Appeal No. EAT/473/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24 March 1995

	Before

	HIS HONOUR JUDGE D LEVY QC

	MR K M HACK JP

	MRS P TURNER OBE

ROYAL LIVERPOOL UNIVERSITY HOSPITAL (NHS) TRUST	APPELLANTS

(1) MRS M REDMOND (2) MRS A ROBINSON	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R TYNDALL
(Representative)

For the Respondents	MISS A MORGAN
(OF COUNSEL)
Unison
Legal Department
1 Mabledon Place
London WC1M 9AJ

	 JUDGE LEVY QC:  The Royal Liverpool University Hospital NHS Trust ("the Appellant") controls a very large hospital.  At the time in question the Appellant had about 3,700 employees.  Two of those employees are the Respondents to this appeal, Mrs Redmond and Mrs Robinson.  Mrs Redmond commenced as a domestic in February 1971 with St Paul's Eye Hospital.  She subsequently became a domestic supervisor and approximately one year before dismissal transferred to the Royal Liverpool University Hospital.  She had 22 years continuous service.  Mrs Robinson commenced as a domestic supervisor in August 1987.  She had 5 years continuous service.  The time came when the Appellant wished to re-organise its affairs and a board was held which each of these employees was invited to and did attend.  No notes of meeting were taken when each of the two ladies came before the board.  The board took a decision that each should be dismissed.

	The decision was referred to Mr Tyndall who was then the Director of Human Resources of the Appellant.  He interviewed each lady and as a result of what was said in that interview each left the Appellants' employ.  They raised a complaint with the Industrial Tribunal.  That complaint was heard by an Industrial Tribunal in Liverpool on 13 December 1993.  The unanimous decision of the Tribunal was communicated to the parties on 21 April 1994. The Tribunal held that both Applicants were unfairly dismissed.  The Appellant appeal from that decision and Mr Tyndall who is the Director of Human Resources who appeared before the Tribunal below, appears before us today in support of the appeal.  Essentially what he says is that the decision of the Industrial Tribunal was perverse.  In part of his Skeleton Argument he said there was no evidence for certain findings of fact which the Tribunal made but no attempt has been made to obtain the notes of the hearing and he has a great deal of difficulty in such circumstances in supporting that submission.  The main thrust of his submissions is that the Respondent ladies had a fair crack of the whip and they did know what was happening when each was interviewed by him.  At this stage it is desirable we should part of the Full Reasons for the Tribunal's decision:

		"7.   The Tribunal had the advantage of hearing all the evidence and noting the demeanour of the witnesses and perusing the relevant documentation and strongly preferred the evidence of both applicants to that of the respondents' witnesses, in particular relating to the meetings on 3 and 5 February 1993 and found the facts to be in accordance with their evidence."

		"8.  The respondents are a very large institution with, as mentioned, approximately 3,700 employees at date of dismissal.  As such, their procedures should be clear, proper and fair.  The two applicants had been totally confused by the way they had been interviewed by being first told they were unsuitable and could not continue in their jobs and then subsequently being told they were still unsuitable but could continue but under conditions.

		9.  The Tribunal found it hard to comprehend the sequence of events.  It seemed illogical the way Mr Tyndall as Director of Human Resources had dealt with the matter.  In his Memorandum of 7 January 1993 to all Domestic Managers and Domestic Supervisors, he wrote:-

			"As you are aware the Domestic Contract was awarded internally on condition that no Managers or Supervisors would be guaranteed employment".
			and...
			"(a) Although I cannot give any categoric guarantees it is my expectation that many of the existing staff will be re-appointed.  All re-appointments will be subject to a formal interview..."

		Yet, when the Panel did not approve the re-appointment of the applicants as Domestic Supervisors,  [both of the Applicants were of unblemished records] he considered that unfair and compelled a reversal of the decision since he told the Tribunal:-

			"I believe not to offer them jobs would be unfair in law".

		10.  Besides Mr Tyndall's own doubts, the Tribunal on listening to the evidence were not convinced there had been a proper appraisal of the two applicants by the Panel.  There was no proper evidence before the Tribunal of what had taken place or how the Panel had come to the decision that neither applicant was suitable.  There was no written report.  There was no proper evidence of the Panel's questions and of the applicants' answers or of the new job description.  There was no evidence of the applicants' personnel records being there and only one of the Panel - Ms Reid - seemed to have a personal knowledge of the applicants.

		11.  The Tribunal found Mr Tyndall had completely mishandled the meetings with each applicant on 5 February.  It was correct that he did, ostensibly, offer to allow them to continue their jobs but on conditions.  He dealt with both applicants in a harsh and abrupt manner.  Mrs Redmond told the Tribunal she calculated she would lose £28 weekly and was further concerned about her superannuation.  She said Mr Tyndall told her she had failed the interview.  However, she would be allowed to continue, but added:-

			"But I must tell you that you will be closely monitored.  You will only be given the job for 3 months.  If you do not come up to our criteria, you will be sacked forthwith and lose rights to your redundancy."

		He did not go into details of the new role or the new job.  He had then suddenly produced redundancy quotations, without these at any time being requested, and added:-

			"You're taking a gamble.  You either stay or go.  The matter's up to you."

		According to Mrs Redmond, Mr Tyndall then marched out of the room leaving her in a state of shock."

		12.  Neither applicant believed that his offer to them was sincere and was anything other than an ultimatum.  They believed that he had made up his mind that they were not capable and they had no doubt that what he really wanted and intended was their redundancy."

	We have, in the course of this Appeal, asked Mr Tyndall various questions to satisfy ourselves that the findings of fact in paragraph 10 were substantially correct.  We are satisfied that they were.

	The proper approach in deciding whether a decision of an Industrial Tribunal was perverse is to consider whether the Industrial Tribunal properly directed in law and properly appreciating what is currently regarded as fair, industrial practice, could have reached a decision that the dismissals were unfair.  The authority for that, if such is needed is  Williams v Compair Maxam Ltd [1982] ICR 156. 

	In our judgment the Industrial Tribunal properly directed themselves in law in that they considered the question of fairness of the dismissals for reasons of redundancy having regard to the criteria in section 56 of The Employment Protection (Consolidation) Act 1978.  They considered whether the employer had acted reasonably or unreasonably in treating redundancy as a sufficient reason for dismissing the employees in accordance with equity and the substantial merits of the case.  

	In our judgment the Industrial Tribunal further properly directed itself in law in that it considered whether the employer had shown that it was acting reasonably in treating redundancy as a sufficient reason for dismissing the Respondents and in considering this issue they adopted the correct approach.  They considered whether the means of selection adopted by the Appellant in choosing Mrs Redmond and Mrs Robinson was fair and the reasonableness of the steps taken by the Appellant to choose Mrs Redmond and Mrs Robinson.  It posed the question - Was the selection one which a reasonable employer would have made?  Secondly, it considered whether the Appellant had adopted reasonable and fair criteria for the selection of employees for redundancy and whether there had been a fair application of that criteria in the selection of the Respondents.  Having considered those matters they concluded in the words of paragraph 10 which too have set out. The Tribunal made a clear finding of fact that there was no fair and reasonable selection of the Respondents for redundancy and that the Appellants failed to show the criteria for selection and the basis of the decision.  In our judgment, the approach of the Tribunal was both, correct in law and in its appreciation of what is fair industrial practice.

	The findings which the Industrial Tribunal made makes it impossible in our judgment for the Appellants to argue here that the Respondents were sincerely offered posts as supervisors.  We can find nothing in the Decision which suggests it was perverse; indeed it is a decision which is the only decision to which, on the matters which have been placed before us, the Tribunal could have come.  This Tribunal cannot interfere with facts found by an Industrial Tribunal unless it can be said there was no evidence upon which the Industrial Tribunal could have reached its decision or it has ignored undisputed material evidence.

	The Appellants here claim that the findings of fact by the Industrial Tribunal that the Trust procedures were not proper and fair was perverse, in that the Tribunal expected unreasonable attention to detail in the context of the size and complexity of change taking place and that excessive importance was attached to a certain communication.  

	It is not an error of law such that the Appeal Tribunal can interfere if the Tribunal has played excessive weight on a particular fact.  Furthermore the Tribunal were not concerned with excessive detail in consideration of the fairness of the redundancy selection procedures.  It's finding that there was no proper evidence as to how the panel had reached its decision was clearly correct.  This was not a case where there was a detailed examination of the selection procedures for redundancy but one where the Appellant failed to identify the very basis of selection for redundancy and has failed to show the selection is fair in the most general terms.

	The Appellants have failed to indicate any evidence upon which it can rely to show that the Industrial Tribunal findings of fact were perverse.  In our judgment this is a quite hopeless appeal and accordingly we dismiss it.

	_____o_____

	In this matter, an application is made by Miss Morgan for the Appellant to pay the costs of the Respondents of this Appeal.  Costs are not often awarded in this Tribunal and they are even less frequently awarded when an Appellant has been given leave under the preliminary procedure to bring an appeal. In this particular case however, we think it appropriate to order that the Appellant pays the Respondents' costs.  Essentially what has been argued is a perversity case in which the material was never available for the Appellant to prove its case. The Respondents have been put to the expense of attending here today.  In those circumstances and given the findings which were made by the Tribunal below and by us as to the proper procedures which should have been followed, we think it appropriate for us to make the order as sought by Miss Morgan.