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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Shipham & Co Ltd v. Skinner [2001] UKEAT 840_00_1312 (13 December 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/840_00_1312.html Cite as: [2001] UKEAT 840_00_1312, [2001] UKEAT 840__1312

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APPEARANCES

 

For the Appellant	MR THOMAS LINDEN (of Counsel) Instructed By: The Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MRS LINDA MUIR (Lay representative)


 


MR JUSTICE WALL:

1. This is an appeal by Shipham and Co Ltd (the Appellant) against a decision of the Employment Tribunal sitting at Hull on 13 and 14 April 2000, and promulgated on 23 May 2000. The Respondent to the appeal, and the applicant before the Tribunal, is Mr. D.E. Skinner (the Respondent), who by means of a Form IT1 dated 1 November 1999 claimed that he had been unfairly dismissed by the Appellant.
2. The Respondent complained that he was unfairly dismissed by the Appellant by reason of his selection for redundancy in consequence of health and safety duties which he had undertaken on the Appellant's behalf. The Tribunal decided unanimously that this complaint was not well-founded. However, it went on to decide by a majority that the Respondent's complaint that he was unfairly dismissed pursuant to the provisions of section 98 of the Employment Rights Act 1996 was well-founded. Matters of remedy were adjourned to a future Tribunal.

The Facts

3. We take the facts from the Extended Reasons given by the Tribunal. The Respondent had commenced his employment with the Appellant in 1969. He progressed from his original position as apprentice to supervisor in 1985. He was referred to in the proceedings as a Chargehand. At one time he had responsibility for as many as 50 other employees in a company with a total of 100 employees.
4. Some years ago (the date is immaterial) the Respondent became involved as a Trade Union Safety Representative and in 1994 he became the Appellant's Health and Safety Advisor. The Tribunal was satisfied that at that point he ceased to be a Trade Union Safety Representative. Although his principal role was as a Chargehand, he spent either one day or one afternoon a week on his health and safety duties. The proportion depended upon whether he worked during an ordinary working day or a night shift.
5. The Tribunal found that the Respondent took his role as Health and Safety Advisor extremely seriously and was concerned that the Appellant should take every possible step to protect its workforce. There was a suggestion that this might have brought the Respondent into conflict with senior members of the management but the Tribunal found little or no evidence that this was the case.
6. Although the Appellant appears to have been a successful company, it suffered fluctuations that are common in the engineering industry. There were redundancies in early 1999. At that time, following consultation with the unions, a series of relatively subjective criteria were adopted. In particular, no allowance was made for length of service.
7. When, in the summer of 1999 it became apparent that further redundancies were necessary, further collective consultation took place with the Appellant's two recognised Unions, the AEEU and the MSF. Very detailed notes of that consultation were contained in the bundle before the Tribunal and it was clear to the Tribunal that every possible step was taken by the Appellant to agree criteria and procedures with its recognised unions and, notwithstanding comments to the contrary, the Tribunal found that these matters were genuinely agreed before the individual selection process took place.
8. The Tribunal found that in common with most such exercises, the end result of the consultation exercise was that a matrix would be prepared. That contained the marks given by persons selected as qualified to assess the respective abilities of the persons contained in the pools of selection. In the January 1999 exercise, the Chargehands had been included in the same pool as the Machinists. Since the Chargehands were multi-skilled, the inevitable result of using that pool was that the Chargehands were effectively excluded from any possibility of selection. That was recognised by the Respondent himself.
9. In the summer 1999 round of redundancies, a pool of selection was adopted which contained only four Chargehands. The Respondent was one of these. Two of the four Chargehands were to be selected for redundancy. There were various other and different groups or pools of employees and, again in agreement with the unions, various different Managers were appointed to make the selections.
10. The Tribunal analysed the selection process in some detail. It is not, in our view, necessary for us to do so. It is, we think, sufficient for us to record the Tribunal's finding that although the Appellant went to some time and trouble to draft both assessment forms and guidance notes for use in the scoring exercise, it did not deal in those documents with the Respondent's position as a Health and Safety Advisor. It was the Appellant's position that the Respondent was being marked as against other Chargehands, and that he should be assessed as a Chargehand and nothing else. If he was, as was the case, a Health and Safety Advisor, that should not be held against him in any way nor should it assist him. It should simply be ignored. It was an entirely neutral factor or, more accurately, a non-existent factor. From the Appellant's perspective, this point is at the heart of this case.
11. The eventual outcome was that the Appellant had three separate sets of marks, and as the Tribunal found, either then or subsequently, it prepared a matrix. The Tribunal found it was not in dispute that, whichever combination of scores were used, the Respondent's average or total score was less than that of the two men who were selected to be re-trained. The Appellant was, accordingly, selected for dismissal by redundancy.
12. The Respondent appealed against his dismissal, and the Tribunal found that it was a comprehensive appeal properly conducted and that there was no reason for any view other than that the Appellant acted entirely reasonably in its conduct of the appeal. The Respondent then applied to the Employment Tribunal.

The relevant legislation

13. Mr Thomas Linden, for the Appellant, helpfully took us through the relevant legislation. He began with the Council of the European Communities Directive of 12 November 1989. Articles 11 of that Directive requires:

"1. Employers shall consult workers and/or their representative and allow them to take part in discussions on all questions relating to health and safety at work.

2 Workers or workers' representatives with specific responsibility for the safety and health of workers shall take part in a balanced way, in accordance with national laws and/or practices, or shall be consulted in advance and in good time by the employer with regard to -

(a) any measure which may substantially affect safety and health.

3 Workers' representatives with specific responsibility for the safety and health of workers shall have the right to ask the employer to take appropriate measures and to submit proposals to him to that end to mitigate hazards for workers and/or to remove sources of danger.

4 The workers referred to in paragraph (2) and the workers' representatives referred to in paragraphs 2 and 3 may not be placed at a disadvantage because of their respective activities referred to in paragraphs 2 and 3."

14. Article 7 of the same Directive provide that:

"1 The employer shall designate one or more workers to carry out activities related to the protection and prevention of occupational risks for the undertaking and/or establishment.

2 Designated workers may not be placed at any disadvantage because of their activities related to the protection and prevention of occupational risks,

5 In all cases –

- the workers designated must have the necessary capabilities and the necessary means,

- the external services or persons consulted must have the necessary aptitudes and the necessary personal and professional means, and

- the workers designated and the external services or persons consulted must be sufficient in number

to deal with the organisation of protective and preventive measures, taking into account the size of the undertaking and/or establishment and/or the hazards to which the workers are exposed and their distribution throughout the entire undertaking and/or establishment."

15. The Directive was implemented by what are now the Management of Health and Safety at Work Regulations 1999 and what are now sections 100(1) of the Employment Rights Act, 1996. That provision reads:

"100 Health and safety cases

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that -

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b) being a representative of workers on matters of health and safety at work or member of a safety committee –

(i) in accordance with arrangements established under or by virtue of any enactment, or

(ii) by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee. …"

16. The remaining statutory provision of relevance to this case is section 98(4) which, although familiar, we will set out:

"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

Smiths Industries Aerospace and Defence Systems v Rawlings [1996] IRLR 656 EAT.

17. Since the Tribunal's decision focused substantively on this case, we propose to introduce it at this point. The facts were very similar to the instant case. Mr Rawlings was employed by Smiths Industries as a setter/operator, and had been elected as a Health and Safety Representative by his fellow members of the AEEU. He became Chairman of the Health and Safety Representative Committee in 1993 and spent about one third of his working time on Health and Safety issues. The remaining two-thirds was spent on production duties as a machine operator.
18. In November 1994 it became necessary to make three of the 15 machine operators in Mr Rawlings' department redundant. For the purposes of selecting those who were to be made redundant, the employers devised a weighted points system involving seven criteria based purely on performance in the department. Those carrying out assessments, the foreman and the machine shop superintendent, were specifically instructed to disregard activities outside an employee's production role. On the basis of his assessment under that system, Mr Rawlings came out third from bottom. The areas where he scored poorly were current job performance, achievement of targets and outputs of work, and quality and standard of work. Although his rating was increased slightly on appeal, it was not enough to save him from selection for redundancy and he was dismissed with effect from 9 December 1994. He subsequently presented a complaint of unfair dismissal, alleging that he had been selected for redundancy because of his health and safety activities.
19. The Industrial Tribunal concluded that Mr Rawlings' health and safety activities did not contribute in any material way to his selection for redundancy and, therefore, sections 57(a) and 59 (now section 100(1)(b)) did not apply to render his dismissal automatically unfair. However the Tribunal went on to find that his dismissal was unfair under what is now section 98(4) of the Act of 1996 because, in carrying out the selection exercise, the employers had disregarded his performance of his health and safety duties which took up one-third of his working time. The Tribunal found that the criteria by which Mr Rawlings had been assessed had no possibility of recognition of skills and other qualities shown by him during one-third of his working time. It continued:

"We do not think that any reasonable employer could properly adopt these criteria when considering for selection for redundancy an employee who has, in effect, two jobs, one occupying two-thirds of his time and one one-third of his time."

20. On appeal to the Employment Appeal Tribunal (Judge Peter Clark, Lord Gladwin of Clee and Mr J C Shrigley) the decision of the Employment Tribunal was reversed. We take up the EAT's conclusions at No.5 in paragraphs 38 - 44:

"38(5) The importance of the role of health and safety representatives cannot be underestimated. It has, as a result of the Directive and subsequent domestic legislation, increased in importance.

39(6) However, the protection against dismissal in a redundancy exercise, afforded to health and safety representatives, is neutral. They must not be disadvantaged, for example … [by] (negative discrimination). Equally, they are not entitled to be advantaged over their fellow employees in the selection pool (positive discrimination). The argument advanced by [Counsel for Mr Rawlings] in this case amounts, in our judgment, to a claim for positive discrimination.

40(7) Health and safety representatives duties are not carried out as a 'second job', as the tribunal found. A mechanism exists to provide health and safety representatives, appointed by a recognised trade union, with paid time off to perform those duties. It follows that those duties do not form part of the employee's duties performed under his contract of employment.

41(8) Contrary to the tribunal's finding at paragraph 21 of the reasons, there is no material distinction, so far as employment protection is concerned, between the duties of a trade union health and safety representative and the duties of a trade union shop steward, or other employee taking part in the activities of a trade union.

42(9) Just as it would be invidious to assess a shop steward on the way in which he carries out those duties on behalf of his trade union and its members, it would be equally wrong to carry out such an assessment on a part-time health and safety representative, either in his favour or against him.

43(10) It follows, in our judgment, that the tribunal was entitled to conclude that there was here no breach of sections 57A and 59 of the 1978 Act. However, it fell into error in rewriting the employer's redundancy selection criteria to include an assessment of Mr Rawlings' health and safety role.

44 For these reasons we shall dismiss Mr Rawlings' appeal and allow the employer's appeal."

The application of Smiths Industries Aerospace and Defence Systems v Rawlings to the instant case.

21. The application of Smiths Industries v Rawlings to the facts of the instant case caused a division of opinion between the members of the Tribunal. They were unanimous that on the facts of the case, and applying sections 105 and 101(1)(a) to them, the Respondent could not show that the principal reason for which he was selected for dismissal was that he was designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety work. As they state expressly in paragraph 20 of the Extended Reasons, there was no evidence whatsoever to support that contention. On the contrary they held all the evidence pointed in exactly the opposite direction. It was clear that the Respondent was well thought of and highly regarded as a Health and Safety Advisor. It was equally clear that there was a genuine redundancy situation, and that the Respondent adopted a system which was designed to select for redundancy using well settled and clear criteria. Accordingly, since there was no basis for the Respondent's complaint that he enjoyed the special protection given to a Health and Safety Advisor under sections100 and 105 of the Act, his specific complaint under section 100(1)(a) had to be dismissed.
22. That, however, was not the end of the matter, because the majority took the view that insofar as dismissal under what is now section 98(4) was concerned, Smiths Industries was not binding upon them. The majority of the Tribunal accepted Counsel's argument that Smiths Industries was a case on its particular facts and related specifically to a Trade Union Health and Safety Representative. The Reasons continue in paragraph 24:

"24 … The majority note the reference to the duties of a health and safety representative which are 'not carried out as a second job'. In the instant case, the Applicant's duties were carried out as a separate job. He received an additional payment from the Respondent in recognition of those duties. He had a business card, describing him as the Safety Advisor. He was required to and did attend certain courses in that capacity and, say the majority, it was an important part of his overall position and responsibilities with the Respondent company."

The Reasons continue:

"25 Accordingly, the majority hold that Mr Plaout's submission on the Smiths Industries case is correct. Mr Plaout contended that, whilst a health and safety representative might be treated in a neutral manner, the same did not apply to a health and safety advisor. The decision in Smiths Industries, he contended, was limited to a person who claimed the protection of Section 100(1)(b) and did not apply to a person who is protected by Section 100(1)(a). Since we have found as a fact that the Applicant was a health and safety advisor and not a health and safety representative, the Applicant's position is different from that of Mr Rawlings. He has the second job to which the EAT referred in passing and he should be treated in exactly the manner in which the Industrial Tribunal in Smiths Industries found to be correct … . Effectively, the majority held that there should be positive discrimination. This Applicant carried out duties over and above that of the other Chargehands and he should obtain some credit for those duties. Not to do so was unfair to him."

23. The Reasons then go on to give the minority view in these terms:

"26 The minority view was that the starting point of the analysis was Section 105(3) which effectively provides that there is a potentially unfair dismissal if the reason or principal reason for which the employee was selected for dismissal was one of those specified in Section 100(1). Sub-section (1) of Section 100 contains six separate sub-sub-sections. Sub-section 1(a) relates to the position of a health and safety advisor; sub-section 1(b) relates to a health and safety representative; sub-section 1(ba) protects employees taking part in consultation under the 1996 Regulations or the election of representatives under those Regulations. Further examples are not required. The minority's point is that all of those various categories of employees receive exactly the same protection under Section 105 and Section 100. It is not therefore correct to give additional protection in a redundancy selection exercise to this employee simply because, in addition to his Chargehand duties, he has duties as a health and safety advisor. There should, according to the minority, be the level playing field envisaged by Section 100 throughout the selection process. …"

24. The Tribunal then went on to decide that the majority view had to prevail and on that basis all three members of the Tribunal took the view that there was no difference between the instant case and the approach adopted by the Industrial Tribunal in Smiths Industries. If the Appellant should have exercised positive discrimination and failed to do so the Appellant clearly gave the Respondent no possibility of his skills being recognised and other qualities shown by him during anything between 1/10^th and 1/5^th of his working time, both of which were sufficiently large, in the Tribunal's view that they should properly be taken into account. They concluded their reasoning in these terms:

"27 … No reasonable employer could properly adopt those limited criteria when considering the selection for redundancy of an employee who has, in effect, two jobs. As appears from the quotations above, we have simply adopted the reasoning of the earlier Industrial Tribunal. On that basis, the majority would hold that the Applicant was unfairly dismissed. That is because, contrary to the Applicant's principal submission, the Respondent did not act reasonably in treating the reason for the dismissal as a sufficient reason. The dismissal is unfair under Section 98(4) of the Act and not automatically unfair under Section 100 and/or Section 105."

25. Mr Linden principal submission on behalf of the Appellant was that since neither the Directive nor the Regulations dealt with Employment Protection, one could not spell out of section 100 of the 1996 Act a greater duty on the employer under section 100(1)(a) than under section 100(1)(b). He argued that the Tribunal erred in law by losing sight of the statutory question which it had to ask and answer in determining whether the Respondent was unfairly dismissed within section 98(4) of the 1996 Act. Rather than ask whether, having regard to the circumstances, it was within the range of reasonable responses to dismiss, the Tribunal saw the issue as being whether there was a duty to discriminate positively in favour of the Respondent. Having decided, as he submits incorrectly, that there was such a duty, the Tribunal took the view, erroneously, that it necessarily followed that the dismissal was unfair.
26. As indicated in the previous paragraph, Mr Linden argues that the Tribunal was wrong in law to differentiate between employees designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work who are protected under section 100(1)(a) of the 1996 Act, and employees who are the representatives of workers on matters of health and safety who are protected by section 100(1)(b). In the case of the former, the Tribunal had held that there was a duty to discriminate positively. That, Mr Linden argued, was wrong in law.
27. However, whilst contending that no distinction was sustainable between the two categories on a proper construction of section 100 of the 1996 Act, Mr Linden argued that the real point was that the true construction of section 100(1)(b) was not the issue once the question of automatic unfair dismissal point had been decided. Rather, he submitted, the question was whether the dismissal was fair or unfair within the meaning of section 98(4) as interpreted by the well known authorities of BL. Cars Ltd v Lewis [1983] IRLR 58 and British Aerospace plc v Green and Ors [1995] IRLR 433. The question which the Tribunal should have asked itself, submitted Mr Linden, was whether, having regard to the overall picture, a reasonable employer could have dismissed the Respondent on the basis of his skills as a Chargehand and without taking into account his skills as a Health and Safety Advisor.
28. Mr Linden argued that the effect of the Tribunal's approach was that it failed to consider or make findings in relation to the Appellant's reasons for assessing candidates for redundancy on the basis of their qualities as Chargehands. The Appellant had taken this approach because it wished to act consistently as between the four Chargehands under consideration and because it wished to identify its two best Chargehands for the purposes of its future operations. Having considered the matter, it had therefore concluded that the Respondent's health and safety activities should not place him at an advantage, particularly given that they were not relevant to his qualities as a Chargehand.
29. Finally, Mr Linden submitted that the result of the Tribunal's approach was that it wrongly substituted its own view that the Respondent should be given credit for his skills as a Health and Safety Advisor for the view of the Appellant that he should not. In effect, it rewrote the selection criteria which had been devised after consultation and agreement with the recognised trade unions, rather than asking whether a reasonable employer could adopt the approach taken by the Appellant.
30. For the Respondent, Mrs Muir adopted the reasoning of the Tribunal and the skeleton argument put in by Mr Skinner in person. Mr Skinner plainly felt strongly that as only 80% of the duties he performed had been included in the selection procedure, he had been disadvantaged by performing his Health and Safety duties. Regardless of the type of duty, some account, he argued, should have been taken of them during the scoring process.
31. Mrs Muir also pointed out that it was artificial to divide up the Respondent's duties in terms of days or hours spent on his Health and Safety responsibilities. It was pointed out on his behalf that in the part of the week he was employed as a Supervisor he was seen as the person to deal with Health and Safety issues, and was used in a consultancy role by other Supervisors, Managers and Directors in a similar way to that which the knowledge and experience of the Inspection Chargehands was used by himself and others in quality issues. He argued that it was unfair for the knowledge and experience of the Inspection Chargehand to be taken into account when his expertise in Health and Safety issues was not.
32. Mrs Muir took us to the criteria and pointed out that nowhere in the company's selection procedure did it state that "extra paid duties" were not to be included, nor was there any evidence of this being the case with other employees. On the contrary, it was argued, the company's own selection criteria gave advantage to extra duties. We were pointed to a number of examples of this.
33. Mrs Muir also made the point on Mr Skinner's behalf that he had not been given the opportunity of continuing as the Health and Safety Advisor for one or two days a week and made the point that he was almost immediately replaced, at great expense, by another Health and Safety professional employed for two days a week. His position was further contrasted with those of other employees who had been re-employed.
34. Mrs Muir's overall submission was that Mr Skinner had been negatively discriminated against, and that his contract had to be considered in its entirety. In short, Mr Skinner had been placed at a significant disadvantage because only 80% of his duties had been taken into account: that did not apply to the other persons in the pool for redundancy.

Conclusions

35. We are satisfied that the Tribunal in this case fell into error, and that its order cannot be sustained.
36. We can see no reason in principle to distinguish between the protection which is afforded to persons who come within section 100(1)(a) of the Employment Rights Act 1996 and those who come within section 100(1)(b). Accordingly, insofar as the Tribunal sought to draw a distinction between the two sub-sections, it was wrong.
37. We agree with the conclusions numbered (1) to (9) set out in paragraphs 34 to 43 of the decision of the EAT in Smiths Industries Aerospace and Defence Systems v Rawlings. In particular, its conclusion in reason 6 that "the protection against dismissal in a redundancy exercise, afforded to health and safety representatives is neutral" applies, in our judgment, equally to employees who fall within section 100(1)(a). Like those within section 100(1)(b) they must not be disadvantaged by negative discrimination: equally they are not entitled to be advantaged over their fellow-employees in the selection pool (positive discrimination). In our judgment, the decision by the Tribunal in this case is that there should be positive discrimination applied to section 100(1)(a) was an error of law.
38. Whilst there are plainly factual distinctions between employees who are representatives of workers on matters of health and safety (section 100(1)(b)) and those who are designated by the employer to carry out activities in connection with prevention or reducing risks to health and safety at work (section 100(1)(a)) those factual differences do not require a difference of approach when consideration the protection required against dismissal in a redundancy exercise.
39. In our judgment the Tribunal regarded what it perceived as the failure to exercise positive discrimination as effectively determinative of the "unfairness" issue under section 98(4). In this respect, in our judgment, it fell into error in two material respects. Firstly, it did not address the statutory criteria within section 98(4)(a): and secondly it undoubtedly substituted its own view of what was fair and unfair rather than considering the question of whether the dismissal lay within the range of conduct which a reasonable employer could have adopted.
40. For all these reasons, the appeal must be allowed and the decision of the Tribunal set aside. The question which remains is whether or not we should dismiss the Respondent's application or return it to a different Tribunal for adjudication. We are clearly of the view that the Tribunal should have dismissed the application, and that were the matter to be returned to a different Tribunal it would, on a proper application of the law, come to the same conclusion. In these circumstances, we see no purpose in remitting the matter for rehearing for a different Tribunal and the Respondent's application will be dismissed.
41. We were addressed at the conclusion of the argument by both Mr Linden and Mrs Muir on the question of permission to appeal. Whilst we are aware that Smiths Industries case has been the subject of some academic criticism, and whilst this case raises what we believe to be an interesting point of law, we take the view that it must be for the Court of Appeal to decide whether or not it wishes to entertain any appeal from our decision by the Respondent, and accordingly permission to appeal our decision is refused.