Appeal No.	 EAT/353/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 July 2001
Judgment delivered on 3 September 2001

Before
THE HONOURABLE MR JUSTICE DOUGLAS BROWN
MS G MILLS
MRS R A VICKERS

MR JOHN ADRIAN LOWE	APPELLANT

EVEREST LTD & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS NAOMI CUNNINGHAM
(of Counsel)
Free Representation Unit
Fourth Floor
Peer House
8-14 Verulam Street
London WC1X 8LZ	
For the Respondents	MS SUZANNE McKIE
(of Counsel)
Instructed By:
Messrs Gisby Harrison
Solicitors
Goffs Oak House
Goffs Lane
Goffs Oak
Chesnut 
Herts EN7 5HG	

MR JUSTICE DOUGLAS BROWN:

1.	Mr John Lowe appeals a decision by the Employment Tribunal at Ashford (Chairman, Mr de Saxe).  The extended reasons were sent on 28 February 2000 giving reasons for their decision that Mr Lowe was not unfairly dismissed by the respondents, Everest Ltd.

2.	Mr Lowe represented three other former employees, Mr Harris, Mr Keown and Mr MacDermott, as well as himself.  The Tribunal decided that Mr Keown was unfairly dismissed and that Mr Harris, Mr MacDermott and Mr Lowe were not.  Only Mr Lowe appeals.

3.	Mr Lowe prepared his own grounds of appeal.  However, at the preliminary hearing representations by the Employment Law Appeal Advisory Service resulted in two new grounds being advanced and after the decision of the Appeal Tribunal given by Mr Justice Charles the original grounds were superseded by the two new grounds settled by counsel.

4.	There is no dispute that there was a redundancy situation.  

5.	The amended grounds of appeal were:

a.	The Employment Tribunal erred in law because it failed to deal with the applicant’s complaint that a far higher proportion of those selected for redundancy had been persons working on his shift, either by finding facts relevant to that complaint, or by giving any reasons for rejecting that complaint.

b.	The Employment Tribunal erred in law by failing to direct itself in accordance with the decision of the Employment Appeal Tribunal in FDR Ltd v. Holloway 1995 IRLR 400 and (in consequence of that failure) inclined to permit questioning of a respondent’s witnesses directed towards the performance of individual assessments.

6.	Everest Ltd is a well known company which manufactures and installs double glazed windows and ancillary home improvement products.  Its performance in the years up to 1998 had been mixed.  In some years, the company made only a small profit, and in others it made a loss.  By 1998, the company operated only two factories, one in Sittingbourne and one at Treherbert in South Wales.  We are concerned with the Sittingbourne factory, which was primarily responsible for manufacturing pvcu windows, doors and conservatories.  Up to 1995, the factory had worked on a single shift system.  In 1995, as economic conditions improved, it went onto a double shift system, but the decision was taken to revert to a single shift as from 26 April 1999.  As a result, management decided that 43 production workers and 6 other workers would be dismissed by reason of redundancy.

7.	There was no union at Everest but there was an elected works participation team which negotiated with the management over the redundancy criteria.  The criteria agreed to be applied were workers skills, performance motivation and flexibility, attendance, disciplinary record and special skills.  

8.	An example of the assessment form was posted on the staff notice board.  The marks given for the criteria were:

	Poor		=	0
	Fair		=	1
	Good		=	2
	Excellent	=	3

and they were multiplied by agreed factors, e.g. if the assessment was fair then the multiplier produced a score of 6.  The qualifying score was 30 so that an assessment of excellent for both performance and self motivation and flexibility (which had a multiplier of 5) on their own produced a score above the qualifying mark whatever the other scores were.

9.	Some of the criteria were obviously subjective and the others such as attendance and discipline, objective.  

10.	There were two pools for selection - production and despatch and trim.  The assessment for production were carried out by the two production leaders, Mr Billet and Mr Drury.  The 30 point score was the cut off point for provisional selection for redundancy.  There was an appeal procedure to the Senior Human Rights Resources Manager, and all four men took advantage of the appeal procedure.  Mr Keown was successful arguing that those selecting him and dealing with his appeal had little or no knowledge of him.  

11.	Mr Lowe’s case was that the selection process was wrong.  He was under assessed and unfairly assessed.  He was on Mr Billet’s shift and a far higher proportion of those provisionally selected were on Mr Billet’s shift rather than Mr Drury’s.  The ratio he believed to be 6:1.  Everest’s view, there being no direct evidence, that there was a 52/48 percent split between Billet’s and Drury’s shifts.  This evidential dispute was never resolved and attempts made to resolve it up to the date of the hearing of this appeal also failed.

12.	Miss Cunningham from the Bar’s Free Representation Unit who appeared for Mr Lowe on this appeal, sought to persuade us that Mr Lowe made a positive case  before the Tribunal that the assessment process was rigged, in that those to be selected were included in a list which came into existence before the assessment process.  This assertion certainly appeared in paragraph 5 of Mr Lowe’s witness statement.

13.	However, there was no reference to it in the IT1.  There is no reference to it in the Tribunal’s reasoning.  The explanation given by Miss McKie, counsel, who appeared before the Tribunal and before us, resolved this matter to our satisfaction.  The  list  of names was contained in a document entitled Project X which was undated.  On this being discovered at the hearing all interest was lost in the document and in the point and the allegation of “rigging”, which was Miss Cunningham’s word was not pursued.  

14.	The Tribunal summarised Mr Lowe’s evidence in this way:

“Mr Lowe however, admitted that the only basis on which he could speculate that his assessment was unfair was frankly far fetched: that his wife belonged to a church congregation to which Mr Drury formerly belonged and he thought that Mr Drury might be jealous of Mr Lowe because his wife had remained a member of the congregation”.

15.	The Tribunal did recognise that Mr Lowe was arguing that a far higher proportion of those provisionally selected for redundancy were on Mr Billet’s shift rather than on Mr Drury’s shift.  However the Tribunal, which examined a large volume of material and evidence over three days, made no specific finding on the imbalance between those selected from the two shifts.  

16.	Before coming to the two remaining grounds of appeal, we summarise the Employment Tribunal’s findings.  Their approach on the authorities was that the test of a fair dismissal was whether the employer had set up a fair system and whether they had operated unfairly.  The Tribunal should only, in very rare circumstances indeed, if at all, become involved in visiting the actual assessments.

17.	Mr Billet was called at the Tribunal’s request and we have the Chairman’s notes of his evidence.  Both Mr Billet and Mr Drury were trained to British Standards Working Practice, i.e. trained in assessing work rate by observation.  Both he and Mr Drury were experienced in this field.  When cross examined by Mr Lowe his evidence was that the factory was treated as a whole.  Better workers fell out of the selection.  Mr Drury had the main input on his own crew and Mr Billet on his, but each commented on the others assessments.  They sat down together and Mr Billet’s approaches were not different from Mr Drury’s.  They had knowledge of the men, not only of their own, but also through the supervisors when they met at regular meetings.  If they had issues over individuals the supervisors would raise them at meetings and at other times.  

18.	The Tribunal made this specific finding in paragraph 19:

“Mr Billet who was called only at the prompting of the Tribunal, proved to be a clear and impressive witness who was able to help us a great deal on how the assessments were carried out”.

19.	It followed that the Tribunal accepted Mr Billet’s evidence as to how he and Mr Drury made the assessments.  This is important because it was clear from his evidence that the assessment was made on the assessment criteria and not based on which shift the men came from.

20.	In further findings of fact the Tribunal summarised the redundancy selection process being as described, and emphasised that agreement was reached with the work force representation over criteria.  The assessments were not made by section leaders (a rank below Billet and Drury) as the Human Resources Management decided they would have a limited perception and might be swayed by friendship, favouritism or dislike.  

21.	The Tribunal accepted the evidence of Mr Billet and Mrs Baboolal (a Human Resources Manager) that Mr Billet and Mr Drury were in a reasonable position to carry out the assessments.  They were reasonably if not always closely familiar with the work of the individuals they were assessing and spent a reasonable amount of time on these assessments.  They were very favourably impressed by Mrs Baboolal and found that she had taken great pains that the selection process should be fair and she had clearly addressed the practical and intellectual problems involved in this process.  In paragraph 29 the Tribunal said they were satisfied on their findings of fact that Everest had set up an entirely fair system for the difficult and embarrassing task of selecting members of the work force for redundancy:

“It seems to us that the system they set up was praiseworthy and  reflects great credit on Mrs Baboolal”.

22.	They found in the case of Mr Lowe, Mr Harris and Mr McDermott no evidence that there was any unfairness in the application of what they had found to be a fair system.  Miss Cunningham, for whose pro bono advocacy we are grateful, having failed to persuade us that the rigging allegation was a live issue for the Tribunal alternatively to challenge these findings.  She was able to complain, with some justification, that the Tribunal did not specifically in their reasons refer to their acceptance of the evidence, in particular of Mr Billet, as to how the assessment process was carried out.  They also did not deal specifically with the shift proportion point.  She submitted that the failures to make specific findings in these respects were flaws of such magnitude in the fact finding process, the case should be sent back for re-hearing.  

23.	The point does not stand alone.  The second ground is connected with it.  Miss Cunningham argued that if cross examination had been permitted of Everest’s witnesses directed towards the performance of individual assessments, that might have exposed the unfairness implicit in the imbalance between the assessment for the two shifts.

24.	Miss Cunningham referred to FDR v. Holloway 1995 IRLR 400.  This was an interlocutory appeal over the order of an Industrial Tribunal ordering discovery of documents in relation to all eight members in a redundancy pool.  Mr Justice Mummery in giving judgment at the Appeal Tribunal quoted from the judgment of Lord Justice Stuart-Smith in British Aerospace v. Green 1995 IRLR 433 where he said:

“In cases of mass redundancy in my opinion it would only be in rare and exceptional cases if the assessment fought with other employees not made redundant will be relevant”.

In FDR v. Holloway the Appeal Tribunal decided that there had been no error of law or perversity in the exercise of discretion by the Industrial Tribunal.  Miss Cunningham submitted that here there were exceptional circumstances which called for the examination by the Employment Tribunal of all aspects of the assessment forms.

25.	Miss Cunningham referred us also to the judgment of Lord Justice Millett in British Aerospace where he made similar comments to those made by Lord Justice Stuart Smith and added:

“I would endorse the observations of the Employment Appeals Tribunal in Eaton Ltd v. King 1995 IRLR 75 that it is sufficient for the employer to show he has set up a good system of selection and that it was fairly administered and that ordinarily there is no need for the employer to justify all the assessments on which a selection for redundancy was based”.

26.	Miss Cunningham accepted that if British Aerospace and Eaton v King were correctly decided she had difficulty with her argument.  She submitted that these cases could well be inconsistent with the provisions of article 6 of the European Convention on Human Rights but also that she would have difficulty arguing the Human Rights Act 1998 and the Convention had retrospective effect.  At the outset of the hearing Miss Cunningham asked us to request the Chairman of the Tribunal to comment on Mr Lowe’s evidence in a very recent witness statement that he had been refused permission to question a witness on the other assessments.  She suggested we could either adjourn or more realistically, leave over the final decision until the Chairman had responded.  This course was vigorously opposed by Miss McKie, we think with justification.  At the directions hearing before Mr Justice Lindsey, President, attended by both Miss Cunningham and Miss McKie the Chairman’s notes of evidence were requested on the basis that it was during the cross examination of Mr Billet that this refusal came.  It is apparent from the notes that there is no reference to such a line of questioning being refused.  In his later statement Mr Lowe now suggests that he cannot remember which witness he was cross examining when he was stopped.

27.	There must be a limit to the amount of information that can be sought from an Employment Tribunal and it’s Chairman and it is clear that Mr Lowe’s memory has worsened since the directions hearing.  We will not be assisted by any response from the Chairman even assuming he was able to give it.

28.	The reality is, as Miss McKie told us and as is apparent from the extended reasons and the notes of evidence, Mr Lowe was only interested in the assessments of two fellow employees who had been retained, Mr Scamp and Mr Shane Drury (son of Mr Drury).  The situation of both men was explored in evidence and the Tribunal was satisfied that no unfairness arose as the result of their retention.

29.	In the result we are satisfied that no error of law and no perversity of finding can be identified on this appeal.  We would pay tribute to the care and thoroughness with which the Tribunal approached its task and this appeal must fail.