Appeal No. EAT/86/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 2001

Before
MISS RECORDER SLADE QC
MR B GIBBS
MISS D WHITTINGHAM

MR IAN SIMPSON	APPELLANT

VAN DEN BERGH FOODS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS JANE SWANN
Solicitor
Whitechapel Legal Advice Centre
32 Greatorex Street
Whitechapel
London E1 5NP	
For the Respondent	MR M PARTRIDGE
Solicitor
Messrs Eversheds
Holland Court
The Close
Norwich 
Norfolk NR1 4DX	

MISS RECORDER SLADE QC

1	This is an appeal from the decision of an Employment Tribunal in Norwich.  The Tribunal dismissed a complaint of unfair dismissal made by Mr Simpson.  Two grounds of appeal are relied upon by the Appellant and they are these, that:

“1)  The Employment Tribunal failed to consider the illogicality of Van Den Bergh’s reasons for the dismissal of Mr Simpson”
 and that: 
“2) The Employment Tribunal wrongly concluded that there was a fair reason for dismissal, namely some other substantial reason, and that Van Den Bergh acted reasonably in satisfying the provisions of section 98 of the Employment Rights Act 1996, the reference to selection standards being wrong.”

2	The background facts may be summarised as follows:  Mr Simpson, the Appellant, was continuously employed by Van Den Bergh Foods Ltd from 7 March 1998 to 9 July 1999.  From 7 March 1998 until 25 June 1999 he was engaged under a series of fixed term contracts of varying lengths.  

3	The Employment Tribunal found that in March 1998 there was a significant increase in demand for dry goods, and it was for this reason that Mr Simpson was taken on.  Mr Simpson’s terms of employment show that his job title was Team Member, Dry Foods Unit.  Paragraph 2 of the Statement of Main Terms of Employment provides:

“You may be required to move from job to job and undergo training as required.  Notification of any change will be given to you in writing.”

In fact, Mr Simpson was employed in the palletising area of the Culinary Unit.  

4	The dry goods boom continued, and in December 1998 a decision was made to recruit for the Dry Foods Unit and the Culinary Unit.  Mr Simpson applied for one of the jobs.  Those jobs were to be permanent as opposed to temporary jobs.  He did a test.  His test mark was borderline.  However, he was on the wrong side of the border and he was not offered a permanent post.  The Employment Tribunal accepted that Mr Simpson did not have the ability to work in a multi-skilled environment.  A view was formed of him that he did not fit in with the team.  

5	The final fixed term contract expired on 25 June 1999.  It appears that on 28 June notwithstanding this, Mr Simpson presented himself for work and continued at work, until 9 July 1999.  Whether it is proper to analyse that final period of employment as employment under a fixed term or not, is not an issue which has been raised in this appeal.  In any event, there was a dismissal on 9 July, whether that was by expiry of fixed term, or whether that was by termination by the employer.  

6	The Employment Tribunal observed in paragraph 6 of their Reasons that the Applicant:
“knew why he was employed and in what capacity and was under no illusion at all as to the reasons in due course of not renewing his final contract.”

They went on to find that the reason for dismissal was some other substantial reason, sufficient to satisfy the provisions of section 98 of the Employment Rights Act 1996.  They stated the Applicant:
“was not selected in a fair selection procedure for the permanent posts and accordingly his temporary contract was not renewed.”.
And then further, at paragraph 10 of the decision held that they were
“satisfied the Company acted in good faith …. And in accordance with the provisions of section 98(4) of the Act that in all the circumstances of the case dismissal was reasonable.  This was not an unfair dismissal”

7	Turning now to ground 1 of the appeal, the argument of illogicality.   Miss Swann, who has very ably presented the appeal on behalf of Mr Simpson, relies to a considerable extent upon the approach adopted by Mr Justice Lindsay when he considered the matter at a preliminary hearing. In his judgment on the preliminary hearing Mr Justice Lindsay considered that in the absence of a contractual term requiring the temporary contract to come to an end if the employee was unsuccessful in obtaining a permanent job it was difficult to understand Van Den Bergh’s reasoning.  He held that would make sense if the case were that Van Den Bergh had filled all the positions they needed with permanent appointments, and that accordingly, they did not need any temporary appointments.  But without there being any such holding, the reasoning appears illogical in the sense that it would appear to be that:
“As job A is filled, you will be not renewed in your job type B”

8	We have had the advantage which was not available to Mr Justice Lindsay of having the material that was before the Employment Tribunal, namely the witness statements of the Respondents, other documents and the Chairman’s Notes of Evidence.  In the statements, which were accepted by the Tribunal, the reasoning of the employers was set out.    

9	Mr Michael Rennison, the Production Manager of the Culinary Unit, said at paragraph 8 of his statement: 

“8    Mr Simpson’s marks from the tests were borderline.  He was not selected to go forward as it was felt he did not have the team working ability required to work in our multiskilled environment.”

That was dealing with Mr Simpson’s application for the permanent position which he made well before his contract was finally terminated, or the fixed term contract expired.  

10	Further, Mr Setchell, Production Manager in the Dry Foods Unit in his statement at paragraph 3 stated that Mr Simpson’s role was that:
“he was employed in palletising only, in order to release a multi-skilled team member who would otherwise have been engaged in palletising to supervise and train the new permanent employees.”

Mr Setchell is recorded as having given oral evidence that he told Mr Simpson in February that he, having originally been taken on to cover the boom in a particular area, was carrying on to cover the period when the permanent employees were being trained.  Mr Setchell is also recorded as having told Mr Simpson on 1 or 2 June the reasons why his contract was going to be terminated, or his fixed term contract was not going to be renewed. 

11	The Tribunal also had before it the advertisement for temporary staff which was issued by the company at the time when Mr Simpson’s employment was drawing to an end.  That is an advertisement for production team members on a 12 month temporary contract, at the same rate of pay which Mr Simpson was then enjoying.  It appears from the advertisement that the job which was to be performed by those temporaries was a very different job from the palletising job, which was being performed by Mr Simpson.  The position being advertised would involve manufacturing and other tasks.  There was a statement in the advertisement that previous applicants need not apply.  There was evidence before the Tribunal in the statement of Personnel Administrator, Elizabeth Lee, in paragraphs 19 and 20, as to the reason why that statement was inserted in the advertisement.  

12	On the basis of the material which was placed before the Tribunal which we have briefly summarised, we are of the view that their conclusion cannot be attacked as being illogical.  That material showed that the company were engaging a multi-skilled permanent workforce, which was being trained up in the period from February through to July 1999 and that there was no longer a need for temporary work of the specific type which Mr Simpson was performing.  The temporary post which was being sought to be filled was of a different nature and, to a certain extent, called upon a wider variety of skills than those being exercised by Mr Simpson.  

Thus as for the first ground of appeal, what may have been thought to be an illogical conclusion, is not, once the material which was before the Tribunal is looked at.  

13	We now move to the second ground of appeal, that is that there was no evidence of the reason for dismissal and no evidence of selection standards.  Although the decision of the Tribunal is not quite as full as it might have been, having regard to the material which we have referred to, in our view, it cannot be said that there was no evidence before the Tribunal to support the reason for dismissal given.  As for the allegation that there was no evidence of selection standards as Mr Partridge, who appears for the Respondents, has said, there has been no direct attack on the failure to appoint Mr Simpson to the permanent position when he was interviewed, earlier in 1999.  Whilst we are of the view that that application for appointment to the permanent post and the way it was dealt with does properly form part of the background that the Tribunal should take into account in reaching its conclusion, nonetheless, on the material which it had before it, the conclusion reached by the Tribunal was not perverse.

14	We remind ourselves that we are not here to substitute our view of the fairness of a dismissal for that of the Employment Tribunal, but we are here to decide whether there were material errors of law or perversity in the Tribunal’s decision.  Although, as we have said, a criticism could be made of the Tribunal’s decision in that it is somewhat more condensed than one would have liked to have seen, nonetheless, in our view, the errors of law alleged have not been established, and there was material before the Tribunal enabling it to reach the conclusion that it did.  Thus, despite the helpful submissions of Miss Swann, we dismiss this appeal.