Appeal No. EAT/886/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 April 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MRS M L BOYLE

	MR T C THOMAS CBE

RIBBLE MOTOR SERVICES LTD	APPELLANTS

MR R ELLIS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J WRIGHT
(SOLICITOR)
Messrs Blackhurst Parker 
  & Yates
9 Cannan Street
Preston PR1 3QD

For the Respondent	MR G MILLAR
(OF COUNSEL)
	Messrs Brian Thompson &      Partners
	Acresfield
	8 Exchange Street
	St Ann's Square
	Manchester M2 7HA

	JUDGE J PEPPITT QC:	This is an appeal from a decision of the Manchester Industrial Tribunal made on the 17 August 1993.  The Tribunal held unanimously that the Respondent had been unfairly dismissed and assessed his compensation in the sum of £8,925, which was a sum that the parties had previously agreed.  The Tribunal had previously reached the same conclusion in a decision made on the 5 April 1991, but after appeal by the present Appellants, the case had been remitted for further consideration of a point which now has no relevance for us.  We shall, however, have recourse to both decisions in order to illustrate what facts the Tribunal found to have been proved.  

	The Respondent was employed by the Appellants as their Engineering Services Manager.  He had worked for the group in some capacity or other for over forty years.  On the 11 July 1990, when he was aged 59, he was told that he was to made redundant.  He had received no previous warning; he had not been consulted.  Indeed the decision to make him redundant had been taken only that morning.  The Tribunal found that a redundancy situation existed.  The Respondent's job was to go, upon a reorganisation, and a new post of Operations Engineer created.  The Tribunal found that the dismissal for redundancy was unfair on the grounds that the Respondent had not been consulted.  There is no appeal from that finding.

	Instead Mr Wright, on behalf of the Appellants, contends that the agreed compensation of £8,925 should be reduced to extinction, so as to reflect the unlikelihood that consultation would have made any difference to the end result.  There was, said Mr Wright, no job within the Appellant group for so experienced an employee as the Respondent.   Mr Wright referred us to the Chairman's notes of evidence.  The only evidence called on behalf of the Appellants was that of Mr Corser, their Engineering Director, and I select from the evidence which Mr Corser gave, a number of extracts which Mr Wright submitted to us were relevant in this context.  At page 2:

		"We looked at other work, there was nothing that we could offer. The Managing Director Mr Hinckley said the new post should go to a younger man.  There was nothing else available.  There were no vacancies up to the date of finishing".

	By finishing we understand Mr Corser meant the date when the Respondent was made redundant.	

	On page 3 Mr Corser said that since the Respondent had been made redundant the Appellants had sent him transport magazines and suggested to him a possible opening, at which he might be interviewed for alternative employment.  They had also tried to find him other jobs.  At page 4 Mr Corser said:

		"I just can't invent a job, I have done all I could.  Not honest to my employers, even if I had regard for him".

	Against that background Mr Wright argued there was clear evidence before the Tribunal that consultation would have made no difference to the position, and that the Respondent would in any event have been bound to lose his job.  Accordingly, he said, the finding in the final two sentences of the Tribunal's second decision which reads as follows:

		"The Tribunal remains of the view that had there been consultation there was every chance that the applicant would have been accommodated somewhere within the respondents organisation".

was outside the range of options available to the Tribunal, was not based on any evidence called before the Tribunal and was accordingly perverse.

	Mr Millar, on behalf of the Respondent, submitted that there was evidence on which the Tribunal could have reached this, as he described it, hypothetical finding.  Hypothetical it necessarily was, because the Tribunal were assessing what would have happened if consultation had taken place.  

	There were, said Mr Millar, the following facts found proved by the Tribunal, which justified the view which the Tribunal took.  Firstly, that the Appellants were large employers, owning 388 vehicles, 8 depots and employing 1001 men.  Secondly, that the Respondent had been a loyal and hard working employee, held in high regard by the Appellants, and particularly by Mr Corser.  Thirdly, the acceptance by the Appellants that the Respondent had wide experience in all fields of the Appellants' operation and indeed was qualified by experience and ability for the new job of Operations Engineer.

	Mr Millar does not suggest that the Respondent should have been given that job, but he relies upon that evidence as an indication of the Respondent's abilities and value to the Company.  But, most importantly, Mr Millar relied upon two paragraphs in the decision of the Tribunal.  The first in the decision of the 5 April 1991, the relevant parts of which read as follows:

		"The applicant was notified of his redundancy on the 11 July 1990 when he was seen by Mr Corser in his office and he was told by Mr Corser of the creation of the new post of operations engineer, but that this post would be reserved for a younger applicant.  This was some 48 hours before the applicant was due to go away for two week's holiday.  On the 1 August the applicant had an interview with the managing director, Mr Hinkley, and Mr Hinkley repeated to the applicant the need to change the direction of the company and to use the new post of operations engineer as a training ground for younger employees.  Mr Hinkley told the applicant that he did not figure in his plans for the company.  He also told the applicant that he was too "Ribbleised", and we accept that Mr Hinkley appeared to be surprised when told that the applicant had worked for other bus companies within the Ribble Group and that he had only been working back at the Preston office of the respondent for two years".

A little later in that paragraph:

		"It seems to us that there was an ignorance on the part of the managing director of the qualifications of the applicant and of his background with the company.  We also found that the managing director did not appear to be aware of the work being undertaken by the applicant".

	We infer from that paragraph that at the time when the Respondent was made redundant in July 1990, the Tribunal was satisfied that the Managing Director was not aware precisely of the work which the Respondent was doing, and in particular mistakenly believed that the Respondent was too "ribbleised", that is he had worked for too long for the concern Ribble Motor Services Ltd, whereas in fact the Respondent's experience with the Group had been not only for Ribble, but for a number of other concerns.  In so far as that was one of the reasons for not awarding the Respondent the new job, the other of course being the Respondent's age, the Tribunal was evidently satisfied that the Managing Director, Mr Hinkley, was in error and that error could have been corrected had he gone through the process of discussing the matter with the Respondent before the decision to make him redundant had been taken.

	That is what the Tribunal said in their first decision.  We turn now to their second decision and to paragraph 5 on page 8 of the bundle before us.  What the Tribunal found in paragraph 5 was as follows:

		"What worried the Tribunal was that it emerged from the evidence that Mr Hinkley the Managing Director was unaware of Mr Ellis's background and experience and in an interview between Mr Hinckley on 1 August after Mr Ellis had been dismissed Mr Hinckley expressed surprise to learn that the applicant had had experience at four other bus companies and he appeared unaware of the applicant's experience.  The impression which the Tribunal received was that Mr Hinckley was determined to carry through the reorganisation which he had planned and which the Tribunal accept is the prerogative of management but that he had lost sight of the effects of redundancy on Mr Ellis or of the need to consult with Mr Ellis before making him redundant and it is clear that there was no consultation between Mr Hinckley or Mr Corser the Engineering Director of the Company who actually dismissed Mr Ellis.  In fact in his evidence Mr Corser made it clear that the decision to dismiss was only taken on the day when Mr Ellis was dismissed.  The Tribunal do not accept that the respondent took the view that there was exceptional circumstances of the case or that the respondent at that time took the view that it would have been futile to consult.  Having heard the evidence and reviewed it, the Tribunal remains of the view that the respondent's management did not address its mind to the need for consultation".

	The position as found by the Tribunal was accordingly, that in July 1990, the Managing Director, Mr Hinckley, was determined to push through without any delay, the reorganisation which he had planned, that the Respondent was to be one victim of that reorganisation; that the decision to make him redundant was taken and implemented on the same day; that it was taken without consultation with the Respondent and without Mr Hinckley knowing the precise nature of the work which he was doing, and had done.  It seems to us that the Tribunal in those circumstances was entitled to draw upon its industrial experience to answer the question posed of it, which as we have indicated, was necessarily a hypothetical question.  What would have happened if consultation had taken place?  

	The Tribunal took the view that had there been such discussion and had Mr Hinckley informed himself fully about the circumstances affecting the Respondent, they would have found a niche for him within the Group, if only to avoid dismissing a man who had served the Company so faithfully and so well for over 40 years and was now approaching his retirement.  We have no doubt that that was a finding available on the evidence to the Tribunal and was in no sense a perverse decision.  It is perhaps a legitimate criticism of the Tribunal's decision that their reasoning upon which their answer to the hypothetical question was based, might have been spelt out in more detail.  But in the circumstances of this case we do not regard that as a flaw which in any way invalidates the decision.  We think, as we have indicated, that the decision can and should be supported and that we should not interfere with it.	In those circumstances this appeal must stand dismissed.  

	We should just say this before we leave this appeal.  We were relieved to have reached the conclusion which we did, because that has made it unnecessary for us to consider an additional point which Mr Millar sought to argue, albeit, without serving a counter notice and without the matter having been raised before the Industrial Tribunal.  The matter he wished to argue was that the quantum of compensation had before the second hearing before the Tribunal, been agreed between the parties by the document appearing at page 19 of our bundle.  We have received no evidence about the precise status of that agreement, or whether or not it was conditional upon any particular finding of the Tribunal at the resumed hearing.  Accordingly, we express no view on that submission by Mr Millar, which in any event, could only have been made had we given him leave to file a counter notice, seeking to uphold the decision of the Tribunal on that ground.  

	In our judgement the Appellants reasonably pursued their appeal so far as it related to remedy, but that their maintenance both in the Notice of Appeal and the skeleton argument, of the other grounds of appeal which Mr Wright we think sensibly and responsibly abandoned before us, did constitute unreasonable conduct of the proceedings.  Accordingly, we think it appropriate that the Appellants should pay the Respondent 50% of his costs of this appeal, such costs to be taxed if not agreed.