United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: The appellant before us in this case, Mr Langston, is by his own account something of an expert in explosives technology. We are not qualified to pass judgment on that claim. Equally, we think that he acknowledges that as an advocate, representing himself before the Industrial Tribunal and before us, he has much to learn. We can corroborate that. His appeal raises a question as to how far, if at all, Industrial Tribunals are under an obligation to enquire into matters inadequately raised by one or other or both of the parties in reaching their decision in redundancy dismissal cases.

Background

The appellant was continuously employed by the respondent under a series of fixed-term contracts as a research assistant from 1st May 1989 until expiry without renewal of his final contract on 31st August 1995. He was dismissed on that date by virtue of the provisions of s.95(1)(b) of the Employment Rights Act 1996.

Following his dismissal he presented an Originating Application to the Industrial Tribunal dated 28th November 1995. He identified his complaint as "Unfair Dismissal - Harassment".

The matter came before an Industrial Tribunal sitting at Bristol on 26th February 1996. The decision of the tribunal, promulgated with extended reasons on 7th May 1996 reads as follows:

"The unanimous decision of the Tribunal is that the applicant was fairly selected for redundancy."

In paragraph 2 of their reasons the tribunal record that the applicant claims that he was unfairly selected for redundancy by his employer. In paragraphs 8 and 9 the tribunal confess to some difficulty in identifying the appellant's arguments, but they isolate as the sole issue for determination whether he was fairly selected for redundancy and resolved that question in favour of the respondents. The application was dismissed.

The Appeal

The appellant appealed by way of a letter dated 13th June 1996. That letter raises the issue of consultation prior to dismissal and various other matters which, like the Industrial Tribunal, this appeal tribunal found difficult to categorise. He concluded by saying:

"I understand that I probably made a mess of the Tribunal."

The appeal was listed for a preliminary hearing on 22nd November 1996 on which occasion it was adjourned for an amended Notice of Appeal and affidavit to be filed by the appellant.

The case returned for the restored preliminary hearing on 24th January 1997. On that occasion the appellant was represented by experienced Counsel, Mr Oliver Segal, under the ELAAS pro bono scheme. Having heard the submissions of Counsel we allowed the appeal to proceed to a full inter partes hearing on two points which I identified in the judgment of the tribunal given on that day. At page 2G-3E I put the scope of the full appeal thus:

"Turning to the amended grounds of appeal, the points which are pursued before us today are in relation to the issue of consultation prior to dismissal and, secondly, the question of whether the Respondent took reasonable steps to consider the possibility of alternative employment for the Appellant before his dismissal. It is unclear to us on this ex parte hearing whether the Appellant directly raised the question of consultation between his employers and himself and/or trade union prior to taking the decision to dismiss him. It is, however, clear that the issue of alternative employment was fully and fairly raised in the originating application. Even if consultation was not specifically raised by the Appellant before the Industrial Tribunal, we think it may be arguable that the question of reasonableness, which is now raised by s.98(4) of the Employment Rights Act 1996, in a redundancy case requires the Tribunal to consider the issue of proper consultation as a matter of well-established good industrial relations. See Polkey v A E Dayton Services Ltd [1988] ICR 142, King v Eaton Ltd [1996] IRLR 199. The Glasgow University case may be particularly on point on the facts of this case. Whether the question of consultation is a new point which the Appellant should not be permitted to argue before this appeal tribunal under the general principles set out in Kumchyk v Derby County Council [1978] ICR 1116 will itself remain a matter for argument at the full appeal hearing (see Jones v R M Douglas Construction Ltd [1979] ICR 278).

In all the circumstances, we are persuaded that this appeal ought to proceed to a full hearing, limited to the consultation and alternative employment points."

Having considered that judgment the respondents' solicitors wrote to the Registrar on 3rd April 1997, seeking the Industrial Tribunal Chairman's comments on the question as to what if anything was said at the tribunal hearing concerning consultation and alternative employment. They indicated in that letter that they would not be attending at the full appeal hearing, but were instructed to submit written representations. They concluded by submitting that the onus lay on the appellant to canvass these matters before the tribunal.

I directed that a copy of that letter be placed before the Chairman, Mr MJR Griffiths, for his comments. He responded by letter dated 19th May 1997, in which he said:

"So far as whether or not the appellant raised the issues of alternative employment and consultation at the hearing, Mr Griffiths comments as follows.

Consultation was not specifically raised by the appellant before the Industrial Tribunal although it was clear from the evidence that the issue of the continued employment of the appellant was a matter of discussion with him throughout the period covered by the final extension of his fixed term contract.

As to alternative employment, the issue was not specifically raised by the appellant at the hearing and the Tribunal relied upon paragraph 21 of the respondent's particulars of its grounds of resistance to the application which were not disputed by the appellant at the hearing.

The issue of alternative employment was pursued at the hearing in cross-examination of Dr Bryan Lawton."

At the full appeal hearing Mr Langston has again appeared in person. He has put before us a skeleton argument prepared by solicitors on his behalf, supplemented by his own skeleton argument and oral submissions. The respondents' solicitors have submitted written submissions dated 21st November 1997 which we have taken into account. We shall return to the parties' submissions later in this judgment.

Redundancy dismissals

Redundancy is a potentially fair reason for dismissal. Employment Rights Act 1996 s.98(2)(c). This Industrial Tribunal found that the reason for the dismissal was redundancy.

The question then was whether or not the respondents acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissal. S.98(4).

As we reminded Industrial Tribunals in Boys & Girls Welfare Society v McDonald [1996] IRLR 129, the amendment to s.57(3) of the Employment Protection (Consolidation) Act 1978 (now re-enacted in s.98(4) of the 1996 Act) effected by s.6 of the Employment Act 1980 removed the burden of proof formerly resting on the employer to satisfy the tribunal that he had acted reasonably. That was a case concerned with dismissal by reason of the employee's conduct, and in that context the Inner House of the Court of Session pointed out in Scottish Daily Record & Sunday Mail (1986) Ltd v Laird [1996] IRLR 665, para. 18, that the three-fold Burchell test does require an employer, in cases where the test is appropriate, to lead some evidence to show that the requirements described at each of the three stages were satisfied.

Reverting to redundancy dismissals, in Vokes Ltd v Bear [1974] ICR 1, a case decided under the former burden of proof, Sir Hugh Griffiths, giving the judgment of the National Industrial Relations Court, drew attention to the guidance then provided in paragraph 46 of the ACAS Code of Practice for both consultation and help with alternative employment prior to dismissal for redundancy. That included, in the judgment of the Court, looking for alternative employment elsewhere within the group of companies to which the employer belonged.

In Williams v Compair Maxam [1982] ICR 156, 162, Browne-Wilkinson J set out five principles which reasonable employers will usually observe when dismissing for redundancy employees represented by an independent trade union; warning; consultation; objective selection criteria; fair selection in accordance with those criteria; the possibility of alternative employment. He emphasised that these principles did not apply in all circumstances; each case depends on its own facts.

The importance of consultation was firmly established by the House of Lords in Polkey v A E Dayton Ltd [1988] ICR 142. At page 162H-163A, Lord Bridge said this:

"... in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation."

We recently reviewed the development of the law relating to consultation in Mugford v Midland Bank Plc [1997] IRLR 208. The need for consultation applies equally to cases in which dismissal consists of the expiry of a fixed-term contract without renewal. University of Glasgow v Donaldson and another (EAT/951/94. 8th February 1995. Unreported).

The obligation on the parties and the Industrial Tribunal to raise the issues

In Kumchyk v Derby City Council [1978] ICR 1116 Arnold J made clear that this appeal tribunal will not entertain a point of law which was not raised below, save in certain exceptional circumstances which do not apply in this case. It is no answer to say that the omission to argue a particular point was caused by the lack of skill of the party or his advocate or that the omission could have been rectified by the Industrial Tribunal itself.

In Jones v R M Douglas Construction Ltd [1979] ICR 278 the employee appealed against an Industrial Tribunal finding of fair dismissal by reason of redundancy. It appears from the report that the case below was argued solely on the basis of unfair selection for redundancy. Before the Employment Appeal Tribunal (Arnold J presiding) Counsel for the employee sought to argue that the dismissal was unfair due to lack of consultation. The point was not taken below by the employee's then lay representative. He was not permitted to do so.

The generally accepted principle that a party will not be permitted to raise new points on appeal which could have been ventilated below must be seen in the context of cases where a principle is so well-established that an Industrial Tribunal may be expected to consider it as a matter of course. For example, in Tidman v Aveling Marshall Ltd [1977] ICR 506 (Kilner-Brown J presiding), the Employment Appeal Tribunal held that when assessing compensation for unfair dismissal an Industrial Tribunal ought to consider the four heads of claim identified in Norton Tool Co Ltd v Tewson [1972] ICR 501, namely (1) the immediate loss of wages; (2) the manner of dismissal; (3) future loss of wages; and (4) loss of protection in respect of unfair dismissal or dismissal by reason of redundancy, to which was added loss of pension rights as a fifth head of claim. This appeal tribunal held that , although not raised below, it was the duty of the Industrial Tribunal to raise itself all five categories of compensatory award.

Further, in Red Bank Manufacturing Ltd v Meadows [1992] IRLR 209 (Tucker J presiding) the Employment Appeal Tribunal held that an Industrial Tribunal was obliged, following an unfair redundancy dismissal finding, to consider the application of the two-fold Polkey principle when assessing compensation, namely, if a proper procedure had been followed would it have resulted in an offer of alternative employment? If so, at what salary level? The case was remitted to the Industrial Tribunal for further consideration.

The parties' submissions

The Chairman, supported by the respondent, recalls that the issue of consultation was not specifically raised below. The appellant contends that it was, although in a way which does not convince us. We therefore proceed on the basis that it was not specifically raised.

As to alternative employment, the Chairman recalls that the point was put in cross-examination to the respondents' witness Dr Bryan Lawton. He refers also to paragraph 21 of the respondents' particulars of grounds of resistance where it said, in answer to paragraph 2 of the appellant's details of complaint in his Originating Application, that work available after 31st August 1995 was allotted to members of staff better qualified than the appellant. The Chairman recalls that that statement was not disputed by the appellant at the hearing, but we see from his written response to that suggestion, contained in the bundle of documents which he placed before the Industrial Tribunal, that he contended that he was the best qualified for those tasks.

In the circumstances the appellant contends before us that the questions of consultation and alternative employment were in issue before the Industrial Tribunal, but not adjudicated upon in their reasons, but that even if consultation was not specifically raised by the parties it should have been considered by the Industrial Tribunal in the light of Polkey. The respondents submit that where the selection for redundancy was found to be fair the question of consultation does not arise, but if it does, the appellant's failure to raise the issue below means that he should not be permitted to do so now. No argument is addressed to the alternative employment point.

Conclusion

In attempting to draw together the various threads emerging from the authorities to which we have referred, we have reached the following conclusions at to the proper approach to take in this case.

(1) The ineptitude of a party, or his representative, in conducting the case below will not be a reason for permitting a new point to be taken on appeal.

(2) In this case, we are not satisfied that the issue of pre-dismissal consultation was properly raised by either party below; nor was it raised by the Industrial Tribunal. However, the question of alternative employment after dismissal was raised and not expressly dealt with in the tribunal's reasons.

(3) The principles of law relating to unfair redundancy dismissals have developed since the Employment Appeal Tribunal decision in Jones. They are encapsulated in the words of Lord Bridge in Polkey to which we have referred.

(4) Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.

(5) Because there is now no onus on either party to establish the reasonableness or unreasonableness of the dismissal under s.98(4) it is for the Industrial Tribunal to determine that question 'neutrally'.

(6) In these circumstances we think it is incumbent on the Industrial Tribunal to consider each of the three questions mentioned in (4) above, in the same way that an Industrial Tribunal will consider the three-fold Burchell test in an appropriate conduct case. It is desirable that at the outset of the hearing the live issues are identified by the Industrial Tribunal.

(7) Normally, an employer can be expected to lead some evidence as to the steps which he took to select the employee for redundancy, to consult him and/or his trade union and to seek alternative employment for him.

(8) We would normally expect the Industrial Tribunal to refer to these three issues on the facts of the particular case in explaining its reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy.

In setting out these propositions we are not seeking to replace the statutory test under s.98(4) but to ensure its practical application in redundancy cases.

Applying that approach in this case, it seems to us that the tribunal fell into error by restricting its consideration to the question of selection, instead of looking at the overall question of reasonableness which, in the absence of agreement to the contrary between the parties, also involved the questions of consultation and alternative employment.

In these circumstances we shall allow this appeal and remit the matter to a fresh Industrial Tribunal for reconsideration. The appellant asked that the case be remitted to the Southampton Industrial Tribunal, being more convenient to him. We make no order on that application, which should be directed to the Bristol Industrial Tribunal.