[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nicholson & Ors v. Long Products Ltd [2003] UKEAT 0166_02_1911 (19 November 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0166_02_1911.html Cite as: [2003] UKEAT 0166_02_1911, [2003] UKEAT 166_2_1911

[New search] [Printable RTF version] [Help]

APPEARANCES

 

For the Appellants	MS A PALMER (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST
For the Respondents	MR T KIBLING (of Counsel) Instructed by: Messrs Rawlison & Butler Solicitors Griffin House 135 High Street Crawley West Sussex RH10 1DQ


 


HIS HONOUR JUDGE J BURKE QC

The Appeal

1. This is an appeal by five employees ("the employees") against a decision of the Employment Tribunal, sitting at Ashford, chaired by Mr Snelson and sent to the parties with Extended Reasons on 19 December 2001. By that decision the Tribunal dismissed the employees' claim against their employers, Long Products Ltd that they had been unfairly dismissed.
2. None of the five employees had been employed for one year when they were dismissed by the employers for redundancy on 23 February 2001. They claimed, however, that they had been dismissed for what is in shorthand called "a trade union reason" or "trade union reasons" i.e. that they were or proposed to become members of an independent trade union or had taken part or proposed to take part in the activities of an independent trade union. Pursuant to section 152 of the Trade Union and Labour Relations Consolidation Act 1992, if they showed that the sole or principal reason for their dismissals was a trade union reason or, pursuant to section 153 of the 1992 Act, if they showed that they had been selected for redundancy for a trade union reason, then (1) there was no qualifying period before they acquired the right not to be unfairly dismissed and (2) their dismissals would have been regarded as automatically unfair. The burden of proof that they had been so treated for trade union reasons under either section lay on the employees; Smith -v- Hayle Town Council [1978] ICR 996.
3. Save for one point which we will address later in this judgment, those are the only material principles of law which provided the framework within which the Tribunal had to make their decision; they were not in dispute before the Tribunal and are not in dispute before us today. Within that framework the Tribunal had to decide what was, in the case of each employee, a pure question of fact on the evidence - had he proved that his dismissal or selection for redundancy (and it made no difference which on the facts of this case) was for trade union reasons. We say that it made no difference whether the case was considered as one of dismissal or selection for redundancy because, by the end of the hearing before the Tribunal, it was accepted on behalf of the employees that there was a genuine redundancy situation.
4. The Tribunal, having heard evidence over three days and having received detailed written submissions from the parties, answered that question in the negative. They found that none of the employees had shown that the sole or principal reason for the selection for redundancy and consequent dismissal was for a trade union reason and therefore that the claims failed. They employees now appeal to the Employment Appeal Tribunal; they submit that in several respects the Tribunal's conclusions were perverse. They have been ably represented before us by Ms Palmer; and the employers have been represented with equal ability by Mr Kibling.

The facts

5. We can set out the facts as found by the Tribunal in relatively brief terms. The employers manufacture anti-corrosion and waterproofing products at their factory in Rye, East Sussex. At the material time they had only about thirty employees. In the spring of 2000 they secured a large order from Iran which necessitated the recruitment of ten new production operatives, including the five Appellant employees. Unhappily, however, trading conditions declined in the second half of 2000 and three administrative and sales staff and a sales executive had to be made redundant.
6. In November 2000 an independent consultant, Mr Page, who had been asked to advise the employers in a deteriorating trading situation, drew up a redundancy policy which recommended that, if there were to be redundancies, employees with less than one year's service should be selected first, followed by a selection process based on ranking within determined criteria. There was no suggestion that Mr Page, in drawing up the redundancy policy, was doing so other than on a genuine basis or that he was in any way tainted by any consideration of membership or proposed membership of the trade union to which any employee did or might belong or seek to belong of any trade union activities.
7. The Tribunal found that the policy document containing the redundancy policy drawn up by Mr Page was adopted by the employers.
8. In January 2001 the Transport and General Workers Union began to recruit members among the workforce. It is clear from an internal memo of the employers' management that the employers learned of this on 16 January from internal sources; that morning Mr Hubbard, a union official, wrote to Mr Adrian Walker, a director of the employers and the son of the Managing Director; and it was agreed that Mr Adrian Walker and his father would meet Mr Hubbard at the factory on which occasion Mr Hubbard could make a presentation to the staff. Mr Roger Walker, the Managing Director, was told on 23 or 24 January that the union had recruited 50% of the production staff; and by the beginning of February that figure had increased to 70%. There were only about nineteen production staff. By achieving over 50% membership in the bargaining unit consisting of the production staff, the union was in a position to seek recognition under the provisions of the Employment Relations Act 1999.
9. Meanwhile Mr Attenborough, the employers' technical manager, had been instructed, in preparation for the need to make redundancies, to undertake a redundancy selection exercise by scoring, in the manner described by Mr Page, the production workers who had been employed for less than a year on the criteria of skills, performance and potential. There was a dispute as to when Mr Attenborough had been told to carry out that exercise and when he completed it. The Tribunal, at paragraph 11(5), concluded that it was unnecessary to determine when he was so told or when he completed the exercise; they found that he had completed it by 29 January when he sent the scores to the Managing Director together with an explanation of the way in which the exercise had been carried out.
10. On 20 February 2001 the employers decided to make five production staff redundant in accordance with the redundancy policy; the employees were the five production staff of less than one year's service with the lowest total scores as established by Mr Attenborough's exercise; and on 23 February they were told that they had been selected for redundancy.
11. The Tribunal found that, of the employees, Mr Nicholson had joined the union on 6 January, Mr Cresswell had joined the union on 12 or 15 January and the other three had joined the union on 15 January.
12. Having found the primary facts which we have summarised and which are set out in more detail at paragraph 11 of their decision, the Tribunal then, in paragraph 12, set out their secondary findings and conclusions. They recorded, first, the acceptance by Ms Palmer on behalf of the employees that the reason for the dismissals in each case was redundancy; thus the issue which they had to determine was the purely factual issue as to whether the employees had been selected for redundancy pursuant to the redundancy policy or whether they had been selected for trade union reasons. The Tribunal then concluded that the decision to make the employees redundant was not based on trade union grounds but on an assessment of the needs of the business. They spelt out three reasons for this conclusion, namely:

(1) the compelling evidence of the decline in fortunes of the business, which was not the subject of serious challenge;

(2) those dismissed had not been replaced, indicating that the redundancies corresponded with demand;

(3) the dismissal of five employees from the production staff would not have reduced the number of union members in the relevant bargaining unit to below the level at which the right to union recognition could be asserted.

13. They then turned to the selection process and whether the scoring of the employees in that process was influenced by the fact of their membership of a trade union or their past or proposed trade union activities to the extent that such influence was the sole or predominant cause of their selection for redundancy. The Tribunal concluded:-

(1) that none of the five survivors, i.e. the five of the ten production staff who did not have one year's service who were not selected for redundancy, had been marked over- generously.

(2) None of the five employees should have been given marks in the selection process which would have meant that he would have escaped selection; in other words, the employees had been genuinely placed in the bottom half of the scores of the ten production staff under consideration.

14. For those reasons and on those secondary findings the Tribunal concluded that trade union reasons had not been shown to have been the sole or principal reason for the selection of the employees for redundancy and that therefore the employees' claims failed.

The grounds of appeal - general

15. The employees' appeal against the Tribunal's Decision is based on perversity. Nine alleged errors on the part of the Tribunal in their approach to the evidence are relied upon, individually and collectively, as demonstrating that the Tribunal's conclusion that the dismissals were not shown to have been solely or principally for trade union reasons was perverse.
16. It is helpful, before turning to the specific grounds of appeal, to set out briefly the principles which apply where the decision of an Employment Tribunal is challenged on perversity grounds. Mr Kibling on behalf of the employers has referred us to two in particular of the many decisions in which those principles are set out; both are decisions of the Court of Appeal. In British Telecommunications PLC -v- Sheridan [1990] IRLR 27 Gibson LJ said, at paragraph 31:

"31 … where ….. the alleged misunderstanding of fact depends upon a decision of fact open to the Tribunal to make, and which it did make, then an attack on that finding cannot be converted into an error of law unless it can be shown that there was no evidence to support it, or that the conclusion was perverse."

The Master of the Rolls, at paragraphs 34 and 35 said:

"34 …… Any court with the experience of the members of the Employment Appeal Tribunal, and in particular that of the industrial members, will in the nature of things from time to time find themselves disagreeing with or having grave doubts about the decisions of Industrial Tribunals. When that happens, they should proceed with great care. To start with, they do not have the benefit of seeing and hearing the witnesses, but, quite apart from that, Parliament has given the Employment Appeal Tribunal only a limited role. Its jurisdiction is limited to a consideration of questions of law.

35. On all questions of fact, the Industrial Tribunal is the final and only judge, and to that extent it is like an industrial jury. The Employment Appeal Tribunal can indeed interfere if it is satisfied that the Tribunal has misdirected itself as to the applicable law, or if there is no evidence to support a particular finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. It can also interfere if the decision is perverse, in the sense explained by Lord Justice May in Neale v Hereford & Worcester County Council 1986] ICR 471 at 483."

17. The reference to the words of May LJ in Neale is to the expression there used, as a touchstone for perversity "My goodness that must be wrong". That and other expressions used in different cases were collected in Stewart -v- Cleveland Guest (Engineering) Ltd [1996] ICR 535. In the most recent decision of the Court of Appeal as to the approach to be taken by the Employment Appeal Tribunal to a perversity appeal, in Yeboah -v- Croften [2002] IRLR 634 Mummery LJ, with whom Brooke LJ and Sir Christopher Slade agreed, said, at paragraphs 93 - 95, of perversity appeals:

93 Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 ….

94 Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the Extended Reasons of an Employment Tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.

95 Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal….."

18. We treat those words as setting out in very clear terms how we must approach an appeal based on perversity grounds; such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal could have reached.
19. Before considering each of the individual grounds upon which the case that the Tribunal reached a perverse decision is founded, we must say a little about a general point which Ms Palmer described as a point of first principle and returned to several times during the course of her argument, namely that, as in the case of race or sex or other discrimination, so in the case of dismissal for trade union reasons, direct evidence that the employers had acted as alleged will rarely be found and therefore the Tribunal should proceed to examine with care the explanation or account given by the employers and should consider whether, if that explanation is not acceptable an inference should be drawn that the employer has acted for trade union reasons. She submitted that the Tribunal had not approached their task in that manner in this case and that, if they had done, they would have appreciated that the employer's account of what had occurred "should not simply be taken at face value" (see Ms Palmer's Skeleton Argument paragraph 7) and should have concluded that the employees were selected for trade union reasons. Ms Palmer accepted that there was no authority for the proposition of principle which she advanced but submitted that it was a matter of common sense. However, she also expressly acknowledged that a failure to follow the principle for which she contended was not itself an error of law.
20. Mr Kibling submitted that there is no requirement, either in statute or authority, for the Tribunal to approach their fact finding exercise in a case such as this in a manner analogous to that familiarly applied to discrimination cases, following the guidance set out by the Court of Appeal in King -v- Great Britain China Centre [1991] IRLR 513, approved by the House of Lords in Glasgow City Council-v- Zafar [1998] ICR 120. We agree with his submission. For reasons amply set out in numerous authorities, a particular approach has been deemed necessary in cases of alleged discrimination which require the Tribunal to consider (1) whether there has been differential treatment and (2) whether the employer's explanation for any such differential treatment is acceptable and if not whether to draw an inference of discrimination. The task of identifying the reason or principal reason for dismissal which is alleged to have been unfair is a very different exercise, arising out of wholly different statutory provisions; it is an exercise with which the Tribunals are wholly familiar and which does not, in our judgment, invoke or require the application of principles which have been established for very different purposes. What a Tribunal is, of course, required to do in a case such as the present is to scrutinise the evidence and, so far as is relevant and necessary, to find the primary facts and then to proceed, again insofar as it is necessary to do so to inform the parties as to why they have won or lost, to reach factual conclusions or secondary findings of fact based on the primary findings of fact. That this Tribunal plainly did, as can be seen from a reading of paragraphs 11 and 12 of their decision.
21. There is another general point on which we should comment. It is a trite proposition that a Tribunal is not obliged in their decision to resolve all factual issues or to go through all of the disputed evidence. A Tribunal must state their factual conclusions in such a way as to comply with the basic requirements set out in the well known decision of the Court of Appeal in Meek -v- City of Birmingham District Council [1987] IRLR 250; but they are not obliged to set out full reasons for each finding of fact or to address and set out their views on each piece of evidence placed before them or to explain why they are or are not impressed by each argument on the facts presented by the parties. The Tribunal's duty in this regard is different from that which would apply if there were an appeal from the Tribunal's decision on the findings of fact. See Varndell -v- Kearney & Trecker Marwin Ltd [1983] ICR 683 per Eveleigh J. It is important that the criticisms of the Tribunal's decision made by Ms Palmer should be considered with these principles firmly in mind.
22. The last ground in the Amended Notice of Appeal, at paragraph 6.14, asserts that the Tribunal decided the case on the basis that the employees had failed to satisfy the burden of proof, without first having regard to the considerations set out in the preceding individual grounds of appeal. The eighth ground, paragraph 6.13 in the Amended Notice of Appeal, asserts that the Tribunal failed to consider submissions on credibility or to make any findings as to credibility of witnesses when the employees' case depended entirely on showing that the employers' evidence was not to be believed. We draw attention to the acceptance in paragraph 6.13 that what was central to the Tribunal's Decision was whether the employers' evidence was to be believed. That was, of course, a task for the Tribunal. We cannot and should not be invited to interfere with the Tribunal's discharge of that task unless an overwhelming case of perversity is made out.
23. Having made those general comments, we propose to address first the specific points made in paragraphs 6.6 to 6.12 of the Amended Notice of Appeal and, then to return to the general points which we have just identified.

Hostility to the Union: grounds 6.6 and 6.7

24. We need to start our consideration of these grounds by reminding ourselves and the parties that the fact that a Tribunal does not refer to a specific item or specific items of evidence does not indicate that the Tribunal failed to consider it or them, however important it or they may have been in the eyes of the party which relied on it or them. Ms Palmer argues that the Tribunal made no reference to the employer's memo of 16 January, sent by Mr Adrian Walker to his father, which, she submitted, was important in two ways - firstly in that it evinced hostility to the involvement of the union in the employers' workforce and secondly in that it gave the lie to the employers' case that the assessment which led to the selection of the employees for redundancy had been made before the union became involved, in contrast to the employees' case that their membership of the union lay at the heart of the decision to dismiss them which was made over a month later.
25. There may be some doubt as to whether the memo of 16 January does indeed demonstrate hostility on the part of the writer, Mr Adrian Walker, towards the union's activities; but we will assume hypothetically that it does; and we accept that, although it was the employer's pleaded case that the evaluation of the marks given to the ten members of the production staff who had less than one year's employment pursuant to the established criteria was completed before 16 January, the Tribunal made no finding save that that stage was reached by 29 January. It was therefore possible for the evaluation to have been affected by such hostility.
26. The employees also relied upon two speeches by Mr Roger Walker made on 1 February and 8 February which, Ms Palmer submitted, clearly demonstrated the employers' hostility to the union. Once again whether those speeches were anti-union as opposed to criticism of particular acts of the union, e.g the union's representatives entering the employers' premises without permission in work time and seeking to recruit members, is debatable. However the Tribunal found that the evaluation process was completed by 29 January; and therefore what happened on 1 or 8 February could not have had any influence or effect on the evaluation which had already been made; but insofar as the speeches evidenced hostility they could be regarded as supportive of the employees' case as to hostility before that evaluation was complete.
27. There are, however, two difficulties which confront Ms Palmer's argument. The first is that it was not, in our judgment, an error of law nor is it demonstrative of perversity for the Tribunal not to refer to the memo of 16 January or to the subsequent speeches. As we have said it was not necessary for the Tribunal to make findings on or to refer to every contested issue or to seek to set out and indicate whether they did or did not draw inferences from every piece of evidence. Of course the Tribunal must take all relevant evidence into account; but they are entitled to reach a factual conclusion without spelling out every piece of evidence which has been relied upon by the party opposing that factual conclusion. In this case the Tribunal concluded on the facts that the decision to select the employees for redundancy was not based on trade union grounds and that the selection was not influenced by trade union reasons. The Tribunal gave their reasons in paragraphs 12.(2) and 12.(3) for reaching those factual conclusions. The fact that they did not mention the memorandum of 16 January or what happened at the beginning of February cannot be taken as an indication that they did not take those matters into account; what they have recorded in their decision was, for the reasons they set out, their factual conclusion, which was not that to which Ms Palmer, basing herself in part on the evidence to which we have referred, sought to lead them.
28. It was Mr Attenborough who made the assessments, according to his evidence, pursuant to the criteria established by Mr Page and set out in his note to Mr Walker of 29 January. His evidence was that he did not know that any of the employees were members of the union and that he had not been influenced in making his assessments by any matters relating to union membership. The Tribunal had to decide whether Mr Attenborough's evidence was genuine. If it was, then any hostility to the union evinced by the Managing Director or his son was irrelevant. The Tribunal plainly did conclude that Mr Attenborough's assessments were genuinely made. They found, at paragraph 12(3), as follows:

"The selection of the five Applicants as the persons to be dismissed pursuant to the decision of 20 February 2001 was based on Mr Attenborough's operation of the redundancy policy."

They specifically considered whether the scoring of the employees or any of them was influenced by trade union grounds, as to which Ms Palmer in her closing submissions had made a number of detailed points; and they said, further into paragraph 12(3):

"Despite the powerful points which she had made, Ms Palmer has failed to persuade us on this aspect."

And they then set out their reasons for that conclusion, summarised earlier in this judgment, namely that the five survivors were not marked unduly generously and that the abilities of the employees under the three criteria were not such as to enable them to survive. In other words they represented the lower five of the ten.

29. In those circumstances it was unnecessary in our judgment, contrary to Ms Palmer's submission, for the Tribunal to make a specific finding as to when Mr Attenborough was told to carry out the marking process or when he completed it. If Mr Attenborough who made the assessments did so without any knowledge that the Applicants were connected with the union, as was his evidence, and made the assessments genuinely, any hostility toward the union evinced by others was beside the point. There was no causal link between such hostility and Mr Attenborough's assessment.
30. Ms Palmer also drew our attention to Mr Attenborough's concession that the employers were making enquiries after 16 January as to who was in the union; neither that concession - and Mr Attenborough did not concede that he was making such enquiries - nor the fact that the employer's case as pleaded that the evaluation was complete by 16 January was not wholly accepted could or should have led the Tribunal inevitably to conclude that Mr Attenborough's evidence as to the basis on which he made his assessments was untrue.
31. The Tribunal did not merely set out a bald finding of fact as to the absence of trade union reasons in the selection process; they set out substantive and potentially persuasive reasons for their factual conclusion. They considered in detail the individual assessment of each of the relevant employees and concluded, as we have said, that the five survivors were not marked unduly generously. That suggestion, they recorded, was only made in respect of two of the five survivors; in the case of one of them the Tribunal found it clear beyond argument that he was a strong candidate to survive; and, in the case of the other, the suggestion that they had been unduly generously marked was rejected on the facts. They then found that none of the employees should have been scored on the assessments at a sufficiently high level to survive. Those are, on any view, powerful reasons for the Tribunal's general conclusion.
32. It was not necessary, in our judgment, for the Tribunal to set out all the evidence which was said to point in the opposite direction and to explain why the Tribunal were not persuaded by it. There is, as we see it, nothing like an overwhelming case that the Tribunal reached a decision which no reasonable Tribunal could reach or about which we could say "My goodness that was wrong". It was open to the Tribunal to accept the evidence of Mr Attenborough that his judgment was untainted by consideration of trade union reasons; and that is what the Tribunal did. It is not open to the employees now to seek to re-litigate that issue under the guise of a perversity argument - as, in essence, they now seek to do.

Evidence as to knowledge and interest in union membership: Amended Grounds of Appeal paragraph 6.8 and 6.9

33. By these two grounds of appeal, which Ms Palmer addressed together and we will treat similarly, the employees argued that the Tribunal erred in failing to draw inferences from the documentary and other evidence as to the enquiries made by the employers as to who had joined the union and to make findings on disputed evidence given by three of the employees that Mr Roger Walker asked them directly whether they were in the union, which evidence was reported by Mr Nicholson.
34. The documentary material on which Ms Palmer based her submissions was the memo of 16 January, to which we have referred already, which is said to have demonstrated hostility to the recent discovery that members of the workforce had become or were becoming union members. Mr Attenborough, as we have also already said, accepted in evidence that thereafter enquiries were being made as to who was and who was not in the union. While Mr Attenborough maintained that he had not taken any part in those enquiries and was not interested in them, his selection of five union members for redundancy out of six union members in the relevant pool and other factors arising from the assessments indicated, Ms Palmer submitted, that his evidence was not to be accepted. Ms Palmer referred us to her very detailed written submissions to the Tribunal which dealt with the reasons why she invited them to conclude that Mr Attenborough's evidence that he did not know and was not told who were members of the union was not credible; she submitted that the Tribunal had failed to deal with many of her factual points from which they ought to have concluded that Mr Attenborough did know who had joined the union and that such knowledge affected his selection.
35. The memo of 16 January does not of itself demonstrate that Mr Attenborough knew the identity of any of the union members when he made his selection; nor do the assessment documents themselves indicate that; nor do they indicate that Mr Attenborough, if he had such knowledge, allowed it to affect his selection. It was for the Tribunal to decide on the evidence as a whole whether Mr Attenborough had allowed trade union membership to affect his selection. The Tribunal's decision on that was that which we have already set out; they were not persuaded by Ms Palmer's arguments to the contrary which included her arguments based on the memo of 16 January and on Mr Attenborough's acknowledgment that after that date enquires were being made as to union membership. Thus they rejected Ms Palmer's submissions that Mr Attenborough's evidence was not credible.
36. Mr Attenborough's credibility was a matter for the Tribunal; they saw and heard him give evidence; we have not had that advantage. They made it clear in paragraph 12(3) that they had considered Ms Palmer's arguments on the facts; but they were not persuaded by them. We have already set out how they gave reasons for their conclusion and what those reasons were; they were based on the evidence. We can see no basis on which we could conclude that the Tribunal's Decision in this vital area of fact was one which was not, on the evidence, a permissible option or was one which no reasonable Tribunal could have reached. There is nothing to show that the Tribunal did not consider the impact of the memo of 16 January; they were not required to identify it and their reasons why they did not take the view of it which Ms Palmer wished them to take.
37. As to the enquiries allegedly made by Mr Walker of some of the employees as to whether they had joined the union, that occurred, on the employees' evidence, on 1 February, after Mr Attenborough had completed his selection. Ms Palmer correctly pointed out that the Tribunal have made no reference in their decision to these enquiries; but they did not, in our judgment, need to do so.

The assessments: Amended Notice of Appeal paragraphs 6.10 and 6.11

38. We can conveniently take these two grounds of appeal together. They are that the Tribunal failed to consider the submission made on behalf of the employees that it could be seen from the assessments themselves that they were carried out with knowledge of union membership and failed, where they identified a discrepancy in the assessments, to decide whether the reason for the discrepancy was the difference in trade union status.
39. In Ms Palmer's Skeleton Argument she begins her submission on these grounds by referring to the submissions she made to the Tribunal as to a number of indications, in the assessments made by Mr Attenborough, that he had known who was and who was not a union member and had such membership in mind when making the assessment. Ms Palmer submitted that the Tribunal failed to deal with all of those claimed indications.
40. One of these indications was that two of the Applicants were marked down in terms of potential because of their poor English; but Mr Kitanovski, who also had poor English, was not. Another was that Mr Welch, who was said by the employees to have asked them if they were in the union and to have tried to persuade everyone against joining the union, received an extremely positive assessment. Mr Nicholson was also critical of Mr Welch's abilities.
41. In paragraph 12(3) of their decision the Tribunal expressly considered Ms Palmer's points as to Mr Kitanovski and Mr Welch. As to Mr Welch, they found that he was a particularly strong candidate to survive the selection process and that Mr Nicholson's deprecation of his skills was not disinterested i.e. was not accepted. As to Mr Kitanovski, the Tribunal specifically asked themselves whether he had been unduly generously marked; they then went on to express the view that the two employees who had been marked down because of their poor English should have received higher marks under the heading of "potential" having regard to the higher marks awarded under that heading to Mr Kitanovski but that even so this would not have made any difference to the ultimate selection.
42. Ms Palmer accepted that where the Tribunal did not expressly deal with her points as to the assessments they had implicitly rejected them (although in reality they expressly rejected them by the words used in paragraph 12(3) which we have earlier set out); but, she submitted, if her points had been properly considered the Tribunal must have conclude that Mr Attenborough was not credible; and therefore they could not have considered her points or considered them properly. In the alternative to perversity, she submitted that the reason why her points failed was not sufficiently identified in the Decision and that therefore the Decision in this area was not "Meek compliant".
43. As to the comparison between Mr Kitanovski and the two employees - who were not white as was Mr Kitanovski - Ms Palmer submits that the Tribunal should not have embarked on a re-assessment exercise of their own but should have asked why the discrepancy between them and Mr Kitanovski arose; and she submits that the Tribunal were in error in stating as if it meant that they did not have to ask that question, that there was no race discrimination claim.
44. The fact that the Tribunal specifically referred to the points made on behalf of the employees as to Mr Welch and Mr Kitanovski demonstrates, in our judgment, that the Tribunal did consider Ms Palmer's submissions. It was not necessary for the Tribunal to identify in this area either each piece of material which she said went to show that trade union reasons were involved in the assessment and to express a view on each. The issue to which Ms Palmer's points went were, as were the points with which we have dealt under earlier grounds of appeal, was that of Mr Attenborough's credibility; the Tribunal concluded that the assessment of the employees was not influenced by trade union membership for the reasons we have already set out. We repeat that Ms Palmer's submission as to Mr Attenborough's credibility failed. The Tribunal believed Mr Attenborough's evidence that his assessments were untainted for the reasons they set out.
45. It is clear from the decision that, in reaching that conclusion, the Tribunal considered the assessments in some detail. It has not been submitted that there was no evidence on which the Tribunal could find Mr Attenborough's assessments to have been untainted; his evidence was that they were not. Whether the Tribunal believed him or not was a matter for them, as we have said before and we repeat in respect of these grounds of appeal. It is not for us to substitute any view of ours. - if from paper alone it were possible for us to have one - as to his credibility. The indications arising from the assessments relied upon by Ms Palmer were not such, in our judgment, as to require the Tribunal to reject Mr Attenborough's evidence or to persuade or even enable us to conclude that the Tribunal reached a perverse conclusion.
46. These comments also demonstrate why the argument that the Decision was not Meek compliant cannot succeed; we say again that it was not necessary for the Tribunal to set out their reasons for the rejection of each and every factual point which Ms Palmer made; they gave their reasons for rejecting Ms Palmer's points in general terms. We have identified those reasons before and need not repeat them. Paragraph 12(3) explains to the parties satisfactorily why they had won or lost on the issue as to the assessments.
47. We reject, too, Ms Palmer's criticism of the Tribunal's approach to the cases of the two employees who were marked down because of their poor English. What the Tribunal were clearly considering was whether the marking was such as to indicate that any of the employees had been marked in such a way as to procure their selection for redundancy for trade union reasons; it was logical and legitimate for the Tribunal, in so considering, to ask themselves whether the two employees, if marked as the Tribunal thought they should have been marked for potential, would have survived the selection process; if some adjustment to the marks of those employees was needed but that adjustment would not have ensured that they survived the selection process, the marking down and failure to make that adjustment would be less likely to be attributable to trade union reasons and would be attributable to some innocent failure on Mr Attenborough's part.
48. The reference to a race discrimination complaint, the absence of which the Tribunal clearly noted only in passing, was a sign, in our judgment, that the Tribunal were rightly reminding themselves that they were not directly considering whether the two employees had been treated less favourably than Mr Kitanovski but whether the evidence was indicative that the assessment process was tainted by trade union factors. No justified criticism of the Tribunal is to be made for so doing.
49. For these reasons, we see no error in the Tribunal's approach to the assessments of those two employees as in contrast to Mr Kitanovski. The Tribunal did not fail to consider whether the discrepancy was based on the difference in trade union status; they expressly considered the discrepancy as part of the criticism made of the assessments and concluded that it did not persuade them that the assessments were influenced by trade union reasons.

Timing - Amended Notice of Appeal paragraph 6.12

50. The point here taken on behalf of the employees is, in brief terms, that, although the employers had pleaded that the assessments were completed before 16 January, Mr Attenborough's evidence was that he did not complete the assessments until 23 January, after the date on which the employers knew that the union was organising among the workforce. Thus the employers' pleaded case was contradicted by the evidence and Mr Attenborough's credibility was adversely affected; yet the Tribunal submitted Ms Palmer, ignored her arguments and concluded that it was not necessary to make any finding as to the timing of the instructions to Mr Attenborough to make the assessments or as to the completion of his assessments.
51. We have in essence dealt with these arguments above in considering paragraphs 6.6 and 6.7 of the Amended Notice of Appeal. Ms Palmer's arguments in this area are further attempts to persuade us that the Tribunal took a view of Mr Attenborough's credibility which was perverse. We do not need to repeat why we take the view that these arguments cannot succeed; the reality is that, despite all the points made against his credibility, the Tribunal believed him; they were entitled to do so. These individual points do not persuade us that the Tribunal reached a decision which no reasonable Tribunal could have reached.

The general points again

52. We now return to the general points made in paragraphs 6.13 and 6.14 of the Amended Notice of Appeal. As to paragraph 6.13, there is nothing to indicate that the Tribunal did not consider Ms Palmer's submissions as to credibility; and we regard it as mistaken to suggest that the Tribunal made no findings as to credibility. In the crucial area, namely the evidence of Mr Attenborough, the Tribunal's decision demonstrates that they accepted what he said about the manner in which he made his assessments and that his assessments were not tainted. As to paragraph 6.14, that amounts to no more than a "sweeping up" argument; and it is right that we should now look back at all the individual points made by Ms Palmer to the Tribunal and all the points from the evidence to which she drew our attention and, ask ourselves considering them altogether, whether an overwhelming case has been made out that the Tribunal reached a conclusion which no reasonable Tribunal could have reached. We have no doubt that no such case has been made out. The Tribunal had to assess the evidence in order to decide whether the assessments made by Mr Attenborough were genuine or not. They reached a conclusion on the central factual issues which was in favour of the employers and contrary to the employees' case; that conclusion was one based on fact alone; sufficient reasons were given for that conclusion; and, while it would have been open for the Tribunal to have come to a different conclusion, it was in our judgment plainly open to them to reach the conclusions that they did. No case of perversity has been made out.

Result

53. For the reasons we have set out this appeal must be dismissed.