United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 999_94_2909

Appeal No. EAT/999/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 September 1995

HIS HONOUR JUDGE J HICKS QC

MR P DAWSON OBE

MISS D WHITTINGHAM

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MR N FRANCOIS          APPELLANT

SEDGEMOOR DISTRICT COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M RYDER

(of Counsel)

Legal Adviser

UNISON

1 Mabledon Place

London

WC1H 9AJ

For the Respondents MR H HODGKIN

(of Counsel)

Director of Administration

Sedgemoor District Council

Bridgewater House

King Square

Bridgewater

Somerset

TA6 3AR


 


JUDGE HICKS QC: Mr Nick Francois, the Appellant, was employed by the Respondents, Sedgemoor District Council, as the Chief Building Control Officer at the time of his dismissal. He had been working for the Council since 1965, therefore some 29 years. He was a registered disabled person and the Council had less than their quota of registered disabled persons. Under him was a Senior Building Control Officer, Mr Hill, and some four Building Control Officers. According to Mr Francois's Originating Application to the Industrial Tribunal he was graded four spinal column points above Mr Hill in the Council's pay structure, so there was clearly not an enormous but a significant difference of remuneration between the two of them.

Mr Francois was dismissed on the ground of redundancy and that arose in circumstances in which his superior, Mr Conder, had made a report to the Council as to possible staff savings which had not recommended any change in the Building Control Department, but which had been rejected by the Council, that is to say by the elected members themselves, not by some senior staff member, and as a result Mr Conder had been directed to consider two sections, one of which was the Building Control Department, with a view to effecting staff savings.

Mr Conder conducted that reconsideration and came to the conclusion that he should recommend that Mr Francois be selected for dismissal on the ground of redundancy. It is clear from the Industrial Tribunal's findings that another possibility which he considered was to restructure the department in such a way that Mr Francois would have been retained and Mr Hill dismissed, but in the event his conclusion was the one which I have indicated and it seems plain from paragraph 7 of the Industrial Tribunal's decision that the considerations that led him to that conclusion were either entirely or principally the ones identified in that paragraph which are: first, that Mr Francois was at the level where the elected members were looking to make savings; secondly, that the managerial responsibilities of Mr Francois could be taken on by the head of another section and his technical or professional duties absorbed by Mr Hill and thirdly, that at Mr Francois's age he stood to receive a very large redundancy pay-off compared to someone of Mr Hill's age, Mr Francois being in his fifties and Mr Hill in his forties. Mr Francois was, in consequence of Mr Conder's report, in due course dismissed on the ground of redundancy.

The Industrial Tribunal found that that dismissal was unfair and there is no appeal against that decision. The ground on which the Tribunal found the dismissal unfair is lack of consultation, and they expressly found in paragraph 13 of their reasons that consultation would, as they put it, "have been very useful indeed" and therefore important for the purpose of a fair and reasonable consideration of the matter by the employers in the sense required or requiring consideration under Section 57(3) of the Employment Protection (Consolidation) Act 1978.

The two reasons which the Tribunal particularly identified why consultation would have been useful and important are, first, that Mr Francois would have a much more detailed knowledge of the workings of the section at his level - that is to say much more detailed than that of Mr Conder, his superior - and might have had other ideas as to how to achieve Mr Conder's aims, and secondly, as the Tribunal say:

"Perhaps most importantly of all, Mr Conder was wholly unaware that Mr Francois was registered disabled. Although he said he therefore treated Mr Francois the same as he would have treated any other employee, that is really not enough. Mr Francois is entitled to expect that consideration will be given to his personal circumstances - his position as registered disabled - because of the additional difficulty his disability is likely to cause him in the job market."

The Tribunal go on to dismiss as insufficient the fact that: "The members of the Policy and Finance Committee and the full Council were aware of that fact" - of his being a registered disabled person.

Having reached their finding of unfair dismissal on those grounds the Tribunal turned to the question of compensation, and they say in paragraph 17:

"17 As to his compensatory award, we had to consider what loss his unfair dismissal had caused him by reason of its unfairness. The unfairness of the dismissal was due solely to the failure to consult him individually and we therefore had to ask ourselves what might have been the result of such consultation taking place."

18 Mr Conder accepted that if was perfectly feasible for him to have re-structured the department in another way such that Mr Francois would have been retained and the services of Mr Hill dispensed with instead. He explained why he had rejected that possibility. .... "

That, it seems to us, must plainly be a reference back to the factors rehearsed in paragraph 7 and they go on:

"The additional information he would have had in the event of consultation was a closer insight into the workings of the department at Mr Francois' level and the knowledge that Mr Francois was registered disabled."

Those are the two matters they have already relied upon in their finding of unfair dismissal. They go on in paragraph 19:

"19 We cannot help but conclude that it was still more likely than not that Mr Francois would have been selected for redundancy. The arguments for favouring that course of action would, in all likelihood, have prevailed. However, it clearly was not impossible that Mr Francois would have been able to make Mr Conder re-think that proposal and reach the opposite view.

20 In our view, there was a 30% chance that had consultation taken place, Mr Francois would have been retained, on the salary and in effect in the position of Mr Hill (after Mr Hill's subsequent promotion)."

That is a reference to the fact that when Mr Francois did leave, Mr Hill was promoted, although not to the level that Mr Francois had occupied.

The appeal is by Mr Francois and is against that finding that there was only a

30% chance that had consultation taken place Mr Francois would have been retained, and the grounds which Mr Ryder has advanced in support of the appeal are three.

First, perversity, and as he accepts an appellant who relies on that ground has a heavy burden to discharge, because it is not sufficient to persuade this Tribunal that it would have reached a different decision, or that it considers the decision reached to be contrary to the weight of the evidence; what has to be shown is either that there was no evidence on which the Tribunal's decision can be sustained, which is an error of law in itself, or that the decision is so clearly wrong, so irrational, that no Tribunal, properly directing its mind to the issues, could have reached it. I paraphrase, using two of very many phrases which have been used in decisions in this Tribunal, and in the Court of Appeal, to show the level which has to be reached. None of those cases was in fact cited to us but the parties, as I take it, assumed that the members of this Tribunal are very familiar with that field and understand what test has to be applied and we proceed on the basis that that is so.

The gravamen of Mr Ryder's submissions under this head centred on the fact that in paragraphs 18 and 19 of the Tribunal's reasons no grounds of any detail are given for their conclusion, and he says that in those circumstances it was not a permissible option for the Industrial Tribunal to find that the selection of Mr Francois was reasonable. Of course, that itself does not quite accurately state the proposition that has to be established. The question is not whether the Industrial Tribunal found the selection of Mr Francois reasonable - they did not - they found it unreasonable. What they found, in the part of the decision which is attacked, is that had the employer acted reasonably and fairly and in particular - because this was the one point which they found unreasonable - had Mr Francois been properly consulted, there was a 70% chance that he would still have been selected for redundancy and only a 30% chance he would have been retained and that, by its nature, is an assessment of a hypothetical situation.

In our view, there simply is no possible ground on which we can say that that was a perverse conclusion. The Industrial Tribunal had heard all the evidence; the evidence which they were considering on this point was the same evidence they had considered in relation to the issue of unfair dismissal and, in our view, it simply does not lie in our power to decide that it was perverse for them to reach that conclusion.

One test, not the only test, but a quite helpful test sometimes, is simply to sit back, look at the facts as found by the Industrial Tribunal, and say "do we react with incredulity" to this conclusion; "do we find it irrational or inexplicable?". The simple answer is we do not. We therefore reject that ground of appeal.

The second ground of appeal is failure to give reasons, and we were referred to the case of Alexander Machinery (Dudley) Ltd v Crabtree [1974] ICR 120 and in particular to the well-known passage at page 122 letter B in which in dealing with a compensation case, not the present point but the actual assessment of the monetary amount of compensation, the National Industrial Relations Court through Sir John Donaldson said:

" ..... it is unsatisfactory and amounts to an error of law for a tribunal simply to state the amount of compensation ... without showing how that figure has been arrived at: .... The basis of this proposition is that in the absence of reasons it is impossible to determine whether or not there has been an error of law. Failure to give reasons therefore amounts to a denial of justice and is itself an error of law."

And then a little later, approaching as near as the Court did to laying down guidelines, he said:

".... It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact?"

This comes back to what Mr Ryder says is the absence of such necessary particularity in paragraphs 18 and 19 of the Tribunal's reasons, which we have already read, and if they stood alone there might be force in this submission, but in our view that is quite unrealistic and quite unfair to the Tribunal. They had canvassed in paragraph 7 the reasons which Mr Conder had taken into account in selecting Mr Francois for redundancy. They had canvassed in paragraph 13 the consequences of the failure to consult Mr Francois and in doing so had not only inferentially, but explicitly, canvassed the likely or possible consequences had that consultation taken place, and all that must clearly be read into and taken as understood in their treatment of this point in paragraphs 18, 19 and 20 of their reasons.

Before we leave grounds 1 and 2 we should mention one particular matter relevant to both of them on which Mr Ryder placed great weight and to which he repeatedly returned, and that is that heads 1, 2 and 3 of paragraph 7 really do not give any reasons for the selection of Mr Francois.

Head 1 was that he was at the level where the elected members were looking to make savings; it seems absolutely clear to us that what the Tribunal is referring to there, and what Mr Conder had in mind, was the difference of level in the sense both of rank and of remuneration between Mr Francois and the only other feasible candidate, Mr Hill, and the fact that the elected members had made clear to Mr Conder what sort of financial level of savings they expected him to be able to recommend. Of course, that is not to say that that would be an overriding consideration, because otherwise the elected members might just as well have said to Mr Conder "you've got to select Mr Francois", and if that had been said without giving any opportunity for proper investigation that plainly would have been wrong, but that this was a consideration which Mr Conder had in mind, in accordance with his instructions, seems to us to be absolutely plain.

Secondly, that the managerial responsibilities of Mr Francois could be taken on by the head of another section and his technical or professional duties absorbed by Mr Hill; that in our understanding quite plainly is an indication that in Mr Conder's mind - and it was his responsibility to make the investigation and form the necessary judgement - the way in which Mr Francois's responsibilities could be distributed was feasible, and a readily feasible operation. He of course, accepted that it was feasible to have restructured the department in another way, but the implication, it seems to us, is quite plain that this was in his view and judgement the more acceptable method from an operational point of view.

And then, thirdly, the difference of age and redundancy pay; that as we understood it Mr Ryder accepted was an explicit and legitimate ground. It was one obviously taken into account in relation not to the operational efficiency of the employers or financial savings to them but as to relative hardship as between the two employees and, as I have said Mr Ryder, in our understanding, did not complain about that, but he said it was the only legitimate consideration and not enough in itself.

As we have indicated, we think it plain that considerations 1 and 2 were legitimate considerations and therefore, for that reason, as well as those to which I have referred in relation to heads one and two of Mr Ryder's argument, we reject those heads. Head three turned on Mr Francois' disability and on the provisions of Section 9(5) of The Disabled Persons Employment Act 1944 which reads as follows:

"9(5) A person to whom this section applies [and the Respondent Council was such a person] who for the time being has in his employment a person who is registered as handicapped by disablement [and Mr Francois was such a person] shall not, unless he has reasonable cause for doing so, discontinue the employment of that person, if immediately after the discontinuance the number of persons so registered in the employment of the person to whom this section applies [and then there is an irrelevant exception] would be less than his quota: ...."

And after the dismissal of Mr Francois the quota was not fulfilled in the case of the Respondents. Then there is an irrelevant proviso. What Mr Ryder says is that the Industrial Tribunal did not, so far as their reasons show, specifically address their minds to the question whether the employer had "reasonable cause" to dismiss Mr Francois in those circumstances and he drew our attention to two cases: Seymour v British Airways Board [1983] ICR 148 EAT and Hobson v GEC Telecommunications Ltd [1985] ICR 777, in which it was held that the result of section 9(5) is that employers should give special consideration to the personal circumstances of a registered disabled person before dismissing him, as it is put in the headnote of Seymour. How it is put in Hobson is that an employer, before dismissing such an employee, must decide whether he has reasonable cause for doing so and for that purpose consider the employee's personal circumstances, and in Hobson this Appeal Tribunal held that the Industrial Tribunal's failure to direct itself in accordance with the requirements of Section 9(5) amounted to an error of law.

The question therefore, as it seems to us, is whether it is right to conclude from the lack of explicit reference to section 9(5) that the Industrial Tribunal did fail to direct itself in this matter. The situation in that regard is that, as I have already indicated, they had expressly found in paragraph 13 that: "Mr Francois is entitled to expect that consideration will be given to his personal circumstances - his position as registered disabled because of the additional difficulty his disability is likely to cause him in the job market".

We are told that Section 9(5) had been cited to them. The phrase "consideration will be given to his personal circumstances" is exactly the phrase used in Seymour and Hobson and we conclude that the only fair construction of the Industrial Tribunal's reasons is that although they do not cite Section 9(5) or the requirement that the employer shall have reasonable cause to dismiss, they had it in mind and brought it to bear on their consideration of the matter at the stage of addressing the question of unfair dismissal.

That being so, and they having expressed themselves in such forcible terms at that stage - because they used the words "perhaps most importantly of all", and in the light of their referring to the fact that Mr Francois was registered disabled again in paragraph 18 when considering the question of the compensatory award, we are really led to the conclusion that it would be quite unfair to this Industrial Tribunal, and would offend against the authorities which direct us not to trawl through Tribunal's reasons with a fine tooth comb, to draw the conclusion that they had failed to address their mind to these points.

It seems to us clear that they did address their minds to these points and that the contrary should not be inferred from the fact that they did not, in terms, cite Section 9(5) or the requirement that the employer must have reasonable cause to dismiss. Of course, they had already found that there was unfair dismissal. The relevance of Section 9(5) at this point, when they were dealing with compensation, was simply the weight and effect which it would have in assessing the chance that with a fair and reasonable consideration of the matter by the employers in making their selection Mr Francois would still have been selected, and for the reasons we have given we are satisfied that the Industrial Tribunal, in arriving at their assessment of their 30% chance of retention, did direct themselves as to the consequence of Mr Francois's registered disability and the weight that should have been given to that as well as to the other considerations which they had referred to.

We therefore find no error of law in the Industrial Tribunal's decision and the appeal must be dismissed.