Appeal No. EAT/169/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 February 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR P DAWSON OBE

	MR J C RAMSAY

MR M O'DEA	APPELLANT

ISC CHEMICALS LTD T/A RHONE-POULENC CHEMICALS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J McMULLEN 
(OF COUNSEL)
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London WC1N 3HA

For the Respondents	MR P ROSE
(OF COUNSEL)
Messrs Holt Phillips
Solicitors
11/12 Queen Square
Bristol BS1 4NT

	JUDGE LEVY QC:  Before we embark properly on the arguments in this appeal, Mr McMullen has raised as a preliminary point, an objection to Mr Rose introducing to the supplementary bundle we have, two witness statements which were before the Tribunal below.  Mr McMullen accepts the witness statements were before the Tribunal below but says we do not have the benefit of notes of the cross-examination of those witnesses. This is because the Chairman was requested to send notes which went to the issues on the Notice of Appeal.  He sent his notes which, as Mr Rose points out, are not altogether terribly intelligible at first sight at any rate to those who were not there before and he did not include the passages of cross examination.  The notes were sent to the parties as long ago as last May.  If, says Mr McMullen, Mr Rose now wants to have evidence before us which was there below, we should have all the evidence on the subject including the cross-examination and in that context he refers us to the case of Piggot Bros & Co Ltd v Jackson [1991] IRLR 309.  

	Mr Rose says that last week on 9 February his instructing solicitors wrote a letter saying the extra evidence which they wanted to come before the Tribunal which included these two witness statements and no objection was taken to that until this morning.

	We see the force of Mr McMullen's objection but we think it would be helpful for us to have the two witness statements albeit that we are not going to have the benefit of the notes of the cross-examination.  We will make all allowances for that.  We say this for two reasons; first of all, as we understand the Notice of Appeal, that the evidence in the two statements may become material and we think it will help us to understand the Notice of Appeal the better if we see the two statements and secondly, there is a subsidiary issue which we may come on to later in the day which if we come to it, will require us seeing these statements in any event.  It will be highly artificial in those circumstances for us not to see them at the start.  

	In the circumstances we think it right to accede to Mr Rose's application that we should see the two statements but we will bear in mind Mr McMullen's point that we do not have the benefit of cross-examination on them if and so far as we look at them in the course of argument.  We are glad to hear that even if we do not have the Chairman's notes of cross-examination of most witnesses.  Mr McMullen has agreed that we should have the notes of cross-examination taken by the Respondents' Advocate.

	_______________

	The Appellant appeals from a decision of the Industrial Tribunal sitting at Bristol on 18 and 19 December 1991, the decision being sent to the parties on 4 February 1992.  The Tribunal found that the Appellant had been unfairly dismissed and held that the Respondents should pay him £1,670.36 compensation.

	Before turning to and considering the decision of the Tribunal in the light of the Appellant's Notice of Appeal, it will be helpful to rehearse sections of two statutes to which we were referred.  When the Tribunal sat, the statutory provisions with which this appeal is concerned were contained in the Employment Protection (Consolidation) Act 1978 ("the 1978 Act").  By the time this appeal was heard, the Trade Union & Labour (Consolidation) Act 1992 ("the 1992 Act") had come into force and material sections in the 1978 Act had been repealed by that Act.  The 1992 Act contains sections derived from and replacing some in the 1978 Act.  Much of the law in this appeal turns on the provisions of sections 152 and 153 of the 1992 Act, which were formerly parts of sections 58 and 59 of the 1978 Act.  In this judgment we shall refer to the sections in the 1992 Act rather than to their equivalents in the 1978 Act.  It was common ground that there is no change in the substance of the sections in the two Acts, so far as concerns this Appeal.

	We have been provided with two bundles of documents for the purposes of this appeal.  When reference is necessary we shall refer to the two bundles as "the Appeal Bundle" and "the Exhibit Bundle".

	What led  to these proceedings was the decision by the Respondents to restructure its Avonmouth site in a way which was expected to lead to about 70 redundancies.  Its proposal was made known to its staff on 12 February 1991.

	The Appellant's position in the Respondent Company was set out in paragraph 2 of the Full Reasons (page 7 of the Appeal Bundle):

"The applicant had been in this employment since 1971.  When his employment came to an end he was employed under a contract of service as a TSO [a Technical Services Operator].  In fact he did not do that job at all.  Instead he worked as an IPO but spent at least 50% of his time on trade union activities.  Therefore whilst he was nominally employed under a contract of service as a TSO his actual employment was not in that capacity but as an IPO [an Isceon Packing Operator] and a trade union official."

	Before considering the decision of the Tribunal, we wish to refer to the submission made by Mr McMullen, Counsel for the Appellant, that such findings are seriously flawed, not least because the Tribunal failed to pay heed to the definitions of certain words which are defined for the purposes of both Acts in S153(i) of the 1978 Act ("the Definition Section") and in the Reasons, the word "position" is used 23 times and in 4 different senses.  It was not suggested that the Tribunal was referred to the Definition Section; there is ample authority to suggest that this Tribunal should not scan the decisions of an Industrial Tribunal as if it was construing a Statute.  We have had no difficulty in understanding what was meant by the Tribunal in the findings contained in the Reasons.  We do not think that the Definition Section need play any meaningful part in the determination of this appeal.

	As lodged nearly two years ago on 10 March 1992, the Notice of Appeal succinctly states the grounds of appeal in paragraph 5:

"The grounds of appeal are that the Industrial Tribunal erred in law in its interpretation and/or application to the facts of this case of S.59 [153 of the 1992] Act.  Further, or in the alternative, the Industrial Tribunal came to a decision to which no reasonable Industrial Tribunal, properly directing itself on the facts and the law, could have come."

Particulars of the grounds are then given.

	The nature of the Appellant's case below appears from 4 paragraphs in his Application to the Industrial Tribunal (page 16 of the Appeal Bundle):

"On the 12th February 1991 the Company announced the closure of several departments and consequent redundancy of staff.  I was employed by the Company as a Technical Services Operator and that Department was being closed down.  There were three Technical Services Operators - myself, Mr Mike Turner and a Mr Bill Feeney.  Mr Feeney was appointed to an alternative job on the 22nd February 1991.

	On the 28th February 1991 the Company wrote to me advising of the likelihood of my redundancy.  Mr. Turner, my remaining fellow employee, received no such letter.

Those employees who were likely to be made redundant were given the opportunity to apply for vacancies which existed on the operating plants.  I applied for 9 vacancies in five separate departments.  I duly attended interviews for the jobs and, at several interviews, my Trade Union activities were referred to as being detrimental to my chances of being appointed.  Indeed, one of the Management, conducting on of the interviews, referred to my Trade Union activities as being incompatible with appointment to the job.

My complaint is, therefore, that I was unfairly selected for redundancy on the grounds of my Trade Union activities."

	It will be seen that the Appellant states that:

he was employed by the Company as a Technical Services Operator (a TSO), of whom there were three;
on 12 February 1991 the Respondent announced the closure amongst others of the department in which TSO's worked;
on 21 February 1991, one of the 3 TSO's was offered another job;
on 28 February 1991 he was sent a letter advising of the likelihood of redundancy but no such letter was sent to the other unplaced TSO;
in the interviews which he attended reference was made to his Trade Union activities and
he claimed he was selected for redundancy on the grounds of his Trade Union Activities - ie the Respondents were in breach of the provisions of sections 152 and 153 of the 1992 Act.

	The main thrust of the argument below was that the Appellant had a valid complaint against the Respondents within those sections.  There was certainly evidence that the Appellant sought to be treated as supernumerary for the purposes of the Respondent's redundancy exercise.  A minute of a meeting held on 20 February (page 13 of the Exhibit Bundle) reads in part:

"Mr Beynon's opinion [a Trade Union colleague of the Appellant] was that Mr O'Dea [the Appellant] had been found employment in the Isceon Packaging area, but he was not an Isceon Packaging Operator.  Mr Newby reminded him that it was not possible or desirable to protect one employee from the current economic circumstances facing the rest of the workforce; furthermore, whilst not questioning the need for a senior steward, it was not the Company's intention to create a separate day position for this purpose.  However, any development relating to Mr 0'Dea's [the Appellant's] employment status could not be taken to represent a breach of the agreement on facilities, which relates to procedures and roles, not to individual employees.  The subject of the proposed redundancies, and that of the agreement on Union facilities were two separate issues, the only common link being Mr O'Dea [the Appellant] himself."

	The Respondents resisted that.  In the words of their witness Mr Newby (Appeal Bundle p34)

"Mr O'Dea [the Appellant] was treated no differently from other employees.  Although technically employed as a TSO he had in fact worked as an Isceon Packaging Operator for many years.  The reorganisation of the company's business involved the closure of those departments.  Therefore, all employees in those departments were in line for redundancy in accordance with the selection criteria.  However, as there were a number of internal vacancies in other departments, all employees who were facing the prospect of redundancy, including Mr 0'Dea, [the Appellant] were encouraged to apply for those jobs and to use the on site "job-shop" facility provided by the company for the purpose of assisting employees to find alternative employment elsewhere.  At first Mr 0'Dea [the Appellant] was reluctant to apply for any of these vacancies on the grounds that as the Senior Steward, he was "supernumerary" and as such should not be in line for redundancy.  However despite his reluctance, I and others encouraged him to apply for the internal vacancies and to use the job-shop facility.  In the event, Mr O'Dea [the Appellant] did formally apply for all industrial vacancies although like most other applicants, he was unsuccessful.  Of the 3 TSO's, only Mr 0'Dea [the Appellant] failed to obtain alternative employment with the company.  However of the 10 employees in the Isceon packaging department who were in line for compulsory redundancy, only 2 obtained alternative employment with the company".

	The Appellant was not selected for any of the industrial vacancies to which Mr Newby referred.  After he had failed so to do, there was a grievance meeting on 25 March 1991.  Part of the Note of this meeting reads (p53 of the Exhibit Bundle):

"During the period between 12/2/91 (the Company's redundancy announcement date) and 28/2/91... [the Appellant], like other employees so affected, had been encouraged to apply for alternative job(s) but had appeared to be reluctant to do so, quoting the former senior stewards agreement and suggesting that he was "supernumerary"."

	Paragraphs 5 and 6 of the Full Reasons (Appeal Bundle page 8) read:

"5. The matter of the applicant's special position was clarified to him at a meeting that was held between the respondents' management, Mr Beynon of the applicant's union and the applicant on 20 February 1991.  It is clearly minuted in the respondents' minutes of that meeting that the applicant would be treated for the purposes of the redundancy exercise as an "ordinary employee".  The applicant was initially reluctant to accept this position but ultimately he did so and applied for a number of the vacant jobs.  He was well known throughout the workforce for his union activities.  These were known to all of the managers who interviewed him in connection with these vacancies.  In many of those interviews this made no difference to the outcome.  He would not have got those jobs even if he had not been involved in trade union activities.  It did however materially affect his chances in respect of two of the positions that he applied for.  One of those positions was the position of shift process operator for which he was interviewed by Mr Fordham.  The other was the position of shift process operator which he was interviewed for by Mr Wear.  It is quite clear from the evidence of those two witnesses that the applicant's trade union activities was a factor which concerned and worried them.  It is also clear from the evidence that the applicant's position in this respect was not made clear to departmental managers by senior management and that the applicant's own response when questioned about those matters by interviewing managers was not helpful.

6. We are satisfied that the principal reason for the applicant's dismissal is redundancy caused by this re-organisation and not his trade union activities.  Therefore the category of the reason for dismissal for the purpose of the 1978 Act is redundancy."

	We are satisfied that, as Mr Rose, Counsel for the Respondent submitted, in paragraph 5, the Tribunal was finding facts which it was justified in finding on the evidence which it heard, including making the important finding that when they selected him for redundancy, the Respondent did not offend within the provisions of sections 152 and 153 of the 1992 Act.  For the purposes of these sections, the Appellant was treated no differently from any other employee.  It was in this sense that the words "ordinary employee" are to be understood.  Their finding that he was so treated was entirely justified on the evidence.

	Paragraph 7 of the Full Reasons reads:

"Section 153 of the 1992 Act cannot apply in this case because even if it was the applicant's trade union activities that led to his being selected for redundancy there was no other employee who held a position similar to him who was retained.  It is true that there were two other employees employed as TSO's but they did that job all the time.  The applicant was not in that position.  He was in the special position set out above.  Therefore Section 153 of the 1992 Act does not make the dismissal unfair.  The question of fairness falls to be considered under Section 57(3) of the Act."

	Mr McMullen has strenuously submitted that s153 did apply here because the distinction between the Appellant and the other TSO's was not one which the Tribunal was entitled to draw, not least because there were other TSOs in a similar position to him who were retained.

	Mr Rose has drawn attention to paragraph 2 of the Reasons which we have already read out.

	In the redundancy exercise, the Respondents shut down the departments employing IPOs and TSOs.  It was essentially a question of fact for the Tribunal to decide whether any other employee was in the same position as the Appellant within the provision of s153.  We are satisfied that the finding of fact made by the Tribunal that the Appellant was in a unique position vis a vis other employees was not against the weight of the evidence and was a finding the Tribunal could properly make.

	Mr McMullen further submitted that the last sentence of paragraph 5 of the Reasons was inconsistent with the finding that there was no discrimination within sections 152 and 153 of the 1992 Act.  We disagree.  In paragraph 7, as the last sentence shows, the Tribunal first gave further reasons why there was no discrimination, and concluded that the Appellant's complaint on that score failed.  They then quite properly referred to the next question which they had to decide:  was the Appellant's dismissal "Polkey"  unfair when consideration is given to the well-known decision in Polkey v A E Dayton Services Ltd [1987] IRLR 503.  The last sentence of paragraph 6 relates to the contents of two interviews for alternative for alternative employment, which the Appellant had.  We were referred to these in some detail.  We accept Mr Rose's submission that having regard to the contents of these interviews, the Tribunal could make findings, with no inconsistency in such findings, that as regards the redundancy exercise and sections 152 and 153, the Respondent could not be faulted but as regards fairness for the purposes of section 57(3) of the 1978 Act which the Tribunal had to examine, there had been a failure.  The examination which followed in the succeeding paragraphs with the consequent award of compensation appear to us impeccable and fully justified.

	We have already expressed the view that the contents of certain parts of the Definition Section are irrelevant to the Tribunal's decision but in referring us to that section, Mr McMullen drew attention to the words within section 153 of the 1992 Act "employees who held positions similar to" and that the Definition sections contain this:

"position, in relation to an employee, means the following matters taken as a whole, that is to say, his status as an employee, the nature of his work and his terms and conditions of employment".

	Mr McMullen told us that his researches had not revealed a reported case where the word "status" in this section had been considered, particularly with reference to the word "status".  Possibly it requires examination of the role which an employee plays within a Company at the time or times that role falls to be examined.  In any event the definition prescribes consideration of three distinct elements:  status, nature of work and actual contract of employment.  On the facts of this case the Appellant's "position" in the company was never the same as that of any other TSO or ISO or indeed any other employee.  The fact that he had the same job title as any other TSO cannot be determinative.  Even had the Tribunal been referred to and had considered the definition provided by Parliament of "position", we are satisfied that they would not have reached a different conclusion to that which they came.

	Mr McMullen also referred us to section 140 of the 1978 Act, but we are satisfied this section has no application to the Appellant's case.

	Mr McMullen has made strenuous efforts to persuade us that the decision below was perverse, but we do not consider that the Tribunal below erred.  We consider that the Tribunal, on analysis of the Reasons, came to conclusions on facts which they could properly find and on law which were correct.  We do not find the decision perverse.  It is one to which they were entitled to come and one with which we agree.

	We having indicated that we were against the Appellant on the matters raised in his Notice of Appeal and in the submission made arising from that Notice, Mr McMullen now seeks leave to amend his Notice of Appeal.  He wishes to introduce fresh points.  At the commencement of the Appeal we were notified that this application would be made, but it was agreed by Counsel that it should be made at this point.  Mr Rose opposes this application.  He says not only that the application was notified long after it should have been but it was made at or after the eleventh hour.  We accept Mr Rose's submission and refuse Mr McMullen leave to amend.

	In the circumstances we dismiss this appeal.