United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 754_95_0112

Appeal No. EAT/754/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 December 1995

Before

HIS HONOUR JUDGE H J BYRT QC

MR D A C LAMBERT

MR K M YOUNG CBE

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MR R MACFARLANE          APPELLANT

DORSET COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR D R KEYS

(Deputy County Personnel Officer)

Dorset County Council

County Hall

Dorchester

Dorset

DT1 1XJ


 


JUDGE BYRT QC: By a decision promulgated on 22 May 1995 the Southampton Industrial Tribunal unanimously decided that the Applicant, now the Appellant, had been unfairly dismissed. It awarded the Appellant the basic award but denied him any compensatory award. It is against the latter part of that order that the Appellant appeals. The facts as found by the Industrial Tribunal are as follows: the Appellant had been employed by the Respondents for something like 19 years in the County Architects department. Latterly from about 1992 onwards, that department had been the subject of restructuring as a result of a temporary fall-off of work and a number of redundancies were declared over the years 1992/93.

The relevant scheme we have to consider in this particular case is one which was devised in December 1993 and amended in January 1994. It involved further restructuring of the department. Although it is covered extensively in the reasons of the Industrial Tribunal, I can summarise the new structure in this way: there were three people competing for one senior job, namely that of principal architect. The three candidates were the Appellant, a Mr Ralph, who had been a group leader, and Mr Armfield who had been a principal architect in one of the divisions of the department. As it happened Mr Armfield volunteered to take redundancy, and the contest therefore was between the Appellant and Mr Ralph.

On 20 January 1994 the Appellant was called to a meeting with a Mrs Nicholls who was a Director in the department and she informed the Appellant that he had been selected for redundancy on the basis of criteria agreed with his union. That notification came without any prior consultation with the Appellant. On 26 January the Appellant met with Mr Keys, the Deputy Chief Personnel Officer, to canvas the possibilities. He expressed his great concerns, and one can well understand his position because he had given long service to the department and had now reached the age of 47¹/₂ which is but two years before he would have qualified for his pension.

On 25 January, Mr Keys had written to the union saying that the selection of people for redundancy had now taken place, that Mr Armfield had accepted redundancy but the Appellant was having difficulty in coming to terms with the decision. He invited the union to put forward any proposals they had because if they had none, there would be discussions with the individuals who had been selected for redundancy and in due course they would receive notices of termination of their employment. On 27 January, the union replied agreeing to the proposals and expressing the hope that every effort would be made to find suitable alternative jobs for those people who had been selected for redundancy, and also the hope that the terms of the redundancy procedure would be adhered to.

That is the background picture to a meeting which next followed on 1 February. This was a meeting between the Appellant, Mrs Nicholls, Mr Keys, a Mr Holding and a Mr Turner who was the union representative. Minutes of that meeting are contained at page 35 in the bundle of documentation which was before the Industrial Tribunal and which has been put before us for the purposes of this hearing. The meeting was, in effect, the opportunity for the Appellant to put forward his case, to raise any grievance he had and to suggest any alternative measures that might be taken that would enable him to retain his job. The Appellant did make suggestions about who else might be made redundant, where there were opportunities and openings for him in other sections and divisions, and these were dealt with, largely by Mrs Nicholls. The end of the meeting came without any real opportunities being opened for the Appellant to take up. A period of a month followed thereafter, before on 1 March a notice was sent to the Appellant terminating his employment as from 31 May 1994. The Appellant appealed internally. That was dismissed on 24 May, and on 31 May the termination took effect.

On 30 August 1994 the Appellant issued his Originating Application in which he, quite legitimately, disputed every aspect of his dismissal and questioned whether there was a redundancy situation at all. He said if there was, he had been unfairly selected. He said the Respondents had failed to follow agreed redundancy procedures. They had failed to consult with him. They had failed to use their best endeavours to find him alternative employment. In consequence, it is plain that his Originating Application raised all the relevant issues for an Industrial Tribunal to consider.

The Respondent's case was that they were able to refute each one of these contentions. They made plain that there was a straight contest was between the Appellant and Mr Ralph for the position of Principal Architect. Ultimately the contest was decided, with agreement of the union, on the basis of "last in first out". Mr Ralph had given continuous government service since 1966 and that was eight years more than had the Appellant.

The Tribunal found that there had been a dismissal and that the reason for it was redundancy. The Appellant had been selected in accordance with the criteria agreed with the union and then they considered the procedures for fair selection which included consultation with the candidate due for redundancy before he was notified he would be made redundant. The agreed procedures required that there should first be consultation with the unions, that thereafter there should be consultation with the employees at risk, to be addressed collectively in a group, and then there would be interviews individually with the employees at risk. The Industrial Tribunal found that there was no group meeting of the sort prescribed in the agreed redundancy procedure. There was consultation with the individuals, but only after the selection for redundancy had been made and the decision effectively taken. In so dealing, they rejected the suggestion that consultation with the individuals before the selection would have been futile. In short, they were satisfied that, because of the breaches in the grievance procedures, the dismissal was unfair, and they moved on to the question of compensation.

The Industrial Tribunal decided that the Appellant was entitled to the basic award. When they came to consider the compensatory award, they approached it on the correct and proper basis, and asked themselves what would have been the situation had consultation taken place before the Appellant had been selected for redundancy? They came to the conclusion that it would have made no difference. Accordingly they had to decide that he was not entitled to any compensatory award.

The Appellant applied for a review. That was turned down by the Chairman of the Industrial Tribunal, on the basis that the Appellant was seeking a re-hearing. He rejected an application to file new evidence which might alter the minds of the Industrial Tribunal. He dismissed the application for a review on the basis that it would have no prospect of success and so the latter entered his Notice of Appeal on 28 June of this year.

What is significant about the Notice of Appeal is that, whilst the Appellant had represented himself before the Industrial Tribunal, this Notice had been drafted and devised with the aid of a firm of solicitors who had put their name to it. One can only assume that they did so after full consultation with the Appellant and having taken his full instructions. The only ground of appeal they entered was that the Tribunal, having found the Appellant dismissed unfairly through lack of consultation, failed to consider whether he was entitled to compensation for any additional period he would have been employed if the proper procedure of consultation had been followed.

The Appellant argued that if the proper procedures of consultation had taken place, it would have delayed the termination of his employment by four months. That is one month for the consultation which should have happened before his name had been selected for redundancy, followed by the three-month period of notice he was entitled to on having his contract terminated. It is a little difficult to understand or appreciate the precise point in time when the Appellant was suggesting the four-month period should have begun, in that he is suggesting that he should have been entitled to compensation for the full four months. One assumes that he is suggesting it should have begun on 31 May, the date when his employment ceased. The point he makes in relation to it, is that, whilst the extra four month grace does not seem to be an extended period of time, the workload situation with the Respondents was fluctuating to such a degree that had he been given the extra period of employment there would have been the opportunity for him to be re-engaged as work looked up.

Mr Keys, who has appeared on behalf of the Respondents, says that none of this is right. The critical date from which one has to calculate what would have happened had there been proper consultation, is 20 January, the date when the Respondents manifested their intentions to make the Appellant redundant and Mrs Nicholls told him so. If thereafter one takes into account a month's period for consultation, it would have been over and done with, long before the date on which the Respondents issued their notice to the Appellant terminating his employment, because that date was 1 March.

We have heard the arguments of both the parties on this particular point, and can find no merit in what is being suggested by the Appellant. The Industrial Tribunal had to consider what would have happened if the proper procedures had been followed. It is our view that the consultation period would have been one month, as from the first date when the Appellant first knew he had been selected for redundancy, namely 20 January. As Mr Keys has said, the period of consultation which the redundancy procedures required, would have been over and finished before 1 March. In those circumstances, we find no merit in this appeal and accordingly it must be dismissed. However, before us, the Appellant did seek to argue a number of other points. He sought to re-argue whether there had been a redundancy situation at the time of his dismissal. He sought also to argue that the Respondents had not properly considered him for redeployment, and in addition to that, he says that, apart from their failure to consult him before selecting him for redundancy, there were other breaches of the redundancy procedures too.

We have indicated to the Appellant that we were not prepared to hear argument on these points because they have not been raised in his Notice of Appeal. We considered as to whether it was appropriate for us to allow him an adjournment so that he could amend his Notice of Appeal. We would have been minded to do so had we thought that the additional points he sought to raise, raised a valid and worthwhile point of law. The Appellant has had to appreciate what was pointed out by the Chairman of the Industrial Tribunal on the application for a review, namely that there is no scope for a re-hearing of this case, once the matter has been decided by the Industrial Tribunal. Nor is there scope at this appellate level for the introduction of new evidence. Our jurisdiction is limited exclusively to consideration of points of law. It was against that yardstick that we looked through the Skeleton Argument the Appellant produced for our consideration. Just so that he knows that we have given our thought to these matters, I will deal with them quite shortly.

First, the issue whether there was a redundancy, and whether the Respondents considered properly the issue of redeployment. Having looked at the Tribunal's reasons, it is clear that the question of whether there was a redundancy situation or not, was very much in the forefront of the Tribunal's minds. They recited all the relevant facts and we see no scope for saying that the decision they came to on this redundancy issue, was one which no reasonable Tribunal could have come to. This is the yardstick we have to apply when asking ourselves whether there is any scope for arguing a perverse finding of fact.

So far as the question of redeployment was concerned, this was a matter which did give us some concern because the Respondents' consideration of the Appellant for alternative employment, was not expressly covered in the reasons of the Industrial Tribunal. We therefore inquired of Mr Keys whether there was any debate or discussion before the Industrial Tribunal in which this particular issue was canvassed. He assured us that there was. I do not think the Appellant disputes that. In the light of that, we, on considering the reasons, find that inferentially they did deal with this matter because when they considered whether the consultation which should have taken place would have made any difference, and they came to the conclusion that it would not, they had to consider the possibility that had consultation taken place, there would have been scope for discussion and argument with the Appellant, as to whether there were any alternative jobs to which he could have gone. Mr Keys says that sort of discussion did take place on 1 February. We are satisfied that the Tribunal's reasons which have been set out most fully, do indicate, as I said, inferentially, that this matter was considered and taken into account. We do not see there is any point of law here into which we could have made further enquiry.

The last point is whether there were any other breaches of the redundancy procedures. The Appellant had been successful in establishing one substantive breach of the procedure, namely the failure to consult. As a result of that, he has secured a decision from the Industrial Tribunal that his dismissal was unfair. One therefore looks at the other alleged breaches to which the Appellant has drawn our attention, to ask whether they would have added anything to the decision the Tribunal came to, on the strength of their finding that the Respondents had not consulted him properly. The other breaches are of a semi-technical nature. They are breaches based on the fact that the appropriate form was not used, or that the wrong person issued the notice of dismissal and so on. We have considered whether those particular breaches, apart from supporting and confirming the correctness of the decision that the dismissal was unfair, would have made any difference in terms of the compensation to which the Appellant would have been entitled. We are satisfied that had those particular breaches been set right, it would not have made any difference to the period of employment the Appellant would have enjoyed, nor to the compensation to which he is entitled.

We are satisfied that no substantive point of law arises on those other matters the Appellant would have wished to argue in front of us. This appeal must be dismissed.