Appeal No.	 EAT/398/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR E HAMMOND OBE
MR J A SCOULLER

BALFOUR BEATTY RAILWAY ENGINEERING LTD	APPELLANTS

MR N MASTERMAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR D W CORCORAN
(Personnel Manager)	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether or not Balfour Beatty Railway Engineering Ltd have an arguable point of law in an appeal which they wish to make against the unanimous decision of an Industrial Tribunal held on 12th December 1997 at Newcastle-upon-Tyne, which decision was sent to the parties on 19th January 1998. The Industrial Tribunal unanimously concluded that the applicant had been unfairly dismissed in a redundancy situation. They were satisfied that the reason for the dismissal was redundancy, but they criticised the way in which the dismissal was effected, the warning of impending redundancy and the consultation process. 

	The applicant had been employed by Balfour Beatty on 14th March 1994 until his dismissal on 1st September 1997. The applicant was Planning and Quality Manager at the time of his dismissal. There was what is colloquially referred to as a “down-sizing” or as was put in argument a “down-scaling of the size” of the operation conducted by Balfour Beatty at their Darlington premises. That was common ground between the parties.

	The Industrial Tribunal set out in some considerable detail the way in which the dismissal was effected. They noted that:

“on 29th July the applicant received a letter dated 28 July from Mr Ravenscroft purporting to set out the basis of selection as the ongoing level of expected business and mix of skills considered necessary to ensure a cost of productive organisation. Apart from saying that a variety of factors were taken into account and that he was satisfied Mr Shepheard had carried out the selection process in a fair and reasonable manner, the letter gives no further information to indicate how Mr Shepheard had come to such a conclusion so that the applicant would have an opportunity to challenge it or indeed have any input to the effect of the decision on him;
...
	on Saturday 2 August 1997 the applicant received a recorded delivery letter from Mr Mike Smith confirming his redundancy and giving him 4 weeks notice effective from 4 August 1997. The letter advises him as to the monies he was to receive and of a right to appeal to Mr Chum which the applicant duly exercised by letter dated 4 August 1997. 
...
	the appeal was heard ... on 13 August 1997. ... Despite the applicant’s request to know why he was selected he was not told. He suggested that Mr Hicks and Mr Thompson who worked within his department should have been selected first.
	the meeting was adjourned for Mr Chum to discuss what the applicant had put to them. Upon returning on the afternoon of the same day Mr Chum told the applicant his appeal had failed. The applicant was then shown the documents ... The applicant did not have much time to consider and failed fully to understand the edited version of the documents. He tried to discuss them but Mr Chum said he was not prepared to discuss further.”

The applicant then filed his Originating Application and there was a belated attempt by Balfour Beatty to give him specific and precise reasons for his selection.

	During the course of the evidence the applicant gave a very detailed account as to his breadth of experience and indeed the experience of others with whom he had been compared. The tribunal noted that that evidence was largely unchallenged. In particular, they were satisfied, as a matter of fact, that included on the matrix of skills compiled by Mr Shepheard, was a Mr Hicks who had been brought into the department because he had been a personal friend of somebody else. He had been in the department only 15 months working under the applicant. He had had no previous experience in the railway industry, his experience of computerised planning systems was limited. Indeed, the tribunal found as a fact that his knowledge of planning was limited. His function had been limited within the department to sales order processing in which he had been assisted by Mr Sanderson. He had been unable to cope except by working excessive overtime. The applicant, himself, had asked that Mr Hicks’ overtime should be reduced, but that was not done and the result of the failure to do so was that Mr Hicks’ earnings would have exceeded those of the applicant who claimed to be and the tribunal accepted and said “was a vastly more experienced manager”.

	The tribunal in paragraph 6 directed themselves to the test that has to be looked at under s. 98(4) of the Employment Rights Act 1996 when there is an unfair dismissal application for them to consider. 

	They looked at the pool from which the selection for redundancy had been made and they accepted the pool as advanced by Balfour Beatty. They then went on to consider the selection criteria which, in broad terms, was that the skills necessary for the effective continuance of the business should be retained. The tribunal noted that that criterion is a perfectly fair one in itself. They then went on to consider not only whether it was chosen objectively, but was fairly applied. The tribunal went on to say:

“... It is in the area of application that we have concerns. We have also considered the degree of warning and consultation about the redundancy and whether any alternative work was made available.”

	As to warning, the Industrial Tribunal noted that the letter advising employees of the risk to their jobs pre-dated the letter advising the applicant that his own job was at risk by only one day. They expressed real concern about the effectiveness of consultation. They said this:

“... We are concerned that there was not sufficient information given to the applicant about the way in which the skills were assessed or the comparisons made with other employees to give him an opportunity of making any effective input to the decision that was made. Indeed it was only after, not only the decision had been made but also the appeal had been rejected that any information, that very limited in nature, was given to him at all. We are concerned about the lack of effective consultation.”

	The tribunal then correctly indicated that it was not for them to substitute their own view for that of the employer, but rather to look at the range of reasonable responses of an employer acting reasonably. They concluded:

“... We are satisfied that the response of the employer in this case does not fall within such a band of reasonable responses. The employer acting reasonably would have warned longer and consulted effectively giving the employees a proper opportunity of input into the process.”

	The tribunal then addressed their minds to the question which is raised under the Polkey decision, and they were entirely satisfied that if a proper consultation process had been carried out, a reasonable employer acting fairly, would not have dismissed the applicant, because of the largely unchallenged evidence about Mr Hicks. Accordingly, they were satisfied that it was not one of those cases where there should be a percentage reduction. They concluded by saying:

“The applicant has amply demonstrated to us his skills and we believe that a reasonable management would have also been convinced of that fact and when put together with the additional costs involved in employing Mr Hicks we feel that the argument is unanswerable.”

	In support of this appeal Mr Corcoran on behalf of Balfour Beatty, he being a Personnel Manager without legal qualification as we understand it, advances a number of arguments. 

	The first related to the conduct of the Industrial Tribunal during the course of the hearing. In accordance with out procedure Balfour Beatty were required to file an affidavit setting out any complaints they may have been making about the way the tribunal had conducted itself. We have the advantage of the Chairman’s comments on that affidavit.

	In brief, what is being complained about is that, first of all, the Industrial Tribunal were unfair in the way that they allowed the case to proceed, albeit that the applicant had only produced his bundle of documents at the last minute. Mr Corcoran confirmed to us that he did not invite the Industrial Tribunal to adjourn the proceedings to enable him to read the documents, and the learned Chairman indicates in his Letter of Comment, that there was a need to deal with documents at the outset of the hearing because the applicant had brought to the tribunal a bundle without copies, so that the start of the hearing was delayed to give the parties an opportunity to compare their bundles and to ensure that any documents missing from one bundle could be supplied. He noted that no objection was taken, and no suggestion made that either party was taken by surprise.

	Secondly, Mr Corcoran submitted that during the course of the witness’ cross-examination by Mr Masterman, the applicant, the witness was constantly interrupted and not allowed to finish his answers. Mr Corcoran indicated that he did not object to the way Mr Masterman was carrying out the cross-examination, largely based on his previous experience when he had intervened and a tribunal Chairman had, as he put it, slapped him down.

	It seems to us that there is no merit in this complaint. The Industrial Tribunal is quite capable of stopping unfairness if they feel that unfairness is occurring and will have taken into account in arriving at the weight to be attached to evidence the way the evidence has been elicited from the witnesses, including their opportunity properly to answer fairly put questions. Accordingly, it seems to us, that there is no merit in that point.

	The next criticism that was raised by Mr Corcoran was that the applicant was allowed to read out his evidence from a statement which he had in front of him but copies of which were not made available either to the tribunal or to the respondents. Mr Corcoran said he rattled through his statement so quickly that he, Mr Corcoran, was unable properly to record what was being said and there was a danger that he was thus not able to challenge all that he should have challenged, and hence he criticises the comments made by the Industrial Tribunal that parts of the evidence were largely unchallenged.

	It seems to us that that criticism is not fair. The applicant, as the Chairman has pointed out, did refer to notes prepared by him when giving his evidence. As the learned Chairman says:

“these were openly there and since he was unrepresented litigant the Tribunal had decided to allow him to make reference to them. He informed the Tribunal that on the advice of the Citizens Advice Bureau he had prepared a statement in this way. I do not accept that the evidence proceeded at a pace that prevented the respondent from making an adequate note or from cross-examining. The Tribunal was able to make its own note without difficulty and the respondent cross-examined at some length. Its representative was allowed to ask all of the questions that it wished and to challenge the applicant’s evidence. In addition, the Tribunal asked some further questions by way of clarification.”

In those circumstances, we are unable to accept that it is arguable that the Industrial Tribunal misconducted itself in any way in relation to the conduct of the proceedings.

	There is then a challenge to the decision of the Industrial Tribunal itself. It is, I think, argued that essentially the judgment which had to be made as to who should be selected for redundancy was a judgment which was best to be made by the employers and was one which the Industrial Tribunal could not legitimately interfere with. To that extent we consider that the argument that is being advanced by Mr Corcoran is an argument to the effect that the Industrial Tribunal have wrongly substituted their own view of the facts for that of the employer, whereas they should have been asking themselves all the time whether what the employer did fell within the band of reasonableness.

	It seems to us that if that is the criticism to be made of the Industrial Tribunal it is unsupported in fact. Looking at the tribunal’s decision it is plain that they have specifically directed themselves that they should not substitute their view for that of any employer and that they should ask themselves the question as to whether the employer’s reaction to all the circumstances which was one which fell within the band of reasonable responses. Accordingly, it seems to us to be unsustainable to argue that the tribunal has substituted in some way its decision for that of the employer.

	It seems to us that there are no grounds in law for challenging the decision of the Industrial Tribunal. In truth this is a case where the employers were unhappy with the conclusion of the Industrial Tribunal, but have not been able to persuade us that the conclusion has been tainted such as we can deal with it at an appellate stage. As I pointed out to Mr Corcoran at the beginning of the hearing, the powers of the Employment Appeal Tribunal are limited to correcting errors of law and looking at the decision of this Industrial Tribunal, it does not seem to us that there are any such errors.

	In his skeleton argument there was a reference to the subsequent remedies hearing, but we were informed by Mr Corcoran that there is to be, as we understand it, a separate appeal in relation to remedies. We are not sure what the position is in relation to any such appeal. The decision on remedies in contained in a written document dated 24th March 1998 which was sent to the parties on 30th March 1998. As Mr Corcoran is aware there is a 42 day time limit for an appeal. Whether there is an extant appeal, we were expressly invited not to deal with the remedies decision of the Industrial Tribunal and, indeed, we would not have felt able to do so, bearing in mind that the Notice of Appeal in this case is confined solely to the liability decision. Accordingly, on the liability decision, we being satisfied that there is no arguable point of law, the appeal will be dismissed.