United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T J ARCHER (Solicitor) Messrs Richards Butler Solicitors Beaufort House 15 St Botolph Street London EC3A 7EE
For the Respondent	MR McKEAG (The Respondent in person)


 


MRS JUSTICE SMITH: PRIVATE  This is an appeal from the decision of an Industrial Tribunal sitting at Stratford which was sent to the parties on the 10th May 1996. The tribunal found that Mr McKeag, the respondent to this appeal, had been unfairly dismissed from his employment with the appellant, National Westminster Bank.

The respondent was employed by the appellant from 1986, initially as a Senior Operations Engineer, rising to a Senior Facilities Engineer (SFE). From March 1992 he was promoted to a post as Facilities Engineering Manager (FEM). He was employed within the appellant's Central Region Property Management Department. Until the summer of 1993 he was the Building Manager at the appellant's premises at 135 Bishopsgate. He was responsible for the maintenance of all systems. From September 1993 until his dismissal in August 1994, he worked at premises at Billingsgate in London.

The appellant admitted it had dismissed the respondent on 16th August 1994. It claimed that the reason for dismissal was redundancy and that the respondent had been properly selected for redundancy as part of a staff reduction exercise. The appellant contended that there had been full consultation with all affected parties, including the relevant trades unions and staff associations, before the redundancies were commenced. It said that fair and objective criteria had been agreed and had been objectively applied. The respondent had been selected as the person with the lowest score within his group. It further contended that all proper efforts had been made to relocate those affected, including the respondent.

The respondent for his part contended that the whole redundancy exercise, so far as it related to him, was a sham. He considered that a decision had been made by his line manager, Mr Colin Eyre, the appellant's Chief Manager of the Central Property Department, that the respondent should be removed from his employment with the Bank in some way and that the staff reorganisation had been used as a means or an excuse for dismissing him.

The tribunal heard evidence from only two witnesses, Mr McKeag the respondent and Mr Conway, a manager in the appellant's Human Resources Department. Although the tribunal regarded Mr Conway as an honest witness, they considered that his evidence was limited because of the absence of other crucial witnesses. They preferred and accepted Mr McKeag's evidence where any conflict arose.

Prior to June 1993, the respondent worked as House Manager in charge of 135 Bishopsgate, a prestigious development in the City of London. The building housed one of the appellant's key operations conducted by another Company within the group, Natwest Markets (NWM). Mr McKeag was responsible for the maintenance of the electrical, mechanical and communications services as well as the fabric of the building. He had never been the subject of any disciplinary action, although, as we shall see, he had been warned as to his conduct in some respects. His annual appraisals had been fully satisfactory.

In June 1993, as the result of concerns about Mr McKeag mentioned to him by a colleague Mr Glenham, Mr Eyre commenced an investigation into the respondent's conduct and capability. The two matters of concern raised by Mr Glenham were first that the respondent's personal bank account had become overdrawn. This was contrary to the appellant's rules. This was not the first time that this had happened and Mr McKeag had been warned informally that his conduct in this regard was not acceptable. Mr Glenham's second concern was that he suspected that Mr McKeag had been under the influence of drink while on the Bank premises a few days earlier.

Once Mr Eyre's investigation began, it became extended to cover a variety of issues, some involving conduct, some relating to capability. For example Mr Eyre gathered evidence that the respondent had been seen drinking in the office sometimes as early as 9.30 a.m.; there was evidence that he shouted at his staff, sometimes in the presence of colleagues or clients, sometimes using strong language. There was evidence that he had been guilty of some sexual harassment. He was said to have made disparaging remarks about the Bank's senior managers to outside clients. It was said he had a tendency to commit the Bank to the expenditure of money without proper authority and there was a recurrence of the old complaint about the use of an unauthorised overdraft. The complaints received covered a period of about 2 years. In the course of the investigation Mr Eyre spoke to a Mr Clark, the Manager of Natwest Markets. He also spoke to a director of a corporate client of Natwest Markets who told him about an incident which had happened at a party given by the client on Gold Cup Day in March 1993. On that occasion the respondent had been drunk and had caused such embarrassment that he had been asked to leave the function.

Following his investigations, Mr Eyre wrote a report on the 21st June 1993. In this report he referred first to the conflicting evidence he had received as to Mr McKeag's drinking habits. He went on:

"Whatever the pros and cons of this debate, I believe I have an immediate issue to address which is Mr McKeag's inability to continue in his present role. Primarily this is for two especial reasons:

1. The employer/employee relationship has broken down. Our client, Natwest Markets, has stated that it no longer wants him working in the building; he is perceived to be a danger to the well-being of NWM staff.

2. I believe he presents a danger to himself and other occupants on Health and Safety grounds. This particularly gives concern in relation to high voltage operations but in any event Mr McKeag is a very much "hands-on" man and whatever the engineering problem he is the sort that would push others aside to show how it ought to be done - extremely dangerous if not in full possession of one's faculties.

When, as inevitably I must, I remove Mr McKeag from 135 I do not have a job for him. There are no other obvious roles to which he could be moved in Central Region and I suspect this applies to all of Property Management.

Recommendations

My investigation has I believe brought to light an unacceptable situation which requires immediate action. As so often, there is no one specific issue which provides a single way forward. I suggest that the nature of the many issues raised, coupled with my comments on the lack of alternative job opportunities must give cause for consideration under the following headings:

Problem Drinking

Misconduct

Gross Misconduct

Redundancy

My reading of the various Bank directives leads me to the conclusion that we have a Gross Misconduct case under .... the Disciplinary Procedures. It is my understanding, having read Staff Action sheet No. 105(1) - Problem Drinking and Drug Dependence, that even were there to be an excessive drink problem, the charge of Gross Misconduct takes precedence.

If my reading of the situation should be incorrect and Gross Misconduct is not proven I am then left with a situation where I must remove this man for the reasons outlined but there is no alternative job for him. I can but suggest that this must then become a Redundancy situation, and again should there be an excessive drink problem this can only be a peripheral issue.

Additionally of course I believe I have also demonstrated numerous instances of misconduct.

In view of the seriousness of the contents of this report I have no alternative other than to refer these papers to the Senior Manager, Human Resources, to seek his early advice on the next steps to be taken. I would stress the need for urgency please as this is an extremely high risk situation which cannot be allowed to continue very much longer."

The tribunal were to say that at the time of writing that report, Mr Eyre had decided that, in some way or another, Mr McKeag's employment with the Bank must be brought to an end.

On the 22nd June 1993 Mr Eyre referred the matter to Human Resources and Mr Conway was deputed to undertake the investigations which would be necessary under the Bank's disciplinary procedures in a case where gross misconduct was suspected. On 24th June a decision was taken by Mr Edmonds, the General Manager of Group Property and Central Services that Mr McKeag should be suspended pursuant to the disciplinary procedures. On 25th June Mr McKeag was suspended.

The Tribunal found that Mr Conway undertook his investigations thoroughly and fairly. In the course of his enquiry he interviewed Mr McKeag and recorded Mr McKeag's opinion that he was the subject of a witch hunt and that there were people with "hidden agendas". Mr McKeag alleged that when he had been interviewed by Mr Eyre, the latter had expressed the view that the Bank should never have employed him. Mr Eyre was later to deny that to Mr Conway. We think that this must have been one of the occasions when the tribunal preferred the evidence of Mr McKeag as Mr Conway could only report what had been said to him. Also Mr McKeag told Mr Conway that he knew that on 22nd June Mr Eyre had told Mr Clark of Natwest Markets that Mr McKeag would be suspended at the end of the week, as indeed he was. Thus Mr Eyre had given that information to Mr Clark before any decision had been taken by Mr Edmonds the General Manager. In response to the allegation that he was a danger to himself and others, Mr McKeag drew attention to his safety record as reflected in a safety review undertaken in 1993 and other earlier reports in which his performance had been examined and found wholly satisfactory.

Mr Conway completed his enquiry and reported on the 12th July 1993. The report began:

"I have now seen Mr McKeag on three separate occasions and he continues with his assertion that there is a witch hunt against him. He is adamant that the case is weak and flawed and I know that he is taking separate advice. He feels that those individuals who were interviewed by Mr Eyre and asked to write statements were hand picked and he believes strongly that certain individuals should be interviewed by myself in order to give the Bank a more balanced view.

Many of the complaints against Mr McKeag go back over many months to March 1992 and we have to bear in mind that at no time has he been given either an informal or a formal warning in any instance. I do not believe that there is a case of gross misconduct and I set out my reasons below. In order to do this I am taking the main issues one by one."

Mr Conway then set out his findings. We shall summarise them as briefly as possible.

1. The breakdown of the employer/employee relationship. Mr Conway was suspicious of the allegation that NWM had stated that they no longer wished Mr McKeag to work at 135 Bishopsgate on account of him being seen as a danger to the well being of staff. Mr Johnson, the Facilities Manager at 135 Bishopsgate had no idea of why that should be the case. He had made enquiries before completing Mr McKeag's annual assessment and had received no complaints in relation to drinking habits. Management were aware that Mr McKeag's style was somewhat abrasive but considered that this had been to the benefit of the job and the client had been satisfied.

Mr Conway noted that a number of complaints had now been received about Mr McKeag having been under the influence of drink and the opinion expressed that this had affected staff morale. However, he noted that NWM had not been sufficiently dissatisfied to bring the situation to the Bank's attention. They had only reacted to Colin Eyre's request.

2. The suggestion that Mr McKeag could present a danger unless he was in full possession of his faculties. Mr Conway recorded that there was no doubt that McKeag had been under the influence of drink on numerous occasions but without evidence to the contrary he regarded this as an historical situation.
3. Drinking in the office. Mr Conway said that Mr McKeag was adamant that since June 1992 he had changed his drinking habits. He had been advised about his drinking habits at the time of his interim assessment in June 1992. Thereafter he had had kept his drinking under strict control. Mr Conway felt that recent complaints regarding drinking in the office were unproved.
4. Shouting, mood changes, undermining staff morale, causing stress and using foul language.

Mr Conway recorded that Mr McKeag admitted to being an abrasive character. He said this had always been his style and he believed it was acceptable in an engineering environment. Mr Conway observed that the Bank must have known what he was like for nearly ten years. His management style has been the subject of comment in annual assessments and it had been suggested that he required management training.

5. In respect of an allegation that Mr McKeag had had a relationship with a female member of the NWM staff, Mr Conway found that there was no proof of anything untoward.
6. Gold Cup Day. Mr McKeag admitted that he had behaved badly at a buffet lunch on Gold Cup Day. The allegation was that he had become drunk and had pulled at the hair of one of the managers of the host company; it appeared that this was a high-spirited action. Mr McKeag had been taken home in a taxi. On discovering the facts Mr Eyre had felt obliged to apologise to the managing director of the host company.
7. Disparaging remarks about the Groups' executives to outside clients. There was some evidence of this although Mr McKeag could not recall making any such comments.
8. Committing the Bank to expenditure without authority. The evidence in relation to this was vague. Mr McKeag could recall only one occasion when it had been suggested that he had committed the Bank to expenditure of money without proper authority. This had been some time before and no action had been taken.
9. Assaults on female staff. Mr Conway recorded that there had been an incident in March 1992 when Mr McKeag had pulled a woman's bra strap at a party and touched two women's bottoms. He had subsequently apologised to the women concerned. One of the women alleged that a similar incident had occurred in March 1993 but Mr McKeag had denied this vehemently and Mr Conway regarded it as unproved.
10. Misuse of banking facilities. Mr Conway recorded that there had been several occasions when Mr McKeag's account had gone into overdraft and he had been written to three times on the subject. However, in respect of the latest complaint, it appeared there had been a genuine misunderstanding in that monies due to Mr McKeag from the Bank had been delayed in reaching his account. However, Mr Conway observed that the procedures laid down for such situations had not been followed.

In summary Mr Conway considered that this was not a case of gross misconduct but that misconduct had occurred and he regarded it as unfortunate that the appropriate disciplinary procedures had not been followed promptly. Many of the complaints were stale. He recommended that Mr McKeag should be spoken to in strong terms at a senior level. He also said that if the outstanding issues were to be pursued, they would require more detailed investigation.

Mr Lean the Senior Manager of Human Resources agreed with Mr Conway that it would not be appropriate to take disciplinary proceedings for gross misconduct. On the 19th July, Mr McKeag was called in to be told of that decision by Mr Conway. His suspension was to be lifted. Mr Conway told Mr McKeag that the Bank would instigate misconduct procedures. It would be for Mr Eyre as his senior manager to do what he considered appropriate. Mr McKeag was told that he could not return to 135 Bishopsgate because there had been a breakdown in the relationship between him and NWM and a relationship problem between him and some members of staff. Mr Eyre would have to decide where Mr McKeag would work and this would be difficult as there were no readily available openings. Mr Eyre would address the problem with urgency. Mr Conway then went on to remind Mr McKeag of an off the record conversation the two men had had regarding the possible reduction of the workforce in Property Management. They had talked about the various available options. There would be the opportunity for voluntary redundancy and if insufficient volunteers were found, involuntary redundancies would follow. Mr Conway had mentioned the usual consultation and selection procedures and the two men had talked about the negative effect that a formal disciplinary warning would have upon Mr McKeag's position during the selection process. The tribunal thought it was apparent from Mr Conway's memorandum of this meeting that Mr Conway had tried to induce Mr McKeag to accept voluntary redundancy.

Mr Conway's conclusions and recommendations were sent to Mr Eyre but he did not adopt them. Instead he pursued formal disciplinary proceedings. He and Mr Conway conducted two further investigative interviews and thereafter Mr Eyre issued a formal warning to Mr McKeag on the 6th August 1993. The tribunal expressed its surprise that the warning contained a number of the allegations which Mr Conway had described as stale and some which he had found not to have been proved. The tribunal considered that this formal warning was indicative of Mr Eyre's continuing desire to remove Mr McKeag from the Bank's employment.

Although his suspension had been lifted on 19th July, Mr McKeag remained at home because Mr Eyre failed to assign him to any work. On 26th August, Mr Conway wrote to Mr Eyre advising him of the urgency of finding some appropriate work for Mr McKeag. He said:

"As you know there has been unease on the part of Human Resources and we discussed the situation this morning. Basically the Bank is fundamentally at risk and indeed we are in breach of contract. Now that his suspension is lifted he has a right to return to work and it should be meaningful work. Additionally with the first formal warning running he needs to have the opportunity to demonstrate improvement and of course he cannot do this at home. The Bank is legally wrong. He cannot work out the formal warning and as things stand it will just become time expired. It would be very difficult to defend the current stance but we appreciate that as matters stand there is no easy solution. NWM have made it very clear that they will not entertain Mr McKeag returning to 135 Bishopsgate. The Bomb outrage has diminished the need for representation in the National Westminster Tower and there is no meaningful work elsewhere including York House. Nevertheless it is right that we flag up what could be a problem in the future because Mr McKeag has made it very clear that he feels that he has been singled out and he intends to pursue the matter to a tribunal if this is what is needed."

Mr Eyre replied on the 31st August:

"I acknowledge and understand the comments made in your note to me of 26th August. We have previously discussed the analogy of Mr McKeag's position with that of an airline pilot i.e. just because the latter has been `warned' that he cannot be trusted in charge of an aeroplane, should he now be given one to crash so as to comply with the law?

If I found a job for Mr McKeag to do it would need to be in a low risk environment and therefore would inevitably be contrived. Certainly it would in no way prove he was now a reformed character. I for one am not prepared to take risks with the Bank's business even if a suitable job could be found (which I doubt).

The Human Resource 'formal position' and my `practical position' seem incapable of coming together - what next?."

The tribunal regarded Mr Eyre's response to Mr Conway's note as `utterly staggering'. They said that it confirmed their view that Mr Eyre had already decided that Mr McKeag should no longer be employed by the Bank. On 15th September 1993, Mr Eyre invited Mr McKeag to report back to work on 21st September and he was then assigned to work at premises in Billingsgate.

At about this time consultations were beginning which were to result in a reduction of staff in many departments of the appellant's organisation. Discussions were conducted through the trade unions and meetings were held to explain the position to individual members of staff. The tribunal observed that during this time the relationship between Mr McKeag and Mr Eyre became even more difficult.

In February 1994, Mr Glenham conducted Mr McKeag's annual appraisal for the year 1st February 1993 to the 30th January 1994. The marks given were much lower than in any previous appraisal and Mr McKeag considered that it was unjust. In particular he felt it unfair that Mr Glenham should conduct the appraisal as he had not worked under Mr Glenham since his suspension in June 1993. The tribunal agreed and also noted that it was Mr Glenham's initial complaints which had resulted in Mr Eyre's investigations. The Tribunal said:

"We are also confident that Mr Eyre's views about how to deal with Mr McKeag were known to Mr Glenham. We are not at all surprised that the appraisal unfairly reflects these extraneous matters. Further the appraisal in these terms does not surprise us in the light of the impending redundancies and the fact that Mr Eyre had already decided on an exit strategy for Mr McKeag."

At paragraph 7(17) of their reasons the tribunal said:

"We have no doubt that for some reason Mr Eyre had lost confidence in Mr McKeag. Equally we have no doubt that those reasons were not connected with Mr McKeag's past or present conduct or with his capability to carry out his functions as a FEM. Mr Eyre simply did not want Mr McKeag to be employed by NWB anymore. He decided to use the opportunity of the proposed downsizing exercise within CPD, which must have been known to him when he was investigating the allegations against Mr McKeag, to secure Mr McKeag's dismissal on the grounds of redundancy. Were it not for Mr Eyre's views that there was no job within NWB which he foreshadowed in his June 1993 report, we are confident that Mr McKeag would not have lost his employment. It was known to Mr Eyre that Mr McKeag was not a member of NIFU nor of NWBSA and that there was no risk that they would take up his individual case with NWB. He also knew that a formal warning and a "less than fully satisfactory" appraisal would have a severely detrimental impact on Mr McKeag's assessment in any redundancy situation. These matters are confirmed by the assessment of Mr McKeag which resulted in his coming at the bottom of his pool."

Having thus dealt with the events which preceded the implementation of the redundancy exercise, the tribunal turned to consider the selection process. They accepted that there had been what they described as `a downsizing operation' within Central Property Department. They observed that some 200 employees were made redundant, mostly voluntarily.

They observed that in November 1993 there was only one surplus position forecast in the group of managers into which the respondent fell. By April 1994 that surplus had increased from one to two managers. The tribunal could not see how or when that had happened. Nor upon examination of the documents have we been able to understand how that had come about. Mr Archer for the Bank told us that the situation was a very fluid one. It was changing all the time as people volunteered for redundancy. As we pointed out to Mr Archer, one could understand why volunteers might reduce the number of surplus positions to be dealt with, but one could not understand how there could be more surplus positions as the result of voluntary redundancies. The increase from one to two surplus positions in the respondent's group remains a mystery to us as it did to the tribunal. The tribunal observed that by April 1994 it was clear that the two managers who were being considered for compulsory redundancy were Mr McKeag and a Mr Good. In the event Mr Good accepted voluntary redundancy and the only compulsory redundancy in the group was Mr McKeag.

The tribunal observed that a vacancy for an FEM became available at Chase House, Ealing during June 1994. Chase House was one of the operations which fell within this redundancy exercise. The tribunal considered that Mr McKeag could have been placed in this position immediately, but he was not. He was required to apply for the post and compete with others following the internal advertisement of the post. The Tribunal were told that this was custom and practice. However, the Tribunal were sceptical about this. Not only could they find no reference to such a custom in any document, if anything the documents suggested that there was no such custom. In the event, Mr McKeag was not offered the post at Chase House, which went to a man who was two grades lower than he. The tribunal considered that the employers had not acted reasonably in respect of this post. They said:

"If there was a custom, which was not proved before us, we feel that it is unreasonable to rely upon it in the circumstances where an employee in the grade required for the job was being made compulsorily redundant."

The Tribunal also considered a vacancy that had been created by the appointment of a Mr Prudence to the position at Chase House. Mr Prudence's job became available but this vacancy was not even discussed with Mr McKeag.

The Tribunal then state their conclusions as follows:

"(1) The decision to dismiss Mr McKeag was taken by Mr Eyre as long ago as June 1993. The only question that remained was the basis upon which he would be removed.

(2) NWB have not discharged the burden of proof that Mr McKeag was dismissed on the grounds of redundancy.

(3) Even if the reason for dismissal was redundancy, there was no redundancy situation within CPD within the meaning of Section 81(2) of the Act.

(4) Finally NWB have not acted reasonably within the meaning of Section 57(3) of the Act to treat redundancy as a sufficient reason for Mr McKeag's dismissal."

Mr McKeag's application succeeded.

In this appeal, Mr Archer, for the Bank, submitted that the Tribunal have made errors of law and that their decision is perverse. He submitted that their first finding that the decision to dismiss Mr McKeag was taken by Mr Eyre in June 1993 is plainly wrong. The tribunal's four conclusions are internally inconsistent. They have misdirected themselves as to the meaning of redundancy. Because the main ground of appeal is that the decision is perverse we allowed Mr Archer to take us through the appellant's extensive bundle of documents in considerable detail. Although we have not seen the Chairman's notes of evidence we do consider that we have been able to form a clear view of the evidence before the Tribunal.

Mr Archer's first submission was that the tribunal's first conclusion was plainly wrong. That is the conclusion that `the decision to dismiss Mr McKeag was taken by Mr Eyre as long ago as June 1993'. That said Mr Archer could not have been so as Mr Eyre had no authority to dismiss the respondent. The respondent continued in employment for over a year after that date. If the tribunal thought that that was when the decision to dismiss was taken, they should have considered the reasonableness of it at that date. We cannot accept these submissions, which seek to put a literal meaning on the tribunal's words which they were plainly not intended to bear. The tribunal were saying that although the respondent was not actually dismissed until 1994, Mr Eyre had made his mind up in June 1993 that he wanted to be rid of Mr McKeag and that everything else followed from that.

Mr Archer's next submission was that the tribunal had fallen into error at an early stage when they reminded themselves of the principles of law applicable to the factual issues before them. At Paragraph 6.3 they said:

"The statutory definition of redundancy situation appears in Section 81(2) of the Employment Protection (Consolidation) Act 1978. The definition is exhaustive and incorporates 3 main ideas, namely the disappearance of (i) the employer, (ii) the workplace or (iii) the job."

Section 81(2)of the Employment Protection (Consolidation) Act 1978 provides:

"For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by the reason of redundancy if the redundancy is attributable wholly or mainly to,

(a) the fact that his employer has ceased or intends to cease to carry on the business for which the employee was employed by him, or has ceased or intends to cease that business in the place where that employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish."

Thus it is seen that the tribunal's summary of that provision at Paragraph 6.3 of their decision is an inaccurate paraphrase. Mr Archer submitted that having there demonstrated that they have not understood the nature of redundancy, their later conclusion that the respondent was not dismissed by reason of redundancy is necessarily fatally flawed. We cannot accept that submission. While we do accept that it is most undesirable for a tribunal to paraphrase a statutory provision as inaccurately as this tribunal has done, we think that the decision demonstrates that the tribunal did in fact understand the nature of redundancy. As can be seen from their findings of fact, they accepted that there was a genuine redundancy situation in Central Property Department but thought that in Mr McKeag's case the redundancy was used in bad faith as a means of dismissing him. The tribunal thought it was a cloak to cover the true reason for dismissal, which was that Mr Eyre wanted to be rid of him. That we think is what they meant when they said in summary form that the appellant `had not discharged the burden of proof that Mr McKeag was dismissed on the grounds of redundancy.

Mr Archer then submitted that the tribunal's third and fourth conclusions were inconsistent with their first and second. That is of course true. Conclusions (1) and (2) form the main basis of their decision: the respondent was dismissed because Mr Eyre decided that he must go. When it proved impossible to dismiss on disciplinary grounds, the redundancy situation which did exist was used as a cover for his dismissal but the redundancy in his case was a sham. Thus the dismissal was obviously unfair. Conclusions (3) and (4) consider an alternative situation. We confess that we do not fully understand the alternative basis upon which the tribunal were expressing their views. They may have been considering what the position would be if they had been wrong in holding that, so far as Mr McKeag was concerned there was no true redundancy. We can understand why they may have wished to consider this alternative. We have recorded their puzzlement at the unexplained increase in the number of surplus jobs in the respondent's group. In November 1993, one person had to be made redundant. By April 1994, two people had to be made redundant. The tribunal clearly thought that that increase had been contrived. But they may have thought it wise to consider the possibility that they were wrong about that. What if there really was a genuine need to reduce the numbers in the respondent's group by one even after Mr Goode had volunteered to go? The tribunal plainly thought that the dismissal was unfair even if there was a genuine need to reduce the numbers in the respondent's group. They had expressed their disapproval of the inadequate attempts to relocate the respondent.

We are not sure that that is the basis on which the tribunal expressed their alternative conclusions. However, we are satisfied that the true basis of their decision is clearly expressed in conclusions (1) and (2).

Finally we turn to deal with Mr Archer's submission that the tribunal's decision was perverse. In a Notice of Appeal covering no less than 27 pages, Mr Archer has sought to challenge many of the tribunal's findings of fact. We do not propose to list the conclusions which he submits were not justified on the evidence. Time and again he repeated that there was no evidence to support a conclusion. Often he was right to say that there was no direct evidence to support a conclusion but in our view there was evidence from which the tribunal was entitled to draw the inferences which they drew. We have set out in some detail the facts of the case, with extracts from the appellant's hearing bundle, together with the tribunal's factual conclusions and opinions. We consider that by that process the conclusions may demonstrably be seen to have been open to the tribunal.

The core of the tribunal's findings was that they formed the view that in June 1993 Mr Eyre decided that one way or another Mr McKeag was going to leave the Bank. His first thought was to achieve his object by disciplinary proceedings for Gross Misconduct but once that had been prevented his thoughts settled upon redundancy. Mr Archer complained bitterly that Mr Eyre had no power to select anyone for redundancy. That was the function of the Human Resources Department over which Mr Eyre had no control. No doubt that point was made to the tribunal. But they clearly rejected it. They thought that even in June 1993 Mr Eyre knew there was going to be a reorganisation with staff reductions in the following year. They thought that everything which he did and said thereafter tallied with their hypothesis that he had then decided that Mr McKeag was to go. The whole series of subsequent events fitted together and made sense. In those circumstances a tribunal is entitled to draw inferences despite the absence of direct evidence. They were entitled to draw the inference, as they clearly did, that although Mr Eyre did not have the direct power to dismiss Mr McKeag during a redundancy exercise, he had the influence to ensure that he was dismissed.

We have no hesitation in rejecting the submission that the tribunal's conclusions were perverse. For these reasons this appeal will be dismissed.