United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S OMAMBALA (of Counsel) Instructed by: Mr A Creme Head of Employment Rights UNISON 1 Mabledon Place London WC1H 9AJ
For the Respondent	MR S SWEENEY (of Counsel) Instructed by: Messrs Eversheds Solicitors Sun Alliance House 35 Mosley Street Newcastle Upon Tyne NE1 1XX


 


HIS HONOUR JUDGE H WILSON

1. This has been the hearing of the full appeal by the Appellants against the decision by the Employment Tribunal that their selection for dismissal by reason of redundancy was not unfair. We have been assisted by the Skeleton Arguments put in by Ms Omambala on behalf of the Appellants, and by Mr Sweeney on behalf of the Respondent College, and further assisted by their amplification of the points they wished to rely on in oral argument this morning.
2. The Appellants claim that they were unfairly selected for dismissal by reason of redundancy because it was impossible to establish the basis of their selection. The Respondent's response to that original basis of application was to say that it had used a rational and reasonable selection procedure. They said that their criteria contained objective and subjective elements and aimed at retaining a balanced and appropriately skilled workforce. The criteria were applied by panels of three members who allocated points in accordance with the selection criteria. The results by those panels were scrutinised and verified by the Principal and the Chief Executive and appeals were to be heard by the Board of Governors. Before anything had been done, advice had been taken by the Respondent College from the Association of Colleges, although the Employment Tribunal was anxious and correct in pointing out that it applied its knowledge and understanding of the law, rather than any other source.
3. The upshot of the whole procedure was that the three Appellants were amongst those selected for dismissal by reason of redundancy Ms Omambala, on their behalf, submits today that the manner of conducting the redundancy process was flawed so as to render their selection unfair she relied on two matters: a lack of consultation with union representatives or with the individuals concerned, and the inability to challenge the selection criteria because they were selective and unfair.
4. We start by noting that the hearing before the Employment Tribunal occupied four days and that the Decision of the Tribunal at the end of those four days was reserved. We note also that written final submissions from both sides were solicited, and were submitted, so that those written final submissions formed part of the matters considered by the Tribunal. We also note that it is not disputed that there was a need for redundancies, and that that need had been properly identified by the college. The exclusion of key support staff from the procedure was not a matter which was challenged at any stage in the proceedings. We note finally that a further category of staff, namely nursery staff, were also excluded in the course of discussions concerning the situation.
5. The first notification, formally, was at a joint council meeting on 21 January 1998 when unions and management were present. Thereafter, there were several meetings, all of which are itemised in the extended reasons of the Employment Tribunal. In the course of those meetings, union suggestions for alternatives were considered and the basis on which selection would be made was published on 13 February. This is set out in paragraph 3(e) of the extended reasons. The formal announcement that redundancies were under active consideration was made on the same occasion.
6. Thereafter, on 3 March, the management of the College issued a letter direct to members of staff affected, and that is dealt with at paragraph 3(g) of the Decision which stated:

"On 3 March …a letter was distributed to the staff affected in the five selected areas that 17 staff were to be selected from a pool totalling 131. It further specified the full broad criteria to be used for selection with the maximum scores to be selected for each of the criteria. The final paragraph of the letter stated "If you have any information which you believe may not be on record, that you would like to be taken into consideration because it may influence the panel's decisions, then please write or arrange to see me by Friday 13 March 1998". The letter also stated that "the selection would be carried out by a panel of at least three members of the college management who are able to assess the skills and capabilities of the individuals concerned"."

That letter therefore included an invitation which, if accepted, would have resulted in individual consultation.

7. On 20 March the redundancies were named and the dismissals were also from that date. There was an appeal procedure, which took place in May. The way in which it was conducted is set out in paragraph 3(k) and (l) of the Decision. In particular, it is to be noted that the appeal was heard by the Staff Appeals Committee consisting of five individuals, independent of the college, chaired by the leader of the local borough council. That Appeals Committee received a large number of papers relevant to what had gone before.
8. The Applicants were all represented by their union representative and the complaint was not concerning the fact of redundancies, but that the selection process had been unfair and that consultation had not occurred. The Applicants' cases were then presented individually, and the Chief Executive Officer for the Respondents gave their case relating to each individual, and was questioned by the union representative in relation to each individual.
9. The outcome of the appeals were unsuccessful. The Employment Tribunal, according to its Reasons, went on to consider the individual cases and the fairness of each individual selection by scrutinising the marks which each of the individuals gave to herself. They rejected the claims made in each case and that is a finding of fact which this Tribunal may not go behind.
10. To return to the complaints made by Ms Omambala, first of all, it seems to us that while there was a lack of individual consultation, this case falls within the authority that failure to consult individually is not necessarily fatal to the fairness of a selection process. We think that that is the conclusion we should reach in this case for several reasons which we have already referred to. These reasons are the letter of 3 March and its invitation; the ongoing collective consultation with union representatives during the period leading up to the announcement on 20 March and finally, and most importantly, the opportunities each individual had in the course of the appeal process.
11. It is not so much that the appeal hearing was a re-hearing because, of course, as has been observed, there was not really a hearing in this matter. It was however a re-examination of the whole matter on the basis of all the information upon which the decisions had been reached, and it was clearly an opportunity for any of the Applicants to have voiced matters which they might not have voiced in response to the invitation in the letter of 3 March.
12. For those reasons, and also because it was an aspect considered by the Employment Tribunal as is clear from the contents of paragraph 5(3) of their Decision, we do not accede to the submission that the lack of consultation with the individuals concerned constituted a manner of conducting the process which was flawed so as render selection unfair.
13. Finally, we wish to say this: although the appeal must fail, we observe that any process by which redundancy identifications and dismissals are announced on the same occasion, is almost inevitably insensitive and distressing. In this case, although that may well have been the outcome, we cannot find that it was due to any shortcoming by the Respondent College, and accordingly this appeal must be dismissed.