Appeal No.	 EAT/442/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 September 1997

Before
HIS HONOUR JUDGE J HICKS QC
MR D CHADWICK
MR S M SPRINGER MBE

CONTINENTAL TYRE GROUP LTD	APPELLANTS

MRS I HOLMAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR ANDREW GLENNIE
(of Counsel)
Messrs BP Collins & Co
Solicitors
Collins House
32-38 Station Road
Gerrards Cross
Bucks
SL9 8EL	

JUDGE J HICKS QC:     Mrs Holman was employed by the Appellant employers, Continental Tyre Group Ltd, as a secretary.  The company had headquarters divided between Rugby and West Drayton, but in June 1996 they acquired new premises at West Drayton and decided to centralise the head office functions in that location.  The results of that and a review of office practices was that there were 7 secretarial jobs to be reduced to 4½.  Two of the vacancies were met by voluntary redundancy, but there was still a redundancy situation which had to be dealt with.

	Mrs Holman had been the secretary to the Marketing Director, but under the reorganisation the job of secretary of Marketing Director and that of secretary to the Managing Director were to become one, so that Mrs Holman’s job was in that sense, as the Tribunal put it, subsumed into the joint post and redundant.  She was dismissed at an interview on 18 June without warning or consultation and there is no appeal against the Tribunal’s decision that that was an unfair dismissal.

	The Tribunal went on to find, as recorded in their Decision that there was a 100% chance that, if the employers had acted fairly Mrs Holman would have been retained in their employment as a Grade 5 secretary.  Nobody has explained what Grade 5 means, but it was the grade she occupied.  It was not apparently the grade of the new joint post as secretary to the Managing Director and Marketing Director, because that is referred to as a promotion.

	The grounds given by the Industrial Tribunal for that conclusion are in paragraph 15 of their reasons:

“15 ... there is a chance amounting to 100% that the Applicant would have been offered the new joint position ... if the Respondents had taken reasonable steps to protect the Applicant’s position.  Our first reason for so concluding is that, if the Applicant had been given the work which was being done by the temporary secretary, [whom they had referred to and who was working with a Ms Model who gave evidence] the Respondents would inevitably have found out, if they did not know already, while the Applicant was still in their employment that the secretary to the Managing Director intended to resign ...”

	That is a reference to a Miss Lushey, who held that position and who was promoted to the new joint position, and who did in fact resign within a month or two of the dismissal of Mrs Holman because of difficulties of health and length of travel.

	The Industrial Tribunal go on to say:

“If the Applicant had been retained by the Respondents doing the work done by the temporary secretary, she would therefore have been in a position to apply for the vacant post.  The second reason is that we think it overwhelmingly probable that, if the Respondents had asked Miss Lushey about her plans, they would almost have certainly found out that she did not intend to remain in the Company’s employment for much longer.”

	It seems to us that that is really a clear conclusion that Mrs Holman would have reached the position of joint secretary, but that that might have happened by following one of two routes.  The first route is the possibility that when the redundancy arose she would and should have been preferred to the temporary secretary in the job that the latter was doing, and that she would therefore have been in that post when Miss Lushey in fact resigned and would have taken her place.

	The second route is that had the employers made proper consultations and enquiries at the date of the redundancy they would have found that Miss Lushey was likely to be in a position where she would resign shortly, and an arrangement would have been reached whereby Mrs Holman stepped immediately into the new joint position and Miss Lushey left.

	The Industrial Tribunal do not, of course, say and could not say precisely which of those routes would have been followed, but they clearly find that there was a 100% chance that one or the other would, and that is the basis for the decision which I have already referred to.

	The case for the Appellants is that that shows an error of law and it is put in two ways; the first is that there were contradictory findings by the Industrial Tribunal and the second is perversity.  In fact the arguments advanced on the perversity point, in our view, are precisely the same as those that are advanced on the inconsistency point and it is the inconsistency point which we really need therefore to consider.  

	The first inconsistency alleged by Mr Glennie, for the Appellants, is between the words of the decision that there was a 100% chance that Mrs Holman would have been retained as a Grade 5 secretary, and the reasons in paragraph 15, which I have summarised, which show the Tribunal finding that, either immediately or when Miss Lushey did in fact in the event resign, Mrs Holman would have been promoted.  We see no inconsistency or error of law there.  To find that the Applicant, Mrs Holman, would have retained her job as a Grade 5 secretary is not inconsistent with a finding that when the matter is looked at in detail she would either have done that or done better, and so there is nothing in that point.

	The second inconsistency alleged is that the findings and the reasons which I have summarised are contrary to the Tribunal’s finding that one of the ways in which the employer failed to act fairly was that there was a failure to canvass the possibilities of further volunteers for redundancy.  The Tribunal, however, when assessing the chance that Mrs Holman would be retained, say that the extent to which an appeal for further volunteers would have been met is pure speculation and it is therefore clear that they placed no weight on that and that does not enter into their assessment of the 100%, so there is no conceivable inconsistency there.  Paragraph 15, which I have already summarised, plainly proceeds on the assumption that there are no volunteers and that therefore only Mrs Holman, the temporary and Miss Lushey have to be considered.

	The next alleged inconsistency is that there is a finding by the Industrial Tribunal that the Managing Director did not want Mrs Holman as his secretary.  There is indeed such a finding, but the employers also gave evidence through Ms Model that Mrs Holman had various deficiencies which did not equip her for the job of joint secretary of the Managing Director and Marketing Director; she was alleged to have been abrupt in her telephone manner, and to have lacked self-confidence and other qualities required to carry out the job.  The Tribunal expressly rejected that evidence and that, of course, is a matter for them and cannot possibly found any allegation of error in law.  What is left then is a situation in which Mrs Holman is being considered for the joint post, either immediately or on Miss Lushey’s departure a couple of months or so later.  She is, on the Tribunal’s finding, a fit person for the post, notwithstanding that it amounts to a promotion, and the only reason why she would not have been appointed at that stage is that the Managing Director did not want her, for some unspecified reason, and in a situation where all the reasons which have been advanced on behalf of the employer have been rejected.

	It cannot possibly be the case, and no authority was cited to us to suggest that it is the case, that when assessing the chance that an unfairly dismissed employee would have been retained the employer can rely on what amounts to an allegation that, even in those hypothetical circumstances, not having committed the unfairness which founded the original finding, the employer would have committed some further unfairness; in this case the Managing Director’s personal likes and dislikes in the face of Mrs Holman’s fitness for the job.  The fact that that cannot possibly be a proper objection, or a proper matter to be taken into account can easily, in our view, be assessed by supposing the situation where the worker is not a secretary but a shop floor worker, and where the person whose personal dislikes come into the equation is not the Managing Director but a foreman.  Nobody would conceivably suggest that, in those circumstances, the fact that a foreman had a personal dislike to the employee, and that therefore the employee’s chance of being kept on were nil, was a proper matter to be taken into account in assessing the chances.  The chances must be assessed on the basis that the employer acts fairly.  That alleged inconsistency in the Tribunal’s findings therefore also falls away.

	That disposes of the specific errors into which the Tribunal is alleged to have fallen, and we find no arguable case that they were in error in any of those respects.

	The perversity ground adds nothing in our view; we are certainly not of the opinion that, whatever our own views on the matter may be, this was a decision which no reasonable Tribunal, properly directing itself, could have reached, and we therefore dismiss the appeal.