Appeal No. EAT/713/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24th July 1995

	Before

	HIS HONOUR JUDGE N BUTTER Q.C.

	MRS R CHAPMAN

	MR J D DALY

THE TORRINGTON CO LTD	APPELLANTS

MR JONES & OTHERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A S LONGWORTH
(of Counsel)
Ingersoll-Rand
P.O. Box 2
Chorley New Road
Horwich
Bolton
BL6 6JW

For the Respondents	MR T LINDEN
(of Counsel)
Pattinson and Brewer
30 Great St James Street
London
WC1N 3HA

	JUDGE BUTTER Q.C.:   This is an appeal by the Torrington Company Limited against a decision of the Birmingham Industrial Tribunal held on 20th September 1993 and 10th May 1994. The decision appears to have been promulgated on 10th June 1994.

	The unanimous decision of that Tribunal was that Mr Jones, Mr Clee and Mr Frazer were unfairly dismissed.

	In their reasons the Tribunal set out the background. The applicants were all employed by the Torrington Company Ltd and were dismissed because of redundancy with effect from 27th November 1992. The company, it appears, is as an off-shoot of an American company which manufactures bearings and special components for the automotive industry, and the business suffered a recession as a result of which it was decided that redundancies were necessary. There was no dispute that the dismissal was by reason of redundancy. In October 1992 the company held meetings with the Trade Unions. There was an external conference and discussions took place in relation to effecting the redundancies by reference to Clause 3 of an agreement, which everyone accepted was in force. It was an agreement which had been reached on 27th June 1978. The relevant clause reads as follows:

		"Whilst it is agreed that the continuing efficiency of the operation has to be safe- guarded in other, cases except for voluntary redundancies, length of continuous service within a department or section will be the factor in determining those employees who are to be retained."

	The Tribunal says at the end of paragraph 3 of their reasons:

		"... It is on the interpretation of this clause that the decision in this case hinges, since the applicants have not argued that there has been any other default by the company. There is no criticism of the procedures adopted."

	The Tribunal then goes on to consider the managers who were involved and the position of the various applicants. The Tribunal highlights the problem in relation to what is a department or section. And then in paragraph 7 says:

		"7		There is no doubt that these dismissal were by reason of redundancy and these cases fall to be decided within Section 57(3) of the Employment Protection (Consolidation) Act 1978. We have taken the words of that Section as our starting point, and have reminded ourselves, very firmly, that it is not for us to stand in the shoes of this employer and decide what we would have done. What we have to decide is whether the employer's decision fell within the range of response of a reasonable employer."

	That direction, in the view of this Tribunal today, is impeccable.

	The Tribunal goes on to say:

		"8		In interpreting clause 3 of the 1978 agreement, we are satisfied that the respondents had some regard for the continuing efficiency of the operation, which had to be safe guarded. [They then set out certain matters which are relevant to that. They go on:] ... However, thereafter, the clause was operated by the respondent bottom up, in our view: that is to say after a clearly definable group of workers had been removed from the equation, LIFO was applied through the sections, as set out on the chart R5 seq."

	Paragraph 9 begins:

		"9		We find that any reasonable employer would have interpreted the clause with more flexibility than this respondent."

	The Tribunal then dealt separately with the position in relation to Mr Jones in paragraph 10, Mr Frazer in paragraph 11 and Mr Clee in paragraph 12. In 13 they said:

		"13		In summary, the respondent acted unreasonably in applying clause 3. A reasonable employer would have applied the continuing efficiency of the operation, first to groups of workers (setters and the like) and second within the departments themselves - that is the area in which this respondent fell down. After applying that criteria in that way, LIFO should have been applied within a department, then LIFO within a section. This employer, unreasonably, went straight from selecting those to be retained in the critical areas to the end of the line, by applying LIFO section by section."

	This Tribunal has considered with anxiety whether, despite the fact that the law has been correctly set out, the Industrial Tribunal nevertheless fell into error in substituting their own view.

	Counsel for the appellants today is understandably reluctant to put his case on the basis of perversity, particularly in the light of the case of Piggott Brothers & Co. Ltd v Jackson and Others [1992] ICR 85, see in particular the passages contained in the judgment of the Master of the Rolls at page 91 and page 92 and also at page 96A; we bear in mind that we have no notes of the evidence. 

	Counsel for the appellants maintains that there is here an issue of law in that the Industrial Tribunal misinterpreted clause 3 of the agreement, so that their decision is fundamentally flawed. The interpretation which he says is correct is summarised in paragraph 2 of his helpful skeleton argument and he goes on to consider the way in which the Tribunal approached the position of the interpretation and dealt with the individual cases. We have been referred to the chart page 31 onwards which we have considered.

	I have already referred to important findings of the Industrial Tribunal. It seems to us that on a fair reading the Tribunal asked itself in effect, was the selection of these applicants one which a reasonable employer could have made having regard to the terms of clause 3? The Industrial Tribunal considered the position with care, they reached a decision on the evidence and facts before them. We have come to the conclusion that they were entitled to reach the decision which they did. We express no view as to what our own conclusion might have been if we had heard the evidence. In the end we are quite simply not persuaded that there is here an error of law or mis-direction of a kind which would permit this Tribunal today to take a different view. In the result, it follows that the appeal fails and must be dismissed.