Appeal No.	 EAT/1101/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 February 1997

Before
HIS HONOUR JUDGE N BUTTER QC
MR A C BLYGHTON
MISS J W COLLERSON

GLENDALE INDUSTRIES LTD	APPELLANTS

MR J CANAVAN & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR CLIVE SHELDON
(of Counsel)
EEF East Midlands Association
Barleythorpe
Oakham
Rutland
Leicestershire
LE15 7ED	

	JUDGE N BUTTER QC:     This is the preliminary hearing of an appeal by Glendale Industries Ltd in respect of a decision of the Industrial Tribunal at London (South).  The hearing was on 2 July 1996.  The decision was promulgated on 12 August 1996.  The appeal proceeds in relation to two Respondents, Mr Sparkes and Mr Goldsmith.

	The unanimous decision of the Industrial Tribunal was that the Applicants were unfairly dismissed.  The Applicants had claimed that they were unfairly dismissed and unfairly selected for redundancy.  The Respondents admitted dismissal but submitted that the reason for dismissal was redundancy and no other reason.

	The Industrial Tribunal set out the facts in paragraph 6 of their Extended Reasons.  The background is that the Applicants were originally employed as gardeners/groundsmen by the London Borough of Sutton.  Mr Sparkes commenced employment in 1986 and Mr Goldsmith in 1985.

	In November 1994 agreement was reached with the Sutton Council that the present Appellants would take over in relation to ground maintenance work and there was a transfer of obligations of some 24 employees, including the Applicants.  Almost six months to the day after that, namely 31 May 1995, there was a meeting and the question of possible redundancy and other matters were discussed.

	Before looking in further detail at the reasons given by the Tribunal, it might be helpful to turn for a moment to the grounds of appeal.  It is argued that the Industrial Tribunal failed to consider whether the requirements of the Appellants for employees to carry out work for a particular kind, were expected to cease or diminish.

	We have been referred to Section 81(2)(b) of the 1978 Act, now to be found in Section 139(1)(b) of the 1996 Act, which provides:

“(1)  ... an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -
(b)  the fact that the requirements of that business - 
(i)  for employees to carry out work of a particular kind, or
(ii)  for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.”

	Counsel, on behalf of the Appellants, underlines the word “expected” and has developed an argument in relation to that.

	It is further argued before us that the Industrial Tribunal erred by concluding that there was insufficient evidence of a redundancy situation.  It is yet further argued that the Tribunal erred by failing to consider whether the requirements of the Appellants for workers to be engaged part-time, rather than full-time, constituted or contributed to a redundancy situation.

	It is argued additionally that the Tribunal erred in the way in which it considered the fairness and the application of the redundancy selection criteria adopted by the Appellants.  

	Other complaints are also made on behalf of the Appellants concerning the way in which the Tribunal dealt with the issue of consultation and other matters.

	I need not refer to the facts, as set out in detail in the Tribunal’s decision, but turn straight away to paragraph 13 of that decision.  The Tribunal expressly say that they:

“  ...were not impressed at all and by the manner in which the Respondents gave evidence to the Tribunal [the Appellants in this case] or in respect of the way in which they dealt with this matter.  Their evidence was not consistent.  ...”

	The Tribunal then developed the point in some detail and, towards the latter part of paragraph 13 they say:

“  ...In this Tribunal’s opinion, there was insufficient evidence produced by the Respondents to the Tribunal to enable the Tribunal to find that a redundancy situation existed.  It appeared to the Tribunal that the Respondents were attempting to re-organise the workforce, probably to secure a lower wages bill and that it was decided to take on new staff on temporary contract whilst dismissing full-time employee.  The Respondents were effecting a reorganisation of the work force.  The Tribunal accept that in certain cases re-organisation can amount to a redundancy situation or, the reason for dismissal can be some other substantial reason and both are potentially fair reasons.  In this particular case, the staff that were taken on were doing the same jobs as the individuals who had been dismissed and who now come before us claiming unfair dismissal.  ...”

	The Tribunal expressly found that there was no redundancy situation.

	They go on to consider the question of criteria, which they say they do not consider to be fair, and they developed the reasons for that in paragraph 14 of their decision.  They point out, among other things, that no one consulted personnel files on the individuals.  

	This Tribunal today considers that the Tribunal below was entitled to reach the conclusion that there was no redundancy situation.  This was pre-eminently a question of fact to be determined on the evidence and we are not persuaded that the Tribunal below erred in their approach to the law, as has been developed before us, in the course of argument.

	It follows therefore, that the other matters need not require consideration, but since the question of consultation has been argued before us, we think it right to say a word or two about that.  

	In paragraph 15 the Tribunal said:

“As to consultation, we do not consider that the meetings with the Union constituted consultation.  ...”

	It is accepted that there were meetings, but when the Tribunal say, as they do at the very end of paragraph 17:

“  ...we have serious doubts about the fairness of the criteria and far more serious doubts about the way in which the individuals were assessed and we have no doubt that the Respondents totally failed to consult”

	We read that as meaning that they are saying, “We don’t call what happened consultation in the true sense”, perhaps because they considered that the employers had already made up their own mind.  They were not saying that there had been nothing which could amount to consultation.  They were clearly deciding, in our view, that there was no real consultation in the proper sense of that word and as accepted by Industrial Tribunals and by industrial practice.

	Despite the efforts of Mr Sheldon to persuade us otherwise, and having considered all the arguments that he has placed before us, we reach the conclusion there is no reasonably arguable point of law here and we would do no service to the proposed Appellants by allowing the matter to go forward.

	In these circumstances and for these reasons we reached the conclusion that the appeal must be dismissed and this is our unanimous view.