Walls Meat Company Ltd v Selby
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE WOOLF,LORD JUSTICE KERR |
| Judgment Date | 03 February 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0203-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0130 |
| Date | 03 February 1989 |
[1989] EWCA Civ J0203-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Balcombe
and
Lord Justice Woolf
89/0130
EAT No. 571/86
MR. B. CARR (instructed by, Messrs. Hextall Erskine & Co., Solicitors, London SW1V 1PW., Agents for Messrs. Jack Thornley, Solicitors, Manchester, M3 4BQ) appeared on behalf of the Plaintiff (Appellant).
MISS E. SLADE (instructed by Messrs. Beachcroft Stanleys, Solicitors, London EC4A 1BW) appeared on behalf of the Defendants (Respondents).
This is an appeal with the leave of the single Lord Justice from a decision of the Employment Appeal Tribunal given on 25th June 1987 which allowed an appeal from a decision of the Industrial Tribunal given on 20th June 1986.
The Appellant, Stephen Joseph Selby ("the employee"), commenced employment with the Respondent, The Wall's Meat Company Ltd. ("the company"), on 15th January 1978 at the company's Evesham factory. He was originally a night worker, but in May 1980 he became at his own request a day worker to enable him to carry out his duties as a shop convenor for the Union of Shop Distributive and Allied Workers ("USDAW"). On the day shirt he was a quality controller.
In the early part of 1985 the company decided that it needed to dismiss a number of its employees on the grounds of redundancy, and the employee has not at any time challenged the need for these redundancies. The statutory form under the Employment Protection Act 1975 was submitted by the company on 28th February 1985 and notice was given to the factory workforce on 1st March 1985. At that time the proposal was to make 80 out of 496 semi-skilled workers redundant by the end of the month (March); the total number then employed at the factory was 570. The company then entered into negotiations with USDAW about these redundancies; the negotiations on behalf of USDAW were conducted by the employee and a Mr. Curtis, the chairman of the branch.
On 4th March 1985 a written agreement was entered into between the company and USDAW relating to the redundancy procedure: this agreement was signed by the employee on behalf of USDAW. The relevant parts of the agreement were as follows:-
"2. SCOPE
This Agreement covers only those permanent employees of the Company recognised as being represented by the Union, who are redundant under the notification of 1st March 1985, as amended in consultation."
"5. PRACTICAL ARRANGEMENTS
5.1 The Company will provide individuals with as much warning of redundancy as practical.
5.2 The redundancy programme will be consistent with operational efficiency and will ensure the retention of a proper balance of skills, ability and experience in work groups.
5.3 The final decision as to acceptance of any individual for redundancy rests with the Company."
Although this agreement said nothing further in writing as to the criteria which would be used in selecting redundancy subjects it became understood and agreed that the principle to be adopted was that of last in first out ("LIFO") within the various work groups or patterns.
What that meant was that the various shifts would be looked at and within those various shifts the LIFO principle would be adopted. There were several shifts. There was the day-shift, there was the night-shift, there was what was called the relay-shift; there was the 7.00 to 3.00 shift, the 3.00 to 6.00 shift and the 6.00 to 9.00 shift.
On the same day as the agreement was concluded, the company published a notice to the workforce indicating that it was prepared to consider voluntary redundancy for any permanent hourly paid production employee before implementing a programme of compulsory redundancy, but reserved to itself the right to accept or reject volunteers in the interests of operational efficiency and the need to keep a proper balance of skill, ability and experience in the various work groups. There was a substantial number of volunteers and the company reduced the total number of redundancies to 55.
The Industrial Tribunal's finding of the way in which the company approached the selection of employees for redundancy is contained in the following passage from its reasons:
"Evidence was given of the way in which the company worked out how many people would need to be made redundant on the basis of it retaining a workforce who would be able to operate with a proper balance within the work patterns. The planning manager of the company gave cogent evidence of the way in which he worked out his figures and the way in which he was recommending the reduction of employees within the various work patterns. In particular his recommendation was that there should be a reduction in the day working staff of which Mr. Selby was one."
Originally it had been the company's intention to make three of the day workers redundant, but that was later reduced to two. There was one volunteer from the day shift, and the employee, who was the person with the shortest period of service on the day shift, was selected for compulsory redundancy. He was given notice of dismissal on 14th March (effective 15th March) 1985, terminating his employment on 3rd May 1985. It was accepted before us by Mr. Carr, for the employee, that there could be no complaint about the way in which he was chosen for redundancy.
This was the first indication that the employee had that he was to be made redundant. From 1st to 14th March he had been actively engaged in negotiating with the company on behalf of USDAW: during that period there were six meetings and it is common ground that the employee conducted himself admirably in representing the interests of his members. However, he neither sought, nor was given, the names of those who were to be made redundant until the time when the company gave notice to those selected.
On 22nd March all those made redundant (including the employee) were told that they were to be dismissed on 29th March—although of course entitled to pay during their period of notice—and the employee was dismissed on 29th March. Between 14th and 29th March there were no negotiations between the company and the employee, or anyone on his behalf, relating to his individual position. In due course he made a claim for unfair dismissal: that claim was upheld by the Industrial Tribunal which held that he had been unfairly dismissed and ordered the company to re-engage him and pay him arrears of wages of some £4,780 until the date of re-engagement ordered. The essence of the Industrial Tribunal's decision was that, although the employee's selection for redundancy was in accordance with the LIFO principle applied to the day shift, the company acted unreasonably in failing to enter into any meaningful consultation with the employee. From that decision the company appealed to the Employment Appeal Tribunal. The EAT allowed the company's appeal on the basis that, even though the company might be criticised for failing to enter into any meaningful consultation with the employee before 29th March, consultation would have made no difference. That decision was given before the decision of the House of Lords in Polkey v. Dayton Ltd. (1983) A.C. 344, and it was common ground before us that, in the light of Polkey, the E.A.T.'s decision in this case cannot stand. However, it was also common ground before us that, as a second tier appellate court, we are concerned to determine whether the decision of the Industrial Tribunal was right, and not whether the E.A.T. was right—see Campion v. Hanworthy Engineering Ltd. (1987) I.C.R. 966, 972.
So it becomes necessary to consider the decision of the Industrial Tribunal in some detail. There were references in paragraph 7 of the Reasons to certain factors peculiar to the employee's position: that he had substantially more service with the company than the others made compulsorily redundant, and that his position as a quality controller was a service post and therefore "somewhat unique" compared with those others. The crucial paragraphs in the Reasons are paragraphs 9 and 10 which are set out in full below:-
"9. How do these facts fit in with the general principles of fairness which have been applied over the last few years with regard to the selection of people for redundancy. The tribunal's attention was drawn to the well known decision of Williams v. Compair Maxam. In that decision the learned president restated what were parts of the then Code of Practice. He referred in particular to the questions of warning and consultation. The paragraph with regard to warning is particularly apt in these circumstances. Did the company act reasonably in accordance with these principles of good industrial practice and did they keep the door open for such questions as alternative employment and indeed the retention of Mr. Selby's job and livelihood to be considered?
10. The tribunal regretfully had to find that the answer to these questions must be in the negative. The company cannot be criticised for failing to supply lists of names before the 15th March. The fact that they did not was not disapproved of at the time by the union. From that time onwards however there was virtually a shutting of the door by the company of any further discussion or negotiation with regard to Mr. Selby's position. In view of what susbequently transpired a more liberal approach might well have led to the finding of an alternative position for Mr. Selby. It seemed that the company shut its ears to any of these possibilities. In view...
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