Appeal No. EAT/185/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 November 1994

	Before

	HIS HONOUR JUDGE HULL QC

	MR A C BLYGHTON

	MRS M E SUNDERLAND JP

MR G LIBOTTE	APPELLANTS
MR H M WITHERINGTON

CROSFIELD ELECTRONICS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the 1st Appellant	MR M MOORHOUSE
(Citizens Advice Bureau)
Citizens Advice Bureau
41A Park Road
Peterborough PE1 2TH

For the 2nd Appellant	MR S GASZTOWICZ
(of Counsel)
Messrs Kelham & Sons
Solicitors
9 Broad Street
Stamford
Lincs PE9 1PY

	JUDGE HULL QC:  This is an appeal to us from the Industrial Tribunal sitting at Bedford under the chairmanship of Mr Scholfield with two industrial Members.  They sat for five days, 18, 19, 20 and 21 January and they also sat on 24 March.    

	The case was as follows.  The Respondents, Crosfield Electronics Ltd, is a manufacturing and research company in a substantial way of business at Peterborough.  Mr Libotte and Mr Witherington, the two Appellants, are technical engineers.  They were employed in the scanner testing department, which was part of a scanner product line, as it was called, which was presided over by Mr Matheson, the manager.  There were two supervisors who were responsible for them, a Mr Davies, the senior of the two and a Mr Douglas, who was the gentleman immediately and directly responsible for their activities.  They were both engaged in trade union affairs and they were senior men.  

	There came a time when redundancies were considered necessary by the company and it is from those matters that this appeal arises because, amongst many others, Mr Libotte and Mr Witherington were selected for redundancy by their employers and they complained that the selection was unfair.

	There was a lay-off and redundancy agreement with two trade unions concerned in November 1990 and in the early part of 1991 there was, according to the Industrial Tribunal, a decision to reduce costs in the company.  A period of consultation began on 14 March 1991 and on 17 April 1991 the Tribunal record that, an assessment having taken place on certain criteria, seven members of this particular department were warned of redundancy.  According to what we have been told today, they were actually told that they were to be redundant and their employment ended at the end of April 1991.

	Each of them launched proceedings saying that his selection for redundancy was unfair, complaining of unfair dismissal and seeking reinstatement or re-engagement and the answer put in was that they had been selected fairly for redundancy and, therefore, the matter came before the Industrial Tribunal.

	The Industrial Tribunal appears to have devoted the greatest care to elucidating the issues.  They spent five days, their chairman was one of the most experienced of chairmen and they seem to have gone into the issues at considerable length.  Their decision is 12 close‑typed pages.  The two Appellants were represented by a trade union official.  We are told that that particular trade union official had only been appointed a year before but we take judicial notice that trade union officials are usually not only experienced in industrial matters but expected, if they are to be appointed to do this sort of work, to understand the basics of representing people in Industrial Tribunals or, of course, before their employers or on any other occasions when a trade union official is expected to represent his men.

	There were two grounds put forward.  The first was really an allegation of bad faith, that these men were being got rid of because of their trade union activities.  There came a stage where the trade union officer, Mr Johnson, thought it right, as advocate representing both of them, to withdraw that allegation and not ask the Industrial Tribunal to consider that further. 

	The other allegation of unfair selection for dismissal was persisted in and the Tribunal considered it at great length.  There were various criticisms made on behalf of these two gentlemen.  It was suggested among many other things that they were not aware of the way in which their assessment had been marked, in comparison with others.  It was essentially, apparently, a competitive assessment.  The gentlemen responsible, Mr Douglas and Mr Davies, were the people who knew the various technical engineers and they made an assessment on various criteria.  We have been shown the assessment sheet, with only the names of the two Appellants on it, and it shows them as receiving certain marks, which place them well down the list and, therefore, these were taken into consideration and used in selecting them for redundancy.  There are such matters as quality of work, output, power of communication, flexibility, disciplinary record, and attendance;  and all the marks on those criteria were added up.  The Tribunal go into that.

	One of the complaints is that the two gentlemen were not shown that assessment.  They went to the Appeal Board which was set up in the company.  There were three members of that.  The Industrial Tribunal found that they looked into it very carefully and heard Mr Davies, who went into it all, and they were satisfied that the criteria were fair.  Anybody who wants to go into the details has only to look at the reasons given by the Industrial Tribunal at such length after this very long inquiry which they engaged in.

	Another criticism was that certain trainees had been preferred to these two appellants, who were both highly skilled men of long experience.  The Tribunal dealt with that, too.  It was suggested that not all the criteria fell within the agreement which I have referred to.  The Tribunal dealt with that, too, and amongst many other matters which were dealt with in their decision, they said:

		"15.	We have to decide whether there was a fair basis on which to select for redundancy.  This involves a consideration of the selection criteria and a consideration of the way in which these criteria were used when making the selection of the two applicants.  The selection criteria were not agreed with the unions, but, having studied the written `Lay-off and Redundancy Agreement' ... we are satisfied that the criteria came well within the scope of the agreement.  The paragraph on selection quoted earlier in this decision states that the retention of the most appropriately skilled people, with the best job performance, was of paramount concern to the company.  ...

		...

		17.	The applicants have complained about the marks which they were awarded, but it has been clear that the marks themselves were by no means as important as the order in which the members of this department were placed - it was at all times a comparative exercise.  Mr Douglas, [one of the supervisors who was responsible for the markings] although called as a witness by the applicants, made it clear that in his judgment the order in which the employees were placed was fair and reasonable in view of the criteria which had to be applied."

That was a witness called by these two gentlemen, who were not only experienced in industry but were also acquainted with trade union matters and were represented by a trade union officer.  The deliberate decision was taken to call Mr Douglas as, of course, a witness of truth and accuracy and that was the evidence adduced by the Applicants themselves:  that the order in which the employees was placed was fair and reasonable.  Mr Douglas was one of the two men who was directly responsible for that, indeed, probably the more directly responsible.

	They go on to another matter.  There was a complaint which I have already referred to, that the selection was unfair or the method was unfair in that these men were not given a sight of their assessment and they considered that:

		"Mr Johnson and the applicants have said that, as they were not allowed a sight of their assessments, they could not know what case they had to meet, and the procedure adopted at the appeal was unfair.  As Miss Eady [she was for the Respondents] has pointed out, however, Bentley Engineering Co Limited v Mistry [which was the case relied on] is a case of a dismissal by reason of conduct.  In that type of case natural justice will require that an employee must know what is being said against him so that he can put forward his own case."

	They then go on finally:

		"We have unanimously decided that neither of these applicants was unfairly selected for redundancy.  Applying the test laid down in Section 57(3) of the Employment Protection (Consolidation) Act 1978 neither of the applicants was unfairly dismissed.  Both applications must be dismissed."

	They had considered a great many points.  I have mentioned what appear to be some of the most important ones.  It is perfectly true that as the industrial jury, as the tribunal of fact, this Industrial Tribunal might well have decided (as a hypothetical matter) that certain of these matters had led to unfairness and if they had so decided, would have said so.  It is a matter for them and not for us to say what is and is not unfair.  They, of course, are having to apply the criteria in s.57 of the Employment Protection (Consolidation) Act.  They have to consider the many attempts which have been made in this Tribunal, in the Court of Appeal and in the House of Lords to say what the criteria of reasonableness and fairness require.  Those various dicta, of course, are intended to assist tribunals.  In any particular case they may, and some of them almost always will, be of direct application and assistance but eventually what every tribunal has to do is to put to itself the question which is put by the statute and say whether, in the light of that, and the authorities, they decide that in particular circumstances, any omissions or alleged omissions, any irregularities or alleged irregularities, do or do not amount to unfairness.  They found here that they did not and that was their decision on the facts.

	That decision was promulgated on 13 April 1993 and thereafter the proceedings seem to have taken an unusual course.  Mr Witherington put in his notice of appeal on 30 May 1993.  There is no notice of appeal from Mr Libotte and apparently what happened was that Mr Libotte who, of course, had made common cause with Mr Witherington at the Industrial Tribunal, telephoned this Employment Appeal Tribunal and was told (and we entirely accept what we have been told by Mr Moorhouse, on his behalf):  well, we will put your name in effect on the notice of appeal and you will continue to make common cause.  We accept that.  So there is just the one notice of appeal, which is at page 1 of our bundle.  When we look at that notice of appeal, the grounds on which this appeal is brought, it says, are that:

		"The Industrial Tribunal erred in law in that"

and then there is simply a blank.  There are certain letters which have been sent to us by Mr Witherington.  He applied apparently for a review of the decision and that was refused by another chairman - Mr Scholfield, the original chairman, having retired by then - and from that day to this, no grounds of appeal have been put forward.  No letter has been written to this Tribunal saying that grounds will shortly be put forward.  This morning, for the first time, my colleagues and I saw grounds of appeal settled by Counsel.  They came to this Tribunal under cover of a letter dated 14 November, two days ago, and that letter from solicitors said:

		"Please find enclosed perfected grounds of appeal ..."

That, with all respect to the writer, is a very misleading way of putting it.  It was the first time grounds of appeal had been put forward and then the writer put an asterisk beside that and said below:

		"Please note we have not had an opportunity of taking instructions on this document."

So what was put forward 18 months after the decision of the Industrial Tribunal was a document which they described as perfected grounds of appeal, with something on which instructions had not yet at that date been taken.  Today, Mr Gasztowicz, who appears for Mr Witherington, on whose behalf these grounds were put forward, said that we might choose to regard them as simply voluntary particulars of ground which had already been put forward.  We were not content to do that.  It seems to us that there is no possible basis for treating them in that way and the fact is, therefore, that today, for the first time, we have seen grounds of appeal.  Yesterday, we saw for the first time a document put forward by Mr Moorhouse of the CAB, to whom we are very grateful for his assistance.  That consists of two pages, it was called "Background to the case".  It was received at this Tribunal on 14 November and contains a skeleton argument and Mr Moorhouse has rested on that.  That fact is, although it may very well be that Mr Libotte has not been conscious that he has hitched his wagon, so to speak, to such an imperfect vehicle, the fact is that this appeal, until these grounds of appeal were put in, was wholly and completely defective.  We are told that there are excuses for some of the delay which has occurred.  There was an application for legal aid, there was an application for review.  That, by itself, would not entitle the Applicant to say "I am not going to put in grounds of appeal", although it might be some excuse.

	We want to say at once that every appeal to this Tribunal has to be on matters of law and a notice of appeal is wholly defective if it does not contain grounds of appeal.  We treat this, therefore, at Mr Gasztowicz's invitation, as an application to allow the amendment of the notice of appeal to add proper grounds, which are those settled by him.  We understand, from what Mr Gasztowicz has told us, that these grounds are now put forward on instructions and after several conferences, it being a mystery to us as to how when conferences were held some time ago, apparently, grounds of appeal could not be settled earlier.

	We, therefore, with Mr Gasztowicz's assistance, have considered these grounds, it having taken rather longer because we saw them for the first time this morning and we also considered what is said by Mr Libotte through Mr Moorhouse.  I have not dealt with them all, but numerous points of criticism are made and the complete list is contained in Mr Gasztowicz's notice of appeal.  That is adopted by Mr Moorhouse, with the additions which he thinks it right to make on behalf of Mr Libotte.  We have considered all these grounds, as well, of course, as reading the decision more than once to make sure we understand what is said by the Industrial Tribunal.

	We say at once that we cannot find any ostensible error in the decision itself, nothing that so to speak leaps from the page.  We have considered these new grounds of appeal for two purposes:  first of all, to see whether, taking into account these, as well as all the other matters, we ought to give leave to amend, to add these grounds of appeal and thus perfect a wholly defective notice of appeal and, secondly, to see what merit they have as contentions of law because, of course, we can only entertain appeals on points of law.  This case is in our list today under our practice directions to see whether, with the aid of Mr Gasztowicz and Mr Moorhouse, we can find any point of law in the case.

	We have considered all that has been said by Mr Gasztowicz and the grounds of appeal and we have considered what has been said by Mr Moorhouse.  As I have already said, it is perfectly plain that a number of matters which are raised could, as a hypothetical matter, have appeared to the Industrial Tribunal to give grounds for saying that there had been unfairness.  They did not.  They appear to us to have been canvassed.  Mr Gasztowicz says, among other things, that not every point that should have been dealt with by the Tribunal has been dealt with by them, and he also refers to a large number of points on which he says that they failed to give proper weight to this, or misunderstood that and Mr Moorhouse has taken the points which are shown in his skeleton argument and his note, for which we are grateful.

	Having considered all these matters as carefully as we can, we have decided that it would be right to give leave to amend the notice of appeal on which both Appellants, in fact, rely, to add these grounds of appeal but, having considered all these grounds of appeal, it appears to us that there is, indeed, no arguable point of law disclosed by them when one reads the decision.  It appears to us that the Industrial Tribunal has considered properly all the essential matters and has applied its mind correctly and with great patience to the issues.  It appears to us that what is being said here is either an invitation to us to retry the case which was tried by the Industrial Tribunal and to reconsider matters which were considered by them as, quite rightly, question of degree and fact and industrial practice or to engage in the process which has been repeatedly condemned by the Court of Appeal, going through the decision with a fine toothcomb to find something wrong here, something omitted there, a careless phrase here or there, or some way in which the decision could have been more happily put.  If we read the decision fairly, we are satisfied that all these criticisms are, as matters of law, unmeritorious.  As to their merit in fact, we are not entitled to say anything about that.  The Industrial Tribunal has considered these contentions and has rejected them, in most cases expressly, in certain cases leaving them in silence because quite clearly they were applying their minds to the correct criteria and after hearing the case for five days, no Tribunal could be expected to list each and every matter which had been raised before it or set them all out in their already very long judgment.  It appears to us that this appeal does not, in fact, raise any arguable point of law and it is now, therefore, our duty to dismiss it without putting the parties to the expense and delay of a full hearing.

	We do want to make it plain, as I think we have already, that we very much disapprove of the method by which these grounds of appeal were put before us at the last moment and it certainly should not be taken that in any other case we would give leave to amend the notice of appeal in such circumstances;  but we have given leave in this case, bearing in mind all the facts of the case.