United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	RAJEEV THACKER (of Counsel) Messrs Lawford & Co Solicitors 102-104 Sheen Road Richmond Surrey TW9 1UF
For the Respondents	TIMOTHY SEWELL (of Counsel) Messrs Saunders & Co Solicitors 71 Kingsway London WC2B 6ST


 


JUDGE WILCOX: This is an appeal against a decision of the Employment Tribunal to award no compensation following a finding of unfair dismissal. The Employment Tribunal held that the appellant would have been fairly dismissed if a proper procedure had been followed. There is no issue, therefore, as to the dismissal. It was an unfair dismissal and so found by the tribunal applying the proper test in law and giving and full reasons. It is as to the remedy that the appeal and submissions have been focused today. I go straightaway to the grounds of the appeal that are before us.

1. The Employment Tribunal erred in law in that:

(a) it made a finding as to what would have occurred if the respondent had followed a fair redundancy procedure despite the absence of any or any sufficient evidence from the respondent as to the contents of such a procedure;

(b) in any event, in concluding that the appellant would have been dismissed in any event, it adopted the wrong test, namely, whether the actual decision of the respondent was outside the range of reasonable responses rather than conducting an independent investigation of what would have happened if the respondent had followed a fair redundancy procedure.

And then by way of amendment by leave today, further or alternatively, the Employment Tribunal erred in law in that it failed to give any or any proper reasons for its finding that the appellant would have been dismissed if a fair procedure had been followed.

2. The applicant/appellant was employed by the United Bank Ltd and had been so from 15th May 1992 until 23rd October 1998 as a clerk/cashier. His employment initially was at Leeds branch of that bank and he stayed there until it closed. He was earning in the region of £476.87 per month. His take home pay, with allowances, was in the order of £652.00 per month. The initial appointment made it clear that although he was first employed at Bradford, he was liable to be transferred to any branch of the respondent bank in the United Kingdom.
3. In February 1997 a circular was issued in relation to the respondent bank's redundancy criteria. This arose because the bank was in difficulties. It is not necessary to consider why. The criteria for the selection for redundancy were expressed to be performance, willingness to transfer, skills and qualifications, flexibility of the employee, disciplinary record, sick and privilege leave, behaviour and conduct, timekeeping and attendance records and length of service. It was decided that the Bradford branch of the bank could be continued to be open and the Leeds branch was selected for closure. There was a brief meeting with members of the staff and discussions with the management.
4. On 18th May 1998 the Leeds branch closed. It appears that there were initial discussions about voluntary redundancy between the employer and the appellant that came to nothing in the event. The tribunal found that there was a personnel committee meeting on 6th August 1998 and it was that meeting a decision was made that Mr Yakoob, the appellant, should be made redundant. It happens that at about that time the appellant by reason of carrying out his duties packing up records at the Leeds branch, preparatory to removing them to the Bradford branch, suffered some injury and was on sick leave. He was on sick leave until his employment was terminated on 20th October 1998.
5. The tribunal found that the dismissal was an unfair dismissal because the procedures of the bank were not properly followed through. They encapsulate their reasons for that in paragraph 4 of their findings. I will make reference to the findings, because it relates not only to the decision as to the dismissal and its unfairness, it also substantially informs this court as to the view and the steps taken by the Employment Tribunal in carrying on, as they did, after finding unfair dismissal on procedural grounds, by conducting an investigation and concluding that the risk of him being dismissed, had fair procedure been followed, was 100%.
6. I turn to paragraph 4:

" The tribunal has taken the view it has because of our belief that that the decision to make the appellant redundant was actually taken in that committee meeting on 6th August 1998. The consultation follows this and was therefore too late to be meaningful."

I interpolate there that: is a reference to consultation procedures after the decision was taken. They continue:

"Further, the respondent's deliberations were clearly inadequate even if they had preceded this date. They did not address the various criteria referred to in their respondent's redundancy criteria schedule."

They go on to find:

"We have heard evidence as to some of these items [that is the redundancy criteria] but we did not, for example, hear any evidence of assessment of the applicant's own performance. We did hear about his willingness to transfer to other branches. We did not hear sufficient about his skills and qualifications from the respondents (although we did hear a considerable amount from the applicant about that) and about his disciplinary records. [That is a reference to not hearing sufficient about that.] His sick leave was mentioned but nothing prior to the current period of sick leave. His behaviour and conduct were not addressed. Timekeeping and attendance records were not addressed although the length of service does seem to have been taken into account."

They are all factors which relate to the appellant and those criteria and shortcomings in relation to evidence. They go on:

"We heard no evidence at all that any of these factors were considered in relation to the other employees except the length of service of the two members of staff who were full-time members of staff who were staying in the Bradford branch. It is not a question that the respondents had insufficient time to consider these matters, they could properly have done so within the timescale which transpired."

And then a very telling passage:

"There was ample time from the decision to close the Leeds branch in July 1998 to the decision to dismiss or the notification of the dismissal in October 1998 for proper and meaningful consultation and conscientious consideration to have taken place."

The tribunal then go on to deal with a visit by the branch manager of Leeds to the appellant's home address that was too late in the process. They find:

"… we had no information about similar questionnaires being addressed to other employees in the pool who clearly were those staff at the Leeds and the Bradford branches."

Then the tribunal come to this finding:

"We have come to the conclusion that the job being done by the Clerk/Receptionist [at Leeds] could have been a suitable alternative employment for the applicant but the reason we say that the decision of the respondents was not outside the band of reasonable responses is two-fold. Firstly, we cannot necessarily say that it is outside the band of reasonable responses to prefer to keep the members of staff who were actually physically working in Bradford and who were working well as a team together if all other factors were equal. In order to offer the applicant Miss Aslam's job it would have necessary to dismiss her. That was not a decision which we consider to have been incumbent upon the respondents in these particular circumstances, given her qualifications and the temporary nature of her employment. …"

Those basically are the findings as to the procedure and the unfairness of that procedure.

7. It is a question now for this appeal tribunal to consider the effect of those inadequacies of procedure that were found expressly by the tribunal. Various approaches of characterisation can be made as to whether they are 'merely procedural', as to whether they are 'substantial', it was for the Employment Tribunal to consider those matters after finding that the dismissal was an unfair dismissal. The tribunal considered Fisher v California Cake & Cookie Ltd [1997] IRLR 212 EAT, and held themselves entitled to go on to consider the position had the appellant been fairly treated on procedural grounds and had the employers conducted a fair hearing and given him access to the appropriate information the outcome would have been the same? The properly concluded that the tribunal needs to conduct its own investigation and reach its own conclusion.
8. I turn again to the finding of as to the unfair dismissal. It is appropriate to read the whole passage:

"That the applicant was unfairly dismissed by reason of redundancy. However, this was a result of the respondent's failure to carry out a fair procedure. Had they done so the Tribunal's view is that dismissal would undoubtedly have followed and therefore the applicant suffered no loss and there is no Compensatory Award. The applicant's entitlement to a Basic Award has been extinguished by his redundancy payment." [Our emphasis]

9. A tribunal after finding an unfair dismissal may consider further matters. They should consider whether the dismissal would have occurred if a fair procedure had in fact been followed. An employer may adduce evidence to establish that dismissal would have taken place in any event if a fair procedure had been followed. See Boulton & Paul Ltd v Arnold [1994] IRLR 532 at page 535, paragraph 19, a clear example of what is now established law and procedure. In the absence of such evidence, however, it is not the duty of the Employment Tribunal to attempt to consider what would have constituted a fair procedure when deciding whether or not dismissal would have taken place nor how long such a procedure would have lasted.
10. Where there is sufficient evidence for an Employment Tribunal to form its own view as to what would have happened if a fair procedure had been followed, it must make its own independent finding. It is not limited to judging the reasonableness of what the employer would have done, see Fisher v California Cake & Cookie Ltd.
11. However, there are situations when it is not practical for a tribunal to embark upon a consideration of what might have occurred if a fair procedure had been followed. That would depend upon an assessment of the situation, a judgment taken at the time. There is clear guidance as to these matters in the cases that have been cited before this appeal tribunal. I refer firstly to King v Eaton Ltd No.2 [1998] IRLR 686, particularly the passages paragraphs 19 and 21 on page 691. I pick up the passage in the end of paragraph 19. It is where the court is discussing the characterisation of whether a matter is 'merely' procedural or 'substantive' and the use of those terms:

"… it seems to us that a distinction between the 'merely' procedural, and the more genuinely 'substantive' will often be of some practical use, in considering whether it is realistic, or practicable, or indeed 'just and equitable' to embark upon an attempt to construct a hypothesis, enabling one to assess what would have happened, if only it had. If there has been a 'merely' procedural lapse or omission, it may be relatively straightforward to envisage what the course of events would have been if procedures had stayed on track, rather than briefly leaving the track in this way. If, on the other hand, what went wrong was more fundamental, or 'substantive', and seems to have gone 'to the heart of the matter', it may well be difficult to envisage what track one would be on, in the hypothetical situation of the unfairness not having occurred."

And a passage we seek to emphasise:

"It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one simply cannot reconstruct the world as it might have been. It does not seem to us that there is anything very wrong in using the word 'substantive' in connection with this latter situation."

That is a helpful description of how the tribunal should have assessed its role having found that there was in fact unfair dismissal and considering its options thereafter.

12. That decision has been cited with approval in the case of Constantine v McGregor Cory Limited (EAT/236/99 – Unreported), a judgment of the President of the EAT, Lindsay J delivered on 3rd February 2000. There the Appeal Tribunal was considering a similar situation to that in the instant case in that there was no issue as to the unfairness but it was a question in relation to the remedy. In the course of that judgment, at paragraph 31, the President framed a question that seems to us is an appropriate question, for the tribunal to have considered, having found unfair dismissal. After citing with approval the dicta in King, to which I have just made reference, he poses the question at paragraph 31 is this, which I will adapt it for this case:

"31. As we see it, the question for the Employment Tribunal in our case, in the light of the language used in King and using some of that language, becomes this: did the Employment Tribunal in our case have evidence laid before it upon which an Employment Tribunal, properly instructing itself and applying the appropriate standard of proof, have concluded that the unfair departure from what should have happened was of a kind which made it possible to say with some confidence that [the applicant] would in any event have been [made redundant]. …"

That seems to us to be the proper test to have been followed in this case. Was it?

13. It is clear from paragraph 4 of the findings in the extended reasons that the tribunal itself had misgivings, not only as to the 'mere procedure' but what the procedure if properly operated might have brought forth. They detailed them in the manner that I earlier described. It is clear that they found that there were "substantive" matters to use the words of King, that were still open to speculation. Matters that needed answering before a proper and meaningful consultation and conscientious consideration should have taken place. Notwithstanding those expressed misgivings, they nonetheless went on to draw the conclusion, it would seem, that the only pool for the tribunal to consider for redundancy was the appellant and a temporary lady employee who was being employed as a clerk/receptionist at the Bradford branch. It is apparent if one reflects upon the situation that had the queries and questions raised by the Employment Tribunal in paragraph 4 of their own reasons been answered, there could have been a variety of different solutions to the redundancy question as affecting Mr Yakoob in this case. One does not need exhaustively refer to them, but such considerations as a super-numerary employment, and what has been described by Counsel for the appellant as 'bumping', that is perhaps him going to Bradford and one of the senior men in Bradford being appointed to one of the many other places that the Bank had in the United Kingdom. There are possible outcomes had that information been available. I say possible, one does not know at this stage, and the tribunal could not know either, because those essential questions were not answered. What is of particular significance may have been the position of other employees. We saw no evidence of the criteria factors, that I detailed earlier, except the length of service of the two members of staff at Bradford. It seems to us that the proper test, namely the question that I formulated in the light of Constantine, simply was never addressed. In the light of language using King, did the Employment Tribunal in this case have evidence before it upon which an Employment Tribunal, properly instructing itself and applying the appropriate standard of proof, have concluded that the unfair departure from what would have happened was of a kind which made it possible to say with some confidence that Mr Yakoob would have been the subject of the decision that he was. We say no. In the light of the limited evidence before the tribunal, this was a situation where they should not have been embarked upon that investigation. The answer to their own properly posed questions could not be available to them at that stage. They found that the job being done by the clerk/receptionist could have been a suitable alternative for the appellant. It appears that it was never considered in the light of the general matters in paragraph 4 and the wider pool. The determination that the dismissal would undoubtedly have followed, in our judgment, is a perverse decision. It flies in the face of their own findings positing doubt and speculation.
14. We think that the proper course here is to allow this appeal.
15. We have considered the submission on behalf of the respondent that there should be a remission of this case to a tribunal in order to consider not only the assessment of compensation but to also consider the matters that were embarked upon, we find in error, by the original tribunal, that is what would have happened in any event. It seems to us that the tribunal and, indeed, the respondent have already had their chance to have a Polkey reduction. It would not be appropriate, in the circumstances of this case, to have a second bite of the cherry. We therefore conclude that the proper course is to remit this to a fresh tribunal to consider what is the proper compensation on the basis of 100%. We so order.