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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Murphy v Walhamton School Trust Ltd [1994] UKEAT 571_92_1404 (14 April 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/571_92_1404.html
Cite as: [1994] UKEAT 571_92_1404
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At the Tribunal
THE HONOURABLE MR JUSTICE MORISON
MR D O GLADWIN CBE JP
MISS C HOLROYD
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR G CLAYTON
(SOLICITOR)
Graham Clayton Solicitors
Hamilton House
Marbledon Place
London WC1H 9BD
For the Respondents MR E C SUTTON
(SOLICITOR)
Scott Bailey & Co
63 High Street
Lymington
Hants SO41 9ZT
MR JUSTICE MORISON: This is an appeal from a unanimous decision of an Industrial Tribunal sitting at Southampton, which was entered in the Register on the 8 July 1992, dismissing the Appellant's complaint that she had been unfairly dismissed from her employment by the Respondents as a teacher at Walhampton School, Lymington Hampshire. The school is an independent co-educational preparatory school, with a pre-preparatory department: it accommodates both day pupils and boarders.
The background relevant to this case is as follows. The Appellant commenced her employment at the school on September 1 1990. Early in the autumn term in 1991, the Appellant, who was pregnant, was advised by her doctor to rest up during her pregnancy. Her expected date of confinement was March 11 1992 and she anticipated that she would be able to resume her teaching responsibilities from the beginning of the summer term, which commenced on April 10 1992. However, she was told by the school by letter dated November 7 1991 that the school was not prepared for her to return to work until the beginning of the new academic year in September 1992 and subsequently she was offered what she considered to be inferior terms of employment from that date.
Accordingly, in February 1992 she issued an IT1 claiming that she was being unlawfully discriminated against, in breach of the 1975 Sex Discrimination Act as amended, and of the Equal Treatment Directive.
By letter dated March 16 1992, the school informed the Appellant that she was being dismissed by reason of redundancy effective from the 31 August 1992. Accordingly, she successfully applied to the Tribunal, with which her IT1 had been lodged, to include within it, a claim arising out of this dismissal. Her allegation was that the dismissal was either an act of victimisation, contrary to section 4 of the 1975 Act, or an unfair dismissal, or both.
These various claims came before the Industrial Tribunal who ruled firstly, that the Appellant had not been unlawfully discriminated against by the employers' refusal to permit her to return to work in September 1992, rather than at the beginning of the summer term. Secondly, by offering her re-engagement at that time on terms which did not entitle her to return to the same post the employers had been guilty of unlawful discrimination. Thirdly, her dismissal was not an act of victimisation within the 1975 Act but was for reasons of redundancy, and was not unfair.
By a Notice of Appeal dated August 18 1992, the Appellant appealed against the finding that her dismissal for redundancy was not unfair. The essence of her complaint is that the Tribunal misapplied the decision in Polkey v AE Dayton Services Ltd [1988] ICR page 142. Whilst the Tribunal correctly found that the school had failed to follow a fair procedure, in relation to warnings of impending dismissal and to consultation in advance of the dismissal, nonetheless they concluded that such warning or consultation would have been "utterly useless". The Appellant says that the Tribunal failed to ask itself the right question namely whether the particular employer had examined whether warning or consultation would have made any difference and whether that employer could reasonably have decided that it would not.
On March 2 1993 the Appellant's representative persuaded a division of this Tribunal that the appeal was arguable and the matter has proceeded to a full hearing, and we have been furnished with the Chairman's Notes of Evidence.
Before turning to the arguments on this appeal we wish to emphasise what is common ground between the parties. Firstly, there is no appeal by the employers against the finding of unlawful discrimination in relation to the terms offered for the Appellant's re-engagement, which was subsequently overtaken by events. Secondly, there is no appeal by the Appellant against the finding that there was no sex discrimination in relation to the requirement that she should only be re-engaged from the beginning of the new academic year as opposed to the beginning of the summer term. Thirdly, there is no challenge to the finding by the Tribunal that the dismissal was by reason of redundancy, that the right unit of selection was adopted, that the manner of selection was chosen objectively and applied correctly, that the Appellant was the only person who could have been selected, and that the employers had considered and decided that there was no alternative work for the Appellant and that on the balance of probabilities there was no alternative work. Fourthly, and finally, the Tribunal had their attention directed to the decision of Polkey and were asked to apply what was suggested to be the exception to the normal rule, namely that a dismissal by reason of redundancy would be unfair if there was no warning or prior consultation with the employees concerned.
The requirement for prior warning and consultation was in paragraph 46 of the Industrial Relations Code of Practice and in force at the time of the decision in Polkey. The fact that this Code has now been repealed makes no difference in our judgement to the responsibility of an employer as a matter of good industrial relations practice to consult as appropriate with staff or their representatives in a redundancy situation. Until Polkey employers had been persuading Tribunals to uphold as fair dismissals in breach of recommended procedural requirements by arguing successfully the compliance with the procedure would have made no difference to the outcome. The significance therefore of the Polkey case was that it stemmed the tide of such decisions. In their speeches in Polkey both Lord Mackay and Lord Bridge accepted that there may be exceptional circumstances in which a breach of the procedural requirement for prior consultation, prior to dismissal for a redundancy, may not render the dismissal unfair.
For the record, I now read into it the essence of the speech of Lord Mackay at page 976H through to 977A, and in relation to Lord Bridge, I take it up at page 984b through to the end of that paragraph. The Court of Appeal in the case of Hooper v British Railways Board [1988] IRLR page 517 resolved any doubt there might have been about any apparent difference of substance in the approach of the two Law Lords cited above. At paragraph 60 of the decision at page 528 Lord Justice Ralph Gibson said this:
"For my part, I do not consider that there is any distinction in substance between the principles formulated by Lord Mackay and that discernible in the speech of Lord Bridge. If there was any such distinction, we would have to give effect to that stated by Lord Mackay with which their Lordships all agreed. It is, I think, clear that Lord Bridge did not take the view that he was stating any different test. He was, in my judgment, emphasising one aspect of the principle stated by Lord Mackay, namely that the reasonableness of the action taken by the employer is to be judged by reference to the facts and factors known to the employer at the time of making the decision".
It seems to us that Tribunals should be slow to find exceptional circumstances which render useless or futile the need for consultation and prior warning to dismissal for redundancy. As was said in another division of this Court in Heron v City Link Nottingham [1993] IRLR 372 at paragraph 12:
"We take a similar view of the second of the Tribunal's findings. The fact that an employer, on the facts then known to him, reasonably believes that he has no alternative but to make his employee redundant does not per se obviate the need for consultation".
No doubt that was said for the very good reason that it is likely that, in every case where an employer has failed to consult, his excuse will be that it would have made no difference. Believing after the event that consultation would have made no difference is not enough to bring the limited exception into play. It will, we think, be relatively rare that a Tribunal will be persuaded that a dismissal for redundancy without prior consultation is fair. Tribunals must be astute to ensure that the "exceptional case" referred to in Polkey is not broadened so as to create a new tide of excuse for employers not to observe their responsibilities for adopting good employment practices.
We have not examined the question whether the decision of this Tribunal in Duffy v Newman & Partners [1993] IRLR 368 says anything different as to the proper test to be applied to what the Court of Appeal said in Hooper v British Railways Board [1988] IRLR 517 to which I have already made reference; (nor whether that decision, that is Duffy sits easily with the decision of a similarly constituted division of this Court in Heron to which I have referred, which was decided some four days before).
In short, for the purpose of this appeal we are prepared to accept as accurate the test set out in paragraph 4a of the Notice of Appeal, namely that:
" ......... the Tribunal should as a matter of law have approached the matter in question subjectively examining the question as to whether the particular employer had examined whether warning or consultation would have made any difference and having done so had reasonably decided that it would not".
What is required under this test is, as it seems to us a three stage process: a) did the employer consider the question of the need for a warning and consultation? if yes, b) did he conclude that none was needed and if yes, was that conclusion reasonable? If this is the correct approach the question the Tribunal must ask itself is partly to examine the thinking and action of the employer (subjective) and partly to assess the reasonableness of his decision (objective). The question therefore is whether on a sensible reading of the decision in this case, the Industrial Tribunal applied the correct test.
The passage in the decision which the parties have referred to in argument in this Tribunal, is to found at paragraph 5(3) of the decision. We emphasise that Tribunal decisions are not to be construed as if they were revenue statutes. The Industrial Tribunal sits as an Industrial Jury, their written decisions are entitled to be given a generous interpretation, having regard more to the totality and import of what is said, rather than to a minute examination of the language with which their decision has been expressed. We do not consider that there is any room for thinking that the Tribunal in this case applied the wrong test.
In paragraph 5(3), having referred to Polkey they formulate the correct test and then seek to apply it. We agree with the submission that when read as a whole, it is clear that the Tribunal have correctly applied their mind to the three questions. They start with the state of mind of the particular employer and then subject its conclusion to the test of reasonableness, and we can see nothing wrong with this approach. Indeed their process of reasoning appears to accord precisely with the test, which the Appellant herself says, should have been applied, having regard to what is said in the Notice of Appeal.
There was some evidence before the Tribunal that the school specifically addressed itself to the question of consultation, and concluded that consultation would be totally artificial, since on the application of the fair selection procedure the applicant was properly selected:
("She was the only person who could have been selected")
and there was nowhere else for her to go:
("On the balance of probabilities there was no alternative work available for the Applicant").
There was therefore, evidence before the Tribunal which entitled it to conclude on the special facts of this case, having regard to the particular duties of the Appellant, that the employers had applied their mind to the requirement for consultation and had concluded that consultation was futile or utterly useless. Therefore, applying what has been called the subjective test, the employer was, as the Tribunal found, entitled to decide to dismiss without warning or consultation, provided such a decision was reasonable. That explains the reference to the words:
"Then it was right that an employer could reasonably have concluded in the light of the circumstances known to him at the time of the dismissal that consultation or warning would be utterly useless".
In our judgement on a fair reading of the decision it is clear that the Tribunal asked the right questions, applied the correct test. Based on the evidence, they made sufficient findings of fact to support their conclusion that the dismissal was not unfair, despite the failure to follow good industrial relations procedures. They arrived at a conclusion, which seems to us in the light of the facts as they found them to be, to accord with the law, although we have to say that we believe that many Tribunals could on the same material well have reached a different result. We are grateful to Mr Clayton for the clear submissions which he presented to us.
Accordingly this appeal will be dismissed.