority's decision.  The Notice of Appeal simply attempts to challenge findings of fact made by the Industrial Tribunal.

	As to alternative employment, once again no error of law is disclosed.  The Notice of Appeal simply seeks a "second bite at the cherry" on the question of the Appellant's selection for redundancy.  The Notice of Appeal suggests a categoric statement by Mr Davies that he did not seek out for alternative employment for the Appellant.  His evidence, which we have looked at this morning, was that there was no alternative employment within the Company and that he himself knew that.

	So far as concerns the offer of employment to Charles Windmill the Appellant's younger brother, the evidence before the Industrial Tribunal was that the Appellant was aware that this offer had been made but at no time suggested he could or should be considered for the post.

	As to the right of appeal, in the Notice of Appeal it is accepted that the absence of appeal procedure, particularly in a redundancy case does not of itself make the decision to dismiss unfair.  Furthermore, the Industrial Tribunal made a clear finding that in the circumstances of this case the procedure followed was fair.  This is stated in paragraph 10 of the decision itself.

	In general it seems to us that what the Appellant is trying to do here, as so often on appeal, is to overturn an Industrial Tribunal's decision on the question of reasonableness, on the basis of an alleged failure to follow the essential message of the well known decision in Polkey v. A E Dayton (Services) Ltd.  We find although they might perhaps have expanded the Reasons which were given to some extent, and certainly could usefully have expanded what the minority member findings were, that the Industrial Tribunal have made a clear finding that procedure adopted was fair.  Had they said that the procedure was unfair but the dismissal was not unfair because a fair procedure would not have altered the outcome, then the decision in Polkey might have been of importance.  However, that is not the case here.

	In the circumstances, while thanking Mr Whitehead for his careful submissions to us, and obviously, as the Tribunal below did, feeling sympathy for a man with 43 years service who has been made redundant, we feel there is no alternative for us other than to dismiss this appeal.