Appeal No.  UKEAT/0361/05/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 October 2005

Before
HIS HONOUR JUDGE PETER CLARK
MR A HARRIS 
MRS M McARTHUR BA FCIPD

ECC CARD CLOTHING LIMITED	APPELLANT

(1) MR M KNAPTON	RESPONDENT
(2) MR VAN BELLEN
(3) MR A DANIEL

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR COLIN BOURNE
(Of Counsel)
Instructed by:
Messrs Addleshaw Goddard Solicitors
PO Box 8
Sovereign Street
Leeds LS1 1HQ	

For the Respondent	MR PAUL DRAYCOTT
(Of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Arundel House
1 Furnival Square
Sheffield
S. Yorks S1 4QL	

SUMMARY

Unfair Dismissal

Unfair Dismissal – redundancy – unfair selection due to lack of adequate individual consultation – no error of law.

HIS HONOUR JUDGE PETER CLARK

1.	This is an appeal by ECC Card Clothing Limited the Respondent before the Leeds Employment Tribunal against that Tribunal’s judgment, promulgated with Reasons on 7 April 2005, upholding the Claimants, Michael Knapton, Brian Van Bellen and Alan Daniels complaints of Unfair Dismissal.  The Tribunal found that those dismissals, by reason of redundancy were unfair, applying section 98(4) of the Employment Rights Act 1996.  We shall refer to the parties as they were described below.

Background
2.	The Claimants were long-serving employees of the Respondent.  Mr Daniel commenced his employment in 1968; Mr Knapton in 1974 and Mr Van Bellen in 1978.  Each was dismissed by reason of redundancy on 8 April 2004 by Mr Buckley, the Quality Manager; their internal appeals, taking the form of a review, rather than a re-hearing, were dismissed by Mr Malley, the Chief Executive.

3.	The Tribunal found that those dismissals were by reason of redundancy but were unfair because:
	(1)	there was no effective individual consultation with any of the Claimants before they were dismissed;
	(2)	the selection criterion of productivity employed as part of the Respondent’s selection matrix was not at all objective;
	(3)	the skills criterion was flawed in that, without reference to the Claimants or other employees the Respondent decided to limit one category, ability to train others, to leading hands only, thus excluding these Claimants from an additional score of up to 4 points;
	(4)	the appeal hearings before Mr Malley were by way of review, not re-hearing, and therefore could not cure the flaws in the selection procedure at the dismissal stage.

See the Tribunal’s Reasons, paragraph 6.

The Appeal
4.	 In advancing this appeal Mr Bourne does not rely upon the perversity ground, rather he submits that the Tribunal set the bar too high as to whether or not the Respondent had acted reasonably for the purposes of section 98(4).  He made specific reference to the EAT and Court of Session judgments in King v Eaton (No.1), respectively reported at [1995] IRLR 75; [1996] IRLR 199.  King (No 1), which, together with a number of earlier cases, was considered by the EAT in Mugford v Midland Bank plc [1997] IRLR 208.  Having done so, we there concluded (paragraph 41) that it will be a question of fact and degree for the Employment Tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair.  Support for that proposition, so far as individual consultation is concerned, may be derived particularly from the EAT decision in Rolls Royce Motor Cars Limited v Price [1993] IRLR 203 (Knox J presiding) and the Court of Appeal decision in Walls Meat Co v Selby [1989] ICR 611.

5.	In our judgment that is precisely the approach taken by this Employment Tribunal.  As Mr Draycott points out, the Tribunal patently directed themselves that they must not substitute their view for that of the employer: that the band of reasonable responses test should be applied to the procedures followed by the employer; that they should apply section 98(4) ERA and even that they should take account of the Scottish EAT decision in King (No.1); itself favourable to the employer; notwithstanding that the result in that appeal was later overturned by the Court of Session.  Not only was that overall self-direction unimpeachable in law, it was, we are satisfied, applied by this Tribunal to the facts.

6.	In these circumstances we reject Mr Bourne’s submission in law.  The bar was set at the correct level by the Employment Tribunal.

7.	Having eschewed any argument based on perversity Mr Bourne is left in the position that this Tribunal, as a matter of fact and degree, concluded that the lack of effective individual consultation, for the reasons given and based on their material findings of fact was such that the dismissals were unfair, applying section 98(4).  We can see no basis, in these circumstances, for interfering with the Tribunal’s conclusion, there being no misapplication of the law.  

8.	In so finding we are comforted by the similar approach taken by this EAT in two recent unreported cases to which our attention has been drawn; they are Alstum Traction Ltd v Birkenhead (EAT 1131/00.  10 October 2002.  Mrs Recorder Cox QC presiding) and Dixons Stores Group Ltd v Sangster (UKEAT 0205/04/DM.  27 October 2004.   HHJ Ansell presiding).

9.	It follows that this appeal fails and is dismissed.