Appeal No. EAT/1015/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 May 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR P A L PARKER CBE

MR G H WRIGHT MBE

STOCKTON CASTING CO LTD	APPELLANT

MR R H SEXTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR LEGARD
(of Counsel)
Instructed by:
Messrs Archers
Solicitors
Barton House
24 Yarn Road
Stockton on Tees 
TN18 3NB	

MR JUSTICE WALL

1	This is the preliminary hearing of an appeal by the Stockton Casting Company Ltd against a Reserved Decision of the Employment Tribunal sitting at Newcastle upon Tyne, and promulgated on 16 July last year.  The Applicant before the Tribunal was a Mr R H Sexton and the Tribunal unanimously decided that
(1)  The applicant was redundant and the principal reason why he was selected for dismissal was that he had taken part in the activities of an independent trade union at an appropriate time, contrary to section 153 of the Trade Union and Labour Relations (Consolidation) Act 1992.
(2)  Further or in the alternative, the principal reason for the applicant’s dismissal was that the applicant had taken part or proposed to take part in the activities of an independent trade union at an appropriate time under section 152(1)(b) [of the same Act]”
and they then listed the case for a remedies hearing.

2	In his form IT1, Mr Sexton stated his case in short order, but clearly, in these terms:
“I believe that my former employer, Stockton Casting Co Ltd, deliberately and unfairly underrated me when utilising the selection criteria for redundancy purposes.  It is my claim that I was wrongly selected for redundancy in order to remove me from my position in the works as a [trade] union representative”

The Appellant joined issue with those assertions in its response to the application, but the Originating Application clearly demonstrates the nature of the case.  

3	In its Extended Reasons, the Tribunal examined the facts in some detail.  The case for the Appellant was that the selection for redundancy was fair in every respect.  It said firstly, that the selection criteria were agreed, and a call initially made for volunteers, but when an insufficient number of volunteers came forward, four employees including Mr Sexton were advised that they were particularly at risk.  Each party was given a copy of their appraisal and details of others in the pool.  Mr Sexton made representations according to the Appellant, alleging that, as he has in the application, that his nomination was purely for trade union reasons.  However, at the end of the process his redundancy was confirmed.

4	A critical issue in the case emerged from a conversation which was alleged to have taken place between Mr Sexton and Mr Thompson.  Mr Thompson, I should say, was a Foundry Superintendent and a member of the redundancy panel.  Mr Sexton’s version of that conversation was that Mr Thompson told him that Mr Sexton had originally been in a position where he would not have been selected, but Mr Thompson had been ordered by management to mark Mr Sexton down in order to get rid of him because of his trade union activities in the past. 

5	Mr Sexton also claimed that another less significant conversation had taken place with another member of the redundancy panel, a Mr Cass.  Whilst admitting that conversation had taken place between Mr Sexton, Mr Thompson and Mr Cass, the account given on behalf of the Appellant was that it was Mr Sexton who had approached Mr Thompson and in effect offered him a bribe of some £25,000 if he lied for him.  Mr Thompson said that he had enquired what that meant, and that Mr Sexton had replied:
“ “If I go to a Tribunal and they find that it has been rigged I will get at least £50,000.”  Mr Thompson said that he had asked Mr Sexton to put his request in writing to which the applicant had apparently replied “I don’t think Jeff (Morland) would be very happy with that”.  It was obvious that this conflict was crucial in assessing whether the applicant’s case was proved or not”.  

That plainly is a very clear issue of fact which it was for the Tribunal to decide.  

6	We need to bear in mind, we think in a case of this nature, that Mr Sexton was an extremely experienced employee, a foreman who had many years of service and that it would be difficult on appropriate grounds to mark him down to the extent that he would be selected for redundancy.  

7	The Tribunal records that the particular allegation on which Mr Sexton relies is one which is simple to invent and difficult to rebut on both sides and, accordingly, in deliberating as it did on 19 June, it looked very closely at the precise facts surrounding the essential meetings in the case.  The Tribunal then goes through the process in some detail, and detail which we do not necessarily think it necessary this morning to repeat.  

8	The Tribunal made the point, however, and this was a point of some significance, that the individual scoring of the panellists when marking the various applicants as various persons liable to be made redundant, was not in the bundle of papers and the Tribunal called for them during the course of the hearing.  They were not produced and the evidence tendered by the Appellant was that because of concerns about the confidentiality of the marking becoming generally known on the shop floor, it had been decided to destroy the individual marking sheets.  It was further claimed that the union had agreed to this in advance.  Whatever the truth, the fact is that the individual markings were not available for the Tribunal to consider.  

9	In deciding at the end of this process that it accepted Mr Sexton’s version of events, the Tribunal pointed to six factors.  First of all, Mr Sexton had been consistent and had alleged from an early stage that marks had been manipulated.  Secondly, he had spoken to Mr Morland at the first available opportunity and his account was confirmed by Mr Morland in the Tribunal.  The allegation was clearly not a recent invention.  Thirdly, the Tribunal took the view that Mr Thompson’s account was inherently unlikely except, perhaps, as a joke which Mr Thompson, indeed, asserted that it was.  Fourthly, although Mr Killman confirmed the approach was made to him by Mr Thompson, consistent with Mr Thompson’s account on 17 April, there was in any view a delay before Mr Thompson went to see him.  The Tribunal considered it strange that there was such a delay if what Mr Thompson said was the truth.  

10	The Tribunal considered it very likely that Mr Thompson had heard, through either Mr Ramsay or Mr Appleton, that Mr Sexton was on the warpath and that the account given by him, Mr Killman, was an attempt to deflect the truth.  Fifthly, the Tribunal found that Mr Burns who represented the Appellant in the Tribunal below, did not confirm on oath that he was approached by Mr Killman, and it is undoubtedly true to say that the first that Mr Sexton became aware of Mr Thompson’s allegations was when the statements of the witnesses for the Tribunal were disclosed many days before the hearing began.  That, the Tribunal said, contrasted with the fact that the Applicant’s account of events and the formal statement was written on 7 June 2000.  Sixthly, and very significantly, the Appellant was unable to produce to the Tribunal copies of the original marking by each of the scorers which would have provided material evidence whether tampering had taken place.  

11	Those reasons, or some of them in any event, are attacked by Mr Legard today, on behalf of the Appellant, and it is of course true that in detailing the conversation, Mr Sexton put it at a date when it could not have taken place.  That said, however, we are of the view that on this issue of fact, the Tribunal was clearly entitled to form the view which it did and to accept Mr Sexton’s evidence, as opposed to that of Mr Thompson and that the reasons it gives for doing so are sufficient

12	In these circumstances we can see no error of law, nor can the Tribunal’s finding be said to be perverse.  It follows that the Tribunal, in our judgment, was entitled to conclude that there had been some tampering with the scoring which had the effect of ensuring that Mr Sexton was selected for redundancy.  The Tribunal was also, in our view, entitled to accept that the only credible reason for such an action was the Applicant’s involvement in trade union activities which were perceived as troublesome to the Appellant.  We repeat the considerations which were put to Mr Legard this morning as to Mr Sexton’s experience and length of service with the company.  

13	Mr Legard argued that having identified the scores as a critical issue in the case, it was incumbent upon the Tribunal to investigate further and discover what the scores were.  If they had done that, Mr Legard argues, it would have resolved the matter one way or the other.  Without deciding the point we are not necessarily of the view that this was the Tribunal’s function.  In any event, the individual scores were not available and, in our judgment, given the experience of Mr Sexton and the length of time he was with the company, it is our view that the Tribunal were entitled to draw the strong inference from the facts, as they did, that there had been some tampering with the scoring and that was the reason for the low marks.  

14	Several procedural points are taken in the Notice of Appeal and repeated this morning by Mr Legard.  The first is that the Tribunal declined to admit in evidence some documents by way of timesheets which were produced between the closure of the Applicant’s case and the opening of the Appellant’s case.  It appears from the correspondence that there was no objection in principle, on the Appellant’s behalf, to the documents being introduced.  That agreement was, however, qualified by a letter from Mr Sexton which made it clear that he did not accept that the documents produced, or this the graph, reflected correctly the time and contribution he gave to the production of cylinders, an important issue in the context of selection.  

15	It seems to us, therefore, that if the Tribunal had admitted those documents which plainly had been in the Appellant’s possession and power from the very beginning, it would have been necessary for Mr Sexton to have been recalled and cross-examined on them, in order for them to have any evidential weight, otherwise the Tribunal would have been faced with a graph which was contested and allegations that it was of little evidential value.  Without further oral evidence, the Tribunal would have been unable, in our view, to have grappled with that point.  The Tribunal refused to admit that evidence and, in our view, it was within the exercise of appropriate discretion for it to do so.  

16	In our view, accordingly, despite the careful argument put forward by Mr Legard this morning, we do not see that there is an arguable point of law in this case for the EAT to consider at a full hearing.  In our view, the case turns exclusively, or principally, on findings of fact made by the Tribunal.  Those findings were, in our view, within their appropriate discretion to find, and having found them, they were entitled to draw the inference which they did.  In those circumstances, despite as I say, Mr Legard’s helpful and careful argument, we do not think here that there is an arguable point of law to go before the Tribunal and the appeal will accordingly be dismissed at this stage.