United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G CLAYTON (Solicitor) Hamilton House Mabledon Place London WC1H 9BD
For the Respondents	MR SIMON CARR (of Counsel) Messrs Rix & Kay Solicitors Paignton House Warwick Road Seaford East Sussex BN25 1RS


 


JUDGE N BUTTER QC: This is an appeal by Mrs Morrison in respect of a decision of the Industrial Tribunal at Brighton on 9 May 1996. The Extended Reasons were sent to the parties on 4 June. The unanimous decision of that Tribunal was that the Applicant had not been unfairly dismissed. Her claim was that, by reason of procedural irregularities, she had been unfairly dismissed when selected for redundancy.

The background to the case is that the Respondents ran a preparatory school. The Applicant, Mrs Morrison, had been teaching there for some time. On 31 August 1995, her contract of employment was terminated, redundancy being given as a reason for that. Mrs Morrison, whilst conceding that by reason of the falling numbers of pupils there was a diminished need for teachers in the school, felt that she had been unfairly treated because, (a) there was no consultation and (b) the pool from which potential candidates for redundancy were chosen was limited to year 3 and year 4 teachers, instead of being extended to consider year 3 to year 8 teachers.

I pause to say that, in relation to the question of the pool, there was evidence before the Tribunal, which was considered by them, and no appeal arises in that respect today. The position was that there had been a significant fall in pupils and, in the result, the conclusion was reached by Mrs Lee, apparently having spoken to others, that it was necessary to reduce the staff.

The decision was taken to dismiss the Applicant and on 21 April 1995, the Applicant was informed that that was a possibility. She was given a formal letter of dismissal dated 21 April on 24 April.

The main argument has concerned the question of consultation. In paragraph 12 of their Reasons the Tribunal said:

"12. Mrs Lee said that when she took the decision to dismiss, she did not believe that consultation would have served a purpose as she had looked at all the possibilities. .."

To some extent the Tribunal continued:

" ... that is borne out by the Applicant who, during the course of her evidence-in-chief, said that 'at the meeting on 21/4/95 I didn't feel there was anything I could have said which would have changed her mind. I felt there was no scope for changing the decision'."

It is a fair point that there was a meeting and a conversation, but that there was not consultation in the full sense of that word.

In paragraph 14 the Tribunal said:

"14. ... it will be seen that Mrs Lee (a) had reason for limiting her in-depth consideration to the pool of three, (b) had a practical reason for selecting from that pool the Applicant rather than Mrs Goodman or Mrs Porter and (c) at the time she did not believe that consultation would have served a purpose.

15. Nothing which has been said during the course of these proceedings leads us to believe that Mrs Lee was wrong in limiting her in-depth consideration to the pool of three. Likewise nothing has been said to make us think that had there been consultation, Mrs Lee would have been disabused of her belief in the futility of consultation."

In the course of argument I raised with Mr Clayton, for the Appellant, what the position would have been if, immediately before the word "belief" the Tribunal had inserted the word "reasonable". Mr Clayton said that that would have been a gesture but that nevertheless, overall, the Tribunal would not be seen to have applied the right test.

In paragraph 16 the Tribunal states simply:

"16. For all these reasons the unanimous decision of this Tribunal is that having regard to equity and the substantial merits of the case, the Respondents acted reasonably in treating redundancy as their reason for dismissing the Applicant."

We have been referred to the unreported case of Murphy v Walhampton School Trust Ltd, a decision of the Employment Appeal Tribunal, presided over by Morison J on 14 April 1994. In particular, we have been referred to an extract from his judgment at page 5 of the transcript where he said:

"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'."

He went on to say:

"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 Tribunal applied the correct test."

I pause to say that, in relation to the first part of the three-stage process of the test suggested by the EAT there, that must require revision in the light of the more recent decision of the Court of Appeal in Duffy v Yeomans & Partners Ltd [1995] ICR 1. I will make further reference to that case in a few moments time. Morison J continued with his judgment to say, as other Tribunals have said from time-to-time, that:

" 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. ..."

The decision in Duffy v Yeomans & Partners Ltd is obviously of importance. It is a decision by the Court of Appeal and we have helpfully been referred to passages in the judgment of Balcombe LJ, in particular at page 5 onwards. There the relevant part of Polkey v A E Dayton Services Ltd [1988] ICR 142 was considered, but it is probably sufficient if I refer to one passage at page 8 where Balcombe LJ said:

"As counsel for the employer put it succinctly in their skeleton argument: the industrial tribunal is asked to judge what the employer did and not what it might have done. It is what the employer (as a reasonable employer) could have done which is required to be tested: so the tribunal must ask whether an employer, acting reasonably, could have failed to consult in the given circumstances."

Lord Justice Balcombe added that he agreed and said:

" ... I reach this conclusion without reluctance, since I fear there is a grave danger that this area of law is becoming oversophisticated, and that there is an attempt to lay down as rules of law matters which are no more than factors which an industrial tribunal should take into account in reaching its decision whether the employer acted reasonably in the circumstances of the particular case."

Here, there is no dispute that there was a redundancy situation and no criticism is now made of the process of the selection. Reading the Industrial Tribunal's decision as a whole, it appears to us that they did apply the subjective and objective test as they went through the various points in question.

The Industrial Tribunal could have expressed itself more clearly, but in the end we conclude that the reality of the Industrial Tribunal's decision was that Mrs Lee had acted reasonably in the particular circumstances of the case in concluding that consultation would be futile.

This is our unanimous decision and in these circumstances and for these reasons it follows that the appeal fails and must be dismissed.