Appeal No.	 EAT/1146/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR D G DAVIES CBE
MISS S M WILSON

MR C HUGHES	APPELLANT

BORAL EDENHALL CONCRETE PRODUCTS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
APPELLANT	

	JUDGE PETER CLARK:   This is an appeal by Mr Hughes against a majority decision of the Shrewsbury Industrial Tribunal dismissing his complaint of unfair dismissal against his former employers, Boral Edenhall Concrete Products Ltd.  Extended Reasons for that decision are dated 3 September 1996.

	On 15 November 1996 Notice of Hearing was sent to the Appellant by the Employment Appeal Tribunal requiring him to attend a Preliminary Hearing today.  We have waited until 3.15 pm, but there has been no appearance by Mr Hughes and no explanation as to why he is not here, nor has he responded to any communications from the Appeal Tribunal.  Accordingly we have proceeded to consider this case on the papers before us.

	The background is that the Appellant was employed by the Respondent as a brick bander fork truck driver from 8 April 1991 until 9 February 1996.  

	Following difficult trading conditions the plant manager, Mr Diggory, was instructed by his manager in early 1996 to make 4 members of staff redundant.  He did not know how to go about that task and approached the recognised union, the Transport & General Workers Union.  The union suggested selection by a matrix system, giving points for skills, lengths of service and punctuality.  There were 15 operatives in the selection pool.

	In the event one job was saved, but 3 operatives, including the Appellant, were identified for redundancy.

	Mr Diggory saw the Applicant, together with his shop steward on 31 January 1996 and gave him a letter of dismissal.  There had been no prior individual consultation.  At the same time Mr Diggory showed the matrix to the Appellant and tried to discuss it with him.  However, the Appellant dismissed the matrix as a “load of bollocks”.  He would not listen when his representative tried to explain it to him.

	The Appellant appealed unsuccessfully, first to Mr Heyes, UK Production Manager, whose decision was dated 5 February 1996 and then to Mr Whitaker, the General Manager, who dismissed the final appeal on 23 February 1996.

	On 23 April 1996 the Respondent company was sold to ARC Ltd, part of the Hanson Group.  The Tribunal found that on 30 January 1996 Mr Heyes received a call from Mr Whitaker, telling him to attend a meeting at an hotel in Oswestry on the following day.  At that meeting he was told that the company was up for sale and that there were 4 to 5 potential purchasers.  In the event ARC Ltd was the successful bidder.

The Industrial Tribunal Decision

	The first issue to be decided was what was the reason for dismissal?  The majority found that it was a simple redundancy under what was Section 81(2)(b) of The Employment Protection (Consolidation) Act 1978.  The minority member took a different view.  He concluded that on the facts the reason for dismissal was connected with the transfer of the business to ARC, and was automatically unfair. Litster v Forth Dry Dock [1989] ICR 341.

	The majority went on to consider the question of reasonableness under Section 57(3).  They found that there was a lack of individual consultation, but that this was cured by the two appeals.  They found the system of selection and its application to the Appellant to be reasonable.  Overall, the dismissal was fair.

	The minority member would have found in the alternative, that the dismissal was unfair under Section 57(3) on the basis of lack of consultation, and the exercise being continued after the Respondent became aware of the possibility of the sale of the business.

The Appeal

	In his grounds of appeal Mr Hughes says this:

“The Tribunal said that the procedure adopted (for redundancies) was agreed with the union.  The Appellant was saying that his union (on a local level at least) and employers conspired to select people for reasons other than suitability to the job and compiled a matrix so they would keep a shop steward who was less experienced (and skilled) than the Appellant.  The Appellant notes that one member of the Tribunal agreed that the dismissal was unfair.  The Appellant believes the majority of the Tribunal erred in law in making their decision which being the majority view prevailed.  He respectfully requests the Employment Appeal Tribunal to reconsider the case.”

	Our powers on appeal are limited by statute.  We have jurisdiction to interfere with Decisions of Industrial Tribunals only when an error of law is pointed out.  We cannot simply reconsider the case afresh.  

	The fact that the Industrial Tribunal members were divided, indicates to us that a full and careful discussion was entered into by all members of the Tribunal and it seems to us that the factual conclusions reached by both the majority and the minority were open to them.  In the event the majority favoured the case advanced by the Respondent.  

	We cannot interfere with that permissible exercise of the Industrial Tribunal’s judgment.  In these circumstances we can see no arguable point of law raised in this appeal and it must be dismissed.