United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DAVID L REES (Solicitor) Employment Law Advisers Jasmine House Kingston Stert Chinnor Oxfordshire OX9 4NL
For the Respondents	PETER TILLY (of Counsel) Messrs Lightfoots Solicitors 1-3 High Street Thame Oxfordshire OX9 2BX


 


JUDGE COLLINS :

1. This is an appeal against the decision of an employment rribunal sitting at Reading. Their extended reasons were promulgated on 15 March 1999. By their decision the tribunal held that the appellant was dismissed by reason of redundancy, that there was no unfair dismissal and that there was no discrimination against her on the grounds of her sex.
2. The Notice of Appeal received on 28 April 1999 raises one point only which has been argued succinctly on the appellant's behalf by Mr Rees; it is that the tribunal failed to direct itself correctly in accordance with the decision in the House of Lords in Polkey v A E Dayton Services Ltd [1988] ICR 142 and in particular failed to consider the test laid down by Lord Bridge of Harwich at page 162 H to 163 C when dealing with the question of procedural failures in relation to the process of dismissal by reason of redundancy.
3. The relevant facts are that the appellant is now 34 years old. She was a production assistant in the production department employed by the respondents from 1 February 1992 until 6 November 1998, earning some £236 per week. In June 1998 she took maternity leave intending to return to work in late February 1999. Meanwhile, in August 1998 the computer systems in the respondents' business were upgraded as a result of which, as the tribunal held, there was no longer a requirement for a production assistant in the production department. There were six full-time clerical staff in the respondents' business. The respondents worked out a marking system to mark them for their skills. They marked them all and the appellant came bottom of the poll as a result of which she was dismissed.
4. The tribunal held that the appellant was genuinely dismissed for redundancy and that there had been genuine consultation with her about the prospect of obtaining an alternative position. However, they were plainly concerned about the failure to consult her in relation to the original decision to make a dismissal for redundancy and about the basis for selection. In paragraph 10 of their reasons they say:

"We could have had no doubt that it was fair if the respondents had consulted over the initial decision and the scoring, but they did not do so."

5. What is slightly surprising is that the tribunal did not go on to state a clear opinion one way or the other as to whether the failure to consult over the initial decision and scoring was unfair; that question is simply left hanging in the air without any answer. The nub of the tribunal's decision is contained in this paragraph. They say in the last sentence:

"The respondents' actions were those of a reasonable employer, that is not to say that a different employer might not have approached the situation differently, but we could not say that the actions that the respondents took were not those of a reasonable employer."

And in the first sentence of that paragraph a reference is made to the Polkey decision.

6. In our judgment, if the tribunal properly addressed its mind to the questions posed by Lord Bridge of Harwich, they did not make that clear. We set out the relevant passage in Lord Bridge's speech:

"… 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 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. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by section 57(3) [as it then was] is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under section 57(3) may be satisfied."

7. In our judgment it is impossible to tell, from a reading of the tribunal's decision, whether they asked themselves the question posed by Lord Bridge and, if so, what the answer was. If we draw any inference from the second sentence of paragraph 10, it ought to be that the process was unfair and accordingly that there should have been a finding of unfair dismissal. The tribunal would then have had to decide what compensation, if any, it should award to reflect the prospects of the appellant retaining her employment, if there had been proper consultation about the original decision and the scoring process. But we do not find sufficient material in the judgment for us to be able to substitute a decision that the appellant was unfairly dismissed for the tribunal's decision that she was not.
8. In these circumstances the appeal will be allowed and the case remitted to the same tribunal for a further hearing to determine the question of unfair dismissal, in the light of the citation from Lord Bridge's speech which we have made and, if the tribunal concludes that the procedural unfairness rendered the dismissal unfair, for the tribunal then to consider what compensation, if any, to award the appellant for that unfair dismissal.