Appeal No. EAT/702/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3rd December 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MRS P TURNER OBE

	MRS M E SUNDERLAND

OGDEN AVIATION (UK) LTD
(formerly OGDEN ALLIED (GATWICK) LTD)	APPELLANTS

MR R V BISHOP	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A KOLODZIEJ
(Of Counsel)
Burstows
8 Ifield Road
Crawley
West Sussex
RH 11 7YY

For the Respondent	MISS L CHUDLEIGH
(Of Counsel)
Funnell & Perring
192/195 Queens Road
Hastings
East Sussex
TN34 1RG

	MR JUSTICE HARGROVE OBE QC:  Mr Bishop was employed by the Appellants at Gatwick in Passenger Services.  The Appellants' business derived 60% of its custom Air Europe Limited and the latter company ceased trading on the 8th March 1991 placing the Appellants in a precarious situation where both management and the unions accepted that redundancies were inevitable.

	Between 15th March and 25th March agreements were established.  The Respondent was selected for redundancy and on the 19th March he was informed by a letter that he was to be made redundant.  On the 25th March he appealed on the ground of unfair selection for redundancy and this was rejected on the 12th April, it was therefore common ground that the dismissal was on the ground of redundancy.  The question before the Tribunal was whether the selection was fair.

	The methods of selection were referred to by the Tribunal in the following terms:
"The selection criteria which was ultimately devised was that attendance records would be the first deciding fact or filter.  Those employees who within the previous year had been absent on 8 occasions regardless of the total number of days, or those who had been absent for 4 occasions or more totalling 18 days or more would be the first `batch'.  Thereafter, to achieve the necessary total to be made redundant, last in first out (LIFO) would be applied.  It was on the first basis that the applicant was selected.  He had been absent on 4 occasions or more totalling 18 days or more by reason of sickness absence. . .

6	Subsequently it was appreciated that the absence method of selection could produce an anomaly or unfair result in the case of an employee who had been absent in a one-off situation which was not likely to recur - appendicitis or an accident at work.  To meet that situation those who had been selected on the attendance record basis were given the opportunity to appeal to Mr Reed.  The applicant availed himself of that but his appeal was unsuccessful."

One of the misfortunes of this case is that the question of the attendance criteria and, what I am going to call the "anomaly rule", was never reduced into writing by the employers and the union, there may have been very good technical grounds for that, but nevertheless it did place the Industrial Tribunal in something of a difficulty.

	Prior to the appeal decision the Respondent was seen at the request of management by the Company Doctor on the 9th April.  The Doctor made a report which appears to have been in these terms:
"This patient told me he had had a certain amount of sickness mainly due to a skin condition, that is an abnormal number of persistently recurring skin cysts.  In addition he had had the operative removal of wisdom tooth in the last year.  At the time of the examination he was fit to work although I think that because of skin problems he may have a rate of sickness absence which is more than average.  In addition Mr Bishop is deaf.  His audiometry indeed shows a profound deafness in the left ear with considerable hearing loss on the right side also but he does remarkably well by lip reading. He therefore has only a minor dynamic hearing loss, as long as he can see the speaker."

It seems that the Doctor's report was not shown to Mr Bishop before the appeal was considered.

	The relevant findings of the Tribunal, in relation to what happened thereafter, are contained in the following passages:
12	At the end of March or early in April Mr Reed saw Mr Bishop who was accompanied by his Union representative.  We heard that in common with the other 4 who had appealed he was referred by Mr Reed to the company doctor to see if he was one of those whose case was anomalous - whether the criteria had produced what we will refer to as a false selection.  The applicant was seen by the doctor and the relevant part of his report to Mr Reed, that in respect of Mr Bishop, is quoted in the doctor's letter to him dated 18 April.  It was on the basis of the doctor's report that Mr Reed rejected Mr Bishop's appeal.

13	Accepting that Mr Reed had all the relevant documents in respect of the applicant's attendance and reasons for absence before him, it is difficult to see how he came to accept the doctor's report.  It refers to Mr Bishop having a condition which had in fact occasioned an absence of no more than one day (in the previous January).  There had been other absences for different reasons, including, in particular, a stomach operation which accounted for absence on 8 working days - there were rest days in the middle.

14	We find that to apply the `anomaly rule' fairly those 8 days should have been ignored or disregarded.  Had that been done, that would have put Mr Bishop inside the acceptable absence limit;  and it was conceded that if his case had been considered on the LIFO basis he would not have been selected."

The Tribunal went on to decide:
"that Mr Bishop was unfairly selected, and it follows that he was unfairly dismissed."

	The appeal falls into two major parts -  first it is alleged that there was a failure to apply the correct test and the Tribunal substituted its own views.  The band of reasonable responses test is so well known that it is difficult to believe that any tribunal these days fails to bear it in mind.  The Tribunal here correctly directed itself in relation to the Statute, which has been said by this Court in Iceland Frozen Foods Ltd v. Jones (1982) IRLR 439 must always be the starting point.  The Tribunal looked at the employer's state of knowledge, and what he did.  It considered the application of the employer's own rules and it would be wrong to find the Tribunal had substituted its own views and failed to apply the correct test by going through this decision with minute attention to particular phrases and carrying out the fine tooth-combing of those phrases which has been rejected so frequently, not only in this Court but also in the Court of Appeal.

	The second and major ground however, is that the Tribunal misunderstood or misapplied the "anomaly rule" and substituted its own rule.  I have already read those passages in the Industrial Tribunal's Reasons which set out the way in which the Tribunal regarded that rule.  The Appellant's contention is that the test of the one-off situation, which is not likely to occur, was to be used on each occasion of sickness.  In other words that unless each occasion of sickness so qualified then the rule did not apply.  If that was correct then it is possible looking at the fairly frequent absences of the Respondent that the position of the Respondent in the relevant category would have been very different from that to which the Tribunal found they were entitled.  The approach to the Industrial Tribunal is that it excludes those periods of sickness which could be regarded as being one-off and unlikely to recur and by excluding those from the computation one then calculated whether the employee qualified.  We do not accept the Tribunal formulated the wrong test.  There was here adequate evidence upon which they were entitled to reach the conclusion which they did and indeed, it is only fair to say, that there is precious little to substantiate that the approach which has been suggested by the Appellants to this rule.  We accept of course that the result of the "anomaly rule" as found by the Tribunal would place a number of employees who had had sickness at something of an advantage in calculating their qualification for redundancy.  Once the Tribunal had reached the conclusion that the Appellants had failed to follow their own rules, which had been agreed with the Union, it is not surprising that the Tribunal decided that the decision was unfair.  The band of reasonable responses, given that scenario, must be very limited.

	The final three grounds allege perversity.  Once established that the Tribunal's decision on the anomaly test is correct, the arguments on perversity become considerably weaker.  We have considered carefully the Chairman's Notes.  We trust we are not being discourteous to the eloquent arguments that have been placed before us, on behalf of the Appellant, if we say that in relation to ground 3, 4 and 5, of the grounds of appeal, upon considering the evidence the position does not come within hailing distance of establishing perversity.

	Accordingly, we are obliged with reluctance, to dismiss this appeal.  Our reluctance stems from the suspicion that had we three been sitting as the Industrial Tribunal we would, possibly unanimously, have reached a diametrically opposite conclusion.