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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Traynor & Anor v Rigby Metal Components Ltd [1993] UKEAT 594_91_2012 (20 December 1993) URL: http://www.bailii.org/uk/cases/UKEAT/1993/594_91_2012.html Cite as: [1993] UKEAT 594_91_2012 |
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At the Tribunal
On 7th October 1993
Before
HIS HONOUR JUDGE J G HULL QC
MR J DALY
MR K M YOUNG CBE
2. MRS J KEOGH
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR B CARR
(of Counsel)
Messrs Rowley Ashworth
247 The Broadway
Wimbledon
LONDON SW19 1SE
For the Respondents MR W BIRTLES
(of Counsel)
Engineering Employers Federation
Broadway House
Tothill Street
LONDON SW1H 9NQ
HIS HONOUR JUDGE HULL QC This is an appeal to us by Mrs Traynor and Mrs Keogh against the decision of the Industrial Tribunal sitting at Leeds on 23rd July 1991. Both ladies had complained to the Tribunal that they had been unfairly dismissed by the Respondents, Rigby Metal Components Ltd of Cleckheaton. By their Decision promulgated on 22nd August 1991 the Industrial Tribunal dismissed both complaints.
The Tribunal found that the employers employed about 110 people altogether, about 80 of whom were shop-floor workers. Their business was the manufacture of industrial components. The Appellants were employed as press operators. Mrs Traynor had been employed as a secondary operator from 1981 and Mrs Keogh as a press operator from 1984. They were both dismissed on 11th January 1991.
In January 1991 the employers concluded that they were over-manned and that they should reduce the shifts worked. In one of the press shops where the Appellants worked, shifts were reduced from three to one; this was a decision which was arrived at after taking into account the number of people and the skills that would be required in future. The employers then concluded that the result of this reorganisation would be that there would be three too many operators. They therefore looked into the question of who should be made redundant. Of the various operators in the press shop, the Appellants and another lady were selected for redundancy on the basis that they had served for shorter periods than the other operators.
The Tribunal found that the employers had not agreed any procedure for redundancy with the Trade Union.
The Tribunal went on to find that on 10th January 1991 there was a meeting between the employers' management and Mr Hirst, the convenor. The management representatives, Mr Thomas, the operations director and Mr Bray, the production superintendent, set out their proposals and told Mr Hirst that in their view it was not practical or possible to train operators such as the Appellants as "setters", a much more skilled occupation; it appears that there was a shortage of setters. Mr Hirst made no objections to the employers' proposals.
Mr Thomas and Mr Bray saw the Appellants the next day and told them about the situation. The Appellants were told that they were being made redundant and that there was no other full time employment available to them; but they were offered temporary part-time employment, at lower rates, starting shortly afterwards. Although they were upset, the Appellants, having thought about it, accepted the new jobs.
More than a month later, the employers received a letter from the Trade Union stating that there had been "a failure to agree" with regard to these redundancies. This came as a surprise to the employers, because they had believed that both the Appellants and Mr Hirst had agreed to the proposed redundancies.
Having made these findings, the Tribunal had to decide whether the dismissals were fair or unfair. Clearly the Tribunal accepted the evidence given by Mr Thomas and Mr Bray; they accepted that management had found it necessary to reduce the shifts from three to one in the press shop and that that meant reducing the number of operatives by three. The Tribunal were satisfied that there was a redundancy situation, in that it could not be challenged that there was a reduction in the number of shifts and therefore a reorganisation.
Then the Tribunal, having found that the employees were redundant, had to decide under S.57(3) of the Employment Protection (Consolidation) Act 1978 whether in the circumstances (including the size and administrative resources of the employers' undertaking) the employers had acted reasonably or unreasonably in treating the redundancies as sufficient reason for dismissing the Appellants; that question of course had to be determined in accordance with equity and the substantial merits of the case. Having noted that there was no agreed procedure, and that the employers had acted on the basis of what they called the custom and practice which they had observed with previous redundancies, the Tribunal concluded that the procedure was "not unreasonable". They evidently accepted Mr Thomas' evidence that the procedure in the past had been to select in the "area" where the redundancies fell, in this case the press shop, and to take into consideration length of service, bearing in mind the future requirements of the employers regarding skills. Going on to consider the question of consultation, the Tribunal accepted that it appeared to the employers that the Union representative, Mr Hirst, was making no objection to what was suggested.
The Tribunal therefore concluded that the employers had acted reasonably under S.57(3) and that the complaints would be dismissed.
Mr Carr, who appeared before us for both the Appellants, did not challenge the Tribunal's conclusion that there had been a reorganisation leading to a surplus of three operatives in the press shop; but he questioned the Tribunal's conclusion that there had been a redundancy. He complained that the Tribunal had confined their attention to the work which the Appellants were carrying out in the press shop. He pointed out that Mrs Traynor had given evidence that she had done every job in the factory except in the tool-room and, until a week before her dismissal, had been employed elsewhere as a secondary operator. He reminded us that both Appellants were re-employed as part-time workers within a short time after their dismissal and said that this falsified the employers' statement that both women were redundant. He also invited attention to the fact that the employers had recruited part-time casual operatives and temporary full time operatives at the time of or shortly after the dismissal of the Appellants.
Mr Carr also submitted that there was no evidence as to the duties which the Appellants could be required to do under their contracts of employment; it was the duty of the Tribunal to apply the "contract test" in deciding whether or not there had been a diminution in the requirement for work of the kind which the Appellants were employed to do.
With regard to the duty of the Industrial Tribunal to consider the work which the Appellants were contractually employed to do, rather than the work on which they happened to be engaged at the material time, Mr Carr cited Pink v. White [1985] IRLR 489. He also referred to Williams v. Compair Maxam Ltd [1982] ICR 156 as authority for the proposition that the Tribunal was under a duty to consider such questions as whether the employers had given the maximum warning of impending redundancies, and whether they should have offered alternative employment before dismissing the Appellants. He submitted that it was obvious that the Tribunal had not paid any attention to these matters. The decision was particularly unreasonable in the case of Mrs Traynor, who had only arrived in the press shop a few days before dismissal.
Mr Birtles, who appeared for the employers, referred to Retarded Aid Society v. Day [1978] ICR 437, and particularly to what was said by Lord Denning at p.443G onwards and by Lord Russell of Killowen at p.444C onwards. Lord Denning cautioned against meticulous criticism of the Tribunal's reasoning, and wished to look at the decision "broadly and fairly". He also underlined the importance of hearing oral evidence, an advantage given to the Industrial Tribunal. Lord Russell observed "...I think care must be taken to avoid concluding that an experienced industrial tribunal, by not expressly mentioning some point or breach, has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits of the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine tooth comb for some point of law". He submitted that the Appellants' case was essentially an attempt to remedy defects in the way they had presented their case below.
With regard to the Appellants' submission that the Industrial Tribunal had not applied the "contract test", Mr Birtles said that this was not a point raised before the Tribunal and therefore we should not allow it to be raised before us; but he also said that there was no evidence whatever that the Industrial Tribunal had not applied this test.
We were asked to read the Chairman's Notes of Evidence and did so. It is clear that the Industrial Tribunal broadly accepted the evidence of Mr Thomas and Mr Bray. Mr Thomas referred to the need to reduce shifts in the press shop and told the Tribunal about the past practice of selecting workers for redundancy in the affected area. He said there was no alternative employment on a full time basis for the Appellants. He also gave evidence that the part-time work accepted by the Appellants was quite different from that which they had been doing as operators; it was "work of sorting". When he was cross-examined he said that it was not possible for the employers to transfer anybody from the press shop to another department and that the employers had too many operators.
Mr Bray gave evidence about the impossibility of training either of the Appellants, within a reasonable time, to be setters.
The Tribunal also heard the evidence of Mr Hirst, the convenor, that he had suggested various alternatives to the redundancies and that he did not believe that there was a redundancy situation, since various people had been taken on since the Appellants' dismissal. Mrs Traynor and Mrs Keogh gave evidence to which we have already referred.
Mr Carr, in his reply, complained that the Industrial Tribunal had recorded very little of the evidence. We must say that there appears to us to be no indication that the Chairman's Note has omitted anything material.
We have all come to the conclusion that the criticisms of the Industrial Tribunal's decision made by the Appellants are without foundation. The evidence given by Mr Thomas and Mr Bray showed, if accepted, that the employers had considered the question of full time alternative employment and found that there was none; that the Union appeared to accept what management were putting forward; and that there was no need for full time operatives. Management were applying policy based on past practice in selecting redundancies in the affected area among those with the shortest service record. It is also clear that the Appellants adduced evidence that there was in fact no redundancy situation and alternatively that there were a number of alternatives to dismissing the Appellants.
In those circumstances it appears to us that Mr Carr's submissions amount to contentions which could have been, and probably were, put to the Industrial Tribunal and which were most certainly rejected by them. We can find no indication whatever that the Tribunal overlooked the importance of considering the question of the work which the Appellants were employed to do; since that was not a matter which was ever raised, so far as we can see, the Tribunal was perfectly entitled to proceed in the broad and commonsensical way which it did. In particular, the mere fact that the Tribunal dealt shortly with the question whether the employers acted reasonably in treating the redundancy as sufficient reason for dismissing the Appellants is no indication that they overlooked any of the matters, such as immediate re-employment at a reduced salary, which the Appellants suggest were not considered by the Tribunal.
We have come to the conclusion that there is no error of law in the way these complaints were tried and decided by the Industrial Tribunal, or in the substance of their decision, and the appeals must therefore be dismissed.
