Appeal No. EAT/699/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MR I EZEKIEL
MR G H WRIGHT MBE

MR J S J GERREYN	APPELLANT

ENVOPAK GROUP LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS BROWN
(Of Counsel)
Messrs Balogun Kirvan
Solicitors
107 High Street
Penge
London
SE20  7DT	

	JUDGE BYRT QC:   This is a Preliminary Hearing in relation to an appeal against the decision of the Industrial Tribunal sitting at London (South).  The decision was promulgated in April of this year.  By their decision they held that Mr Gerreyn had been unfairly dismissed and that he was entitled to an award of some £12,474.

	Mr Gerreyn appeals and says that the Industrial Tribunal was erroneous in law in three respects: first, in holding that his selection for dismissal was in no way connected with his trade union activities.  He was not only a member of a trade union but also a shop steward.  Secondly, he says that in computing the compensation to which he is entitled, they wrongly calculated because they did not take into account the proper contractual redundancy agreement.  Thirdly, he says, that they failed to take into account his loss of pension rights.

	Dealing with the third point first; his claim for the loss of pension rights is not a matter which was argued before the Industrial Tribunal.  It is established law that it is not permissible for an appellant, save in exceptional circumstances which do not apply in this case, to take a point before the Employment Appeal Tribunal for the first time.  Accordingly, further argument in relation to that aspect of Mr Gerreyn’s appeal cannot be allowed.

	Dealing with the other two points, it is perhaps helpful if we recite some of the facts.  The Appellant had worked for the Respondents as a maintenance engineer for some twenty-two years.  The Industrial Tribunal found that he was thorough in his work and he was proud of what he had achieved, but, as the evidence of Mr Mountain explained, he was somewhat old-fashioned in his approach.  In the last year before the events we have to consider his record of attendance was not good, largely because of sickness.  During the period of time running up to the redundancy, the company had engaged in a degree of restructuring and as a result, in November 1994, a younger person called Brian Isden, a tool-room fitter, was promoted over and above Mr Gerreyn, to the position of senior maintenance engineer.  Mr Gerreyn was charged to be his assistant.

	That was the situation in November 1994.  Subsequent to that, as I have already said, Mr Gerreyn’s record of attendance was not good.  In August 1995, management decided that they would have to close down the depot at Plumstead where Mr Gerreyn worked.  The Company was in financial difficulties as a result of a significant reduction in the work they were undertaking.  They decided that there was need for only one engineer.  There were two engineers, Mr Isden and the Appellant and they chose to keep Mr Isden.  They said in evidence they found he was a better worker and his record of attendance was much better than that of the Appellant.  That is the Respondents’ case.

	The Appellant says the sole or principal reason for his dismissal was his trade union activities and dismissal for that reason is contrary to Section 152 and 153 of the Trade Union and Labour Relations Act 1992.  Furthermore, he says, that it is of some significance that the Industrial Tribunal themselves thought it material that the new premises to which the work was to be taken, namely at Sidcup, was a site at which the union was not recognised.  That was going to cause problems in respect of Mr Gerreyn, because he is a shop steward.  Mr Gerreyn says this indicates that he was an embarrassment and it was for that reason that he was chosen for redundancy rather than Mr Isden.

	Our jurisdiction is limited to questions of law only.  Whether or not Mr Gerreyn is right in his contentions is a question of fact.  During the course of the hearing they would have heard evidence from the management side, saying that Mr Isden was the better man overall and that is why he was chosen; and from Mr Gerreyn saying he was dismissed because of his trade union activity.

	The Industrial Tribunal had to make a decision about that issue.  They went about it from two angles.  They first of all looked at the people who were declared redundant when the Plumstead site was closed down.  On an analysis they worked out that union representation at Plumstead covered some 70% of the workforce.  When they looked at the union representation amongst those who were declared redundant, it was less than that figure; it was only 60%.  They felt that this had some significance, not an end of the story, but some significance.  

	The Industrial Tribunal then looked at the evidence about the respective qualifications of Mr Gerreyn and Mr Isden.  They took into account all that had been said by management concerning Mr Isden being the better bet.  As a result of considering these two matters and weighing them up against the contentions put forward by Mr Gerreyn, they came to the conclusion that the reason why Mr Gerreyn was selected was that Mr Isden was the better person to keep on.  This is a question of fact.  When it comes before this Tribunal we have to ask ourselves was the decision of the Industrial Tribunal so unreasonable that no reasonable Tribunal could have come to it.  We do not have to agree with their decision.  But was their decision a decision which no reasonable Tribunal could have come to?  

	We have considered this matter with care and think having regard to the evidence given and the balancing act the Industrial Tribunal made plain in their decision they carried out, that that proposition is one which cannot be argued.  

	What the Industrial Tribunal did do however is they found that Mr Gerreyn’s dismissal was unfair by reason of the fact that the Respondents’ redundancy procedures were faulty.  It became quite plain on the evidence that there had been no consultation, no interviews with the Appellant at any stage.  They thought that that was particularly surprising in view of the fact that Mr Gerreyn was a union representative.  They came to the conclusion, for those reasons, that he had been unfairly dismissed.  

	At that stage they went on to consider the question of compensation.  They took into account the fact that there was a long-standing agreement relating to redundancy payments negotiated with the union and put into writing in a document dated February 1981.  That showed that people declared redundant were entitled to compensation “far in excess” of what they would have been entitled to by reason of statute.  Mr Gerreyn says no, that agreement was in due course amended to such an extent that the contractual terms offered by the company were even more generous.  Mr Gerreyn was unable to produce any document or agreement equivalent to that of February 1981 to show that there was a new agreement or indeed that there had been an amendment of the February 1981 agreement negotiated with the union.

	We have been told, and we are not entirely confident that it was in evidence before the Industrial Tribunal, that a Mr Hinton had been paid more in 1985 when he was declared redundant by the Respondents.  This is the main evidence upon which Mr Gerreyn relies.  He says that was in evidence before the Industrial Tribunal.  They had to weigh up whether they were prepared to accept Mr Gerreyn’s word about this, against the hard evidence there was to the effect that there was an agreement negotiated with the unions in February 1981 and reduced to writing.  Once more, faced with that issue, they decided to accept the evidence of the Respondents about that.  Thereafter they calculated his compensation on the strength of that contractual redundancy agreement.  

	Faced with that issue of fact, we have to ask ourselves once more whether the decision the Industrial Tribunal came to was one to which no reasonable tribunal could have come.  We find that we are quite unable to accept that this conclusion was unreasonable.  With that finding, notwithstanding all the arguments so skilfully deployed by Miss Brown on behalf of Mr Gerreyn, we cannot allow this case to go forward to a full hearing.  Accordingly, at this stage, the only proper order we can make is that this appeal be dismissed.  We so order.