At the Tribunal | |
Before
HIS HONOUR JUDGE WILKIE QC
MR D CHADWICK
MS B SWITZER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR ROY LEWIS (Of Counsel) Instructed by Messrs Michael Scott & Co Solicitors 27 Brittania Street London WC1 9JP |
For the Respondent | MR JAMES TAYLOR (Of Counsel) Instructed by Messrs Steele Raymond Solicitors 43 Richmond Hill Bournemouth Dorset BH2 6LR |
JUDGE WILKIE QC
"We have asked ourselves whether in this case the balance that has been struck is such that the respondents discharged their obligations or not. The respondents say they have; the applicants say they have not. There is evidence that the applicants had indicated to the employers that they wished the union to negotiate on their behalf and put forward their representations. We do not think that that would necessarily absolve an employer from the obligation to carry out individual consultation. In particular, as to the detail of an individual's skills and experience, the individual is clearly likely to be far better placed than the union to explain exactly what his particular strengths and weaknesses may be. We have given this careful consideration, and have come to the conclusion that on this occasion, this employer carried out adequate consultation with the applicants. We are satisfied that the respondents had made known to the union representatives the restructuring that they proposed to carry out, the way they proposed to carry it out and the end result that they intended to achieve. We are satisfied that by discussing on an individual basis with each of the applicants as they did, that they discharged the requirement of individual consultation and for those reasons we would find that the dismissals of Mr Greenwood-Wilson (who is not an Appellant) and Ms Holmes were fair (we would add it is plain that by a slip they failed to refer to Mr Murray as plainly their reasoning applied to him as well)."
"What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self- misdirection in law by the Industrial Tribunal. If it cannot do this it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'"
And in support of this the Master of the Rolls in the next paragraph reminded himself of a previous judgment of the Court of Appeal in the Retarded Children's Aid Society v Day in which the then Master of the Rolls Denning said as follows:
"I would add this. The decision is entrusted in the ordinary way by Parliament to the Tribunal. I do not think it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning. Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and they have not gone wrong in law, it seems to me that the appeal tribunal should not interfere with their decision even though they would themselves have come to a different decision."
And reading further on in the further Court of Appeal decision in Kent County Council v Gilham Griffiths LJ as he then was had said:
"Now whether or not an employer has behaved reasonably in dismissing an employee is a question of fact, and it is a question upon which different people, looking at the same set of circumstances , may reasonably come to different conclusions. It is therefore endemic in a system where there is no appeal on fact that from time to time different Industrial Tribunals will give different answers to broadly similar situations, and neither decision can be challenged. It is therefore important that this court should resist the temptation to seek to overturn a factual decision with which it may not agree by searching for some shadowy point of law on which to hang its hat for the purpose of bringing uniformity to the differing decisions. If it were to take this course, it would have the very undesirable effect of encouraging innumerable appeals which raised no point of law, but depended upon comparative findings of fact."
" (1) Where no consultation about redundancy is taking place with either the trade union or the employee the dismissal will normally be unfair, unless the industrial tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.
(2) Consultation with the trade union over selection criteria does not of itself release the employer from considering with the Employee individually his being identified for redundancy.
(3) 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."