England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE McMULLEN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th June 2012

Lady Justice Arden:

1. This is an appeal by Mr Ian Samels from the order of the Employment Appeal Tribunal dismissing his appeal to it. By way of background, Mr Samels was dismissed from his role as an employment track technician employed by the respondent, the University for the Creative Arts, on the grounds of redundancy, with effect from 9 April 2009. Mr Samels applied to the employment tribunal and he claimed that he had been unfairly selected for redundancy. He made other claims, but we are only concerned with the one I have just mentioned.
2. In due course, there was a hearing before the employment tribunal. The tribunal gave a short decision but found that the pool had consisted only of Mr Samels and that the employer had not acted in bad faith in identifying the pool. It went on to find that Mr Samels should have been offered alternative employment as a store person, and accordingly the tribunal awarded him compensation. We are not concerned with the amount of that compensation. We are concerned with whether the employment tribunal was right to reject Mr Samels's complaint that the redundancy selection procedure, specifically the identification of the pool, was unfair.
3. The identification of a pool is necessary in order that the employer should fairly identify the pool of employees who are at risk of redundancy. It is only if there is more than one employee in the pool that it is necessary to identify selection criteria which are used at the next stage to identify out of the pool who should be made redundant. The first stage, however, is to identify the pool of employees who are at risk.
4. There are no rules about how an employer defines the pool. The courts have emphasised that tribunals must not substitute their own view. The tribunal has to consider whether the pool chosen by the employer falls within the range of reasonable responses from the employer.
5. There is an important decision in the case of Taymech v Ryan [1994] EAT/663/94, a decision of President Mummery, as he then was, about the way in which the pool can be challenged. This case has been relied on by Mr Samels and it is only right that I go to it early in this judgment. The President held:

"There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind the problem."

6. Then he goes on to deal with the specific case before him:

"This is a case where the Tribunal concluded that the employers had not even applied their mind to the question of a pool, consisting of people doing similar administrative jobs. As the employers had never applied their mind to anything, except Mrs Ryan's actual job of telephonist/receptionist, they had not applied their mind to a pool and therefore there was no meaningful consultation as to who was in the pool, with whom comparisons should be made with Mrs Ryan's position, and as to who should be selected.

In a sentence, there was no process of selection from a pool."

7. That citation confirms that the employment tribunal had to ask whether the employer had genuinely applied his mind to the question of how the pool should be defined. That question is part of the overall question of fairness which arises whenever an employee is dismissed.
8. In the present case the employment tribunal heard a considerable amount of evidence. It held at paragraphs 10 and 11 of its decision as follows:

"10. In our judgment selection criteria come into focus where there is more than one individual in a particular post. Our finding of fact is that the Claimant was the only person at Farnham occupying the role of a grade 5 equipment technician. He was alone in that category and was therefore in a pool of one.

11. The Tribunal cannot go behind the managerial reasons for redundancy. It is not for us to tell the Respondent how they should manage their business or which post should or should not be identified for redundancy. What we are concerned with is the fairness of the process and the reason for the dismissal."

9. The tribunal went on to deal with procedural matters, with which this appeal has not been concerned, and then at paragraph 17 the tribunal concluded:

"We also find that the identification of the equipment technician role as suitable for redundancy was not motivated by bad faith. There was a substantial case for redundancy backed up with consultation with the resource coordinators. We saw a detailed case for redundancy and were entirely satisfied that this was a genuine redundancy situation."

So in that final paragraph the tribunal made a finding that the identification of the equipment technician role was not motivated by bad faith.

10. Mr Samels has represented himself in this appeal. He has prepared for us some outstanding submissions for which I am extremely grateful. They will enable me to deal with the points succinctly, as his points have been well-focused in his submissions.
11. Mr Samels has, in essence, four points about the identification of the pool. His first point is that the employment tribunal was wrong in law to hold that there was a pool of one by reference to job title. He has taken us back to paragraph 10. He submits that what the tribunal was doing was really just looking at his position because he was called, or he had the job title of, employment technician. They therefore failed to carry out the important task of looking substantively at who was carrying on the same roles and thus fulfilling the legal requirements in relation to the selection of the pool.
12. It will come as no surprise that the law does not allow an employer simply to select a pool by reference to job titles. This is another point which President Mummery, as he then was, made clear in Taymech. He held that how the pool was to be defined was primarily a matter for the employer. Indeed, on this I can cite a passage from Harvey on Industrial Relations and Employment Law where it is stated that:

"The pool should include all those employees carrying out work of that particular kind but may be widened to include other employees such as those whose jobs are similar to, or interchangeable with, those employees."

13. Indeed, Mr Samels's skeleton argument contains an important reference back to Taymech in paragraphs 20 and 20.1. Mr Samels refers to Taymech and to the holding of the President that there is no legal requirement that the pool should be limited to employees doing the same or similar work. Therefore it is insufficient in law to claim that a pool has properly been identified simply by looking to the job title of an employee.
14. That, then, is Mr Samels's first submission. His second submission was that the test of fairness is objective, and he bases that submission on s.98(4) of the Employment Rights Act 1996. He further submits – and this is his third submission – that the employer should take into account transferable skills of employees and consider whether, having regard to the transferable skills, skills which employees would be able to adapt and apply in a new situation, that the pool should be widened.
15. His fourth submission is that, since the employment tribunal concluded that he ought to have been offered alternative employment tribunal as a store person, that was a role that should have been included in the same pool as his own post when it came to selection for redundancy.
16. The respondent was represented by Mr Jason French Williams. Mr Williams submits that the particular point with which we are concerned was not one that was taken before the employment tribunal. That is a matter of dispute, so far as Mr Samels is concerned. Mr Samels has taken us to lengthy passages of cross-examination in which he asked questions of the witnesses. As we have not in the course of this hearing been through all those notes with both parties, I intend to proceed on the basis that the point which Mr Samels has put to us, and which forms really the thrust of his argument, was one which he took in one form or another below.
17. Mr Williams has put in a skeleton argument also. He points out that the sole question is whether the employer had adopted a fair basis upon which to select redundancy. I should here state that that is the limited basis on which permission to appeal was given by this court.
18. Mr Williams submits with analytical clarity that the issues of selection for redundancy and redeployment – that is, an offer of alternative employment – are settled. Just because the employment tribunal found that it was reasonable to offer alternative employment does not mean that that role had to be included in the pool. In any event, submits Mr Williams, the conclusion of the employment tribunal was a matter of fact which cannot now be revisited. He makes a further point about whether Mr Samels would have applied for a new role even if it was in the pool, but that is not a matter which we need pursue on this appeal, in view of the very limited permission that has been given. I should say that Mr Samels very fairly directed his submissions to the one point for which permission had been given.
19. We have heard argument on all these points, and I will take them in the order in which Mr Samels has argued them. First, as to paragraph 10 of the decision of the employment tribunal, I do not consider that that paragraph, albeit very brief, was a conclusion that the employment tribunal had simply identified a pool, or approved the identification of a pool, by reference only to job title. The wording is quite careful. It makes the point that the tribunal is looking to persons "occupying the role" of a grade 5 equipment technician. The tribunal had to refer to that particular title because that was the function that had been determined for redundancy. However, in relation to the pool, the tribunal had to ask themselves whether the employer had selected a pool, how big it was and whether the employer was entitled to rely on that pool.
20. There are two sub-issues with respect to this question. The first sub-issue is whether there was more than one person occupying the role of a grade 5 equipment technician at the university at the relevant time. In fact there were previously two such persons. They were Mr Ian Samels, the appellant, and a Miss Julie Flude, who was the bookings clerk in the store room. She had the responsibility for ensuring that records were kept when equipment was borrowed for the purposes of the university, and to keep a note of it. What happened at the University was that the two grade 5 posts were merged and a new grade 4 post was created. We have not been into the nature of that post, but Mr Samels very fairly took the view that the new post was one which Miss Flude should have, and he, therefore, did not apply for it when it was created. Thus, at the time when redundancy had to be decided on, there was only one grade 5 equipment technician at Farnham and that was Mr Samels. So taking the first sub-issue, was there a pool of two, in my judgment the employment tribunal were entitled to say that the pool at the relevant time was only one individual, namely Mr Samels.
21. That leaves the second sub-issue. Mr Samels' argument is that the pool should also have included the store persons. There were two part-time employees in this category. They were persons who were in fact employed at a lower level than himself, and I believe they were both part-time. One of them had just left and the employment tribunal held that Mr Samels should have been offered alternative employment in that position.
22. The argument is that Mr Samels as part of his responsibilities would attend to the counter of the stores, which formed part of the responsibilities of the store person, so in that sense there was an overlap of responsibilities. However, it was not by any means a complete overlap. Moreover, there is no finding of fact that this post was so similar in substance that it ought to have been included in the same pool as the equipment technician. Indeed, such a finding would be wholly inconsistent with the clear finding that the employment tribunal did make at paragraph 10, that the claimant was the only person occupying the role of a grade 5 equipment technician and that he was alone in that category and therefore in a pool of one.
23. Thus I conclude that the tribunal identified a pool of one, and that they were entitled to come to that decision. The question whether there were persons carrying out similar tasks was questions of fact for that tribunal. It cannot, in my judgment, be said that the tribunal came to a conclusion that was irrational, perverse, or not open to it on the facts.
24. I now turn to Mr Samels' second submission, whether the test of fairness was objective. Of course, that must be so but the test at this stage, as Mummery J as President of the EAT held, is one of whether the employer has genuinely considered the question of who was in the pool. Paragraph 17 of the tribunal's finding contains a clear finding to that effect.
25. Mr Samels' third submission was one about transferable skills. As I see it, it is again a question of whether the employer acted in good faith in determining whether a person has the skills and performs the tasks that would befit him to go into the same pool as Mr Samels. That was a question for the tribunal to determine, and the tribunal was satisfied that in this case the employer had acted in good faith in selecting the equipment technician role for redundancy.
26. Mr Samels' fourth submission was about alternative employment. Mr Samels was held to be entitled to have been offered, but was not offered, alternative employment in the post of store person. This is not the same as identification of the pool, because when it comes to alternative employment the employer has to do his best to see whether there is another role in the organisation which an employee at risk of redundancy can be offered, but it does not have to be at the same grade, and indeed this post was not. Thus, I do not consider that it can be said that, because the tribunal held there was a failure to offer suitable alternative employment, that therefore the role of persons that had to be taken into the pool made their earlier conclusion on the identification of the pool perversely wrong in law.
27. In the circumstances, I do not need to deal, as I have said, with the question of whether Mr Samels' points were taken below.
28. There were, however, a short number of points with which I must finally deal. First of all, Mr Samels in his very careful submissions refers to a number of points with which the employment tribunal in their succinct decision did not deal. But it is clear on the established authorities that employment tribunals are not expected to deal with every point, and in my judgment, Mr Samels has not referred to a point that was essential to their decision.
29. Second, Mr Samels criticised various aspects of the procedures and said that the points he had made were not dealt with. As I have explained, the employment tribunal do not substitute their own decision on identification of the pool. On the question of the nature of tasks of a store person and whether they are the same or substantially the same as a equipment technician, to my mind it is self-evidently not enough that some of their tasks are performed intermittently by the equipment technician to reach a conclusion that they must have been within the pool. The tribunal was, therefore, able to reach the conclusion which it did.
30. Finally, I must deal with Mr Samels' submission on "bumping". Mr Samels made a submission based on bumping that the employer should have looked at the question whether or not the more valuable employee was the equipment technician or the store person, and if it felt the more valuable employee was the equipment technician, it should have bumped the store person and not declared that the equipment technician was at risk and make him redundant.
31. Mr Samels informs us that he did take this point below, but the key is that it is not compulsory for an employer to consider whether he should bump an employee. As Mr Williams made clear, if an employer takes the route of bumping another employee, it can be very detrimental to employee relations. It is in essence a voluntary procedure. In those circumstances it seems it was not one adopted by this employer. Accordingly Mr Samels' new point it adds nothing and I need say no more about it.
32. So having considered Mr Samels's very helpful submissions, in my judgment this appeal should be dismissed.

Lord Justice Sullivan:

33. I agree.

Sir Nicholas Wall:

34. I agree.

Order: Appeal dismissed