United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R MOORE (of Counsel) Messrs White & Bowker Solicitors 20 Brunswick Place Southampton SO15 2AQ
For the Respondent	MS S WILSON (Solicitor) Messrs Allen & Overy Solicitors 1 New Change London EC4 9WQ


 


MR RECORDER LANGSTAFF QC:

1. In a decision, the Extended Reasons for which run to 14 pages of closely typed text, the Southampton Employment Tribunal on 18 August 1999 rejected claims by Miss Hailwood:

(1) that her former employers had unfairly dismissed her;

(2) that they had discriminated against her on the grounds of sex; and

(3) that they had discriminated against her on the grounds of disability. She appeals to this Tribunal by leave of a Tribunal presided over by His Honour Judge Smith on a number of grounds that relate to the rejection of her claim for unfair dismissal, and in respect of one point that relates to her claim that she was discriminated against on the grounds of sex.

2. The Appellant's claim of unfair dismissal arose out of the circumstances of her selection for dismissal by reason of redundancy. She occupied a supervisory position within the UK Service Department of the Respondent. There were four others in that department who were junior to her. They occupied posts at a level from which the Appellant had been promoted only some 15 months prior to her dismissal. She had trained some of them. She supervised all of them. The effect of what was about to happen was that their services were retained, whilst hers were not.
3. In 1998, the Respondent addressed the fact that it was making substantial losses internationally. It decided that the UK Service Department was inefficient and needed to be restructured. This involved removing the management structure based in the UK (ie creating redundancies) redistributing some of the functions amongst existing managers in the UK, and managing the department from Germany. Although this decision was taken in August 1998, the first the UK Service Department knew of it was on 23 October 1998. Within a fortnight, the Appellant was dismissed.
4. Seven days after telling the Service Department staff that redundancies might occur, the six employees in the department were told that there would be three new positions in the UK, and a fourth as a sales executive for Africa, in place of the original six. All would, in effect, be dismissed but invited to apply in a closed selection process for those posts.
5. Although there were job descriptions for each of the new posts, no explicit criteria for selection were ever promulgated. The process of selection was that four managers would each, individually, interview each candidate for each post, and then would meet to compare notes. The candidate found to be the best by all four managers for each post would be selected. This was a system of selection for redundancy which the Employment Tribunal understandably found novel.
6. The interviews took place on 4 November 1998. In the four days immediately preceding those interviews, two of the managers who were to conduct those interviews discovered that the Appellant had retained at her desk a number of credit notes which had not been passed into the Respondent's accounting system. They concluded that this was either because of inefficiency on her part, or had been done to make it appear that there had been greater profit from the operations than would have been the case had the credit shown on the notes have been entered, and thereby enhance her bonus position. The Appellant was never asked for any explanation nor told that these two managers had made the discovery they had, and had drawn adverse conclusions.
7. Further, one of those managers, Ms Whitworth had on 30 October (therefore again within 4 days of the interviews) come to know of the fact that the Appellant had upset a customer of the Respondent by telling him that the Respondent no longer had a Service Department. This, too, was not put to the Appellant at any stage prior to the decision being made to prefer others for the posts on offer.
8. The case for the Respondent was that at the discussions which followed the interviews, the consistent theme seemed to be that the Appellant did not have "the aptitude, maturity, management skills, motivation, planning and organisational skills necessary for the positions when compared to the successful candidates".
9. This was despite the fact that she, Miss Hailwood, had in fact been the manager and organiser within the department, and the others had not, and had been promoted to that position from the same level as the others within the previous 15 months.
10. Just before the events we have described, the Appellant had become aware that she was pregnant. She informed Ms Whitworth formally of this and a note was made in the personnel file on 29 September 1998, in which the Appellant said that she expected to take maternity leave in the following Spring but thereafter return to work. The Employment Tribunal accepted that none of the managers other than Ms Whitworth knew of this, and that Ms Whitworth had been asked by the Appellant to keep it confidential.

The Appellant's Case

11. In the light of these facts, Mr Moore for the Appellant argued:

(1) that there had been a failure to consult in any meaningful way;

(2) that the assessment made by the four interviewing managers was totally subjective;

(3) that the failure to tell the Appellant of the discovery of the credit notes, or to challenge her as part of the interview process with what she had told a customer, was a breach of the rules of natural justice rendering the procedures unfair;

(4) that the Tribunal in addressing the facts had impermissibly applied the "range of reasonable responses" test;

(5) that the way in which the Tribunal dealt with the influence that the Appellant's pregnancy might have had upon quality of her performance in interview did not sufficiently inform the Appellant why she had lost on that issue, and

(6) that the fact that the Appellant's pregnancy was not enquired into or raised as a reason for the quality of the Appellant's performance in interview constituted unlawful discrimination on the ground of sex against her.

12. In deference to the careful arguments of Mr Moore, we must deal with each argument in greater detail.

Consultation

13. At paragraph 9 (i) of its decision, the Tribunal rejected:

"… the submission of Mr Moore that it is incumbent upon an employer to consult with its employees before taking the economic or commercial decision to make redundancies in case by so doing the employees might provide answers not contemplated by the employer and that a failure to do so amounts to procedural unfairness. The managers of a business are entitled to manage their business and make the economic or commercial decisions which they think appropriate. Sometimes they may get it wrong and, with the benefit of hindsight, make bad decisions. That is not a matter for a tribunal's consideration or comment. In this case the Tribunal is satisfied that [the Respondent] regarded its business strategy as commercially sensitive and concluded it was not in its best commercial interests to disclose in August 1998 that it was considering reorganising its UK service department and that redundancies might result. It was under no duty to consult with its employees at that stage. Once it formulated its policy resulting in potential redundancies, and this was approved or confirmed by its US parent company, it had a duty to consult with those who might be affected. …"

14. Mr Moore argued that the word "incumbent" was used in the sense of moral obligation (he had earlier been recorded as submitting that the well-known principles in Williams v Compair Maxam Ltd [1982] ICR 156 were applicable, but were not "set in stone", and that therefore when that view is coupled with the view that deciding not to consult upon economic or commercial decisions was not a matter which a Tribunal would consider or comment upon, this shows that the Employment Tribunal took an impermissibly restrictive view of its functions).
15. It is worth repeating the five principles set out as guidelines in Williams v Compair Maxam:

"(1) The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

(2) The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

(3) Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

(4) The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

(5) The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment."

(Miss Hailwood complained in her Notice of Appeal not only about the apparent breaches of each of the principles (1) to (4), but also that the Respondent had failed to offer her alternative employment: but at the hearing of the appeal that ground was withdrawn).

16. Given that the Respondent knew in August of impending redundancies, principle (1) was, Mr Moore submitted, hardly satisfied by informing employees on 23 October of this fact.
17. Paragraph 9 (i) of the Employment Tribunal decision continued, beyond the portion we have already cited, to demonstrate that there had been no consultation of the sort described in principle (2). The Employment Tribunal said:

"… the need for consultation was with regard to redundancy or loss of employment consequent upon reorganisation. This [the Respondent] did. It held a general meeting on 23^rd October when it disclosed its plans. The service department were consulted on the 30^th October and particular attention was paid to Miss Hailwood by Ms Whitworth immediately after the close of the formal meeting. Her position was also discussed with her by Ms Whitworth prior to the interviews on 4^th November. …"

18. We think there is considerable force in Mr Moore's complaint that the Tribunal were here describing a process of information as to a decision which had already been taken. There is no trace within the Decision of any management proposal having been modified as a result of the "consultation" of 30 October.
19. Mr Moore sought to buttress his argument as to the content of fair consultation by reference to section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. This, in words derived from EC Directive 75/129 (the Collective Redundancies Directive) require that consultation should take place, describe (section 188 (2)) what that consultation should consist of, and specify that it should be undertaken "…with a view to reaching agreement with the appropriate representatives (of the employees)". He did not need to look to this statutory provision for assistance, since the Employment Appeal Tribunal has indicated a view as to the elements of fair consultation where (as here) there is no statutory requirement as such for it, and where it relates to redundancies affecting less than 20 employees. In Rowell v Hubbard Group Services Ltd [1995] IRLR 195 the Employment Appeal Tribunal adopted the definition of consultation which had earlier been proffered in the judicial review context by Hodgson J in R v Gwent County Council ex-parte Bryant [1988] COD 19:

"Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(c) adequate time in which to respond:

(d) conscientious consideration by an authority of the response to consultation."

20. This definition had been applied by the Divisional Court in R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and others [1994] IRLR 72 (a case relating to mine closures and consultation under statutory provisions particular to that industry), but also in the employment context by the Court of Session in King v Eaton Ltd [1996] IRLR 116.
21. In Mugford v Midland Bank Plc [1997] IRLR 208, Judge Peter Clark, giving the judgment of the Employment Appeal Tribunal regarded Rowell v Hubbard Group Services Ltd as the high watermark of recent decisions, but did not dissent from its view of consultation. Accordingly, Mr Moore could submit that the consultation in this case fell short of the standards reasonably to be expected.
22. Ms Wilson, for the Respondent, points to the finding of the Employment Tribunal, at paragraph 7 (vii) that consultation about redundancy did, indeed, occur. The Tribunal took the view that it was unrealistic for the Appellant to have been consulted in August about the commercial / economic reasons leading to the decision to make redundancies, in the hope that she might have made suggestions which had eluded management which might have avoided the need for those redundancies, given that they were being considered on a global scale about which she was unlikely to have a useful perspective. They accepted that this was a case in which there could be little advance warning of impending redundancy because of the particularly sensitive commercial nature of the decision. Adopting Mr Moore's summation of consultation as meaning a "meaningful dialogue capable of influencing the final result" that is, she said, what the Tribunal found had in fact happened.

Lack of Criteria

23. The Tribunal, having described the process of universal dismissal and selective re-engagement to new posts as "novel" nonetheless concluded that on a broad brush, pragmatic and not over-legalistic view of what had happened, there had been a pruning of a department of five to three. This involved divesting the Respondent of two of five former members of the department, a process which it had decided to perform by concentrating on the positive factors which would best benefit its business in the future. Thereby, the Respondent set out to select the three, out of the five contenders, who were regarded on merit as best meeting that aim. The Tribunal went on to say, at paragraph 9 (f)

"…4 managers of [the Respondent] conducting separate interviews … each had their own individual practices for conducting interviews and from the notes of those interviews there was nothing unfair or inappropriate about the way those interviews were conducted. The Tribunal might not itself have conducted the matter in a similar way. Other employers might have adopted different practices, but there was nothing inherently improper or unfair about the practice adopted by the Respondent and, in the Tribunal's view, it falls within the bounds of that which might be undertaken by a reasonable employer acting reasonably in similar circumstances. …"

24. Mr Moore emphasises that the second principle in Williams v Compair Maxam calls for criteria which must be capable of being scrutinised. They need to be apparent, transparent, and objective. He complained that the job descriptions did not include any more than the most rudimentary suggestion as to the personal characteristics that might secure one applicant preference over another, and that the letter notifying the Appellant of her lack of success at the interviews was no more explicit, thereby failing to illuminate the darkness which, from her perspective, surrounded the whole process.

Natural Justice

25. Paragraph 9 (h) of the Employment Tribunal, Mr Moore argued, contains an inconsistency. It says, at the start:

"… It is clear that both Mr Verma and Ms Whitworth gave some adverse consideration in their assessment of Miss Hailwood to their perception of her reasons for withholding credit notes. … Ms Whitworth also took into consideration Miss Hailwood's response to a customer without giving her an opportunity to comment. …"

Later in the same paragraph, the Tribunal says:

"… whilst it was an error of judgement by Ms Whitworth not to give Miss Hailwood an opportunity to answer the two criticisms held against her, these criticisms did not have a material effect on Ms Whitworth's decision not to select Miss Hailwood for one of the new positions. …"

In respect of Mr Verma, the Tribunal said:

"The Tribunal also criticise Mr Verma for not raising the credit note issue with Miss Hailwood. The Tribunal is satisfied however that this negative factor was not material in the decision making process of Mr Verma. He made his choice based upon what he perceived as the positive factors and abilities displayed by the various candidates and he judged others to be better than Miss Hailwood rather than making a decision based upon negative factors. …"

The Tribunal also indicated that Ms Whitworth's preference for others was based upon their positive attributes and that the negative influence, in Ms Hailwood's case, of the credit note and the customer incident was not decisive in any way.

26. Thus, the Tribunal appeared to have accepted that two of the four decision makers gave "some adverse consideration" of these incidents in the process of their assessment, at competitive interview, of the best qualified candidate. Yet the Tribunal also suggested that this consideration had "no material effect" on the decision (in Ms Whitworth's case) and "in the decision making process" (in Mr Verma's case).
27. "Material" may mean "decisive", or it may mean "influential", or even something that cannot be ignored as completely trivial. It is not clear which sense the Tribunal intended. The defects were amplified, in Mr Moore's submission, by the way in which the Tribunal addressed the question it had to answer, having found a denial of the principles of natural justice and potential seriousness (in its own words) from the procedural defects we have outlined. It posed the question in these terms:

"[The Tribunal] has to ask itself whether on the evidence before it this defect in procedure either did or might reasonably have affected the result and but for it whether Miss Hailwood might reasonably have been selected for one of the posts on offer. This is perhaps the most difficult decision in this case as there can be by its very nature no clear and positive answer."

The conclusion which the Tribunal reached was expressed at the end of the same paragraph in these terms:

"… whilst it is right to criticise the Respondent over its handling of this issue, when taken in the round, this defect in its procedure did not make a material difference to the result and does not turn an otherwise fair dismissal into an unfair one."

Mr Moore pointed out that this appeared to repeat the fundamental error of British Labour Pump Co Ltd v Byrne [1979] IRLR 94, which had been identified by the House of Lords in Polkey v A E Dayton Services Ltd [1987] IRLR 503.

28. Miss Wilson, for the Respondents, had no clear nor cogent answer to the apparent inconsistency, but argued that the factual situation in Polkey was such that that authority could be distinguished. In Polkey, she submitted, there had been no consultation. The Tribunal were wrong, in that case, themselves to speculate as to what the employer's decision would have been had the appropriate consultation taken place. The position in the present appeal was different: the Employment Tribunal had, instead, asked itself how much a part of the decision to dismiss the matters complained of had been, and did not attempt to resolve the issue as to what would have happened had the allegations about Miss Hailwood's conduct been put to her, as they should have been.

The Reasonable Responses Test

29. In reviewing the process of selection, the Employment Tribunal concluded that:

"Other employers might have adopted different practices, but there was nothing inherently improper or unfair about the practice adopted by the Respondent and, in the Tribunal's view, it falls within the bounds of that which might be undertaken by a reasonable employer acting reasonably in similar circumstances. The Tribunal concludes that the selection for termination whether it was for redundancy or some other substantial reason was fair, reasonable and equitable on the facts of this case."

Mr Moore argued that the Employment Tribunal had adopted a test akin to perversity which by virtue of the combined effect of Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672, Wilson v Ethicon Ltd [2000] IRLR 4 and Midland Bank Plc v Madden [2000] IRLR 288 was impermissible. Mr Moore's reasons for thinking that the Tribunal had posed itself what was effectively a perversity test were that the Tribunal "probably" viewed the case as being borderline fair / unfair, and certainly observed that both it and other employers might have handled matters differently, described the Respondent's approach to the redundancy situation as "novel", and criticised the Respondent for not putting to the Appellant the various allegations against her in respect of the credit notes and customer incidents. A tribunal was bound, he submitted, in approaching section 98 (4) of the Employment Rights Act 1996 to consider first how it would have behaved as a reasonable employer, and then have judged the conduct of the Respondent. Here, they gave no consideration to this.

Pregnancy

30. Before the Tribunal, the Appellant, as one of a number of complaints of sex discrimination, argued that her employers had failed to take into account that the reason for the Appellant's apparently poor performance in job interview may have been pregnancy-related.
31. The Tribunal dealt with that submission in a short paragraph:

"The Tribunal has found as a fact that Mr Johnstone, Mr Verma and Mr Braechtken [three of the four interviewing officers] were unaware of Miss Hailwood's pregnancy at the time of the interviews on 4 November 1998. Her pregnancy therefore cannot have been a factor influencing their decisions not to select her for one of the new posts. Ms Whitworth was aware of the pregnancy but the Tribunal is satisfied on the evidence that Ms Whitworth was sufficiently professional in her attitude to ignore or discount it from her decision and that it did not influence her in any way. The Tribunal also rejects the suggestion that Ms Whitworth's failure to consider that pregnancy may have accounted for Miss Hailwood's lack-lustre performance in interview was unfair."

32. Mr Moore argued that on the basis of Meek v City of Birmingham District Council [1987] IRLR 250 the Appellant was entitled to know why she had won or lost. When the Employment Tribunal gave its conclusion as to an aspect of the submissions made to it, it must, he said, give a rationale for it – otherwise it was impossible for the decision to be reviewed at an appellate level. The passage we have cited did not, he said, give reasons either for the acceptance or rejection of this plank of her case.

Sex Discrimination

33. The same facts gave rise, Mr Moore submitted, to a failure properly to deal with allegations that the Appellant had been discriminated against on the ground of her sex. It was plain, he said, that no consideration had been given to the obvious possibility that it might have been pregnancy that had caused her lack-lustre performance at the job interviews. Knowledge that she was pregnant might have triggered an enquiry. It might have led to the revelation that pregnancy was indeed the reason for her surprisingly poor performance. Although Mr Moore acknowledged that Ms Whitworth had specifically been asked by the Appellant to keep confidential the fact of her pregnancy, he submitted that she should have told the Appellant that it was in her interests that the other interviewers should be told of that condition in case it might affect her.

Conclusions

34. We shall set out our conclusions on each of the main planks of the appeal, although we have not lost sight of the fact that there is an inter-relationship between them. The failure to consult, if such it was, may have prevented a reconsideration of the novel interviewing procedure with its apparent lack of objective criteria, and the adoption of objective criteria might have enabled the Tribunal to see whether the unresolved issues as to the credit notes and customer had indeed played any part in the deliberations of the interviewers.
35. It should also be noted that (save only in respect of the argument relating to Haddon v Van Den Bergh Foods) perversity has not been argued before us.

Consultation

36. In Mugford v Midland Bank Plc [1997] IRLR 208, Judge Peter Clark reviewed the state of the authorities as to consultation, and it would serve little purpose for us to re-visit the same exercise. At paragraph 41, in his judgment, he pointed out that:

"It will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy."

37. The present was not a case of the absence of any consultation, as Miss Wilson pointed out: the Tribunal found that warning the workforce on 23 October of impending redundancy, discussing the proposals on 30 October, and holding themselves open for individual approach between 23 October and 4 November and, indeed, then discussing her personal position with Miss Hailwood amounted to consultation.
38. We thought there was considerable force in Mr Moore's criticism of the nature of that consultation, and that it might properly have been described as more of a fait accompli than a process of discussion that might make a difference.
39. All the authorities emphasise the importance of consultation. We endorse such views. However, we have to remind ourselves that there is no statutory requirement as such that there must be consultation, or as to the form which consultation should take (at least in the case of a redundancy involving five employees as did this). The question that a Tribunal has to address is that posed by section 98 (4) of the Employment Rights Act, namely that:

"(4) …the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

40. That was the question which the Employment Tribunal here asked itself. It answered that question, so far as consultation is concerned, by concluding as a fact that there was consultation about redundancy or termination consequent upon reorganisation, and that in the circumstances of this case such consultation was adequate (paragraph 9 (i) of their Decision). In reaching that view, the Tribunal had formed favourable impressions of the Respondent's witnesses and their approachability, and their reasons for consulting as and when, and in the style that they did. Although it must be regarded as exceptional – indeed, even highly exceptional – that consultation to the limited extent and of the limited nature in such a case as this will ever be found to meet the statutory test in section 98 (4), we cannot say that the finding was one which it was impermissible for the Employment Tribunal to reach.

Criteria

41. The process by which the necessary redundancies were effected was subjected to the caustic comment from the lay members of the Employment Appeal Tribunal during the hearing that, on the Respondent's arguments, it was difficult to envisage that a process by which four decision makers separately interviewed applicants, without predetermined criteria, could ever be held to be unfair. However, material to any evaluation of such a system must be the Employment Tribunal's view of the interviewing officers, and whether they had indeed applied themselves fairly and reasonably to the issues they faced. The Employment Tribunal drew favourable conclusions about each of them. It was entitled to come to the conclusion it did that there was nothing inherently improper or unfair about the practice adopted, and that the selection for dismissal by reason of redundancy was fair, reasonable and equitable. The Employment Tribunal observed in passing that it might not itself have conducted the matter in a similar way: and any employer who adopts a similar practice in the future should appreciate that any tribunal will look long and hard at such a practice and that he will be vulnerable to a finding that any resultant dismissal is unfair. For the reasons we have given, however we cannot interfere with the decision of the Employment Tribunal under this head.

Natural Justice

42. The way in which the Tribunal dealt with the procedural unfairness which it identified gave us the most cause for concern. The inconsistency in paragraph 9 (h) was such that we were tempted at one stage to remit the case for further consideration by another Employment Tribunal. However, we have to be careful to read a Decision as a whole. On that approach, what the Employment Tribunal was saying, at paragraph 9 (h) of its Decision, was that although two out of the four interviewing officers took note, as against the Appellant, of the issues in relation to the withholding of credit notes, and one of them in respect of the customer incident, those criticisms were immaterial to the decision made as to success or failure in job interview. The Employment Tribunal was satisfied that those decisions were reached fairly and properly on merit.
43. Nor did we consider that, in the light of our view as to that which the Employment Tribunal was deciding, Polkey v A E Dayton Services applied so as to require a finding that the dismissal was unfair by reason of procedural defect.
44. The Employment Tribunal might have taken any one of three views of the effect of knowing of, but failing to deal in the interview with, the complaints against the Appellant. It might have concluded that the interviewing officers took no account at all of those matters, and dismissed them totally from their minds in reaching the decision which they did. Had they done so, plainly Polkey would not have applied to render such a dismissal unfair: for the fairness would have to be judged against the reasons that were in fact operative, and not reasons that were not. Alternatively, the Employment Tribunal might have found that the criticisms of the Appellant were decisive. Had it done so, it would have had to conclude that the dismissal was unfair – for it would not then be entitled to ask the question "did it make a difference?", because that would involve speculation as to what might or might not have been said to the employer, and as to what the employer's reaction to that might or might not have been. That (on the authority of Polkey) is relevant to compensation, but not to fairness. The third alternative is in effect this case: the employer took some account of the complaints, but they did not as it happened make any difference to the decision which was in fact reached. This third position is, in our view, akin to the first situation. It requires no speculation from the Employment Tribunal as to what might have been a different result had there been a fair procedure. Instead, the Tribunal were finding in effect that even if one assumed that the fairest of procedures had been used in respect of the criticisms of the Appellant, and she had given the most favourable answers imaginable, nevertheless the other considerations evaluated by the employer at the time would have resulted, and did, in her dismissal. This involves no impermissible speculation as to whether the result would or might have been different. The reasons for dismissal were not those an employer might have thought of, or would probably have thought of, but reasons the employer actually did have for acting as the employer did. As Ms Wilson pointed out, Polkey emphasises that it is "what the employer did that is to be judged, not what he might have done" (per Lord Mackay of Clashfern).
45. Accordingly, despite the procedural unfairness which the Tribunal identified, it was still entitled in applying the provisions of section 98 (4) to come to the conclusion which it did, adverse to the Appellant.

Reasonable Responses Test

46. In Haddon v Van Den Bergh Foods Mr Justice Morison set out the question for a tribunal in the following terms:

"First, the question for the tribunal is the reasonableness of the decision to dismiss in the circumstances of the particular case having regard to equity and the substantial merits. Because the tribunal are applying an objective test, that is, a test of reasonableness, it is not sufficient for them simply to say 'well, we would not have dismissed in those circumstances'. They must recognise that, however improbable, their own personal views may not accord with reasonableness. Just asking 'what would I have done?' is not enough. However, it is neither reasonable nor realistic to expect the objective question to be asked and answered without the members of the tribunal having first asked 'what would we have done?' And provided that they do not stop there, we see nothing wrong with that approach.

The mantra 'the tribunal must not substitute their own decision for that of the employer', is simply another way of saying that the tribunal must apply the reasonableness test by going somewhat further than simply asking what they themselves would have done. It is likely, however, that what the tribunal themselves would have done will often coincide with their judgment as to what a reasonable employer would have done. The tribunal is, after all, composed of people who are chosen to sit as an industrial jury applying their own good sense of judgment. The task of the tribunal is to pronounce judgment on the reasonableness of the employer's actions and whenever they uphold an employee's complaint they are in effect 'substituting their own judgment for that of the employer'. Providing they apply the test of reasonableness, it is their duty both to determine their own judgment and to substitute it where appropriate.

The second point simply recognises that there may be cases where a decision not to dismiss would be reasonable and a decision to dismiss would also be reasonable. … The mantra 'the band or range of reasonable responses' is not helpful because it has led tribunals into applying what amounts to a perversity test, which, as is clear from Iceland itself, was not its purpose. The moment that one talks of a 'range' or 'band' of reasonable responses one is conjuring up the possibility of extreme views at either end of the band or range. In reality, it is most unlikely in an unfair dismissal case involving misconduct that the tribunal will need to concern itself with the question whether the deployment of each of the weapons in the employers' disciplinary armoury would have been reasonable. …. There is a danger of tribunals testing the fairness of the dismissal by reference to the extreme."

47. Midland Bank Plc v Madden [2000] IRLR 288 is not on all fours with Haddon so far as the ability of the Employment Appeal Tribunal to disregard the test of the "range of reasonable responses" is concerned. However, on those matters which are central to the decision in Haddon, Mr Justice Lindsay in Madden endorses and develops the central Haddon points, implicit in the passage from that case which we have cited above. In particular, in the summary contained in Madden, it is re-emphasised that a tribunal is free to substitute its own views for those of the employer as to the reasonableness of a dismissal as a response to the reasons shown for it, and that Haddon correctly pointed to the danger of treating the "range" as one which extended so far as to leave only perversity outside it.
48. Since hearing argument in this case, the Court of Appeal has on 31 July handed down judgment in Foley v Post Office, which repeats that a Tribunal is to apply the "range of reasonable responses" test, and must not substitute its own preferred decision for that of the employer. This is binding on us.
49. An Employment Tribunal which concludes that it would itself have made different decisions from those of the employer may, but need not necessarily, find a dismissal to have been unfair. It must apply the statutory test and take the approach indicated in Foley v Post Office. On appeal, its decision will be scrutinised for evidence that it has done so. In the present case, the Tribunal did not even go so far as to say that it would have made a different decision. It has, in our view, identified the correct, statutory, test and applied it. There is nothing in the language the Tribunal used to suggest it was applying a test equivalent to one of perversity. The factors identified by Mr Moore fall some way short of persuading us that it did.

Pregnancy

50. We reject the suggestion that the decision of the Tribunal was such that the Appellant did not know why she had lost. Meek v City of Birmingham District Council does not require that every single argument addressed by Counsel to an Employment Tribunal must be separately identified, analysed, and answered in its Extended Reasons. Still less does it require this when the issue for the Tribunal to consider is the statutory one under section 98 (4) of the Employment Rights Act 1996. The failure of Ms Whitworth, who knew of the pregnancy, to consider that it might have accounted for Miss Hailwood's lack-lustre performance is to invite the question whether there was any evidence as to the reason for that quality of performance. None appears. At best, therefore, the Appellant's point here was tenuous.

Sex Discrimination

51. To succeed here, the Appellant has to show that there was an omission in her case (a failure to ask if she was pregnant, and that that might have caused her lack-lustre performance; alternatively a failure to inform her that she should permit the other interviewers to know of her pregnancy in case it might affect their evaluation of her performance) which there would not have been in the case of a man, and that this omission was on the ground of her sex. Even if one were to assume less favourable treatment (on the basis that there could be no similar omission in the case of any man, because pregnancy is a uniquely female condition) it would still have to be shown that the failure to ask the Appellant if pregnancy had affected her condition, or to consider it, or to offer her advice that she should reveal her condition to the interviewers was on the ground of her sex. Since the Tribunal knew that three of the four interviewers were unaware of the pregnancy, they could hardly be blamed for any failure to consider the possibility, nor would it be a failure on the ground of her sex. So far as Ms Whitworth is concerned, the Tribunal found both that she was asked to keep confidential the fact of pregnancy, and did so, but also (as a fact) that the pregnancy did not influence Ms Whitworth in her decision. So far as she is concerned, therefore, there is both a reason found for the omission to act as it is said she should have done (and that reason is not that of the sex of the Appellant) and, secondly, a finding that no detriment flowed from it.
52. We therefore reject this ground also.

Overall Conclusion

53. We are grateful for the careful and thorough arguments of Mr Moore. It may be rare that a dismissal will be found fair where the process of consultation, and of selection, is as it was in the present case, particularly in the presence of procedural defects such as those he has identified. Any employer adopting such a course can expect a critical evaluation of its conduct by an Employment Tribunal. However, in this case, whatever our sympathies might have been, Mr Moore has been unable to demonstrate an error of law in the Tribunal's decision. Accordingly, we have no option but to dismiss this appeal.