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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kent v STC Submarines Systems Ltd [1998] UKEAT 721_97_1602 (16 February 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/721_97_1602.html Cite as: [1998] UKEAT 721_97_1602

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APPEARANCES

 

For the Appellant	MR D McCARTHY (of Counsel) TGWU 16 Palace Street Victoria London SW1E 5JD
For the Respondents	MR P ROSE (of Counsel) Messrs Blake Lapthorn Solicitors New Court 1 Barnes Wallis Road Segensworth Fareham PO15 5UA


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the Southampton Industrial Tribunal sitting on 18 February 1997, Mr Kent, against that Tribunal's unanimous decision to dismiss his complaint of unfair dismissal against his former employer, the Respondent, STC Submarines Systems Ltd. Extended reasons for that reserved decision were given on 15 April 1997.

The Appellant was employed by the Respondent as a cable operator at their Southampton site from September 1979 until the end of July 1995, when he was dismissed on grounds of redundancy. From 1985 onwards he was the senior steward/chairman of the relevant branch of the Transport and General Workers Union, the recognised union, and from March 1995 he was seconded for a sixth month period to work from the Southampton District Office of the Union as a stand-down officer.

By an Originating Application presented in August 1995 he complained that his selection for redundancy was due to his trade union activities, in contravention of Section 153 of the Trade Union and Labour Relations (Consolidation) Act 1992, alternatively, that the dismissal on the grounds of redundancy was unfair under Section 98 (4) of the Employment Rights Act 1996.

The material facts found by the Tribunal were these. On 22 May 1995 the Respondent announced that up to 85 jobs at Southampton were liable to be made redundant. There were then a total of 322 employees on site. The majority of jobs at risk were those of cable operators. Within that pool there were 9 trade union representatives, of which 2, the Appellant and a Mr Cansdale were ultimately made redundant.

The selection process employed by the Respondent involved an assessment of those in the pool in accordance with a point-scoring matrix under the headings "Skills and Job Knowledge, Performance, Flexibility, Attendance and Disciplinary Record". The assessments were to be carried out by four production managers. Volunteers were first sought. The managers met on 14 - 16 June 1995. The plan was to identify those at risk under the point-scoring system and to hold face to face meetings with each individual at risk, giving him an opportunity to make representations with a view to improving his score. There was then to be a series of dismissal meetings followed by a two-stage appeal process.

Consultations with the union took place. There was no agreement reached as to the selection process. Mr Kent attended the first consultation meeting held on 23 May 1995, and thereafter he was kept informed of progress. As a result of the consultation process, at a meeting held on 20 June, the union stewards requested that instead of face to face meetings relevant employees would receive letters informing them that they were at risk. That course was acceded to by the Respondent and we have seen a copy of the standard letter which was dated 26 June. The Appellant received such a letter.

Dealing with the Appellant's particular case, he scored a mark of 14 overall in the assessment. A score of 16 would have been sufficient to have avoided selection for redundancy. Within that total he scored only 1 out of 5 for attendance. His assessment record states "Numerous unrelated instances" in the comments box next to Attendance. In the overall comments section it is written:

"... a below average attendance record for unrelated instances over a period of years".

As to his attendance record, the Tribunal found that in 1994 the Appellant had 28 days absence, of which 24 days consecutive absence was caused by a bout of shingles. There was an unwritten policy of discounting certain reasons for absence such as extended periods of absence due to illness which absences were unlikely to recur. Had the shingles absence been removed from the count the Tribunal found the Appellant's attendance score would have moved from 1 point to 3, thereby saving him from redundancy. That was a matter to be argued by or on behalf of the Appellant during the course of the internal appeal process. However, the Tribunal found that he did not challenge the points scores, either at the original dismissal stage, nor at either of the subsequent appeal hearings.

Further, the Tribunal found that the Appellant had not participated fully in the Respondent's training programme due to his trade union activities, which clashed with training days, although they found that the employer could reasonably have concluded that he could have fitted the training in with his trade union obligations. Had he undergone more training his skill count, the Tribunal found, which was assessed at 2 points, might well have been higher.

Following the dismissal meeting held on 2 July, the Appellant appealed first to Mr Runkee who heard his appeal, after some difficulty in arranging a suitable time, on 22 July and subsequently his final appeal was heard by Mr Telford on 26 July. Both appeals were dismissed.

On those primary findings of fact the Tribunal concluded, in short, that there were factors peculiar to the Appellant's case which would or might have saved him from selection for redundancy, but he deliberately chose not to raise those points at any of the three internal meetings. He regarded the whole process with contempt. In these circumstances the Tribunal held that the decision to dismiss on grounds of redundancy was reasonable and that the selection was not by reason of the Appellant's trade union activities.

In this appeal Mr McCarthy argues on behalf of the Appellant that the Tribunal reached perverse conclusions in finding that the dismissal was reasonable, notwithstanding that the Appellant did not have a proper opportunity to prepare his defence and in circumstances where the Tribunal found that his inability to take part in training was due to his trade union activities and where the Tribunal found that his lengthy absence in 1994 was due to a continuous attack of shingles.

It is his case that these were all matters of which a reasonable employer ought to have been aware without representations being made by the employee, particularly where the Appellant had written to the Respondent on 7 July 1995, drawing attention to what he described as his unique position on secondment to the union from and since April 1995.

We remind ourselves that our jurisdiction to interfere with decisions of Industrial Tribunals is limited to correcting errors of law. For this appeal to succeed Mr McCarthy accepts that he must satisfy us that no reasonable Industrial Tribunal, properly directing itself, could conclude other than that no reasonable employer would have selected the Appellant for redundancy on the facts as found.

In our judgment the Appellant has not cleared that substantial hurdle. Mr Rose reminds us of the general principle in redundancy selection cases, this Tribunal having rejected trade union activities as the reason for selecting the Appellant for redundancy, set out in the judgments of Waite and Millett LLJ in British Aerospace Plc v Green [1995] IRLR 433. It is clear that the Tribunal found that the selection criteria were fair, and fairly applied by the Respondent. Almost inevitably mistakes will be made in a selection process affecting a pool of this size. That happened in the Appellant's case here. Where employers frequently fall down is in not giving the employee sufficient opportunity to put right those mistakes. That is not this case.

The Appellant had three separate opportunities to make representations as to his own assessment. To the Tribunal's puzzlement he deliberately chose not to do so. For example, at the first appeal hearing held on 22 July, part of his submission on appeal was summarised in a note made by the Respondent in these words:

".. does not wish to dispute assessment ratings, treats assessment with contempt."

It seems to us that the Tribunal regarded the Appellant as the author of his own misfortune. They were not prepared to characterise this employer's behaviour as unreasonable in circumstances where the employee was given the opportunity to put his case, and this Appellant was, as a lay union official, ideally placed to do so, and yet chose not to do so. We, in turn, are quite unable to say on these facts that the Tribunal's conclusion was perverse in any of the respects advanced by Mr McCarthy and accordingly, we shall dismiss this appeal.