United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1321_95_1907

Appeal No. EAT/1321/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 July 1996

THE HONOURABLE MR JUSTICE BUCKLEY

MRS J M MATTHIAS

MR S M SPRINGER MBE

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PRUDENTIAL ASSURANCE CO LTD          APPELLANT

(1) MRS J L JONES-SAUNDERS

(2) MRS J L BROWN (née Jones)          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M DULOVIC

(of Counsel)

Messrs Osborne Clarke

Solicitors

6-9 Middle Street

London EC1A 7JA

For the Respondents MISS J EADY

(of Counsel)

Messrs Robin Thompson & Partners

Congress House

Great Russell Street

London WC1B 3LW


 


MR JUSTICE BUCKLEY: The Appellants before us, Prudential Assurance Co Ltd, adopted a redundancy programme whereby they were to reduce their workforce by approximately one-third. They consulted with the MSF Union, the appropriate union. They agreed a selection procedure and criteria. They notified staff and kept them informed as to events. The upshot, unhappily for the two Respondents to this appeal, was that they were selected for redundancy.

They had been employed, in the case of Mrs Janice Jones-Saunders, since 1978 and her sister, Mrs Brown as she now is, 1980. However, by letter dated 26 January 1993 the Appellant gave them three months' notice of redundancy and they were paid accordingly.

They were dissatisfied and took their case to the Industrial Tribunal which, on 19 and 20 October 1995, at London (North) heard the complaints.

The Tribunal's decision was that both the Respondents, as they now are, had been unfairly dismissed. Ancillary claims for discrimination were, however, dismissed.

The Appellant, the Prudential Assurance Co, now appeals to this Tribunal. Mr Dulovic, who has appeared for them, has very helpfully limited his notice of appeal and in the end pursued three of the grounds there stated before us. The first was that the Tribunal misdirected itself and did not follow the way pointed in Buchanan v Tilcon [1983] IRLR 417. He developed that by submitting that the Tribunal had substituted their own view for that of the relevant party responsible for the matter on behalf of the Appellant, namely Mr Stirling and that, in any event, the Tribunal had set much too high a standard by which to judge whether the decisions were reasonable or not.

We, of course, accept the Buchanan decision, but the problem, insuperable in our judgment for Mr Dulovic, is that contrary to the finding in Buchanan, the Industrial Tribunal, in our case, did not find that the method of selection had been applied reasonably to the Respondent employees. What Buchanan held was that where there was a proper selection process, where for example there was no suggestion that the company had departed from any agreed procedure and where it has been applied reasonably to the particular employee, that would usually be enough and that could be made out by calling a suitably senior member of their staff to support and that it was not necessary for the Respondents to go on and seek to prove independently each and every assessment that had been made. It is noteworthy that was the case in which no specific criticisms were raised by the Applicant. He really just expressed a general concern that people of less seniority had been kept on. Obviously, if any particular complaint is made, then as a matter of pure evidence, the Respondent would have to condescend to some detail in order to rebut unless it was manifestly absurd criticism.

There is no need for us to go into the details of the selection process in this particular case. It was clearly a reasonable procedure. No one has suggested otherwise. It was, anyway, agreed with the relevant Union. It is perhaps enough to note that at the head of it was the procedure whereby, at least in this particular case, a line manager who was known as the Direct Report, was instructed to fill in a matrix form relating to the employees and the Tribunal here heard evidence from the Respondents' Direct Report, who was the Mr Stirling we have mentioned, and it was his duty to make, on the strength of that matrix and, doubtless, other discussions, his final selection and that he did.

However, the Tribunal here made other very clear findings, which may be summarized in this way, namely, that Mr Stirling was not unbiased so far as these two Respondents were concerned that he had had a particular problem with them in the past. That had not been laid to rest in his mind and he was not objective and, consequently, not reasonable in applying the selection criteria and that is the crucial finding that distinguishes the case from Buchanan. Referring, in a little more detail, to the Industrial Tribunal's reasons, it appears from paragraph 13 that there had been a problem within the last two years over a holiday arrangement. The Union representative had been brought in and eventually the matter was resolved but it still rankled with Mr Stirling. They found, as a fact, that it was clear that he thought the Respondents had been a problem. He saw them as working together as a pair and he admitted that he had been influenced by his own feelings and observations and he still had in mind the holiday problem, although it had been resolved. The Tribunal say this:

"It is clear to us therefore that the matrix as completed by Mr Stirling was influenced by these matters and therefore it was impossible for him to take an objective view of these Applicants."

They go on to indicate that Mr Stirling did not reveal that to his own line manager, Mr Strachan, who handled the subsequent appeal by the two Respondents. We return to that very briefly in due course.

Thus, in our judgment, the Buchanan case does not assist the Appellants. On the contrary we are satisfied that the Tribunal did not fail to follow any principle of law that is enunciated in Buchanan. Further than that, at paragraph 16 they set out the approach they did adopt, which we find not open to criticism. They expressly say that it is not their function is to decide whether the Respondents could have done the job any better or in another way, or whether someone else should have been selected but that the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted and they concluded that because of the subjective approach of Mr Stirling which we just mentioned, the process was flawed and was not reasonable.

The two other grounds of appeal, that is, that the Tribunal substituted their own view and set too high a standard, we do not think is made upon reference to paragraph 16 and the reasons as a whole. We think the Tribunal adopted the right approach.

Mr Dulovic did seek to develop those submissions a little further in two main ways. He sought to persuade us that even if the selection process was flawed by Mr Stirling's bias, as found by the Tribunal, nevertheless, the Tribunal should have considered whether the Respondent could justify the result, namely, the actual selection of the two Respondents ex post facto. Another way of putting that is, could the Respondents show that the flawed or biased approach by Mr Stirling made no difference because the Respondents would have been selected in any event. Miss Eady, who has appeared for the Respondents, reminded us of Polkey v Dayton Ltd and other well-known decisions to the effect that, as a matter of law, will not avail the Appellants here. It may have some impact on compensation but that has now been agreed in any event.

The thought that, for example, where one is looking at a failure to consult in a redundancy case, a Respondent may successfully argue that if he can show that in the circumstances of the case it was reasonable for him to take the view at the time that consultation was utterly pointless he may justify such failure. That is an avenue we do not need to explore here because it is not analogous to the situation in this case. This is a case where the application of the agreed selection process was flawed because it was applied in, as the Industrial Tribunal found, an unreasonable way.

We would only observe for good measure that there are, in any event, certain findings which indicate that it was not necessarily a certainty that the outcome would have been the same in any event. There are findings, for example, that prior appraisals of the two Respondents in the period leading up to this redundancy, were more favourable than those adopted by Mr Stirling. A Mr Bandrick, for example, in paragraph 7, had reviewed their position. In 1991 both Respondents had apparently received good final comments and the Tribunal, at paragraph 12, find that certain of Mr Stirling's comments adverse to the Appellants were in contrast to the 1991 appraisal.

The other submission Mr Dulovic made to try and pursue the Appellant's cause was that the Tribunal had given too much weight to their findings concerning Mr Stirling's application of these criteria and that they should have looked again at other evidence and considered the matter in a more balanced way. Again, we cannot accept that submission.

The filling in of the matrix form in each of these cases by Mr Stirling and the comments and recommendations that he made on those forms were absolutely crucial to the selection of these two ladies. That process was at the very heart of the whole procedure and the Tribunal having found that that process was not carried out fairly and objectively by Mr Stirling, fatally flawed the procedure and we can find no basis for criticising the Industrial Tribunal for so finding.

We would accept that in a case where the manager responsible for applying the selection criteria may, on the face of things, have a problem with the employee in question whether, because of a past dispute or perhaps a clash of personalities, we would certainly accept that it does not necessarily follow that he would be incapable of properly carrying out the selection procedure. He may, for example, give evidence which satisfies the Tribunal that, notwithstanding the personal difficulties, even antagonism, he was honest and objective in his approach. It may be that in such a case and we are sure that cases must arise, that the fair-minded, honest manager would disclose that problem, perhaps to his line manager or some other senior party and, if it is considered necessary for him, notwithstanding the problem, to conduct that part of the procedure, doubtless someone else would check or cross-check his results. Alternatively, the appeal procedure itself might independently look into the matter and ensure that the manager in question had not allowed his personal prejudices to enter into the assessment.

The difficulty in the way of the Appellant here in seeking to cure, if we may put it that way, the flaw in the procedure carried out by Mr Stirling, is that the Tribunal found that the appeal process was little better because Mr Stirling did not reveal his own problems or attitude towards these two Respondents to his line manager, Mr Strachan. So Mr Strachan did not realize there was a problem when he conducted the appeal.

Quite apart from that, it seems a reasonable summary of the Industrial Tribunal's findings, to say that they were not impressed by the appeal process in any event. Mr Strachan seemed to have little recall of what had happened, what enquiries, if any, had been made. He had little knowledge of the two employees in question and, as we say, in all the Tribunal clearly were not impressed by the appeal process in this particular case.

In all, this was a case in which the Tribunal found, as a fact, that the line manager, Mr Stirling, who was responsible for carrying out the central task in the selection process, was influenced by the previous incident in his dealings with these two employees when he filled out their matrices. It was not, therefore, an objective or fair assessment and the selection based upon it could not have been and was not, a reasonable one. The grounds of appeal do not really give rise to any point of law or arguable point of law upon which the Tribunal went wrong and this appeal must, therefore, be dismissed.

Miss Eady, on behalf of the two Respondents, has applied for costs in this matter on the basis that the appeal is either frivolous or has been unreasonably pursued. As an alternative request, she asks for a portion of costs. We do not accede to the first request. Our decision speaks for itself. We have had difficulty finding a really arguable point of law in this appeal but we do not think it crosses the threshold to be frivolous or unreasonably pursued, as opposed to a very difficult appeal.

However, another aspect has been brought to our attention, part of which we had observed for ourselves. That is, that a reasonably lengthy notice of appeal was put in, supported by an even lengthier skeleton argument. The notice of appeal contained no fewer than ten grounds, seven of which were - and in our judgment quite rightly - abandoned by Mr Dulovic at the hearing. There was an application for Chairman's notes, which was refused by the President. After that application had been refused, the Respondents' solicitors wrote specifically to the Appellant asking whether, in the light of that, the appeal was being pursued. The reason they did that, justifiable to our mind, was that a lot of the grounds really do raise matters of evidence. The answer was that the appeal was being pursued and the Respondents, therefore, have had to prepare on that basis, only to find on arriving at the Tribunal, that many of the grounds were abandoned. We in no way criticise Mr Dulovic for abandoning his grounds and thus assisting the Tribunal to pay attention to the real point at issue. With due respect to him, we do have some criticism, not of Mr Dulovic personally but of the grounds and skeleton. We observe a tendency for many grounds and lengthy skeletons to be put in in cases where our experience is that such lengthy skeletons and grounds very often are not justified but simply indicate the difficulty the party in question is having identifying a point of law and thus giving this Tribunal any jurisdiction. Various matters are put in slightly different ways in different paragraphs which, on analysis, really do not portray any arguable point of law at all. That tendency is not to be encouraged.

We do feel, in this case, that it was unreasonable not to tell the Respondents that the appeal would be limited in scope at any stage before arriving at the Tribunal and the grounds that were abandoned should, we feel, have been abandoned very much earlier. In those circumstances, we do make an award of a contribution to the costs. Doing the best we can, we assess that at one-third. We order, therefore, the Appellant to pay one-third of the Respondents' costs, which will have to be taxed if they cannot be agreed but we hope they will be agreed.