United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A SEAR (of Counsel) Messrs Thompsons Solicitors Arundel House 1 Furnival Square Sheffield S1 4QL
For the Respondents	MS H WINSTONE (of Counsel) Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


LORD JOHNSTON: This is an appeal at the instance of three employees of the respondents against the decision of the Employment Tribunal that they were fairly dismissed against a background of redundancy and furthermore that none of them were discriminated against contrary to the Sex Discrimination Act 1975.

1. The background to the matter is the fact that the employer respondent is a printing industrialist who proposed to and did in fact replace a number of workers with a new multimillion pound printing machine, the Webb 8. The proposal that was put forward in regard to the inevitable redundancies arising from the situation, was that the current four shift pattern involving a mix of skilled and semi-skilled and unskilled workers should be revamped, so that on each shift, five skilled workers and two semi-skilled workers should operate the new system with no requirement for unskilled workers. It was thus clear, and this is important, that the proposals being put forward by the employer, which were ultimately implemented, were related to the skills of various people and particularly in relation to the fact that there was no further requirement for unskilled workers. As a matter of narrative the tribunal record that the attitude of the union was simply that all the existing employees should be retrained or skills updated and that accordingly there was no need for redundancy.
2. Against that background the tribunal in their decision considered the various procedures that had been carried out in relation to the selection and matrix of the pool that was being put forward and supported ultimately the decision of the employer to make the relevant redundancies. The important paragraph in the decision of the tribunal is paragraph 14, which is the following terms:

"14. The tribunal finds that the circumstances in which the respondent found itself were such that the positions of the unskilled workers fell within that definition and were all potentially redundant. The tribunal is mindful of the case of Safeway Stores plc v Burrell [1997] IRLR 200. The respondent attempted to enter into meaningful discussions and consultation with the recognised union but the union was not prepared to co-operate. The respondent did enter into consultation with the applicants. The pool for selection was a reasonable pool and the selection matrix although inevitably to some extent subjective it contained objective elements and was a fair and reasonable matrix. The respondents procedures throughout were reasonable and the applicants were offered a right of appeal."

3. Before us Mr Serr, appearing on behalf of the appellants, made three separate attacks upon the reasoning or lack of it on the part of the tribunal in their approach to the whole matter and had a separate point in relation to the issue of a comparator, Mr Robbie Jones.
4. We can deal briefly with that last point since we did not ask Ms Winstone, who is appearing on behalf of the respondents to reply to it. The submission was simply that since that particular young man happened to be in the pool which was shared by the other workers, he was a relevant comparator, notwithstanding the fact that he was a trainee. Without taking the matter any further, we consider that the tribunal were at least entitled to conclude that considering the fact that he was a trainee, as such there were not the same or similar relevant circumstances to form a valid case for a comparator in terms of section 5(3) of the Sex Discrimination Act 1975. We therefore consider that there is no substance in this point and the matter will not be considered further.
5. Turning to the real issue in the case before us, which is the extent to which or not the reasoning of the tribunal is sufficient to meet the test that should be applied in relation to what is to be regarded as a proper decision of an Employment Tribunal, we were referred to a number of cases going back, quite properly, to the original benchmarks of Alexander Machinery (Dudley) Ltd v Crabtree [1974] IRLR 56 and Meek v City of Birmingham District Council [1987] IRLR 250. We were also referred to some more recent cases by Mr Serr, namely Levy v Marrable & Co Ltd [1984] ICR 583 and more recently again, against the background of the now relevant European Convention on Human Rights, Marta Stefan v General Medical Council [1999] 1 WLR 1293 and a decision of the Strasbourg Court of Human Rights, Ruiz Torija v Spain [1994] 19 EHCR 542.
6. Ms Winstone did not dispute the basic proposition that was advanced Mr Serr. It was essentially that in any decision of a tribunal of this type, that is to say an Employment Tribunal hearing evidence against a background of legal argument, the decision must be capable for yielding to both sides sufficient reasons as to why they have won or lost, supported by sufficient discussions of the evidence and the reasoning as to why the evidence is or is not acceptable. That is an essential element put forward in the original cases and carried forward perhaps, but no further by the current Article 6 of the European Convention on Human Rights which is now in force. In essence, without trying to lay down any general test, it is essential that the tribunal have shown by their own reasoning the reasons for their decision covering all relevant matters. By way of an addendum in this particular case, we were also referred to certain aspects of the notes taken by the Chairman of the evidence at the Employment Tribunal. We do not consider that it is appropriate step to seek to flesh out the substance of a decision of an Employment Tribunal by reference to what the evidence before it might have been if they, the tribunal, have not in their decision given adequate reasons for their decision, whatever way it had gone.
7. Against that background, Mr Serr had three criticisms. We will deal with them in ascending order of importance. In the first place he maintained that there was a failure on the part of the tribunal to deal with the issues of direct and indirect discrimination, given the fact that these appellants were all female in a context of what was a mixed employment factory. The important position that Mr Serr pointed to was in relation to one class of these workers, which was not the class within which the appellants fell, there was evidence of a blatant act of discrimination in as much as the employer determined not to retrain three women on the basis that "they were likely to be or seeking to become pregnant." There is absolutely no doubt in our minds that this is a discriminatory act, but the question to be determined is whether it was relevant to take that into account in relation to these appellants against the background of the evidence and also whether, in all the circumstances, the tribunal's decision sufficiently produces grounds to justify their rejection of this particular claim. His essential complaint was that the tribunal had not properly addressed the matter and fell below the standard required by the authorities that we have sought to address. On the other hand, Ms Winstone pointed out that the evidence concerning this matter was entirely related to skill and even if by the obvious discriminatory acts or remarks of the employer in relation to the particular women in question, there was, to put it somewhat crudely, a taint or whiff of discrimination in the air, it was not legitimate to carry that forward to the position of the present appellants when the evidence as so found by the tribunal in the substance of its decision indicated that the basis for the selection and action of redundancy was not sex but skill and the inability in economic terms and indeed resources available to the employer to retrain these particular women into the new job.
8. With that submission we agree. That, to our mind is sufficient to satisfy the test that even if there was an element of discrimination in the air, it was not related to the action that was taken by the employer. We therefore consider that there is no substance in these complaints when it comes to the way the tribunal approached the matter, taking a broad view of the decision and not treating it as a conveyancing document.
9. That brings us to what we consider the important point in this case, which was focussed by Mr Serr against the background of Langston v Cranfield University [1998] IRLR 172. That is an important case in as much that it identifies the three criteria that should be applied by an Employment Tribunal in considering the fairness of redundancy processes embarked upon by any employer in that particular situation, the third one of which being whether the employers had taken reasonable steps to find alternative employment for the potential or actual persons being made redundant. There was some dispute between Counsel as to whether or not the substance of the case indicates or requires that it is an absolutely essential part of any decision of an Employment Tribunal always to deal with this particular matter, that is to say whether the employer has taken reasonable steps to find alternative work or whether it is merely something which can feature in considering whether or not the tribunal directed itself to the right question.
10. Our view in that context would be that it must be a question in each case as to how far their issue has to be considered. There is in our view at least a presumption or a prima facie position that it ought to be relevant to the determination as to whether or not the decision to dismiss for redundancy grounds was fair and that while, therefore, it is not necessarily a general rule, if there is no mention in the tribunal's decision in a particular case on the issue of whether the employer did address the issue of alternative work, that at least calls for an explanation for that state of affairs to be gleaned from within the substance of the decision and upon the evidence.
11. In this case, there having been some evidence from the Chairman's notes, apparently in cross-examination, that some steps were taken on behalf of the employer to seek alternative employment, Mr Serr submitted that paragraph 14 of the decision, which we have already quoted, did not, properly looked at, reflect the fact that the tribunal had given consideration to this third question. Ms Winstone who did not appear below and furthermore obviously not responsible for the wording of the decision, sought valiantly to maintain that the phrase "the respondents procedures throughout were reasonable" covered the fact that they had obviously considered the issue of alternative employment. We are quite unable to accept that approach. We think properly read not as a conveyancing document but simply properly read the tribunal were only addressing the first two aspects of the matter, that is to say, consultation and selection. Furthermore, the word "procedure" which indeed would be rather an unusual one to apply also to a process of searching for alternative work, cannot be construed reasonably to cover that fact. We therefore consider that this decision is defective in regard to the fact that, in the context where there was an obvious obligation or duty on the part of the employer to seek, at least in general terms, to discover whether there was a reasonable opportunity for alternative work within the organisation and where some evidence on the point exists, the tribunal has not reached a decision upon it, and it should have done so. That being so, this decision cannot stand and we are going to allow this appeal.
12. The question however is what thereafter should be done. We have a strong reaction against requiring parties to start all over again having regard to expense and we consider that this is one of these rather unusual cases where the proper course to take, in an attempt do justice between the parties is to remit the case back to same tribunal to consider and issue findings upon whether or not, firstly, the tribunal did consider the issue of alternative employment and if so, to give a view as to whether the employer acted reasonably in what he has said to have done on that matter. This will require, as we see it, representation to the tribunal by representatives on the part of both parties, but it will not require and should not, we so lay down, require the hearing of further evidence. If, and we do not know what the answer might be, it is the decision of the tribunal below on reconsideration that the employer did not act reasonably in relation to the third issue, then they would have to reconsider the whole question of the fairness of the dismissal in relation to the decision that currently stands, which we consider would be open for them so to do since this appeal has been allowed on this very limited basis.
13. For those reasons this appeal is so allowed.