United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S ROBINSON (of Counsel) Instructed By: Messrs Grindeys Solicitors Glebe Court Stoke-on-Trent Staffordshire ST4 1ET
For the Respondents	MS I HANCOCK (Solicitor) Instructed By: Messrs Knight & Sons Solicitors The Brampton Newcastle-under-Lyme Staffordshire ST5 0QW


 


JUDGE ALTMAN: This is an appeal from the Employment Tribunal sitting at Shrewsbury on 23 January 1998, where it was found that the Appellant was not unfairly dismissed upon his dismissal on the ground of redundancy.

1. Before the Tribunal, it was common ground that the reason for the dismissal was redundancy and that there was a genuine redundancy situation. There are four issues as to the procedure adopted which the Appellant raised before the Employment Tribunal which he raises again by way of Appeal. The first relates to the shortness of time given to complete a skills form; the second, the failure to notify the Appellant of the availability of a briefing session; the third, a failure to consult and the allied issue as to whether this was corrected on appeal and fourthly, whether the Tribunal should have concluded that the Respondents unfairly assessed the scores of the respective members of staff.
2. The Applicant was a lecturer in Art and Design. In May 1997 he had given over 13 years' service to the Respondents when they began their redundancy exercise. It appears that they were under very severe financial constraints, and also severe constraints of time in that sufficient notice before the end of the academic year had to be given to those to be made redundant so as to comply with contractual provisions and in practice to allow them to have a reasonable opportunity of seeking employment elsewhere. The method that was used, after consultation with the relevant trade union, was to start by inviting the employees to complete their own skills profile which, in the words of the Employment Tribunal, gave the employees

"the opportunity to set out their qualifications, their abilities in their job and what they had to offer to the College in the light of the courses that were being put on by the College."

That profile would then be scored by a panel composed of senior members of the Respondent's College so as to form the process of selection. The Appellant was not sent a form, apparently by mistake, and only received his after he learnt of it from a colleague and asked for one. As a result, this form was sent on 7 May, five days after the others. He obtained an extension of two days, so he had until 14 May to return the form. As a consequence he had six days, his colleagues nine. The form was dated 11 May, three days before the deadline expired.

3. The Employment Tribunal accepted the Appellant's evidence that he had returned the form on 14 May. They analysed such evidence as there was and concluded:

"…it seems to us to be far more likely that the form would have been substantially completed before it was signed and dated, and we do not think it is very likely that the Appellant signed and dated the form in blank and then completed it later. We find it established that he had substantially completed it (by 11 May) although he may have wished to add some details later on."

The Employment Tribunal observed that it was not suggested that the lack of time changed what was in the form and that to their view, six days was not an ungenerous amount of time in which to complete the form.

4. Whilst noting that it was not desirable that one person should have less time to fill the form than another, the Employment Tribunal concluded that the Appellant did substantially complete the form well within the time. They did not expressly say so, but it was clear that they were concluding that this difference of time had no consequence in practice for the way in which the selection procedure was effected. The Notice of Appeal complains that the Employment Tribunal erred in failing to conclude that there was a shortness of time in reality, and secondly, that there was a disadvantage. That is an argument which, it seems to us, is purely one of inferences to be drawn from the facts. The inferences which the Tribunal drew were inferences which they were clearly entitled to draw on the evidence, and whilst the Appellant may not agree with their conclusions, we have found no identified area in which it can be said that the Employment Tribunal erred in law in its findings in relation to that aspect of the appeal.
5. The second matter which is raised on the appeal, arises from the fact that to assist in the process of completing these forms, the employees were given, in an informal way (so that some may have been missed out), an opportunity to have a briefing session designed to help them know what was expected in the forms. The Respondents omitted to tell the Appellant of this facility. It appears that none in the Appellant's department availed themselves of the opportunity for such a briefing session. Furthermore, it appears that there is no finding on the face of the decision of the Employment Tribunal that any of the others in his section were told about the opportunity of a briefing session. This facility was a concession arranged by the Respondents, at the behest of the union, as a parallel process to the actual selection procedure and was designed to help those who wanted to seek help.
6. The Employment Tribunal concluded that the Appellant was no worse off in not having this session, than the others in his department, because none took the advantage offered even if they had been told about it. They said this:

"Communication in this case clearly could have been greatly improved and indeed should have been far better than it was. On the facts however, and only on the facts as we find them, it is clear to us that no particular disadvantage or prejudice was caused to the Appellant because, and only because none of those with whom he was being compared in the Art and Design section attended."

They made findings of fact therefore, and concluded that because others were not given the facility either through mistake by the Respondents or through their own choice, there was no disadvantage and therefore no unfairness.

7. There may well be, it seems to us, an argument on those facts that the disadvantage which the Appellant had was his own disadvantage in not being able to go for a briefing session which may have improved his responses on the form and which may have affected the final selection. Also, it has been pointed out, that it may be said that the disadvantage he had as compared with others was that he was not presented with the choice of deciding to not attend. However, that seems to us rather meaningless in the context of this case. That is a forceful argument on the facts, but it seems to us that in deciding whether or not there was an unfair disadvantage imposed on the Appellant, the Employment Tribunal were entitled to look at it in the context of the overall procedure and the way others were treated. This was not a part of the procedure that was writ in stone; it was a facility that had been offered and because in practice no one else had the advantage of it, it seems to us that the Tribunal were entitled to conclude that that should be the yardstick by which to assess the facts which they had found and we find that they did not err in law in that respect.
8. The procedure was, having received skills profiles, to score them. When they had chosen the lowest marks, a letter was written dated 20 May, to those who had been selected and one was sent to the Appellant in the following terms:

"I am writing to inform you, with regret, that you have been provisionally selected for redundancy… The selection is provisional at this stage and you have the right to make representations in person or in writing or both - if you so wish, before the selection is confirmed or otherwise. Your Head of School and/or another member of the Selection Panel will explain your score against the criteria so that you understand the basis of and reasons for your selection. You may then make representations at a further meeting if you choose to do so, and the absolute deadline for this further meeting to have been held is Wednesday 28 May 1997."

That letter caused upset, not surprisingly, to the Appellant and from the receipt of that until 30 June, absences from work were due to certified sickness.

9. During that time, he wrote two letters saying he wished to appeal that decision, but on 29 May a letter was written to him simply saying amongst other things that:

"Because of the time scales laid down and in view of the fact that you did have an opportunity to make representation about your provisional selection before being absent from College, I am unable to extend the period made available for you to make those representations."

In due course he was dismissed without further discussion or interview. Subsequently, he appealed and his appeal was not heard until 28 August, very shortly, no doubt, before the beginning of the new academic year when all expected staff were by then selected and in post. There were some delays partly caused by sickness absence but it appears that from 30 June there were simply administrative processes to be gone through on the part of the Respondents to arrange the date.

10. In the fourth ground of appeal, the Appellant complains that the process of scoring to which I have referred was not properly considered by the Employment Tribunal. It was alleged that the Tribunal failed to scrutinise the fairness of the criteria and procedure to evaluate the skills profile forms. This matter was dealt with in the final paragraph of the decision of the Employment Tribunal. It says that

"…in addition to procedural matters, [the Appellant] has raised certain substantive matters in relation to the scoring of the form which he submitted."

From that we infer that the allegation was that mistakes were made about the actual scores that were attached to the skills form in the various sections.

11. The Employment Tribunal then went on to explain what Employment Tribunals often explain, particularly to applicants in person, which is that they do not re-enact the processes of management and put themselves in the shoes of management and see if they would have done the same thing. And the learned Chairman, in a down-to-earth way, explained that process. The Tribunal, he said,

"…does not "tinker" with scores: it is not our function to decide who should remain and teach at this College, any more than who should work in a factory".

He went on to say:

"It is for us to look at the procedures by which they decide on any redundancies and see whether it has been honestly and fairly carried out to no particular disadvantage of any individual, even though individuals may be aggrieved at the end of it."

12. There are three processes that are involved here. First of all there is the judgment as to the actual selection process that is to be adopted. In this case, the selection procedure that was provided had been discussed with the appropriate union and received its tacit endorsement. However unusual it may appear to outsiders for management in effect to hand to the employees the process of assessment which is normally the job of management in the way in which they did in this case, that was a process about which there was no criticism.
13. The second procedure is the actual exercise of judgment as to the number of scores to attribute which was an exercise carried out by a committee formed of senior managers including the head of department who would know the particular employee concerned.
14. The third process would be the monitoring of that process in such a way by the Tribunal for them to assess whether they consider the way in which the judgment was exercised was such a procedure as could have been accomplished by any reasonable employer acting properly in the course of performing this task.
15. I said that the first general procedure was agreed. The second, which is the actual scoring, is in itself a matter for management. It is the third part of the process, the Tribunal satisfying itself, that that was done fairly and honestly, which is the task of the Tribunal. But in their decision it seems to us, the Tribunal specifically did that. We have been told that there was some evidence before the Tribunal of the way in which marks were attributed, and we have had an opportunity of seeing the discussion that took place in some detail at the appeal hearing, when the process was explained, so that the Tribunal had an opportunity of seeing what had gone on and they came clearly to the conclusion that they cannot interfere with the scoring. It must follow that where they address their minds to the need to see that the scoring has been carried out honestly and fairly, and then dismiss this aspect of the claim, that they came to the conclusion that it was so carried out. We can see no error of law whatsoever in the Tribunal's process of reasoning in that respect.
16. However, the final matter relates to the conclusion of the Employment Tribunal that the initial unfairness of the dismissal was corrected by an exhaustive appeal. In paragraph 15 of their decision, they say this:

"That was, we accept,. a lengthy appeal conducted by the new Principal of the College …. who brought, quite literally, a fresh mind to the job. It was an exhaustive appeal. It gave the applicant the opportunity to raise all the matters of complaint that he has raised before us, and there is no suggestion that he was not fully heard. He was represented also by a trade union representative. He of course – it is evident from the fact that we are here today - did not accept all the answers he was given on that occasion, nor indeed in the letter from Mr Moore which followed, but we are satisfied that the appeal was properly carried out. In our view that appeal cured the defect which had earlier existed: cured, in other words, the unfairness of the Applicant not having had a chance to be heard before the dismissal was finalised."

That, it seems to us, is the question which the Tribunal set themselves. Was the unfairness of the Applicant not having had a chance to be heard before the dismissal was finalised, corrected by the appeal? We have asked ourselves whether that was the correct question in the context of the Tribunal's own findings.

17. The Respondents had written a letter to the Appellant informing him of the provisional decision to terminate his employment. They informed him of the opportunity to be heard on two occasions, first of all to understand the selection process and secondly to make representations, implicitly before that process was completed. The Tribunal came to the view that the failure of the Respondents to actually give that opportunity was an unfair dismissal. They said in paragraph 13:

"…the Respondents could have done, and really should have done, some more to elicit from the Applicant at that stage, bearing in mind that he was away from work and ill, the nature of his challenge to the decision, whether he indeed wished to put in something in writing, whether he wished a further meeting to be convened, and what he wished to say in any event. We bear also in mind that up to this stage the Applicant, along with all those others being made redundant, had not been seen individually by the Respondents at all, and it is not common that a decision to dismiss someone without giving them the opportunity to be heard will pass all tests of fairness, and we think that really the Applicant, given his advantages at that time, had done enough to put the Respondents on notice that he wished to challenge the decision. Instead of that, as I have said, the Respondents concentrated on the reason for this absence rather than on how he wished to challenge the procedure."

They say that they would have found that that was an "unfair dismissal" because the Applicant had done enough, he ought to have been heard and he ought to have been invited to be heard before being dismissed, and he was not. But we note that the process of being heard was broader than the ordinary situation in a dismissal procedure, because those two meetings were clearly part and parcel of the consultation process. Indeed they were, apart from the contents of the skills form, the whole of the consultation process with the individual employee.

18. Further, it is clear that the consultation process which was offered to the Appellant was part and parcel of the broad redundancy exercise which had a deadline of 28 May. At that time, or shortly after, the Respondents were not looking solely at the Appellant, they were looking at a balancing exercise between employees. It was not simply a question of looking at the individual and saying "has he been fairly treated, has he anything to say about it"; it was part of the broad consultation exercise on all the evidence as set out in the decision of the Employment Tribunal.
19. We have had an opportunity of seeing the notes of the appeal hearing and on all the appearance of them, we can endorse the judgment of the Employment Tribunal that it seems to have been an exhaustive and thorough procedure. However, it began with the Chairperson, Mr Moore saying that:

"… his role would be to determine whether a fair and reasonable selection process had been adopted."

20. We have been helpfully referred to a number of decisions of the courts and in this context, Clarke v. Civil Aviation Authority (1991) IRLR 412, in which the Employment Appeal Tribunal set out a well known principle that, in normal circumstances, failure to follow a fair procedure would be sufficient alone to render a dismissal unfair. However, the law has now established that a faulty procedure during the initial stages can be rectified by a full and proper hearing on appeal; in effect, a rehearing. And no one would disagree with the proposition that an appeal hearing can, as a matter of principle, correct an otherwise unfair dismissal. But it is in the application of that principle, to the questions that were before them by the Employment Tribunal, that has given this Appeal Tribunal some concern.
21. We bear in mind that this was a redundancy situation. It is true, as has been pointed out to us, that the selection procedure of scoring the forms was independently observed and approved by a representative appointed by the union, and we bear in mind that the appeal process itself did look in detail at the various scorings that took place. But it seems to us in the end, that the Employment Tribunal looked upon the appeal process as confined to the question of the ordinary dismissal decision and the coming to that decision by the Respondents; and that is clear from their words in which they defined the unfairness as being that the Appellant did not have a chance to be heard before the dismissal was finalised.
22. This is also illustrated by the fact that exhaustive though the appeal was, it was not a substitute for the consultation procedure, which it was thought to have rectified. First of all, the consultation procedure gave a two stage opportunity. Secondly, the consultation procedure for this Appellant was part of the overall consultation process and therefore, was relative to other employees; it was not intended to be judged solely by its own terms. In their decision the Employment Tribunal appear, in other respects, to have had regard to the balancing of advantage and disadvantage as important. Thirdly, it took place very late on in the context of the need of the Respondents to sort out the redundancy exercise.
23. It is also clear to us, from the way in which that appeal meeting was opened, and in the way it was seen by the Employment Tribunal, that it existed in the narrow context of: first the actual procedural process of giving someone a chance to be heard before they are dismissed, rather than broad consultation; and secondly, in the narrow process of looking at it solely in relation to this employee, even if comparing him with others, rather than the consultation exercise, which was a balancing exercise. And where an employer in the events leading up to a dismissal does not first of all give the ordinary opportunity for a discussion which is referred to in the cases, but also gives no actual face to face consultation at all, it seems to us that the Employment Tribunal is faced with a much broader question than in those situations exemplified by the case of Clarke.
24. In those circumstances, it seems to us that the Tribunal asked themselves, with the greatest of respect to a very experienced Tribunal, in relation to this part of the case, the wrong question. They asked themselves, in effect, whether there was unfairness in not having had a chance to be heard before dismissal was finalised, instead of asking themselves whether the appeal cured the absence of a consultation procedure at the time it would otherwise have been conducted, with all the elements to which I have referred. In those circumstances it seems to us they erred in law in that when they considered whether the appeal cured the defect, they failed to consider the facts and the issues which went to that particular question.
25. Accordingly, we are driven to the conclusion that this appeal should be allowed. We have been greatly assisted by the very full and careful analysis of the other issues in this case, set out in the decision of the Employment Tribunal, which culminated in the judgment of the Employment Tribunal that, but for the appeal, the Appellant was unfairly dismissed.
26. We conclude that had the Tribunal addressed the issue of whether the appeal cured the defect in the context of what the defect alleged actually was, they would have come, on the facts they found, to the conclusion that it did not. In those circumstances, it seems to us, that this is not an appropriate case to remit for full hearing to another Tribunal. We substitute for that part of the decision that the appeal cured the defect, a finding that it did not do so on the facts that were analysed in the decision of the Tribunal. We substitute therefore, on the basis of adopting all the other findings of the Employment Tribunal, a finding that the Appellant was unfairly dismissed.
27. The matter that remains for consideration therefore is the issue of compensation. That, it seems to us, in default of any agreement between the parties, should be remitted to the Employment Tribunal and we will hear representations as to whether it should be a differently constituted Employment Tribunal, or not. We would wish to emphasise however, that nothing that we have said in relation to liability, or our findings in relation to the issues before us, should inhibit in any way the issues which would normally be raised in the context of assessing compensation in a case of this kind.
28. The parties have agreed that it would be appropriate for this matter to be remitted to the same Employment Tribunal. We welcome that because the Tribunal will find it easier to pick up the threads than if a fresh Tribunal had to start all over again. We only add that if there is any difficulty in practical terms in reconvening the full three member panel, then it should not be an immovable constraint, and as many as possible that were on the original hearing should be on the new one.