Appeal No. EAT/162/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 July 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR D O GLADWIN CBE JP

	MR J C RAMSAY

MR J A HOLMES	APPELLANT

SMITHS INDUSTRIES AEROSPACE & DEFENCE SYSTEMS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B CARR (of Counsel)
Messrs. Rowley Ashworth
Solicitors
247 The Broadway
London SW19 1SE

For the Respondents	MR P WALLINGTON
	(Legal Adviser)
	Engineering Employers'
	Federation
	Broadway House
	Tothill Street
	London SW1H 9NQ

	JUDGE HULL QC:  This is an appeal to us by Mr Holmes, a skilled spray painter, against a decision of the Industrial Tribunal sitting at London South on 3 and 4 December 1991 - as is pointed out, a substantial time ago - in which they held that his dismissal for redundancy was fair.  We do not propose to say a great deal, any more, really, than is needed to justify, as we believe, our decision.

	Mr Holmes had been employed by the employers, Smiths Industries Aerospace, since 6 October 1975.  They are engaged in "high-tech work", some of it for the Ministry of Defence.  There was a fairly small department called "the process department", that had a leak test department, as it is called, an araldite department, and it had the spray shop within it, where Mr Holmes and a fellow worker, Mr Ross, who is even more skilled than he at paint-spraying, worked.

	During his time in the company, Mr Holmes had worked apparently in various capacities and acquired various skills.  He had amongst other things worked in the other two shops - the araldite and the leak test shop.  The work is described in outline in the notes of evidence, which have been supplied to us by the Chairman, Dr Davies, and we do not need to go into the details.  It is all skilled work and, of course, Mr Holmes, though not the most skilled in the department was, nonetheless, a skilled man.

	There came a time in 1991 when it was envisaged that work for the paint sprayers would diminish and that there would not be work for the two gentlemen, Mr Ross and Mr Holmes, and the question of redundancy arose, not only there but in other departments in the works and so it was necessary to consider the question of redundancy.  Again, I will not go into the details.  There were quite a substantial number of people who were made redundant.  The employers had consultations with the union.  Those did not result in complete agreement and Mr Holmes was not content at his selection for redundancy.  When he was dismissed, as he was, despite his representations, he made a complaint of unfair dismissal.  The nature of his complaint was this:  that the employers had simply addressed their minds in choosing the candidate for redundancy to himself and to Mr Ross, the other even more skilled sprayer.  They should have looked throughout this little process department, said Mr Holmes.  There were a number of jobs there which he could do and it did not matter that those jobs were not necessarily paint-spraying or only involved part-time spraying.  His seniority, the time that he had worked for the employers and the skills which had been acquired, meant that he should have been considered for those other jobs in the department.  Thus, it might have been, if that had been done, said Mr Holmes, that somebody else would have been made redundant and he would have been transferred to doing perhaps that person's work.  

	I will not go into all the complexities and possibilities but that was the nature of his case, that the wrong pool had been selected.  They had only considered him and Mr Ross and they should have considered all the persons in the department.

	The employers, in their case, said that they had, indeed, addressed their minds to the very small pool of the two sprayers and that that was right and proper.  That was their evidence.  It was what they put in their answer.  It appeared to be correct from the documents, so far as we have seen them.  Those were the documents produced.  

	The Industrial Tribunal took a different view from those which had been put forward and they put it in a rather remarkable way:
"From the documents used in consultation with the union and applied in the selection process" [and they refer to a document] "it is apparent that the respondents amalgamated the paint spray shop, the araldite room and the Leak Test room, in their deliberations with the union.  When questioned about this by the Tribunal they said that they had in fact decided to confine application of the criteria to the paint spray shop prior to discussions with the union.  ... but that they felt if they told the union one paint sprayer was going, it would cause concern, so they told the union that application covered the whole area when they really meant the paint spray section."

	Anybody reading that would be becoming perhaps a little confused at first reading. 
"We find that explanation improbable and we do not accept it.  In our view the probability was, as the documents indicate, that the respondents did look across the entire department" [that is, the process department, with its three shops] "before deciding to select Mr Holmes and, combining the future disappearance of paint spraying work with considerations of comparable grade and availability of alternative employment, they selected Mr Holmes but felt their decision would be less open to challenge by the union if they said selection was applied solely to the paint spray shop."

	That is attacked by the appellant, Mr Holmes.  He says that there was no evidence whatever to support the finding that the employers, in fact, considered the whole of the process department and the documents do not support it.  There is nothing to support that and that is now conceded - that it is impossible to support this finding of fact because there simply is no material to support it.  The employers had throughout said that they had confined themselves to the paint spray shop, not to the process department as a whole, and here the Industrial Tribunal apparently, so far as we can see from the notes of evidence and the documents, were not merely saying that the employers had acted in a way which is contrary to their own contentions and, apparently, unsupported by the evidence but, on the basis of that were attributing to the employers, again apparently without any evidence, a Machiavellian intention to deceive the union and, I suppose, the Industrial Tribunal itself by putting forward a wrong case because it would be then easier to persuade the union.  So that that finding, as it appears to us, which it is conceded cannot be supported, is based upon, one supposes, perhaps something that was said, perhaps something that was imagined, perhaps something that was speculated but it is completely insupportable.

	The Tribunal, embarking on the earliest stage of their necessary enquiry into whether the dismissal for redundancy was fairly carried out and the selection was fair, considering the first question which logically arises:  did the employers choose the appropriate pool to select employees for redundancy from, had made a mistake there because they had reached a conclusion which was not supported by any evidence or any documents and had gone on, indeed, to erect what appears to be a fantasy by attributing to the employers a Machiavellian intention to deceive in that way.

	That is a legitimate criticism of the process by which the Tribunal started.  Of course, they had logically to go on to decide whether proper criteria were applied to the pool, whether they were fairly applied and whether there was proper consultation, and so on.  Those being the normal requirements for fairness when somebody is selected from others for redundancy.

	They went on to make findings.  It was agreed, as the Tribunal said, that there was a redundancy situation here and at paragraph 15 they say:
"... we find the following facts:

...

(iv)that in view of Mr Holmes' past experience throughout the department a reasonable employer would have applied the criteria throughout the department, and would not have confined application to the paint spray section;"
and (v), and this is the finding which is legitimately complained of:
"that the respondents did in fact apply the criteria throughout the department, despite their assertion that they applied it to the paint spray section;"

	They go on to say in (viii):
"that in selecting Mr Holmes by applying the criteria to the whole department, as we have found, the selection was fair in that there was no one in the entire department of comparable D2 grade whose skills and ability would have been less necessary than those of Mr Holmes, to meet the company's future needs."

	Mr Carr has told us, with considerable justice, we think, that there is much to be criticised in that paragraph, too.  But Mr Carr says that we should proceed on the basis that the rest of the decision is entirely supportable and that the conclusion of unfair dismissal is, therefore, inevitable.  

	Mr Wallington attacks the conclusion, or was about to attack the conclusions to which we have referred, by saying that in fact the confinement to a choice simply from the paint spray shop was an appropriate one.  

	We look at this conclusion that, in view of Mr Holmes' past experience throughout the department, a reasonable employer would have applied the criteria throughout the department.  That is what Mr Carr says.  "There is no legitimate criticism of that", he says, "that clearly should survive".  That is a finding of fact, which they were well entitled to reach.  

	We say to ourselves, "Here we have a decision in which the Tribunal must, to say the least, have got themselves into a complete muddle in saying that the employers did, in fact, consider the entire department".  We say that state of mind, that muddle, inevitably must have affected their consideration of what was the appropriate pool.  If they thought, quite wrongly, that the employers were in fact considering the pool of the entire process department, then that cannot have failed, it seems to us, to have affected their minds on the question of what was the appropriate pool.  The employers', as they found, hidden agenda, the subterfuge of considering the whole department really and truly whilst keeping that from the union, must have led the Tribunal to the view that that, on the face of it, was what the employers did and that, on the face of it, was the reasonable course.

	We feel quite unable to accept Mr Carr's submission that we should, so to speak, uphold part of the decision so intimately connected with the fundamental mistake, which he correctly identifies, in reaching the allied part of the decision that the employers did in fact consider that as the appropriate pool.  We have come to the conclusion that the whole of this decision is infected by a mistake, as it must be, made by this Tribunal in finding that there was evidence to support the finding that the employers applied their consideration of the pool to the whole process department and finding immediately before that that was the appropriate pool.  

	We think that this Tribunal got itself into a muddle and that this decision, therefore, being flawed in this first and most vital part with regard to the appropriate pool, cannot stand.  We think that the whole case should go back to a Tribunal differently constituted, so that they can consider the matter without the embarrassment of the false conclusion which this Tribunal arrived at and that it would be quite unfair to send it back to the same Tribunal so that they could correct themselves with regard to their mistakes and then approach the matter anew.  We think that that would be a difficult and embarrassing process for the Tribunal.  We think that the right thing to do is to have the whole matter tried again by a freshly constituted Tribunal so that they can decide these matters and all the matters in the case anew.  

	We realize the seriousness from the point of view of the parties of doing that but it is not quite so serious as it sounds because it may very well be that the parties will conclude that the evidence, which was not very seriously in issue on most points, can be laid before the fresh Tribunal in the form of the written Chairman's notes.  It may well be that it is only thought right to add a few pieces of evidence, if any, to what is already before the Tribunal.  It may well be that few if any extra arguments will need to be adduced.  However that may be, we do not feel able to make any findings of fact ourselves.  We do not feel able to avoid the conclusion that the findings of fact should be approached anew and by an Industrial Tribunal freshly constituted so that they can bring fresh minds to the questions which arise in this case.