Appeal No. EAT/715/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26th October 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR K M HACK JP

	MR P M SMITH

MR R G CRUSE	APPELLANT

CARADON MIRA LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R G CRUSE
	(Appellant in Person)

	

	MR JUSTICE KNOX:  The Appellant before us is Mr R G Cruse.  He appeals from a decision of the Industrial Tribunal sitting at Bristol on two days in 1992, the 12th May and the 16th July.  The decision was sent to the parties on the 20th August 1992 and it was that Mr Cruse, the Applicant, had not been unfairly dismissed by the Respondent, Caradon Mira Limited, which I will call "the Company".  

	The issues revolved around a redundancy situation which it was common ground between the parties did in fact exist at the relevant time and there are two principal points that Mr Cruse took before the Industrial Tribunal and which he has taken again before us today in the Preliminary Hearing for the appeal, on which of course the Respondents, the Company, are not represented.  Before I deal with those two principal points it is important to recall the jurisdiction of this Tribunal which is limited by Section 136 of the Employment Protection (Consolidation) Act 1978, which I will call the "1978 Act" to questions of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of a variety of Acts and in particular the 1978 Act. 

	The claim that was made in Mr Cruse's Originating Application presented to the Industrial Tribunal on the 9th April 1991 was described by him as:
"Unfair Dismissal
(Wrongful Selection for Redundancy)"

He was a Machine Tool Fitter in the Maintenance Department and his employment started on the 8th May 1984 and ended on the 22nd February 1991.  The two principal issues that Mr Cruse has raised before us are as follows:  First of all he submitted, that the basis for selection for redundancy which the Company adopted was not a permissible one, it was not "last in first out" - that is not in doubt - it was as the Industrial Tribunal found a points system which took into account length of service;  attendance record;  current job performance which was divided into quantity of work;  quality of work and job knowledge and flexibility.  We have, in fact, been shown what was before the Industrial Tribunal, namely the table that was used in making the assessments in course of operating that mode of selecting for redundancy and the criteria are listed as length of service;  attendance record;  current job performance and flexibility.  It is on flexibility that the second principal point arises.  On the table it has below it the following:
"Ability to do other tasks within and/or outside Section/Department."

The assessment factors that went with this system that was adopted by the Company included guide lines for completing employee assessments and one of those guide lines that those who were making the assessments were told under paragraph 7:
"Keep notes of the reasons for all your assessments".

and also under "Assessment Factors" Flexibility the fourth as well as the passage that I have just read "Ability to do other tasks within and/or outside Section/Department." one finds also the rubric under "Below Average" as being described as:
"capability virtually confined to own job with minimal ability to do other work".

	Mr Cruse's first point was that this was an inadmissible system altogether.  He departs from the proposition that "last in, first out" is a traditionally commonly operated system, although he accepts that it not universally applied, he claims that for a different system such as the one that the Company did adopt to be validly operated the work force should give authority for it and, in particular, where as happened here there were Union representatives who agreed with the Company for the particular system that was adopted to be put into operation any such agreement was ineffective to displace "last in, first out" unless it was authorised, at least by the Union members on whose behalf the Trade Union representatives must be taken to operate.  We have considered that point which in itself is, we accept, a point of law, but we are satisfied that there is in fact no validity in it because it departs from the proposition that it is a matter of contract what system of selection for redundancy has to be operated and that is, in our judgment, clearly a fallacy.  Redundancy is a situation which unfortunately overtakes, not only organisations that have contractual arrangements with their employees that specifically deal with redundancy, but is also apt to overtake organisations, usually smaller ones, which do not have contractual arrangements that deal with how redundancies are to be dealt with and there can be no doubt but that such organisations do, nevertheless, have a liberty to adopt a system of selection for redundancy so long as it is fair.  Whether it is fair or not, of course, is a matter for the Industrial Tribunal in the particular case to decide, but there is no principle that "last in, first out" is a system which has to be contractually displaced.  The validity of "last in, first out" is not a matter of law, as Mr Cruse himself accepted before us and there is, therefore, no question of there having to be a contractually effective substitute for it before such substitute can constitute a fair system of solving, what often is, a very difficult and ungrateful problem of choosing for redundancy.  We are therefore satisfied that the first main point is one which cannot succeed.

	The second main point was that, assuming, as follows from the failure of the first point, that the Company system was the one that was to be operated, Mr Cruse submitted both to the Industrial Tribunal and to us that the Company had in fact failed to abide by its own system.  There were two points that were elaborated by Mr Cruse in amplification of that proposition.  The first point was that the phrase "ability" in the passage that is to be found in the form under the word "flexibility" refers to capacity, whether intellectual or physical to do other tasks and is not, as a matter of English, capable of extending to the question of volition, as well as capability, i.e. whether the employee in question is not only able but willing to do other tasks.  The Industrial Tribunal came to the conclusion that ability was something that had the wider meaning.  What they actually say is this:
"One of the points which the applicant makes is that it is only right to assess flexibility on the ability to do other tasks rather than the willingness to do them.  Although the form refers to "ability" and not to willingness it seems to us perfectly obvious that what the company is concerned about is whether a person will do other jobs.  Whether their failure to do so is due to unwillingness or inability does not matter to the company.  We are quite satisfied that the applicant was inflexible and that the respondents reasonably believed that he was inflexible, that he was not prepared to do jobs which he considered not to be skilled jobs and that, equally, he was less than enthusiastic about any new jobs."

Mr Cruse attacks that line of reasoning primarily on the meaning of the word "ability" which does, of course occur, in the form.  Secondarily, on the approach of the Industrial Tribunal in looking at what the Company wished to do and was concerned about.

	As to the first point, the grammatical meaning of the word "ability" we are unable to find that there is an arguable case that it was an error of law to take the view that the word "ability" in the context in which one finds it, was capable of embracing questions of willingness to do the work as well as intellectual or physical capacity to do it.  One has, of course, to interpret English words in the context of which one finds them and this, when all said and done, is only a form which is to be filled in, and instructions that go with the form for filling it in, and we are quite unpersuaded that a person should be given high marks for flexibility if the circumstance was that he had the intellectual and physical capacity to do other jobs but was totally unwilling to do any other jobs.  We are not saying that that is the situation with regard to Mr Cruse but it is where Mr Cruse's argument has to lead him if, in fact, the strict grammatical view of the meaning of the word "ability" is to be given effect.  That we find, in company with the Industrial Tribunal, not to be an acceptable interpretation of a form which, when all is said and done, has to be made to work in the context in which one finds its used.

	On the second point about the approach with regard to whether it matters or not to the Company, we think there is some force in the way in which Mr Cruse puts the matter in his Notice of Appeal.  It does not in fact go to showing an error of law because, for the reasons we have already stated, we agree with the Industrial Tribunal in its interpretation of the phrase, but we think there is some force in what Mr Cruse says in looking at it, if that is what the Industrial Tribunal did, solely from the Company's point of view.  We would prefer to adopt the approach that we have sought to follow, namely, to look at it as a document that has to be given effect both from the employer's and the employees' point of view, and to try to see what is, in the context, the sensible way to interpret the phrase.  Obviously it is an important factor how the matter affects the Company but we would accept that it is also an important matter as to how it affects the employee as well.  But since we agree with the Industrial Tribunal in its interpretation there plainly is not an error of law in the result which it produced.

	That deals with the point regarding ability.  The second point with regard to failure to operate the rules, that Mr Cruse took before us, was that he pointed out, and indeed it is factually found as such in the Industrial Tribunal's decision, that the person who wrote on Mr Cruse's assessment form was not the person who made the assessment but was the Works' Engineering Manager, Mr Barker.

	Mr Cruse points to the fact that the guidelines include the direction to the person who makes the assessment, "Keep Notes of the Reasons for all your Assessments" and his says that those notes were not kept and that the comment that one finds on Mr Cruse's form, which reads as follows:
"is very inflexible, fixed ideas of job role"

is something which was not put on by the person who made the assessment.  We have to say that we find this an unduly mechanistic approach to the operation of the rules.  It may be that the wrong person wrote on the comments that are to be found there, but the Industrial Tribunal heard evidence from the persons involved in the making of that assessment and Mr Cruse had an opportunity of cross-examining those witnesses and although one particular person whom Mr Cruse, rightly or wrongly, suspects as being at the fountain head of the unfavourable assessment that Mr Cruse received did not give evidence, and therefore was not cross-examined, the other people involved, and in particular, the person who signed the assessment form, a Mr Pearce, were.  In those circumstances this particular point seems to us to be purely an issue of fact which was within the jurisdiction of the Industrial Tribunal and no issue of law arises upon it.  That deals with the two principal points that Mr Cruse advanced in the course of his appeal.  He has in his Notice of Appeal dated 15th September 1992, listed six particular grounds upon which the appeal is brought, and there are several that we have not yet dealt with in terms.  They are as follows:
"1.	They failed to understand the evidence (Para 2 Full Reasons)."

That is a reference to the issue that arose of how many machine tool fitters there were in the Company in the course of 1990.  The question is whether there were five or six.  Basically this is purely a question of fact.  We doubt whether it in fact goes to the heart of the decision, but whether that be so or not, it is undoubtedly a question of fact and does not, so far as we can see, raise an issue of law in respect of which this Tribunal has any jurisdiction to interfere.  We should record that there is, undoubtedly on any view, a slip in the Industrial Tribunal's decision, in that in paragraph 2 they record the comings and goings of particular machine tool fitters, and in particular they say that a Mr Nelson started in October 1990.  In paragraph 4 they say this:
"It has been suggested to us that it was highly unlikely in those circumstances that the respondents would have taken on any new fitters and therefore that the only reason for taking on Mr Pike in October was to pave the way for the applicant being dismissed at a later date.  We reject that evidence."

There is no doubt that the reference there to Mr Pike is impossible to square with what was said in paragraph 2 which was that Mr Pike started in June 1990 whereas it was Mr Nelson who started in October 1990, but that, we are satisfied, is a mechanical slip.  It is quite evident that what they really meant was "the fitter who started in October 1990" and they undoubtedly focused on what was the issue before them, a pure issue of fact, namely was the appointment of the new fitter, whether called Nelson or Pike is relatively unimportant, in October 1990, as Mr Cruse maintained, a step in getting rid of Mr Cruse, or was it as the Company and its witnesses maintained, the normal process of replacing a fitter who had previously retired.  The issue was the genuineness of the selection of Mr Cruse and the identification of the individual machine tool fitters seems to us to be a matter of unimportant detail though obviously the issue of whether it was a genuine appointment or an appointment on the way to getting rid of Mr Cruse is not a matter of unimportant detail, more especially to Mr Cruse himself.  However, we are satisfied that the Industrial Tribunal did address the right question which was - was Mr Cruse's selection in accordance with a fair system? - and on that this error in identifying the machine tool fitter in question, who was appointed in September 1990 seems to us a question of detail rather than of substance.

	The next point that needs to be dealt with is paragraph 2 of Mr Cruse's grounds for his appeal, which is described by him as follows:
"Failed to conduct the case impartially (at the hearing and interlocutory hearings)."

That is primarily, if not exclusively, directed to a confusion that appears to have arisen regarding the order of speeches and the extent to which Mr Cruse was to be allowed to make his submissions.

	The Company's witnesses came first and at the end of the evidence that Mr Jones gave Mr Cruse tells us he wished to make his submissions on the validity of the substitute system for "last in, first out".  The Chairman of the Industrial Tribunal decided, and told Mr Cruse, that that was not the appropriate stage which to make any such submissions.  We would observe in passing that that of course was clear by right because submissions come at the end of the evidence for the second party to give evidence.  So far, so good.  What happened next it appears was that it appears, was that Mr Cruse gave his evidence and was cross-examined on it, and he gave his evidence not only on the validity of the adoption of the "last in, first out, substitute system but also on the question of whether the Company had followed its own substituted rules.  At the end of that he then, as was his right, made his submissions which were in fact, as we understand him, limited to his first point, that is to say, the validity of the substitution of the Company's system for "the last in, first out"  system of selection.  He did not at that stage make his submissions on the second main issue, that is the extent to which the Company abided by its own substituted system.  The Company then, through its representatives, made its closing submissions, and at that stage the submissions were treated by the Industrial Tribunal as being at an end, although, in fact, Mr Cruse tells us he had not had an opportunity of addressing the Industrial Tribunal on his second main point, the failure of the Company to adhere to its own system.  We have taken that account from what Mr Cruse told us in the course of the hearing of this appeal and we have to say that it does appear that what amounted to a misunderstanding does appear to have crept in on that view of the facts.  But, of course, what we have to find is that the Industrial Tribunal committed an error of law and Mr Cruse, very properly and frankly said to us, that he did not have a clear personal recollection of exactly what was said on either side and he was not able to put the case so high as to say that the Chairman had, in the face of a protest by him, that he wished to make submissions on the second part of his case, prevented him making any such submissions.  That seems to us conclusively to show that there is not an arguable case for saying that there was such a failure to conduct the proceedings fairly as to amount to a miscarriage of justice and a requirement for the proceedings to start all over again.  On that basis we do not accept that ground of appeal.

	There was another technical point, which is the third of Mr Cruse's grounds of appeal, and that is that there was a wrong interpretation of a Rule of Procedure.  The Rule that is referred to is Rule 8(1) in Schedule 1 of the "Industrial Tribunals (Rules of Procedure) Regulations 1985", which Mr Cruse accepted, very properly, confers a discretion on the Industrial Tribunal regarding the admission of evidence which need not be admissible in a Court of Law.  Rule 8(1) reads:
"The tribunal shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings;  it shall so far as appears to it appropriate seek to avoid formality in its proceedings and it shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law."

There is, therefore, no doubt at all that the strict rules of evidence do not apply in industrial tribunals.  Mr Cruse's point on this is that the scales were not evenly held between him and the Company in relation to hearsay evidence regarding the collection of views from other managers or supervisors on Mr Cruse's assessment for redundancy purposes.  What appears to have happened from the Industrial Tribunal's decision is that the Industrial Tribunal did have before it evidence that other people's views on Mr Cruse's assessment were canvassed and that there was an appeal by Mr Cruse against his selection for redundancy.  In so far as the results of the canvassing of other management personnel was concerned by the Company's witnesses goes, it is clear that evidence was given by the person who spoke to the supervisors and that that person, a Mr Jones in fact, was available for cross-examination so that that end of the conversation so to speak, was available therefore for cross-examination and the persons who gave their views, or were said to have given their views, were identified.  When it came to Mr Cruse giving evidence, he was aware, he told us that one, if not more than one, of the persons who were said to have agreed with the somewhat unfavourable assessment that was made of Mr Cruse for redundancy purposes, did not in fact agree with that assessment When Mr Cruse came to give evidence he wished to give hearsay evidence of that fact, but there is this critical difference between the evidence that was given on behalf of the Company and the evidence which Mr Cruse wished to give on his own behalf, namely, that Mr Cruse, because he wished to protect the identity and the future work prospects of the supervisor in question, was unwilling to state who it was that said what he wished to give hearsay evidence upon.  We are satisfied that the two circumstances in which the Industrial Tribunal was called upon to exercise the discretion that it has under Rule 8(1) of its Rules of Procedure were not identical circumstances.  When hearsay evidence was admitted from the Company it was on the basis that the source of the evidence was identified and one end of the conversation was available for cross-examination.  When Mr Cruse wished to give hearsay evidence it was on the basis of unattributable hearsay evidence, and that does seem to us to make a very significant difference, and to make it quite impossible to say that there necessarily was an error of law in the exercise of the discretion in one direction in one case, and in the opposite direction in the other.  At the risk of repetition, we do emphasise that what there has to be shown is an actual error of law before this Tribunal has jurisdiction to interfere.

	We have already dealt with the main points that Mr Cruse made in relation to the selection of the system, and the operation of the system selected, and that covers the fourth ground of his appeal, and we need not repeat that.  There was one, as Mr Cruse very properly, frankly admitted, rather minor point that he took about the way in which the Industrial Tribunal phrased its decision in that he said, and he may be terminologically quite right, that he was misquoted when the Industrial Tribunal said:
"The applicant has severely criticised this meeting saying that these shop stewards were management stooges, that they were not properly elected and that they did not consult with the rest of the workforce."

Whether or not Mr Cruse used the actual expression "management stooges" seems to us to be a matter of marginal relevance to the actual decision, which is what we are concerned about, and we accept that he may well not have used that turn of phrase but that the decision was intended not so much to quote him as to give the effect of the evidence that he gave and on that basis it could not be criticised although it may be, terminologically, a misquotation.

	Finally, there was a point put regarding the genuineness of a requisition for a new machine tool fitter.  This goes back to the point dealt with earlier in this decision about whether there were five or six machine tool fitters during the course of 1990.  Mr Cruse submitted to us that a document that was put in before the Industrial Tribunal purporting to be a requisition for a further fitter to be recruited was a forgery because it was signed, with a signature that appeared to be that of Mr Barker rather than Mr Cradock, whose signature it purported to be, at a time when Mr Cradock was not a member of the Company.  This is a pure issue of fact and does not raise an issue of law.  If the Industrial Tribunal got it wrong and came to the conclusion that a document was genuine when in fact it was not a genuine document, that, in our judgment, is a factual issue with which we have no jurisdiction to interfere.  We are not of course, ourselves, expressing a view as to the genuineness or otherwise of the document, that would not be within our functions on any view of the matter.  We have therefore sought to go through and understand all the several grounds that Mr Cruse has advanced in the course of a careful and fairly lengthy discussion as to the merits of his appeal and having given the best consideration we can to the question whether an error of law can arguably be shown, we have come to the conclusion that it can not.  This Industrial Tribunal has, whether rightly or wrongly on the facts it is not for us to say, come to the conclusion (a) that there was a fair system operated and (b) that it was operated fairly.  In those circumstances it would do Mr Cruse no good to allow him to go forward to a full appeal we therefore dismiss the appeal at this stage.