Appeal No. EAT/468/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22nd March 1994
	Judgment delivered on 13th May 1993

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MRS M L BOYLE

	MR J A SCOULLER

SHEERNESS STEEL CO PLC	APPELLANTS

MR J JONES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P STEWART
(of Counsel)
Messrs Thomson Snell & Passmore
Solicitors
3 Lonsdale Gardens
Tunbridge Wells
Kent TN1 1NX

For the Respondent	RESPONDENT IN PERSON

HIS HONOUR JUDGE PEPPITT QC        This is an appeal from a decision of the Ashford Industrial Tribunal sent to the parties on 23rd April 1992.  The Tribunal decided unanimously that the Respondent, John Owen Jones, had been unfairly selected for redundancy by the Appellants, Sheerness Steel Plc, and that accordingly his dismissal was unfair.  The Appellants contend that the Tribunal's decision was perverse.

	The Respondent was employed by the Appellants as an analyst inspector at their steelworks in Sheerness.  He was one of 13 such inspectors in the Appellants' Quality Control Department.

	In early 1991 the Appellants were engaged upon a reorganisation of their Quality Control Department.  The 13 analyst inspectors were to be replaced by 10 Quality Assurance Technicians of whom one was to be a graduate metallurgist.  The differences between the old and the new posts are set out in paragraph 3 of the decision; the Tribunal summarised those differences in paragraph 12 of the decision by finding that the new posts `had a different emphasis and were different posts but not dramatically different'.

	The Appellants implemented the reorganisation by purporting to make all 13 analyst inspectors redundant and at the same time inviting them to apply for the new posts.  Since there were only nine vacancies for the new posts (one vacancy being reserved for the graduate metallurgist) at least four of the analyst inspectors were bound to be disappointed.  The employers had argued with the Union that the unsuccessful applicants for the new posts would be made redundant.

	The new posts were advertised internally in early March 1991.  The material part of the advertisement is quoted in paragraph 6 of the decision.  It included the following:
	"It is  essential that the applicants possess City and Guilds Level III in Metallurgy together with a Quality Assurance qualification, or are committed to study to achieve at least one of these within 2 years of being appointed.

	 It is desirable that applicants hold Vocational Qualifications in rolling, steelmaking or quality control, have a good working knowledge of Company products and quality standards together with the ability to work on their own and as part of a team."

	There were 19 applications for the new posts, 13 from the existing analyst inspectors and 6 from elsewhere within the Appellants' works.  All of the applicants were interviewed, their suitability being assessed by reference to four criteria:
(i) the level of qualifications or the commitment to acquire them within two years;
(ii) knowledge of metallurgical and quality systems;
(iii) whether the applicants extended themselves beyond their normal duties;
(iv) the performance in their current role.

	A selection panel interviewed each of the 19 applicants and received reports from the line managers of the 13 analyst inspectors.  The panel first reduced the number of applicants to 13 by rejecting the six who had not been analyst inspectors.  At a subsequent meeting at the end of March 1991 nine of the analyst inspectors were selected for the new posts.  The Respondent was one of those not selected.  He invoked the Appellants' grievance procedure without success and was made redundant on 30th April 1991.

	At the heart of the Tribunal's decision was its finding in paragraph 12 that:
	"the exercise in making all the men redundant as submitted to us by the respondents, and the selection for the ten new posts was nothing more than window-dressing for an ordinary redundancy situation following a reorganisation, with a selection process to eliminate the undesired. ..."
Mr Stewart on behalf of the Appellants attacked this finding on two main grounds.  In the first place, he said, there was no evidence to support it and the Appellants were given no opportunity to refute it.  Secondly, he argued that the finding was inconsistent with the further finding in paragraph 12 of the decision that the new posts were different from the old.  It was only on the basis of this unjustified finding, Mr Stewart submitted, that the Tribunal were able to disregard the criteria adopted by the Appellants for selection to the new posts and to substitute a different set of criteria when considering the Appellants' decision to make the Respondent redundant.  This the Tribunal was not entitled to do and its finding that, judged by these different criteria the Respondents' selection for redundancy was unfair could not be supported.

	`Window-dressing' is defined in Chambers Dictionary as:
	"The arranging of goods in a shop window: the art of doing so effectively: presenting a cause, situation etc in a favourable light".
Was there evidence before the Tribunal which entitled them to reach the conclusion that the exercise described in paragraph 12 of the decision was no more than window-dressing designed to present in a favourable light `an ordinary redundancy situation with a selection process to eliminate the undesired'?

	In our judgment there was.  The Tribunal found that the new posts were to enjoy junior managerial status and would be salaried.  There would be no overtime though a shift allowance would be paid.  The Appellants were unable to tell the Tribunal whether this new pay structure had in the event produced more or less money for the holders of the posts (although the hearing took place nearly a year after the Respondent's dismissal).  The Tribunal summarised their findings in paragraph 12 of the decision:
	"... The respondents by this procedure were able to sweep away overtime and reduce manning levels as required."

	The new posts were not `dramatically different from the old'.  None of the nine successful candidates for these posts was ever made redundant.  All nine filled the new posts with continuity of employment.  No redundancy payments were made to them and the reality was that their contracts of employment were varied consensually to fall in with the new job specification.

	These findings above would in our judgment have justified the Tribunal's `window-dressing' finding.  But the Tribunal also heard evidence from Mr Roughley, the Appellants' Quality Assurance Manager, who, if not the instigator of the reorganisation was intimately concerned in its implementation and from Mr Fisher the Appellants Quality Analyst Engineer, who sat on the selection panel.  Both were cross-examined by the Respondent and by members of the Tribunal.  The impression which the Tribunal formed of the evidence given by these witnesses was no doubt another factor which it took into account in arriving at its conclusions.

	In these circumstances we are satisfied that there was evidence before the Tribunal which entitled it to reach its `window-dressing' finding.  We do not consider that the Tribunal was under any obligation to put to the Appellants' witnesses a finding which would only have been made after all the evidence had been called and the Tribunal had retired to consider its decision.  In our judgment, the Tribunal did all that was necessary by its members asking Mr Roughley and Mr Fisher the questions which they did.

	In the light of its `window-dressing' finding the Tribunal took the view that this was in reality an ordinary redundancy situation and proceeded to examine the criteria used by the Appellants for selection for redundancy to see if they were fair and fairly applied on an objective basis.  In our judgment, the Tribunal would have been right to adopt this approach in any event because the procedure which the Appellants adopted for selection to the new posts was at the same time the procedure by which at least four of the 13 analyst inspectors were to be selected for redundancy.

	We can find no fault in the manner in which the Tribunal approached this question of reasonableness under S.57(3) of the Employment Protection (Consolidation) Act 1978.  It asked itself the correct question ie `whether the decision to select the applicant for redundancy fell within the band of reasonable responses which a reasonable employer might have adopted' and in paragraph 16 of the decision answered that question in the negative by finding:
	"... that the respondents' reasons for the applicant's selection for redundancy were insufficient to displace the factors of his long service, his adequate performance and his academic qualifications.  We find as a fact that no reasonable employer would have come to the decision the respondents did in this case."
There was clear evidence to found those findings.  The Respondent had joined the Appellants in 1976 and had served them for longer than all but one of those appointed to the new posts.  Length of service was not one of the criteria adopted by the Appellants in their selection process.  The Respondent alone of those interviewed for the new posts had obtained the relevant technical qualification of City & Guilds Metallurgy Level 2 which he had passed with distinction, and his appraisals for the years 1989 and 1990 (which were not considered by the selection panel) showed a satisfactory level of performance.  In reaching its conclusion the Tribunal balanced these factors against those relied upon by the Appellants in rejecting the Respondent for appointment to one of the new posts and thus selecting him for redundancy.  This was in our judgment a wholly correct approach.

	Mr Stewart however submitted to us that in judging the reasonableness of the Appellants' conduct the Tribunal fell into the very error which Browne-Wilkinson J warned against in Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439 and substituted its own views as to what was the right course for the Appellants to have adopted.  We do not agree.  The Tribunal was well aware of this danger (see paragraph 15 of the decision) and in paragraph 17 prefaced its critical findings upon the Appellants' conclusions by the words `in determining whether the (Appellants) acted within that band of reasonable responses we find as follows'.  In answering that question the Tribunal was entitled to assert its own views and indeed could not have done otherwise.  On our reading of the decision the Tribunal's comments upon the inadequacies of the Appellants' selection procedures were directed solely to its consideration of this question and had no wider application.

	For these reasons we are unanimously of the view that we should not interfere with the Tribunal's decision.  This appeal must therefore be dismissed.