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Cite as: [2010] NIIT 5152_09IT, [2010] NIIT 5152_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 5152/09

CLAIMANT: Piotr Osentowski

RESPONDENT: Kingspan Environmental Limited

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of unfair dismissal and indirect race discrimination are dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr J Kinnear

Mr R Lowden

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Mark Robinson, Barrister-at-Law, instructed by Con Lavery & Company, Solicitors.

1. The claim

The claimant claimed that he was unfairly dismissed by the respondent following a redundancy situation. He also claimed that he had been a subject of direct and indirect race discrimination. The respondent denied the claimant’s allegations in their entirety.

The issues

2. The issues before the tribunal were as follows:-

(1) Was the claimant unfairly dismissed?

(2) Was the claimant subjected to unlawful direct and indirect discrimination on racial grounds?

3. During the course of the hearing, the claimant withdrew his claim of direct race discrimination.

Sources of evidence

4. The tribunal heard evidence from the claimant and on behalf of the respondent, from Mel Courtney, Site Manager, John Daly, Operations Director, Elaine Gale, In-House Solicitor, and Dwyer Jackson, Workplace Representative, Unite Union.

The tribunal also received a bundle of documents and other documentation from both parties in the course of the hearing. It took into account only the documentation and correspondence referred to in evidence. Both the claimant and the respondent incorporated helpful submissions within the documentation presented to the tribunal. These submissions were adopted respectively as evidence by both the claimant (insofar as relevant to him) and the respondent’s witnesses, as appropriate. In light of these written submissions, the tribunal considered it unnecessary to require further written submissions at the end of the case. The tribunal also had the assistance of Miss Warchonlak and Miss Schmidt as interpreters throughout the hearing.

Findings of fact

5. Having considered the evidence in so far as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) An agreed chronology, incorporating agreed facts relevant to the claimant and the respondent, is appended to this decision.

(ii) The claimant was employed by the respondent as a production operative from 30 May 2006 until the effective date of termination of his employment on 20 January 2009. He presented his claim to the tribunal on 15 April 2009.

(iii) Due to a downturn in the construction industry the respondent had already engaged in two previous rounds of redundancy, in July 2007, and November/December 2008. The third round, involving the claimant, was in December 2008. The claimant did not dispute that he was warned of impending redundancies nor did he raise any issue in relation to suitable alternative employment. The respondent had adopted a matrix for redundancy selection in 2003 which had union agreement in respect of all factors, including attitude and potential. The claimant was the subject of an assessment under this matrix in redundancy rounds 1 and 2. The tribunal is satisfied that a fair consultation was carried out with the claimant before he was made redundant. Furthermore, the tribunal is satisfied that the claimant was aware of the matrix and the redundancy process. In addition, he was facilitated by the respondent in having a colleague to interpret for him in the event of having any difficulties in understanding discussions at the consultation stage.

(iv) The centre of the claimant’s case was in relation to the matrix used for selection. During his appeal against the redundancy selection decision, he objected to the selection criteria of ‘Attitude and Potential’, and stated in his appeal letter as follows:-

“I object entirely to the use of these criteria. I believe they are vague and subjective. I especially take issue with the fact that, of all the criteria used, attitude has been given the highest weighting factor x 6. I believe attitude and potential have been deliberately included to ensure the employer’s personal opinions’ influence the outcome of the selection process.”

The tribunal finds it useful to reproduce the matrix which was signed by three managers together with the scoring for the claimant (total 97) as set out below:-

KINGSPAN ENVIRONMENTAL CONTAINERS LTD

Assessment for Redundancy Selection December 2008

Employee’s Name: Piotr Osentowski Department: Production Op Clock No

Job Title: Production Operative Date of Start 30/5/06 Date of Birth 12/6/81

	Poor 1 Point	Satisfactory 2 Points	Good 3 Points	Excellent 4 Points	Factor	Score
1. Absenteeism	16 days plus	6 – 15 days	2 – 5 days	0 – 1 days	X4	8
2. Output of Work	Fails to meet targets	Meets targets if constantly supervised	Output above average	Always meets or exceeds targets; actively works to increase productivity	X3	9
3. Initiative & Judgement	Judgement suspect; needs help in organising	Organises work fairly well and judgement usually sound	Uses initiative when required. Uses common sense to advantage	A lot of initiative; a good organiser	X4	8
4. Attitude	Uncooperative	Prefers the status quo but will change if forced to	Keen to try new ideas and responds well to requests for change	Exceptionally cooperative with any request	X6	18
5. Potential	Will not progress further	Limited promotability; more likely to remain in current job	Will be promotable with greater experience and/or training	Could undertake more senior job now	X5	10
6. Disciplinary Record	Final Written Warning	Stage 1 Written Warning	Oral Warning	Clean Disciplinary Record	X5	20
7. Length of Service	Under 12 months	1 – 2 years	3 – 5 years	5 years plus	X 3	6
8. Skills & Knowledge	Limited Ability	Constant Supervision	Uses initiative when required and is adaptable	Displays high degree of initiative; has extensive knowledge of subject matter	X6	18

Assess by Mel Courtney Date reproduced 16 January for Piotr

Hugh Waddle Assessment carried out in Dec 2008

J Doran

(v) During the hearing the claimant focused on criteria 4 and 5 to contend that the respondent failed to carry out a redundancy procedure which was fair, objective and objectively assessed. In addition as part of the submissions which he adopted as evidence, the claimant referred to the usage and assessment of potential, attitude, skills, knowledge, and output of work, to contend that such usage and assessment favoured the national workforce over the non-national workforce. The claimant’s case is articulated in summary form in the conclusion to his submission before the tribunal as follows:-

“Reasons :

- The respondent used criteria in the procedure which was vague, subjective and immeasurable – attitude and potential. These criteria were not properly considered or objectively assessed along with other criteria : output of work; initiative and judgment; skills and knowledge.

- There are no supporting records or evidence of what was used by the respondent in scoring these criteria.

- In giving these criteria the highest weighting factors, the respondent ensure, they would be able to manipulate the redundancy selection process to suit their own personal choices from the national workforce such as Employee 200/092 at the expense of more suitably qualified non-national workers such as Employee 181.

- The respondent’s actions allowed national workers, who would otherwise score poorly in the selection pool – such as Employee 200/092 (No 42) – to be saved from redundancy at the expense of non-nationals such as the claimant (Employee 181/140 (No 53)).

- The evidence shows that the application of the questionable criteria, and how it was scored, had a disparate and significantly disproportionate effect on one particular group, namely the non-national workforce of which the claimants are members of.

Key findings from the analysis :

- Under the current redundancy procedure a non-national is 4 times more likely to be made redundant than a national worker.

- When attitude and/or potential are removed from the matrix a non-national worker’s chances of redundancy are halved, whereas a national worker’s chances are increased by a quarter.

- There is a high recognition of the national workforce from the respondent in terms of promotion prospects. 15 out of 45 national workers are considered at some point to be promotable either now or in time – representing 1 in 3 of their workforce.

- There is no recognition of the non-national workforce from the respondent in terms of promotion prospects, despite many working in positions and undertaking duties over their normal grade on a regular basis. No non-national worker is considered promotable at the present moment, and only 1 out of 25 (4%) is considered promotable in the future with greater training and experience. This is despite 9 non-national workers having already completed 3 – 5 years service with the company.

- Non-national workers perform significantly better than national workers in terms of absenteeism. No non-nationals possess a poor record of absenteeism, whereas 13% of national workers possess a poor record level of absenteeism (16+ days).

- Only 2% of the national workforce has received any form of discipline against them despite the high levels of absenteeism from this section.”

The tribunal carefully considered all of the relevant evidence arising out of both the claimant’s and the respondent’s written submissions adopted as part of the evidence before the tribunal, insofar as same related to the issues before it.

(vi) The respondent conceded that certain criteria within the matrix involved subjectivity. This subjectivity pertained particularly to the criteria of attitude and potential which the claimant (as part of his written submission adopted as evidence), alleged had been used to ensure that the respondent’s own personal opinions and preferences influenced the outcome of the selection process and that, in his case, this approach had served to counteract any high scores he achieved in the weighting of objective and measurable criteria such as absenteeism, length of service and disciplinary records. The claimant expanded this allegation to contend that the selection matrix had a significantly disproportionate effect on the Polish work group. In this context, the tribunal considered any comparators relied on by the claimant. The tribunal is satisfied, however, that the matrix had been used since 2003 with the agreement and approval of the relevant trade union without objection, save in one limited respect regarding output. There was no evidence that the claimant was either a member of a trade union, or was represented by a workplace committee, nor is there evidence that during the individual consultation process, he was disadvantaged by having only a good basic knowledge and understanding of English.

(vii) The pool of employees in the Round 3 redundancy selection included a number of senior employees who, with their associated skills, had been downgraded to Production Operatives, resulting in employees such as the claimant being more likely to be considered for redundancy.

(viii) The tribunal also considered evidence regarding the claimant’s alleged loss.

6. The law

(i) At paragraph 19 of his judgement in the Employment Appeal Tribunal case of Williams & Others v Compair Maxam Ltd [1982] IRLR 83 (‘Compair Maxam’) Mr Justice Browne-Wilkinson states as follows:-

“In law therefore the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. … there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:-

1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the workforce and to satisfy them that the selection has been made fairly and not on the basis of personal whim.”

(ii) In the case of BL Cars v Lewis [1983] IRLR 58, Mr Justice Browne-Wilkinson states at paragraph 12 of his judgement:-

“It also seems to us that it is possible that the majority were not correctly directing themselves to their function. The passage which we have read indicates that they may have thought that it was the function of the tribunal to decide whether they (the tribunal) thought that the correct selection had been made, in the sense of being a selection that they would have made. The correct question they had to ask themselves was whether the selection was one that a reasonable employer, acting reasonably, could have made”.

(iii) In relation to using absence as a criterion for redundancy Lord McDonald at page 80C of his judgement in the case of Dooley v Leyland Vehicles Ltd [1987] SLT 76, states as follows:-

“The method of selection refers to absence, and is silent as to the reason for or cause of any absence. That that should be so, it is quite intelligible. The reason for or cause of any particular absence may not be clear, and, if it is disputed, some inquiry would be necessary to determine what the reason for or cause of the absence was. In the context of selecting for redundancy, such an inquiry would not be practical”.

(iv) At paragraph 15 of his judgement in the case of Drake International Systems Ltd [T/A Drake Ports Distribution Services] v Colin O’Hare. EAT/0384/03/TM EAT/0577/03/TM Judge Ansell states, in relation to the tribunal’s function in such cases, as follows:-

“We are left in no doubt that the tribunal were in error in this case in seeking to impose their own views as to the reasonableness either of the criteria or the implementation of those criteria, as opposed to asking the correct question which was whether the selection was one that a reasonable employer acting reasonably could have made”.

(v) Judge D Serota at paragraph 27 of his judgement in the case of Mrs J K Bansi v Alfa Flight Services UKEAT/0652/03/MAA states:-

“… However it is for the employer to select the appropriate skills it wished to retain”.

(vi) The tribunal also considered the guidance given by Glidewell LJ in the case of R v British Coal Corporation and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72. At paragraph 24 of his judgement he states:-

“It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R -v- Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p 19, when he said:-

“Fair consultation means:-

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(d) conscientious consideration by an authority of the response to consultation”.

(vii) The tribunal also obtained useful guidance from Judge Peter Clark’s judgement in the case of Langston v Cranfield University [1988] IRLR 172 at paragraph 33ff:-

“(4) Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.

(5) Because there is now no onus on either party to establish the reasonableness or unreasonableness of the dismissal under s.98(4) it is for the industrial tribunal to determine that question ‘neutrally’.

(6) In these circumstances we think it is incumbent on the industrial tribunal to consider each of the three questions mentioned in (4) above, in the same way that an industrial tribunal will consider the threefold Burchell test in an appropriate conduct case. It is desirable that at the outset of the hearing the live issues are identified by the industrial tribunal.

(7) Normally, an employer can be expected to lead some evidence as to the steps which he took to select the employee for redundancy, to consult him and/or his trade union and to seek alternative employment for him.

(8) We would normally expect the industrial tribunal to refer to these three issues on the facts of the particular case in explaining his reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy.

In setting out these propositions we are not seeking to replace the statutory test under s.98(4) but to ensure its practical application in redundancy cases”.

(viii) The tribunal also considered the Northern Ireland Court of Appeal decision in Steven McCormick v Short Brothers PLC [Reference SHE 7811, delivered 16 April 2010], together with the authorities referred to therein.

(ix) In relation to indirect discrimination on racial grounds, Article 3(1A) of the Race Relations Act (Northern Ireland) Order 1997 (‘the Order’) provides as follows:-

“(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in paragraph (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origin as the other, but –

(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons;

(b) which puts that other at that disadvantage; and

(x) Article 6(2) of the Order provides as follows:-

“6(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against another –

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against the employee –

(a) in the terms of employment which he affords him; or

(b) in the way he afforded him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

7. Burden Of Proof Regulations

(i) Article 52A of the Order provides as follows:-

“Burden of proof : industrial tribunals

52A(1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent –

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B)(a), (e) or (f), or Part IV in its application to those provisions, or

(b) has committed an act of harassment.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed such an act of discrimination or harassment against the complainant,

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, not to be treated as having committed, that act.”

(ii) In Igen Ltd (formerly Leeds Carers Guidance) & Others v Wong, Chamberlain Solicitors & Another v M Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. The guidance is now set out at the Annex to the judgment in the Igen case, and is further addressed in considerable detail by Mr Justice Elias in his judgment in the case of London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. However, these cases deal mainly with the burden of proof in direct discrimination cases. The tribunal also considered, where relevant, Harvey on Industrial Relations and Employment Law (‘Harvey’) at L801 ff in relation to racial discrimination, including the section on the burden of proof at L1138 and 1144, where nationality is being relied on as one of the racial grounds.

(iii) In relation to the burden of proof in indirect discrimination cases, useful guidance is to be obtained from the case of Nelson v Carillion Services Ltd [2003] IRLR 428 CA, where Simon Brown LJ reviewed the state of the law in light of the changes made by the 2001 Regulations and concluded:-

“It seems to me tolerably clear that the effect of S.63A was to codify rather than alter the pre-existing position established by the case law. The burden of proving indirect discrimination under the 1975 Act was … always on the complainant, and there pursuant to S.63A it remains, the complainant still having to prove facts from which the Tribunal could conclude that he or she has been unlawfully discriminated against “in the absence of an adequate explanation from the employer”. Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the Tribunal could not in my judgement, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against.”

However, there is little guidance from the authorities as to how precisely the burden of proof operates in indirect discrimination cases.

(iv) Harvey on Industrial Relations and Employment Law (‘Harvey’) comments in Volume 2 at L [193] as follows (in relation to the Nelson v Carillon Services Ltd case (Supra)):-

“That view of the limited impact to be accorded to S3A in relation to indirect discrimination contrasts with the much wider scope which the provision has been seen to have when it comes to the drawing of inferences of direct discrimination … Whatever the precise scope of S63A, claimants remain under an obligation to bring to the tribunal some evidence in support of allegations of disproportionate impact, and this will usually involve both the use of statistics and the concept of a ‘pool’ of affected individuals, real or hypothetical, to test the consequences of the provision, criterion or practice which is being subjected to scrutiny.”

(v) The tribunal considered the implications arising from the case of Rutherford & Another v Secretary of State for Trade & Industry (No 2) [2006] UKHL 19 [2006] IRLR 551 and in particular the judgment of Baroness Hale at paragraph 72 where she states:-

“It is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or ethnic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hairdressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory. It would have to be shown that the impact of such a rule worked to the comparative disadvantage of would-be female or male hairdressers as the case might be.”

(vi) The tribunal carefully considered the relevant section in Harvey on indirect discrimination at L [171] ff. It also took into account Lord Justice Sedley’s judgment in the case of Grundy v British Airways Plc [2007] EWCA Civ 1020 [2008] IRLR 74, where, in relation to establishing a pool, he states at paragraph 27:-

“The correct principle, in my judgment, is that the pool must be one which suitably tests the particular discrimination complained of: but this is not the same thing as the proposition that there is a single suitable pool for every case. In fact, one of the striking things about both the race and sex discrimination legislation is that, contrary to early expectations, three decades of litigation have failed to produce any universal formula for locating the correct pool, driving tribunals and courts alike to the conclusion that there is none.”

He continues in paragraph 30 and 31 to state:-

“The dilemma for fact-finding tribunals is that they can neither select a pool to give a desired result, nor be bound always to take the widest or narrowest available pool, yet have no principle which tells them what is a legally correct or defensible pool … Rutherford (No 2) seems to me to be a striking illustration of Lord Nicholls’ proposition that the assessment of disparate impact is a question of fact, limited like all questions of fact by the dictates of logic. In discrimination claims the key determination of both elements is the issue which the claimant has elected to pose and which the tribunal is therefore required to evaluate by finding a pool in which the specificity of the allegation can be realistically tested. Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen. We do not accept that Rutherford is authority for the routine selection of the widest possible pool; nor therefore that any question arises of ‘looking at’ a smaller pool for some unspecified purpose short of determining the case.”

Harvey states at L, paragraphs 194 and 195, as follows:-

“If, for example, measures are taken which are intrinsically liable to affect women more than men, then that may be enough to put an employer to the task of showing justification, without the need for statistical proof that in practice a substantially higher proportion of women than men are affected. Support for this more flexible approach is to be found in the view expressed by the CA in London Underground v Edwards (No 2) [1999] IRLR 364, [1999] ICR 494, where it was acknowledged that tribunals do not sit in blinkers – so that they are entitled to make use of their knowledge and expertise in the industrial field generally. …

[195]

There is some support in decided cases for the proposition that indirect discrimination can be shown without a statistical analysis being necessary. In Chief Constable of Avon and Somerset Constabulary v Chew [2001] All ER (D) 10 (Sep), EAT, Charles J made the following points: (1) the ECJ’s (and HL’s) decision in Seymour-Smith does not mean that prima facie discrimination can only be established by reference to statistics relating to the relevant measure or provision (Para 36(4)); (2) where there are no statistics showing the operation of a condition or requirement ‘an employer could not be heard to say that no claim for indirect sex discrimination could succeed until the requirement or condition had been in force long enough to produce information on which statistics could be based. In those circumstances the courts would consider different methods of assessing whether the first stage [ie of prima facie indirect discrimination] was satisfied’. (Para 36(11)) The use of non-statistical means to show indirect discrimination is also canvassed in O’Flynn v Adjudication Officer : C-237/94 [1996] 3 CMLR 103, European Court of Justice Paras 20 – 21. There the ECJ was concerned with a rule which made the grant of a payment to cover funeral expenses incurred by a migrant worker subject to the condition that burial or cremation took place within the territory of the member state giving the grant. That was found to be indirectly discriminatory (unless justified). The Advocate General thought the ‘decisive question’ was ‘whether it is more probable for nationals of other member states than for nationals of the United Kingdom that they are or their relatives will be buried in another member state’. The ECJ put the test in terms of provisions that were ‘intrinsically liable to affect migrant workers more than national workers’ (para 20).”

(vii) In relation to the aspect of justification, the tribunal considered the paragraphs in Harvey at L [207] to [214] and the relevant cases referred to therein beginning with the decision of the European Court of Justice in Bilka-Kaufhaus GmBH v Weber Von Hartz 170/84 [1986] IRLR 317. In relation to the issue of proportionality it considered the case of Hardys and Hansons PLC v Lax [2005] EWCA Civ 846, [2005] IRLR 726, CA. As Harvey comment at L213:-

“The Court held that there was no scope, in discrimination law, for a test based on ‘the band of reasonable responses which a reasonable employer would adopt’ – ie the test for culpable unfairness in the law of unfair dismissal. The test, emphasised the CA, is what is objectively justified. The principle of proportionality requires the tribunal to take account of the reasonable needs of the business, but at the end of the day it was for the tribunal to make its own judgment as to whether the rule imposed was ‘reasonably necessary’. It is not enough that the view is one which a reasonable employer could take.”

Harvey then continues to comment that:-

“While this decision was given on the basis of the ‘old’ (ie pre-October 2005) definition of indirect discrimination, the reference to the principle of proportionality fits very well with the ‘new’ test of justification ‘a proportionate means of achieving a legitimate aim’. Unless and until superior courts indicate the contrary, it is thought it thus offers a reliable guide to how the new wording should be read.”

(viii) The tribunal also reminded itself of the need in an indirect discrimination case for the claimant to identify precisely what the alleged provision, criterion and practice (‘PCP‘) is and when it applied to the claimant. The claimant has to show that the PCP applied to others in the same group at the same time and that they also were put to a disadvantage. An assumption is therefore made that the PCP applies to all but adversely affects a particular group. Ascertaining when the PCP applies affects:-

(a) the group allegedly suffering the disadvantage as circumstances may fluctuate and therefore timing is crucial;

(b) whether the claimant actually suffered a disadvantage;

In both direct and indirect discrimination cases a comparison of the case of a person of a particular racial group must be such that the relevant circumstances in one case are the same, or not materially different in the other (Article 3(3) of the Order). Moreover, Elias J made clear in the case of London Borough of Islington v Ladele & Liberty (EAT) [2009] IRLR 154, that any defence raised by a respondent to show that the PCP is a proportionate means of achieving a legitimate end must be subjected to ‘careful and sophisticated analysis’.

Submissions

8. The tribunal received considerable assistance from the helpful written submissions incorporated within the bundle of documents placed before the tribunal. The parties were afforded considerable time to prepare their oral submissions, which were heard by the tribunal on 22 April 2010. At that stage the respondent’s counsel also submitted further written submissions together with an agreed chronology both of which the claimant had had an opportunity of considering in advance of the hearing. The parties were also furnished with a copy of the Northern Ireland Court of Appeal decision in Steven McCormick v Short Brothers PLC and were afforded time to read it. The respondent’s written submissions which contain substantial extracts from Harvey are also appended to this decision. The tribunal carefully considered all submissions, including the brief oral submissions made by the claimant and the respondent’s counsel on 22 April 2010.

Conclusions

9. The tribunal, having carefully considered the evidence together with the submissions from both parties and having applied the principles of law to the facts as found concludes as follows:-

(i) The reason for the dismissal was redundancy.

(ii) The respondent has followed the principles referred to in the Compair Maxam case, insofar as they establish useful guidance even in a case where an employee is not represented by a trade union which, in this case, agreed and approved the matrix for redundancy selection.

(iii) The respondent carried out a fair and proper consultation.

(iv) The tribunal is satisfied that in all the circumstances the selection criteria were fair as was their application, and that the selection was one that a reasonable employer, acting reasonably, could have made. The tribunal is therefore satisfied that the respondent’s approach fell within the band of reasonable responses and that the claimant was fairly dismissed.

(v) The tribunal has also carefully considered the indirect race discrimination claim. The claimant, during the hearing relied on criteria 4 and 5 of the matrix relating to attitude and potential. However, the tribunal does not find it possible on the evidence to establish a relevant pool in which the specificity of the allegations of indirect discrimination could be realistically tested, nor is there evidence that measures were taken which were intrinsically liable to affect non-nationals more than nationals, as set out in Paragraph 7(vi) above. It follows therefore, that the claimant cannot satisfy the tribunal on the evidence that the criteria puts or would put non-national workers at a particular disadvantage when compared with national workers, and which put him at that disadvantage. The onus of proof does not therefore shift to the respondent to show that the provision, criterion or practice was a proportionate means of achieving a legitimate aim.

(vi) The tribunal has sympathy with the claimant in the circumstances in which he found himself but is unable to uphold his claims which are therefore dismissed.

Chairman:

Date and place of hearing: 1 – 12 March 2010; and

19 – 23 April 2010 Belfast

Date decision recorded in register and issued to parties:

CASE REF: 5145/09 IT

5152/091T

THE INDUSTRIAL TRIBUNALS (CONSTITUTION AND RULES OF PROCEDURE)
REGULATIONS (NORTHERN IRELAND) 1995

BETWEEN:

ROMAN KADZIELA

CLAIMANT

PIOTR OSENTOWSKI

CLAIMANT

AND

KINGSPAN ENVIRONMENTAL LTD

RESPONDENT

CHRONOLOGY

1. Mr. Kadzeila commenced employment as a production operative on the
15/2/05. His contract of employment was terminated on the 20/1/09.

2. Mr. Osentowski commenced employment as a production operative on
30/5/06.

3. The Respondent has owned and operated two rotational moulding plants in Northern Ireland for approximately twelve years-

i. The Titan Plant at Seapatrick, Banbridge and

ii. The Tvrrel Plant at Seagoe, Portadown. Both plants are operated on a 27/7 shift pattern with the Titan Plant mainly producing Bunded Oil Tanks for the British market while the Tyrrel Plant produced a smaller number of oil tanks and water cisterns for the Northern Ireland market at a range of non proprietary custom moulded products mainly for the construction missionary industry.

4. In 2007 the Company purchased a new site at Guildford Road, Portadown and following consolidation of the oil tank range in mid 2007 production of all oil tanks was at the Titan, Seapatrick plant. The Tyrrel site became fully

dependant on custom moulded products and a machine was turned off and has never resumed operation. And as a result of this nine employees were made redundant in July 2007 during round one of the redundancies.

5. Both Claimants were subjected to this redundancy exercise. Mr Osentowski and another employee were notified that they could be made redundant and were offered and accepted suitable alternative employment by transferring to the Titan Seapatrick site and worked there for approximately six months.

6. Mr. Osentowski asked to return to the Tyrrel site and this was facilitated due to two people leaving their posts.

7. In 2008, the Respondent moved the Tital and Tyrrel production into the new site at Guildford Road together with production of oil tanks from an acquired business which, prior to acquisition, had been produced at a separate site in the Republic of Ireland.

8. The economic slow down in the second half of 2008 dictated the need to rationalise the work force at the new site in November/December 2008 (round two redundancies). Both Claimants were assessed and measured using the same matrix and both were retained.

9. Prior to round two redundancies being fully implemented it became clear to the Respondent that the down turn was going to be more severe based on the results for the October and November 2008 accounting periods and customer forecasts for 2009 were significantly reduced. The Tyrrel business, i.e. custom moulding was reduced by 30%. This resulted in a proposed change from a four shift 24/7 cycle to a three shift 24/5 pattern and as a result more redundancies were announced in December 2008 and took place in January 2009 (round three redundancies).

10. On the 9th December 2008 an announcement was made by the respondent that redundancies were expected (round three). It was anticipated that 17 positions were at risk of redundancy. This is set out at page 186 of the bundle. This announcement was also enclosed within every wage packet.

11. Assessments were performed between the 9th and 15th of December 2008. On [5th of December 2008 Mr Kadziela was informed by letter that a formal 30
day period of consultation was beginning and that his position was at risk. A meeting took place on 15th December 2008 between Mr Kadziela, Jim Doran and Mel Courtney. Notes of this meeting are at pages 192 of the bundle.

12. Mr Osentowski was written to also on 15th December 2008 and also had a meeting with Mr Courtney and Mr Doran and the notes of that meeting can he found at page 191 of the bundle.

13. The employees were informed that their pay would remain in place and that they could go home to Poland and return in the New Year.

14. On 13th January 2009 both Claimants were written to outlining potential redundancy payments by letter dated the 13th of January 2009. These letters can be found at pages 189 and 190 of the bundle.

15. A further consultation meeting took place with Mr Kadziela on 14th January
2009 at 1.30 pm. This was with Alex Meston and Mel Courtney and Michael Drewek.

16. On 16th January 2009, Mr Osentowski met with Mr Mel Courtneyto obtain another copy of the selection criteria and his scoring.

17. On 19th January 2009 both Claimants were written to indicating that their employment would be terminated on the grounds of redundancy. They were afforded the right to appeal.

18. The letters of redundancy are dated the 19th of January 2009 and the EDT is the 20th of January 2009.

19. Both Claimants wrote to Mr John Daly on 23rd January 2009. These letters can be found at pages 22 for Mr Kadziela and pages 30 and 39 in respect of Mr Qsentowski.

20. Mr Daly replied to both letters seeking more details on 2nd February 2009. [he letter to Mr Kadziela can be found at page 21 of the bundle and the letter to Mr Osentowski can be found at page 40 of the bundle.

21. On 4^th February 2009, both Claimants replied to Mr Daly and these letters can be found at pages 16 - 20 in relation to Mr Kadziela and pages 41 - 42 in relation to Mr Osentowski.

22. There was an appeal meeting held by a Mr Daly and a Mr Courtney on 2^nd March 2009 with Mr Osentowski. Mr Daly’s notes can be found at page 196 of the bundles. Mr Courtney’s note can be found at page 197.

23. Mr Kadziela’s appeal meeting took place on the same date, 2h1d March 2009 and the notes of that meeting can be found at pages 198,200 to 201.

24.. Mr Daly wrote to both Claimants on 9h March 2009 confirming the dismissal by way of redundancy. The letters can be found at pages 14 in relation to Mr Kadziela and page 43 - 44 in relation to Mr Osentowski.

CASE REF: 5145/09 IT

5152/09IT

THE INDUSTRIAL TRIBUNALS (CONSTITUTION AND RULES OF PROCEDURE)
REGULATIONS (NORTHERN IRELAND) 1995

BETWEEN:

ROMAN KADZIELA

CLAIMANT

PIOTR OSENTOWSKI

CLAIMANT

AND

KINGSPAN ENVIRONMENTAL LTD

RESPONDENT

AUTHORITIES ON BEHALF OF THE RESPONDENT

1. INDIRECT RACE DISCRIMINATION: LAW

2. UNFAIR DISMISSAL:LAW

1. INDIRECT DISCRIMINATION

1 The claimants withdrew their direct unlawful race discrimination claims and pursued unlawful indirect discrimination claims. The relevant legislation on the issue of unlawful indirect discrimination is set out below with the relevant provision in bold and underlined text.

2. Race Relations (Northern Ireland) Order 1997 (Referred to as the RRO)

“Article 3. (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if—

(a) on racial grounds lie treats that other less favourably than he treats or would treat other persons;

or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but—

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.
[^F1(lA) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in paragraph (13), he applies to that other a provision,

criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but—
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons;
(b) which puts that other at that disadvantage; and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.

(1B) The provisions mentioned in paragraph (IA) are—
(a)Part II;

…
(3) A comparison of the case of a person of a particular racial group with that of a person not of that group under paragraph (1) [^F1or (1A)} must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

3. Article 6(2) of the same Order provides:

“6(2) It is unlawful for a person. in the case of a person employed by him at an establishment in
Northern Ireland, to discriminate against that employee-

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

4. In relation to the burden of proof, it is for the claimants to make out their cases for discrimination based on race. Article 54A of the RRO provides:-

“(2) Where, on the hearing of a complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

(b) is by a virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

5. Guidance on how to apply the burden of proof is provided by the Court of Appeal in the case of Igen Ltd -v- Wong [2005] EWCA Civ 142, The Court of Appeal in Igen pointed to a two stage test. The claimant must firstly show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination. Once the tribunal has

so concluded the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination.

6. In the English Court of Appeal decision Madarassy —v- Nomura International Plc [2007] 1RLR246 Lord Justice Mummery said:

“The bare facts of a difference in status and a difference in treatment only indicate a
possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

‘Could conclude” in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it.”

7. In the case of Laing v Manchester City council [2006] IRLR 748 Mr Justice Elias said:—

“The focus of the tribunal’s analysis must at all times be the question whether or not
they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say in effect ‘there is an nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”

8. In the Northern Ireland Court of Appeal in the case of Nelson v Newry and Mourne District Council [20091 NICA24 Lord Justice Girvan referred to the Court of AppeaIs decision in Madarassy and then said:—

“This approach makes clear that the complainant’s allegations of unlawful discrimination
cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination.”

2. UNFAIR DISMISSAL: REDUNDANCY

1. Under the terms of the Employment Rights (Northern Ireland) Order 1996 (ERO) an employee has a right not to be unfairly dismissed by his employer. In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason For the dismissal.

2. Potentially fair reasons include, under Article 130(2)(c), that the employee was redundant.

3. Article 130(4) (the equivalent of the Employment Rights Act 1996 s 98A referred to below in the Harvey extract) provides as follows:-

Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a)        depends on whether in the circumstances (including the size and
              administrative resources of the employer’s undertaking) the employer acted reasonably   or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b)           shall be determined in accordance with equity and the substantial merits of the case.”

5. The following is an extract from Harvey on Industrial Relations and Employment Law, Division DI Unfair Dismissal, section 11. REDUNDANCY.

“(2) Questioning the decision to make redundancies
[1652]

It is generally not open to an employee to claim that his dismissal is unfair because the employer acted unreasonably in choosing to make workers redundant. The tribunals will not sit in judgment on that particular business decision. Some early tribunal decisions suggested that they might be willing to do so, but the EAT has subsequently made it clear that it is not the job of the courts or tribunals to review that decision_(Moon v Homeworthy Furniture (Northern) Ltd [1976] IRLR 298, [1977] ICR 117).

The employers closed down the factory on the grounds that it was not economically viable, but the employees contended that it was. They claimed that the tribunal should consider all the circumstances relevant to the dismissal when determining whether the dismissal was fair, including whether the employer had acted reasonably in creating a redundancy situation. But the EAT held it had no jurisdiction to consider this, and based its self-denying ordinance on the principle that the tribunals should not inquire into the merits of an industrial dispute. Kilner-Brown J, delivering judgment for the EAT, expressed the position as follows (at 120):

the employees were and are seeking to use the [employment] tribunal and the Employment Appeal Tribunal as a platform for the ventilation of an industrial dispute. This appeal tribunal is unanimously of the opinion that if that is

what this matter is all about then it must be stifled at birth for it was this imaginary ogre which brought about the demise of the National Industrial Relations Court. The [1996 Act] has taken away all powers of the Courts to investigate
the rights and wrongs of industrial disputes and we cannot tolerate any attempt by anybody to go behind the limits imposed on [employment] tribunals’.

His Lordship also commented that this point of principle had been discussed with other judicial members of the appeal tribunal, and they were in agreement with it.

[1653]

This approach was adopted by the Court of Appeal in James W Cook & Co (Wivenhoe) Ltd v Tipper [1990) JRLR 386, [1990) ICR 716. Neill U (with whose judgment Farquarson LJ and Sir Roger Ormrod agreed) thought that the question whether a dismissal could be unfair because the decision to implement redundancies was itself unfair was a ‘troublesome point’. However, he concluded that whilst arguably the courts ought to have that power to decide whether the employer was justified in implementing redundancies, it was not currently open to the court to investigate the commercial and economic reasons prompting the closure.

[1654]

Apart from the reason given in the above decisions, it is also true that lawyers are not necessarily the best persons to comment on the economic and business decisions of businessmen, As the Court of Appeal in the Tipper case recognised, however, courts can
question the genuineness of the decision, and they should be satisfied that it is made on the basis of proper information. Two EAT decisions indicated that to this limited extent the courts may be willing to question a redundancy decision. In Ladbroke Courage Holidays Ltd V Asten [1981] IRLR 59 the EAT held that if an employer seeks to justify a dismissal by alleging that he needs to reduce the wage bill, he should produce some evidence to show that there is a need for economy; and in Orr v Vaughan [1981] IRLR 63 another division of the EAT (Slynn J presiding) held that whilst the choice of method of reorganisation is largely for the employer to determine, the employer must act on reasonable information reasonably acquired. Arguably the former case is not consistent with the Court of Appeal decision in Hollister v National Farmers Union (para [1856] below), in so far as it implies that there must be a pressing economic case for making the dismissals, whereas in Hollister it was held that a good commercial reason was sufficient. But the trend of these decisions is surely correct, though admittedly the scope of review which they afford to tribunals is still very limited. Essentially they simply require the employer to provide evidence to show that the alleged reason for the dismissal does have some basis in fact, and that a proper business decision has been reached._If the employer fails to satisfy a tribunal of this, he is not establishing that redundancy is the true reason for dismissal. The wisdom or otherwise of that decision remains beyond the tribunal’s scrutiny. It should be noted though that in both EAT decisions mentioned above that tribunal rejected the employer’s appeal against a finding of unfair dismissal, so even this limited, requirement does have some force.

…
(4) Grounds of unfairness
[1656]

Where an employee is dismissed for redundancy, he may complain that the dismissal is unfair under either of the following two heads:

(1) He may allege that the method of selection makes the dismissal automatically unfair.

(2) He may claim that even where there has been no automatically unfair selection, the dismissal was nevertheless automatically unfair under ERtsA s 98A(l) or unreasonable within the meaning of ERtsA s 98(4)-(6).

We will now consider each of these in turn.

(1) Automatic unfairness under section 98A(1)

[1666]

The statutory dismissal and disciplinary procedures that were introduced with effect from October 2004 and repealed with effect from 6 April 2009 (Employment Act 2008, s 1) applied to dismissals on the basis of redundancy provided that the duty of collective consultation under TULRA s 188 did not apply ie if 20 or more employees were to be dismissed at one establishment over a period of 90 days or less then the duty of consultation arose and the statutory procedures did not apply (EADR 2004, reg 4(1)(b)). These procedures are dealt with in more detail at para [2790]ff. Essentially they required an employer who was contemplating dismissal to provide the employee with a written statement of grounds for action and (unless the dismissal had already taken effect) invite him to a meeting to discuss it, hold the meeting (if appropriate) once he had informed the employee of the basis For the grounds and also hold an appeal meeting if the employee appealed. If the statutory procedures were not completed due to the employer’s fault then the dismissal would be automatically unfair (ERtsA s 98A(l)), a minimum level of compensation would apply and compensation could also be uplifted by between 10 per cent and 50 per cent. As a result of the repeal of ERtsA s 98A (Employment Act 2008, s 2) the concept of automatic unfairness as a result of a failure to follow a procedure no longer applies with effect from 6 April 2009 unless the transitional provisions apply (ie if on or before 5 April 2009 the employer had either already taken disciplinary action, dismissed or started the statutory procedure).

(2) Ordinary unfairness under section 98(4)

[1666.01]
Before the repeal of the statutory dismissal and disciplinary procedures anti ERtsA s 98A with effect from 6 April 2009 and assuming that a procedural failure did not make a dismissal automatically unfair under s 98A) the question remained whether a dismissal on the grounds of redundancy was unfair under s 98(4). That meant applying the ordinary principles of fairness and the provisions of s 98A(2) which had the effect that if the employer could show that a procedural failing made no difference to the decision to

... ____
dismiss (in the sense that the likelihood that the employee would have been dismissed anyway was 51 per cent or more) then that hilling would not, of itself, have made the dismissal unfair.

[1666.02]

Since the repeal of the statutory dismissal anti disciplinary procedures and ERtsA s 98A the position has reverted back to what it was previously so that (in line with Polkey, see para [998]ff) procedural failings will normally render a dismissal unfair even if the employee would definitely have been dismissed in any event had the procedural breach not occurred. It should also be noted that the ACAS Code of Practice on disciplinary and grievance procedures introduced on 6 April 2009 confirms expressly (at para 1, see S [43]) that it does not apply to redundancy dismissals. The following commentary generally deals with the issue of ordinary unfairness under s 98(4) and it should be noted that the majority of cases were decided before the statutory dismissal and disciplinary procedures were introduced.

[1666.03]

In Williams v Compair Maxam Ltd [1982] IRLR 83, the EAT set out the standards which should guide tribunals in determining whether a dismissal for redundancy is fair under s 98(4). Browne-Wilkinson J, giving judgment for the tribunal, expressed the position as follows:

‘…there is a generally accepted view in industrial relations that, the cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:

1 The employer will seek to give as much warning as possible ol impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2 The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to he applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3 Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4 The employer will seek to ensure that the selection is made fairly in accordance with these criteria
and will consider any representations the union may make as to such selection.

5 The employer will seek to see whether instead of dismissing an employee he could offer him
alternative employment.

The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should he done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim.

[1667]

These guidelines have been expressly approved by the Northern Ireland Court of Appeal in Robinson v Carrickfèrgus Borough Council [1983]IRLR 122, and were reasserted by the EAT in Grundy (Teddington) Ltd v Plummer and Salt [1983] IRLR 98.

[1668]

As the EAT emphasised in the Williams case, these are not principles of law but rather standards of behaviour which may alter over time in accordance with the prevailing understanding of what constitutes good industrial relations practice. Consequently ‘in future cases before this Appeal Tribunal there should be no attempt to say that an [employment] tribunal which did not have regard to or give effect to one of these factors has misdirected itself in law. Only in cases ... where a genuine case for perversity on the grounds that the decision flies in the face of commonly accepted standards of fairness can be made out, are these factors directly relevant. They are relevant only as showing the knowledge of industrial relations which the industrial jury is to be assumed as having brought to bear on the case they had to decide.’ The EAT has re-emphasised this point in Rolls-Royce Motors Ltd v DewI,urst 119851 IRLR 184.

[1669]
The House of Lords in the Polkey case (discussed above, para [998]) expressly adverted to the relevant procedures required in a redundancy dismissal in the following terms:

‘…in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair decision which to select for redundancy and takes such steps is may he reasonable to minimise a redundancy by redeployment within his own organisation’.

[1670] - [1680]

In the light of that case, it is necessary to reconsider decisions of the courts--and
particularly the Scottish courts--which have tended to downgrade the significance of the
Williams guidelines, eg A Simpson & Son (Motors) v Reid and Findlater [1983] IRLR 401; Gray
v Shetland Norse Preserving Co Ltd [1985] IRLR 53;and Buchanan vTi/con Ltd [1983] IRLR 417.

[1681]
However, as Phillip J noted in British United Shoe Machinery Co Ltd v Clarke [1977] IRLR
297, [1978] ICR 70, tribunals must guard against a finding of unfair dismissal as a means of
‘topping up’ what they consider to be an inadequate redundancy payment.

[1682]
A good example of an attempt to ‘top up’ a redundancy award by a finding of unfair dismissal was Hinckley and Bosworth Borough Council v Ainscough [1979] IRLR 224, [1979] ICR 590, EAT. An employee was made redundant, paid all sums to which he was legally entitled, and even given an ex gratia payment, but the tribunal found the dismissal unfair

because the ex gratia payment was insufficient. The EAT upheld the employer’s appeal and commented that to find the dismissal unfair in these circumstances would be very exceptional indeed. Perhaps it could arise where he had been led to believe that he would be treated more generously than he was.

[1683]

In Langston v Cranfield University [1998] IRLR 172, the EAT (Judge Peter Clark presiding) held that so fundamental are the requirements of selection, consultation and seeking alternative employment in a redundancy case, they will be treated as being in issue in every redundancy unfair dismissal case. Accordingly, even if not raised specifically by the claimant the employment tribunal will be expected to consider them. Moreover, the employer will be expected to lead evidence on each of these issues. The only exception will be where there is a contrary agreement between the parties.

[1684]

We shall now look at the five guidelines outlined in the Williams case separately, though not in the order developed in that decision whilst bearing in mind that: (a) they are only guidelines and not rules of law; and (b) even as guidelines they do no more than indicate the factors which a tribunal might properly consider when determining whether or not a dismissal is fair.
(3) Unfair selection
(a,) The pool of employees

[1685]

A crucial preliminary problem in relation to redundancy selection where the requirements of a business for employees to carry out work of a particular kind have ceased or diminished is to choose the group of employees from which the selection must be made. The system for choosing this pool must be fair and if there is a customary arrangement or procedure then that should be followed unless there is a good reason for not doing so. 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. Ultimately the pool from which the selection will be made is for the employer to determine, and, in the absence of a customary arrangement or procedure, it will be difficult for an employee to challenge where the employer can show that he has acted reasonably.

[1686]

As the Court of Appeal recognised in Thomas and Betts Manufacturing Co Ltd v Harding [1980] IRLR 255, although what is now ERtsA s 105 (dealing with redundancy for an automatically unfair reason) requires a consideration of similarly placed employees, s 98(4) does not. Consequently, it was held that a woman who was employed making fittings and had two years continuous employment should not have been dismissed before a packer with just a few weeks’ experience. Instead she should have been offered

the packer’s job, even though this could have involved dismissing someone else. There was no principle of law that the redundancy selection should be limited to the same class of employee as the claimant (though the EAT has held that the position will be different where the categories have been selected by agreement with the union (Huddersfield Parcels Ltd v Sykes [1981] IRLR 115)). Conversely, however, the Thomas and Betts case does not establish as a principle of law that the employer is never justified in limiting redundancy selection to workers holding similar positions to the claimant (see Green v A & I Fraser (Wholesale Fish Merchants) Ltd [1985] IRLR 55, EAT).

(b) The criteria for selection from the pool

[1687]

It is now well established that tribunals cannot substitute their own principles of selection for those of the employer. They can interfere only if the criteria adopted are such that no reasonable employer could have adopted them or applied them in the way in which the employer did (see eg Earl of Bradford v Jowett (No 2) [1978] IRLR 16, [1978] 1CR 431; and NC Watling v Richardson [1978] IRLR 255, [1978] 1CR 1049). Last in, first out has been used as a criterion for many years but an employer is of course entitled to take into account criteria in addition to length of service, eg the need to retain a balanced workforce. Provided these are proper criteria the tribunal cannot seek to effectively substitute its own selection method by giving greater prominence to long service (BL Cars Ltd v Lewis [1983] IRLR 58).

[1688]

Apart from long service, other matters which have been considered relevant in selection include:

Σ upheaval in domestic arrangements (Earl of Bradford v Jowett (No 2) [1978]
I RLR 16, [1978] 1CR 131);

Σ          efficiency, though it may be unfair to select a marginally less competent
person if his work is generally satisfactory and he has long service (Farthing v
Midland Household Stores Ltd [1974] IRLR 354);
Σ       greater experience in certain particular tasks or on certain machines (Abbotts and Standley v Wesson—Glynwed Steels Ltd [1982] IRLR 51); and
Σ                         ‘ the fact that certain employees remained loyal during industrial action (Cruicksluink v Hobbs [1977] ICR 725).

[1689]

There must be some evidence that the employer has taken into account the characteristics of his employees when determining who to select (see Bristol Channel Ship Repairers Ltd v O’Keefë [[977] 2 All ER 258, [1977] IRLR 13, EAT). If, for example, the employer decides simply to select all those in one particular production unit and retains all the workers in another similar unit, he is likely to be considered to be acting unreasonably in failing to take account of the individual worker’s personal situation (see eg Calvert v Allisons (Gravel

Pits) Ltd [1975] IRLR 71; and Forman Construction Ltd v Kelly [1977] IRLR 468, EAT) .Again although it might be justified to consider attendance records as the basis for selecting redundant employees, the employer will not be acting reasonably if he fails to look at the reasons why the employees selected were absent. This was the view of the EAT in Paine and Moore v Grundy (Teddington) Ltd [1981] IRLR 267, reversing a tribunal on this point.

[1690]-[1700]
However, according to the Scottish EAT in Gray v Shetland Norse Preserving Co Ltd [1985] IRLR 53, it is not necessary that the employee should have been warned in advance that his poor attendance record will render him particularly vulnerable to selection for redundancy. The EAT commented that although such a warning is often required where the dismissal is for misconduct arising out of the poor attendance record, different considerations apply where the reason for dismissal is redundancy and poor attendance record is relevant only to selection.

[1701]

Finally, as the EAT made clear in the Williams v Compair Maxam case, it is important that the criteria chosen for determining the selection should not depend solely upon the subjective opinion of a particular manager but should be capable of at least some objective assessment. As the tribunal pointed out, the purpose of such objective criteria is to ensure that the redundancy is not used as a pretext for dismissing an employee whom some manager wishes to have removed for some other reason. Consequently the criteria adopted in the Williams case itself which involved retaining those ‘who, in the opinion of the managers concerned, would be able to keep the company viable’ was unsatisfactory. However, in Graham v ABF Ltd [1986] IRLR 90 the EAT refused to find that a tribunal had erred in law when it concluded that redundancy criteria based on ‘quality of work, efficiency in carrying it out and the attitude of the persons evaluated to their work’ were not so intrinsically nebulous and subjective that they could not form proper criteria for selection. It did, however, emphasise that the vaguer the criteria the more important it was for the employer to consult.

(4) Unfair application of selection criteria

[1702]

As the EAT indicated in the Williams case, the actual application of the selection criteria should be carried out fairly and, at least where there is a recognised union, after consultation with the union. (However, where selection has been made, the employer need consult only if the union wishes to know the names of the relevant employees: the employer is not acting unreasonably simply in failing to volunteer the names (Grundy (Teddington) Ltd v Plummer and Salt [1983] IRLR 98, [1983] ICR 367).) This requirement is closely linked with the need for some element of objectivity to be introduced into the

criteria themselves, for where the criteria are too subjective and rest unduly upon personal opinions and assessments it will be impossible to determine whether they have been applied fairly or not.

[1702.01]

It appears, however, that the courts will not be willing to carry out a detailed examination of the way in which the employer applied the selection criteria. In Eaton Ltd v King [1995] IRLR 75 the Scottish EAT (Lord Coulsfield presiding) stated that it was sufficient for the employer to have set up a good system for selection and to have administered it fairly. This approach was expressly endorsed by both Waite and Millett LJJ, in the Court of Appeal decision in British Aerospace plc v Green [1995] IRLR 437.

[1702.02]

Moreover, the Scottish EAT in Eaton held that in deciding who to dismiss, a senior manager is entitled to rely on the assessments made by his or her subordinates. It will not be necessary for the employer to produce the managers who carried out the assessment at the tribunal so as to justify their assessments. It is submitted that this is correct, for otherwise the tribunal would be obliged to hear all the evidence on which the decision to make the selection was taken. In reaching this conclusion, the EAT relied upon the decision of the Inner House of the Court of Session in Buchanan v Tilcon Ltd [1983] IRLR 417 when the Lord President said:

‘In our opinion… it is quite unrealistic and unreasonable for an [employment tribunal—which is prepared to accept the senior official who made the selection reached his decision fairly upon the basis of company information, the reliability of which he had no reason to question—to demand of the employer for the purposes of [s 98(4)] that he should set up the accuracy of that information by direct evidence of other witnesses speaking, perhaps, to records for which they had responsibility.

It is, however, important to emphasise that the criteria themselves must be fair, they must be genuinely applied and there must be no reason to doubt the reliability of the information received. As the tribunal also recognised, there may be some cases where the marking may suggest that the application of the criteria was, or may have been, unfair.

[1703]

More controversially, the EAT also held that there is no obligation on the employer to provide details of individual assessments to employees and discuss them with employees. This is easier to justify where a number of managers assess an individual than where the selection is left to a single manager. In any event the soundness of that part of the decision has been put in doubt by another division of the Scottish EAT in John Brown Engineering Ltd u Brown, [1997] IRLR 90 (Lord Johnston presiding). In that case employees could appeal against their selection, but they were not given the individual assessments. In these circumstances the tribunal described the appeal process as a ‘sham’, and the EAT held that it was entitled to reach that conclusion. The EAT did confirm that it was not part of the tribunal’s duty to put the selection criteria under a microscope, nor to determine whether

it was properly operated. But it commented that whilst it might be invidious to publish ‘league tables of results, the employer who did not do so was risking a finding of unfair dismissal. It seems, therefore, that some consultation on the assessment is likely to be necessary to reduce the risk of an unfair dismissal finding.

[1703.01]

In Alexander v Bridgen Enterprises Ltd [2006] IRLR 422 the EAT held that on redundancy, to comply with the obligation in step 2 of the now repealed statutory standard dismissal procedure to inform the employee of the matters which have led him to contemplate dismissal, the employer should set out why he considers that there is a redundancy situation and why the employee is being selected, provide the selection criteria and any assessment of the employee but does not have to provide assessments of other employees. It should be borne in mind, however, that this was only a minimum requirement to prevent a finding of automatic unfair dismissal on the now repealed procedural grounds and would not necessarily have prevented a finding of unreasonableness under ERtsA s

98(4).

(5) Individual consultation or warning

[1704]

Consultation is one of the basic tenets of good industrial relations practice. Where unions are recognised, consultation will generally be with the trade unions, although this does not in all cases eliminate the obligation to consult in addition with individual employees. Normally the former will be over ways of avoiding redundancy and (if the union is willing to discuss the issue) over redundancy selection criteria. Consultation with individuals will generally arise once they have been at least provisionally selected, and will be for the purpose of explaining their own personal situations, or to give them an opportunity to comment on their assessments. It must also be emphasised that although for analytical purposes the application of the assessment criteria and consultation with individual employees are treated separately, there is often a significant link between them in practice. Moreover, as the EAT (Judge Peter Clark presiding) commented in Mugford v Midland Bank plc [1997] IRLR 208, unions will generally want to consult over selection criteria, but rarely if ever wish to be involved in the invidious process of selecting individuals by the application of those criteria. It is in that context that individual consultation takes on a special importance.

[1705]

The courts have indicated that one could expect a reasonable employer to have some good reason for not consulting (see eg the decision of the EAT (Browne-Wilkinson J presiding) in Freud v Bentalls Ltd [1982] IRLR 443, [1983] ICR 77). In the House of Lords in Polkey v AE Dayton Services Ltd [1987] 3 All ER 974, HL, [1987] 1 All ER 984, CA, [1987] IRLR 503, [1987] 1CR 142. Lord Bridge said this:

in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative…’

Obviously this does not mean that a failure to consult employees is inevitably unfair-- particularly if their representatives are consulted--but it does place emphasis on the general importance of consultation. Earlier cases suggesting otherwise (eg Hollister v National Farmers Union [1979] IRLR 238, [1979] ICR 542 and Noble v David Gold & Son Ltd [1980] IRLR 252, [1980] ICR 543) ought not now to be followed.

[1706]

Since Polkey the importance of consultation has again been stressed in a number of cases eg Robertson v Magnet Ltd (Retail Division) [1993] IRLR 512, Dyke v Hereford and Worcester County Council [1989] ICR 800 (in which the EAT said that the importance of consultation ‘cannot be overemphasised’), Ferguson v Prestwick Circuits Ltd [1992] IRLR 266 (in which the Scottish EAT said that it was no excuse for a failure to consult that the workforce had indicated in a previous redundancy exercise that they did not wish to be consulted); and De Grasse v Stockwell Tools Ltd [1992] IRLR 269 (when the EAT (Tucker J presiding) held that the fact that the employers were a small company did not excuse the failure to consult, though it might affect the nature or formality of the consultation process). See, too, Heron v Citylink-Nottingham [1993] IRLR 372 where the EAT refused to accept that a failure to consult the individual whom it was proposed to dismiss was justified by the employer’s belief that the employee was the only person who could be made redundant As the tribunal pointed out, even in an apparently clear case there may be factors known to the employee but unknown to the employer which could cause the employer to change his mind, eg the fact that the employee is willing to accept a lower paid job or a more junior post .

[1707]

All these decisions were reviewed by the EAT in Mugford v Midland Bank [1997] IRLR 208, who summarised the state of the law as follows:

(1) Where no consultation about redundancy has taken place with either the
trade union or the employee the dismissal will normally be unfair, unless the [employment} tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.

(2) Consultation with the trade union over selection criteria does not of itself release the employer from considering with the employee individually his being identified for redundancy.

(3) It will be a question of fact and degree for the [employment) tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A jack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain

whether the employer has or has not acted reasonably in dismissing the Employee on the grounds of redundancy.

[1708]
The decision of the EAT (Judge DM Levy QC presiding) in Rowell v Hubbard group Services Ltd [1995] IRLR 195 also strongly emphasizes the importance of consultation. In that case the employees had been warned of impending redundancies, and were informed in their letters of dismissal that any relevant matters could be discussed. The tribunal held that the dismissals were fair but the EAT overturned this decision and substituted a finding of unfair dismissal. The EAT stressed that the obligation to consult is distinct from the obligation to warn, and that there were no justifiable reasons for not consulting in this case. Moreover, whilst accepting that there were no invariable rules as to what consultation involved, the tribunal stated that so far as possible it should comply with the following guidance given by Glidewell LJ in the case of R v British Coal Corpn and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72, at para 24:

24. It is automatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Givent County Council ex parte Bryant,, reported, as far as I know, only at [1988] Crown Office Digest p 19, when he said:

Fair consultation means:

(a)    consultation when the proposals are still at a formative stage;
(b)     adequate information on which to respond;
(c)     adequate time in which to respond:
(d)    conscientious consideration by an authority of the response to consultation.

These words were quoted with approval, in the context of stipulating what was involved in consulting a trade union, by the Inner House of the Court of Session in King v Eaton Ltd
[1996] IRLR 199.

(6) Failure to consult the union

[1709]

As the Mugford case demonstrates, a failure to consult the union over potential redundancies is likely to render a dismissal unfair at least where there has been no individual consultation. Furthermore, although in theory consultation is unnecessary where, viewed objectively, it would be a futile exercise, it must be only in very rare cases that this will be available to the employer as a defence. Its general significance in the context of redundancy was emphasised by the House of Lords in the Polkey case. Clearly it will usually be far more convenient For certain matters, such as criteria for selection, to be discussed with the union rather than individuals, and an employer risks a finding of unfairness if they are not discussed with anyone.

[1710]

In certain cases there is a statutory obligation to consult recognised trade unions or elected representatives over redundancy (s 188 of TULRA--see E [2481]). Even where that statutory obligation does not arise, the failure to consult may still render a dismissal unfair. Equally, there is no reason why a Failure to comply with s 188 should not only lead to sanctions under that provision but should at the same time be a factor capable of rendering an otherwise fair dismissal unfair. So in Hough and APEX v Leyland OAF Ltd [1991] IRLR 194 the EAT (Knox J presiding) held that whilst it would be wrong to equate a breach of s 188 with unfair dismissal, a tribunal was entitled to Find that there had been an unfair dismissal where the employer had failed to consult with the union about whether there was any alternative to redundancy.

[1711] – [1720]

Consultation may be about a whole series of matters, including methods of avoiding redundancies if possible. Moreover, even where the trade union has indicated that it is unwilling to be consulted over selection criteria, that will not release the employer from a duty to consult over the implementation of the criteria. Any failure to do this may well render the dismissal unfair (see Rolls-Royce Motor Cars Ltd v Price [1993] IRLR 203). Moreover, the consultation must be Fair and genuine. It is not enough merely to go through the motions. In general the criteria referred to by Glidewell LJ in the British Coal case (see pant [1708] will need to be complied with (see the comments of the Court of Session in King v Eaton Ltd [1996] IRLR 199.

(7) Insufficient efforts to find alternative employment
(a) The scope of the employer’s duty

[1721]
In order to act Fairly in a redundancy situation an employer is obliged to look for alternative work and satisfy himself that it is not available before dismissing for redundancy.

[1722]

Even where there is no other work to do, a failure to try to find alternative employment may make an otherwise fair dismissal for redundancy unfair. This is demonstrated by the following case.

Vokes Ltd v Bear [1973] IRLR 363, [1974] ICR 1, NIRC: B, a works manager, was made redundant without warning and in circumstances lacking any humanitarian approach. No attempt whatever had been made to see if this middle-aged family man could be employed somewhere else within the group and there was evidence that at least one of the 300 companies involved was advertising for persons to fill senior management positions shortly after the employee’s dismissal. The employers did not offer help to B before they dismissed him nor did they allow him any time off to seek work.

The employers appealed against the finding of unfair dismissal and argued that the tribunal, when considering whether the employer had acted reasonably, should only have taken into account such ‘circumstances’ which related to or surrounded the redundancy--the employer’s failure to mitigate the consequences of an otherwise fair dismissal being irrelevant. Sir Hugh Griffiths, in rejecting the submission (and the appeal) stated:

Having decided that the employee was dismissed by reason of redundancy the tribunal then turned to consider whether nevertheless his dismissal was unfair by virtue of the provisions of [s 98(4) of he ERtsA]. The tribunal held that it was unfair because no attempt whatever had been made to see if the employee could have been fitted into some other position in the group before he was dismissed. The evidence showed that the Tilling Group consisted of some 300 companies and there was evidence that at least one of those companies was advertising for persons to fill senior management positions shortly after the employees dismissal. The Tilling Group apparently had no centralized machinery for providing services to all the companies in the group and it was argued before the tribunal and before this court that in all the circumstances it would have been impracticable to have made any inquiries within the group to see if there was another position that the employee might fill. The tribunal would have none of this argument. They said:

We do not think that such inquiries were impracticable. We think that some inquiries should have been made to see whether it was possible to help someone like [the employee] whose services had proved satisfactory to his employers in every respect. We think the [employers’] failure to consider the question of finding some other position for the [employee] in the group made the dismissal unfair.’

We find ourselves in full agreement with the way in which the tribunal expressed themselves. It could have been the simplest of matters to have circulated an inquiry through the group to see if any assistance could be given to the employee in the very difficult circumstances in which he would shortly find himself.

It is of interest to see what guidance is given in such a situation by the Code of Practice. Whereas it is true that the Code of Practice is in general aimed at those in employment below managerial status, there are many passages of general application. Paragraph 46 provides:

‘If redundancy becomes necessary, management in consultation, as appropriate, with the employees or their representatives, should ... offer help to employees in finding other work in co- operation, where appropriate, with the Department of [Work and Pensions], and allow them reasonable time off for the purpose.’

These employers made no offer of help to the employee before they dismissed him, nor did they allow him any time off to seek work. As the employee reasonably complained: It’s more difficult to find employment if you have been summarily dismissed than if you are seeking a new job while still in employment.” In so far as it is argued that this paragraph is not meant to apply to managers, would answer, how is a company to expect its managers to comply with the provision if it treats them as it did the employee? He was literally put out on the pavement at a moment’s notice in circumstances which appear to us to have lacked any humanitarian approach on the part of the employers.

[1723]

The courts subsequently sought to restrict the scope of the Vokes case. For example, it has been emphasised that the duty on the employer is only to take reasonable steps, not to take every conceivable step possible to find the employee alternative employment. This was the view of the EAT in Quinton Hazell Ltd v Earl [1976] IRLR 296, [1976] ICR 296. They upheld an employer’s appeal against a tribunal finding that a dismissal was unfair because the employer had not been sufficiently energetic in seeking alternative employment. And as the EAT commented in British United Shoe Machinery Co Ltd v Clarke [1977] IRLR 297, [1978] ICR 70, tribunals should not impose some ‘unreal or Elysian standard’.

[1724]

In MDH Ltd v Sussex [1986] IRLR 123 the EAT (Waite J presiding) held that it was an error of law for a tribunal to hold that it was obliged to treat the Vokes case as establishing any legal principle which it was bound to follow.

[1725]

In Harris v Ralph Martindale & Co Ltd [2007] All ER (D) 347 (Dec), EAT, the EAT analysed the scope of the employer’s duty when there is alternative employment available which is suitable for two or more potentially redundant employees. The EAT acknowledged that this was not an area of litigation that had been explored greatly. Following Darlington Memorial Hospital NHS Trust v Edwards & Vincent (UKEAT/678/95) the EAT confirmed that it was wrong to equate the test of what is appropriate in selecting a person for redundancy with the criteria that should be applied in the process of considering persons for alternative employment. The EAT approved the tribunal decision that Mr. Harris had been unfairly dismissed because by dealing with the selection criteria for the alternative employment in an entirely subjective way and opening up the vacancy to other internal candidates the employer had adopted a process which was not reasonable. In Burlington Memorial Hospital NHS Trust V Edwards & Vincent the EAT had stated that if employees are told to apply for the available jobs then the applications must be considered properly and the exercise carried out in good Faith. In Ralph Martindale v Harris the EAT stated that Darlington Memorial Hospital NHS Trust v Edwards & Vincent was some authority for saying that the selection process should at least meet some criteria of fairness and supported the proposition made by the EAT in that case that there may be some duty of care.

(b) Actions subsequent to dismissal

[1726]

In Labour Party v Oakley [1987] IRLR 79, [1987] ICR 178, the EAT (Kilner-Brown J presiding) held that (in a case involving reorganisation rather than redundancy) an allegation that a dismissed employee was not fairly considered for an alternative job was not capable of rendering the dismissal

unfair, at least not where the manner of non—selection for that job occurred after the dismissal itself. If this decision is intending to say that a dismissal cannot be unfair where the employer fails to consider the possibility of alternative employment, Dr does so only alter the dismissal itself, it is with respect inconsistent with the authorities cited above. Arguably, though, the decision can be justified on the basis that the employers did act fairly up to the point of dismissal, and any unfairness arose only after the dismissal itself. On that basis the case may be similar to that of an employer who, having dismissed an employee, fails to consider him for a new job that is created soon after his departure. Such subsequent action cannot render an otherwise fair dismissal unfair. The decision in this case was overturned by the Court of Appeal [1988] IRLR 34, [1988] 1CR 103 although on different grounds. The court held that the restructuring was only a charade designed to provide a pretext for the dismissal. However the principle that unfair action subsequent to dismissal cannot render the dismissal unfair was confirmed by the Court of Appeal in Octavius Atkinson & Sons Ltd v Morris [1989] IRLR 158. In that case a dismissal was held not to be unfair in circumstances where alternative employment became available very shortly after a summary dismissal but was not offered to the employee. Since it was not available at the time of dismissal itself, the failure to offer it could not affect the fairness of the dismissal. The case itself turned on the precise moment in the day when the dismissal was effected, the Court of Appeal holding that it was the moment when the summary dismissal was effected: see the discussion at para [742] above.

(c) Jobs in subordinate positions

[1727]

As to offering a job in a subordinate position, the Scottish EAT concluded in Barratt Construction Ltd v Dalrypmle [1984] IRLR 385 that it may be reasonable for the employer to assume that this will be unacceptable to the employee unless the employee indicates otherwise. The tribunal expressed its tentative observations on that point as follows.
Without laying down any hard and Fast rule we are inclined to think that where an employee at senior management level who is being made redundant is prepared to accept a subordinate position he ought, in fairness, to make this clear at an early stage so as to give his employer an opportunity to see if this is a feasible solution.

[1728]

However, other divisions of the EAT have accepted that employers might be expected to offer an alternative job even if it involves demotion and should not readily assume that the employee will reject it (Avonmouth Construction Co Ltd v Shipway [1979] IRLR 14), or at least they might be expected to discuss the possibilities with the employee (Huddersfield Parcels Ltd v Sykes [1981] IRLR 115, EAT and Abbotts and Standley v Wesson-Glynwed Steels Ltd [1981] IRLR 51); and where alternative employment is available, they must ensure that

sufficient information is given to the employee to unable him to make a realistic decision about whether to accept the job or not (Modern Injection Moulds Ltd v Price [1976] IRLR 172, [19761] ICR 370, EAT).

[1729]

Of course, it is perfectly true that what is reasonable depends upon all the circumstances of the particular case. To that extent it may be contended that the Barratt Construction case is not directly in conflict with the other decisions mentioned in this paragraph. But clearly there is a marked difference in emphasis between the cases. This perhaps reflects in part the fact that the Scottish EAT has taken the view that once it is established that a dismissal is not automatically unfair under s 105, it is extremely difficult for an employment tribunal to find that it is unfair under s 98(4). In most cases it is likely that the employer’s duty to take reasonable steps to find alternative employment will extend to, exploring with the employee the possibility of jobs in subordinate positions.
(d) Offers made on an unreasonable basis

[1730] – [1800]

Where it is reasonable for an employer to make an offer of alternative employment to the employee, and the offer is made but on an unreasonable basis, that fact is of itself capable of rendering an otherwise fair dismissal unfair (see Elliot v Richard Stump Ltd [1987] IRLR 215, [1987] ICR 579, EAT). In that case the employer purported to refuse to permit the employee to work the new job for a trial period before finally accepting it, notwithstanding that s 138 of the ERtsA expressly confers such a right. The tribunal held that this refusal could not render the offer of alternative employment unreasonable since as a matter of law the employee’s rights could not be diminished in this way. However the EAT (Scott J presiding) upheld the employee’s appeal. The EAT held that if alternative employment was offered on terms which were not reasonable, prima fade this would justify the conclusion that the employees dismissal following refusal of the offer was unfair. Of course, the fact that the offer itself is of a subordinate job does not mean that it is an unreasonable offer. The point about the Elliot case was that that offer was made in an unseasonable way, not that its content was unreasonable.

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