United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (Of Counsel) Messrs Dibb Lupton Alsop Solicitors 125 London Wall London EC2Y 5AE


 


MR JUSTICE KIRKWOOD: This is a Preliminary Hearing in an appeal by an employer against the finding of an Industrial Tribunal sitting at Leicester in October 1996, that each of three Applicants to the Tribunal had been unfairly dismissed. The dismissal was by reason of redundancy. The selection and assessment criteria had been agreed with a staff forum.

In its Extended Reasons given on 11 November 1996, the Industrial Tribunal made criticisms of how the process was carried out. In particular, the Tribunal made criticism of the fact that the assessment process was carried out by a Mr Drewery and a Mr Reed and in its Extended Reasons the Tribunal found that that had caused concern. They said that they entertained grave doubt as to whether Mr Drewery was the correct person to assess two of the Applicants - and it made criticisms in that regard - which really touched the cases of all three.

The first ground upon which the Appellant wishes to go forward with an appeal is on the basis that the Tribunal substituted its own views as to the way in which the procedures were carried out and Counsel for the Appellant points to four indicia of that in his argument.

If the appeal rested there, we would have been inclined to allow the matter to go forward to a full hearing on the basis of that argument. But it does not rest there. The history of the case is that although there was ample warning of a 25% redundancy site wide, and the interviews with individual Applicants took place in August, the employer was at that stage asking for volunteers. There was not at that stage any notice of individual redundancies. The three Applicants in this case received such notices only on 5 September 1995, when they were told that in the absence of any suitable alternative employment, they would be made redundant on 22 September.

The Applicants were not at that stage given access to the assessment scores made in respect of them. One Applicant had the selection criteria applied to him made available at a later appeal stage. The other two Applicants did not proceed to the appeals stage at all. So they did not have the criteria made available to them. In paragraph 12 of their Extended Reasons the Tribunal held:

"... The Tribunal believe that a fair and reasonable employer would make the scores available at the time when the applicants were told that they were to be made redundant. Although we appreciate that the criteria had been discussed and agreed by the Forum nevertheless this could and should have been produced to the applicants to show how marks were arrived at."

and in the next paragraph the Tribunal held:

"13. For these reasons we decided that the individual applicants were unfairly selected."

Paragraph 13, following as it does first, the criticisms to which I have referred, and then the telling point about the absence of availability of the selection criteria, may be read as a paragraph bringing all those matters together, or the Extended Reasons may be read as containing a series of criticisms in paragraph 10 and 11, with paragraph 13 directed specifically to the point about selection criteria not being made available. If paragraph 13 is in the nature of a cumulative conclusion, the fact that the Appellant might have an arguable point in respect of one group of conclusions, but the second conclusion is in itself capable of being determinant of the appeal against the Appellant, does not seem to us to be of assistance to the Appellant in this case. The fact is that the Industrial Tribunal were entitled to treat that point as to the lack of availability of selection criteria as making the selection process unfair in its own right.

The Tribunal continues in paragraph 14 with the words "With regard to consultation....". It then considers the extent to which there was adequate consultation against the background that it is said that consultation was an essential ingredient in a fair dismissal or redundancy.

The conclusion of the Tribunal in paragraph 14 said this:

"....The fact is that there was no individual consultation with any of the three applicants after they had been told on 5 September 1995 that they were going to be made redundant. They had no prior knowledge that they, as individuals, would be affected although they may have known about 25% of the workforce would be affected. They may be forgiven if they decided to "keep their heads down". It was at this stage, the consultation stage, on or after 5 September 1996 that the points list and criteria could and should have been produced."

An Industrial Tribunal then considered the decision of the Employment Appeal Tribunal in Rowell v Hubbard Group Services Ltd [1995] IRLR 195 as authority for the proposition that the obligation to consult is separate from the obligation to warn. The respondents discharged their obligation to warn but not their obligation to consult on an individual basis."

Having reached in paragraph 14 the conclusion that there was no consultation, it is not surprising that in paragraph 16 the Tribunal said:

"Our unanimous conclusion is that in each of the three cases the respondents failed to consult the individual applicants in relation to their individual redundancies. This in itself makes these selections unfair."

The Industrial Tribunal concluded that having heard the whole of the case and all the evidence, that each of the three Applicants was unfairly selected for redundancy and was therefore unfairly dismissed.

It is the unanimous and clear view of this Appeal Tribunal that that conclusion lay within the range of decisions properly open to the Industrial Tribunal and nothing we have heard by way of argument on this Preliminary Hearing persuades us in the least that there is an arguable case for upsetting the conclusion of the Tribunal in that regard. Therefore this appeal is dismissed. There is nothing in the Extended Reasons, as we understand them, to indicate any finding about a Polkey reduction.