United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR THOMAS LINDEN (of Counsel) Instructed By: Ms Lucy Atherton EEF Solicitor Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR BRIAN NAPIER (of Counsel) and MR TODD (Solicitor) Messrs Hopkins Solicitors Waverley House 37 West Gate Mansfield NG18 1SH


 


MR COMMISSIONER HOWELL QC:

1. There are two issues before us on this employer's appeal, against the decision of the Employment Tribunal that Mr William Kenneth Watson had been unfairly dismissed for redundancy on 14th May 1999 and was entitled to £12,000 compensation. The issues as formulated in the judgment of 1 February 2000 on the preliminary hearing are:

"(1) Whether the majority of the Employment Tribunal erred in law in substituting their own view about suitable criteria for selection and the adequacy of consultation in the procedure adopted;

(2) Whether in quantifying compensation the Employment Tribunal erred in law in not taking into consideration the principles in Polkey v A E Dayton Services Limited [1988] ICR 142."

It was common ground that if the appeal succeeded on either issue, the case would have to be remitted for reconsideration by a further tribunal: in particular because both parties would need to consider in the light of our judgment whether there was further evidence they might be able to adduce on fairness, or compensation, or both.

2. The appellant, Chronos Richardson Ltd, assembles equipment for industrial weighing and materials handling. At the material time in early 1999, it employed some 200 people including works and office staff. Part of the latter was a small purchasing section under a Mr Hubber, the sourcing director, consisting of five buyers including Mr Watson, the applicant. This section was divided broadly between the mechanical side and the electrical side. The most experienced buyers on the mechanical side were Mr Francis, the senior mechanical buyer who had been there 30 years, and Mr Watson who had been with the firm for 12½ years. The electrical side was the responsibility of Mr Wright, the senior electrical buyer, who had exceptional knowledge and skill in that side of the business. The other buyers were Mrs Tuke, who had been with the firm for two years and until January 1999 had mainly worked on the electrical side (she had then been transferred to the mechanical side, to fill the gap left when a sixth buyer had left and not been replaced); and Mrs Lawley, who had been with the firm for one year.
3. For some time trading conditions had been difficult, and in the spring of 1999 the firm's position was worsening. The Joint Consultative Council, at which management and employee representatives met regularly, was told by the managing director at its April meeting that there would have to be reductions in overheads and staff numbers in the indirect manufacturing and administrative areas in order to meet financial targets. For some reason the minutes of this meeting failed to reach Mr Watson in the normal way, and so did a letter the firm sent explaining the position to all staff on 5 May 1999, but he was aware at least of rumours that redundancies were proposed.
4. These impacted on the purchasing section, along with other parts of the workforce. After use of an established standard assessment procedure, the employer decided Mr Watson had to be made redundant. Paragraphs 4 to 10 of the extended statement of reasons sent to the parties on 22 September 1999 set out the unanimous findings of the tribunal on the way the matter was dealt with, as follows:

"4. Following the Joint Consultative Council meeting, Mr Hubber had been told that he would have to reduce the purchasing function by two employees. He decided that that would be one buyer and one secretary. The respondent had had to make a number of redundancies in recent years and, for approximately the last three years, had had a standard assessment form for those redundancies. That form was not agreed with the workforce, but no-one had ever objected to its use. It set out six factors, which would be assessed by someone having knowledge of the operatives involved. Each factor was marked on [a] points system of one to five, and then given different weightings. Five further factors would then be completed by the personnel department, which related to documentary factual matters such as length of service, sickness, warnings etc. All of these factors also had a weighting, but less than the factors which related to performance. Mr Hubber, who was the only person appropriate to assess buyers, completed forms for each of the five buyers. The applicant ended up with 365 points. The next lowest member of the department was Mrs Tuke who had 400 points. The points given by Mr Hubber he gave on the basis of his knowledge of the buyers. We did ask the applicant if he could suggest any reason why Mr Hubber should mark him down because of any personal animosity and he was only able to refer us to an incident in the summer of 1998, when the applicant had asked for a pay increase, which Mr Hubber had not passed on to the director above him so that the applicant had gone above Mr Hubber. There is nothing, however, that we have heard to suggest that the scoring by Mr Hubber was influenced by any personal objection to the applicant and we accept that the scoring was what he believed to be correct.

5. Under the category of "job knowledge/skill", the applicant received four points (which with a weighting of 20 in that category came out at 80 points). Mr Wright, who the applicant accepts was exceptionally knowledgeable and skilled, was given 100% (which is the only 100% mark given); Mrs Tuke got 60 points and the others all 80. For "quality/quantity of work" all of the buyers were recorded as 80. For "flexibility/co-operation", both the applicant and Mr Wright were marked at 60, whereas the others were all at 80. The reason that Mr Hubber did that was because he found that both the applicant and Mr Wright tended to work very much on their own and did not want to move outside their own specialisation. In his view, they were not as willing as the other buyers to help in other areas, including for example answering other people's phones. On "communication skills", he gave everyone 45 points apart from Mrs Tuke who was given 60 (one category above)(, which she got because of her specialised computer skills. Under the category of "effective use of time to achieve results", Mrs Lawley and Mrs Tuke got 30 points and all of the rest, including the applicant, 40.

6. For "team contribution", the applicant and Mr Wright were given 20 points, Mr Francis 30 and Mrs Lawley and Mrs Tuke 40 each. Mr Hubber's reason for that was that, by reducing the number of buyers, the buyers would have to work much more as a team and cover each other's work. There was a proposal that computerisation would be introduced where they would be able to work together more. He marked the applicant low for that because of the way that he worked on his own and was not keen to help other people. In particular, the applicant worked on the batching side of mechanical purchasing. As he himself explained to us, he saw himself as part of a vertical group, being the whole batching team from the manufacturing upwards. Mr Hubber wanted the buying team to be across the range of products as a horizontal team. Mr Wright was also marked low under this category, because he also worked very much on his own and did not want to help others or get involved in other areas of work. Mrs Tuke and Mrs Lawley both received a score of 40, because Mr Hubber felt they would be better able to work in the team. In particular, in relation to Mrs Tuke, although she had not worked on the mechanical side of the business for very long, she had experience on the electrical side and would therefore be useful as cover during any absence of Mr Wright, who otherwise would now be the only person dealing with electrical purchasing.

7. The other areas of points were based on measurable standards. The applicant did badly on his qualifications, as he does not have any formal qualifications and also did badly on absence because he had had more absence in the last year than most of the other employees. In assessing the skill levels of the two shorter-serving members of the team, Mr Hubber took into account the fact that both had previous buying experience with other companies.

8. Once Mr Hubber had completed his scoring, Mrs Monk [personnel officer] added the scores from the personnel records and then there was a discussion between them. Although Mrs Monk was not aware of the capability of the various operatives, she went through with Mr Hubber why he had made the assessment he had, to ensure that he had considered each of the buyers properly. Mr Hubber confirmed to her, as he did to us, that this was largely a matter of ranking people within the five grades. In the six categories, the applicant had received four points for three of them, three points for two and had only fallen below the middle-ranking position in relation to "team contribution", where had been given two points. As a result of the assessment showing the applicant had the lowest score, arrangements were made to see him.

9. The applicant was seen by Mr Hubber and Mrs Monk on 10 May. At that stage he did not know what was going to happen. A script was read by Mr Hubber at the start of the meeting in which he confirmed that orders were reduced, that elements of batching and bagging would be combined and that as a result the applicant had been provisionally selected for redundancy. There was then some discussion about the position, lasting about ten minutes. The applicant was upset and said he would take the matter to a Tribunal. He was given a copy of his personal score sheet. He did raise the question of what scores the two lady buyers had received and was told that the respondent was not prepared to discuss other people's scores. Little otherwise was said at that meeting and the applicant was told that efforts would then be made to see if there were other vacancies available and that he could go home pending further consultation. He was told that the further meeting would probably be arranged for the following Friday and he asked for that to be sent to him writing.

10. The second meeting took place on Friday 14 May with the same people present. There were no suitable alternative positions for the applicant. At the second meeting the applicant did refer to the fact that in the previous year he had made the biggest savings of any of the buyers and asked why that had not been taken into account. He was told it was not part of the assessment process. Other than that, he did not raise any specific issue about the categories or weighting of those categories in the respondent's redundancy system. The applicant in fact had taken the view from the first meeting that dismissal was inevitable. At the second meeting he was given details of the grievance procedure and told that he could appeal under the grievance procedure. He did not do it because he took it that his employment had now ended and there would be no point in appealing."

5. In paragraph 12, the tribunal recorded their (unchallenged and indisputably correct) finding that the reason for Mr Watson's dismissal had been redundancy, and correctly summarised the question for their decision under section 98(4) of the Employment Rights Act 1996: namely whether the dismissal was fair or unfair, depending on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating redundancy as a sufficient reason for dismissing him, this to be determined in accordance with equity and the substantial merits of the case.
6. At this point the tribunal split. The majority held the employer to have acted unfairly in deciding to dismiss Mr Watson as they viewed the whole selection procedure as flawed, and the opportunity for consultation inadequate. The Chairman dissented on both of those issues. Finally, the tribunal addressed the question of compensation and, on the basis of the majority finding of unfair dismissal, unanimously awarded the maximum permissible compensatory award of £12,000.
7. These various conclusions were expressed as follows:

"13. The majority view of the Tribunal is that the respondent acted unfairly in deciding to dismiss the applicant for this reason. In their view, the scoring system that was used by the respondent was more appropriate for the shop-floor rather than someone in an office position and a fair employer would not have applied such a scoring system in this context. The categories used and weightings applied were not sufficiently flexible to match the situation of the applicant, particularly as they did not take account of the fact that he had made the highest savings in purchasing of all of the buyers in the last year. A fair employer would have given the applicant credit for that.

14. Secondly, they consider that the assessment system was flawed because two of the categories substantially cover the same behaviour. The categories of "flexibility/co-operation" and "team contribution" cover the same areas, as is shown by the fact that both the applicant and Mr Wright were the people marked down for those two categories. A fair employer would not have had two categories which overlapped to that extent. They further consider that it is not feasible for a fair employer to have given all the buyers the same marking for "quality and quantity of work", bearing in mind the lengthy experience of the applicant and the much shorter experience with the respondent of Mrs Tuke and Mrs Lawley. They believe that that is also inconsistent with the marking given for "effective use of time to achieve results", whereby both female buyers scored less. In the majority view, if their quality and quantity of work was the same as the applicant, then they must have been expected to get the same score for effective use of time to achieve results.

15. The majority further take the view that the decision was unfair because too short a consultation period was permitted. A gap of Monday to Friday from the initial discussion to the final discussion was in their view too short for the applicant to properly respond. This was particularly so where he did not have the independent advice of a trade union.

16. The Chairman, who finds himself in the minority, would have found that the respondent did not act unfairly. In particular, the minority considers it is important for the Tribunal not to substitute its own views for that of the employer, but to consider whether the employer acted fairly or not. The points system for redundancy selection had been used on many occasions without any challenge. Both the categories and weightings are not out of the ordinary from standards applied generally across industry and, in the absence of specific objection to it, the respondent did not act unfairly in following its standard procedure. In terms of the selection, Mr Hubber in the particular circumstances was the only person qualified to make the assessment and there is nothing to suggest that he took into account any factors which he should not have done. His scoring was what he believed to be right, whether or not he got it right. Although the applicant took the view that he had been dismissed at the original meeting, he was not right in that and could have raised objection to the assessment had he wished. He was given sufficient information to do so, but raised no issue of objection, which would have caused a reasonable employer to re-assess the situation. The applicant's scoring would have had to have been wrong in at least two categories to have raised him above the person getting the next lowest score. The minority therefore takes the view that the decision to dismiss the applicant was not unfair. However, as the majority decision was that the dismissal was unfair, we went on to consider remedy.

17. The applicant did not wish us to consider reinstatement or re-engagement and we looked at the calculation of the losses he has suffered. As the dismissal was a redundancy dismissal and he has been paid his redundancy payment, no question of a basic award arises. The applicant was paid 12 weeks in lieu of employment and we accept his evidence that, at his age, his prospects are not good, particularly so as he is looking for a buying position in engineering, which we know form our experience would be difficult to achieve. The applicant is contemplating re-training, which is likely to take him some significant length of time. Even at the end of that re-training, his job prospects at the level that he was on previously must still remain poor. We think the appropriate period to take to consider his loss would be a period of one year. The applicant's net monthly pay was £937. In addition, he paid voluntary pension payments of £50 a month and had 5% of his pay stopped for his pension contribution. That amounts to £66 a month. The net value, therefore, of his employment with the respondent was £1,053 a month, which equates to £243 a week.

14. The award we make to the applicant is therefore as follows:

3 weeks' loss of pay to date of Tribunal from end of notice @ £243 per week= £729.00

Future loss of earnings for one year – 52 weeks @ £243 a week= £12,636.00

Loss of employment rights = £200.00

Total: £13,565.00

The Tribunal award the maximum permitted, £12,000. The Recoupment Regulations do not apply."

8. A copy of the actual score sheet showing Mr Watson's scores and the selection criteria and weightings used, for him as well as for other employees in this and previous redundancy exercises conducted by the appellant, was before the tribunal and has been added to the appeal papers before us.
9. The case was well and comprehensively argued before us on both sides. On behalf of the employer Mr Linden submitted that the majority had misdirected themselves in the basic question they should have been addressing in judging the issue of fairness. He suggested that, wittingly or unwittingly and as hinted in the Chairman's comment about the importance of the tribunal not substituting its own view, they had strayed over the line: instead of judging the selection system and its application in terms of the possible range for a reasonable employer, they had involved themselves in the merits of the individual result and judged by what their own view would have been in such circumstances. He relied on British Aerospace Plc v Green [1995] ICR 1006, 1009-1010 as authority for saying that the tribunal's only concern should be whether the system and its application fell within the range of fairness and reason, not whether they would have chosen to adopt such a system or apply it in that way themselves; nor was it for them to embark on an over-minute investigation of the selection process, the detailed criteria used or the individual marks awarded. That, he suggested, was what had happened here, as shown by the majority's detailed criticisms of the process. Similarly, their conclusion that "the decision was unfair because too short a consultation was permitted" embodied the same defect as being an expression of their own view rather than an application of the test of the range of reasonable conduct.
10. Further or alternatively, Mr Linden submitted that the unanimous decision on the compensation issue was defective; since despite some mention during the hearing of whether the applicant might not have been bound to suffer dismissal for redundancy in any event regardless of any alleged defects in the selection procedure, and despite the Chairman having referred to this at any rate inferentially in his comment about the gap between the applicant's total marks and the next lowest score, the award appeared to take no account of any possible reduction of compensation in a case of procedural unfairness on the principle in Polkey v A E Dayton Services Ltd [1988] ICR 142.
11. On behalf of Mr Watson, Mr Napier disputed all of these points and submitted that the tribunal's decision should stand. He said in particular that the mere fact a tribunal scrutinises evidence carefully is no indication that they are misdirecting themselves as to the legal tests to be applied to it; there was no ground for any proper inference that in their references to "a fair employer" the tribunal were doing other than applying a proper and objective standard, as the words themselves implied. It was not for the appeal tribunal to pick over the reasoning below on individual points, or the overall conclusion of fact and degree they embodied, which was one for the tribunal of fact to make. It would be quite wrong to take the Chairman's comment about the tribunal not substituting its own views as any indication that the majority might have actually done this: the Chairman would be bound to have advised his non-legally qualified colleagues on the point and would himself have formulated the statement of their reasons, which did not state that a non-objective standard had been applied, and in view of the division of opinion could be taken as the product of particular care: cf. Thames Valley Police v Kellaway [2000] IRLR 170 para 45.
12. On whether the tribunal should have considered a reduction in compensation, Mr Napier pointed out that there was no mention of this being raised as an issue in the respondent's answer to the application before the tribunal, and relied on King v Eaton (No. 2) [1998] IRLR 686 as showing that where, as here, the effective decision of the tribunal was that the whole system of selection for redundancy had been flawed, not just that there was some procedural defect in the way the individual concerned had been treated, there would usually be no escaping a full award of compensation: in such cases evidence or speculation with a view to a Polkey reduction would not rightly be entertained by a tribunal at all.
13. We consider first that we should ignore both sides' suggestions about starting with some initial assumption, either against or for the majority conclusion, from the fact that the Chairman made the comment he did, or from the fact that the decision was a split one. We do not for our part consider that the comment made by the appeal tribunal in paragraph 45 of the judgment in Kellaway cited above can have been intended as, or should be erected into, a general proposition that stated reasons on split decisions are to be given greater weight for that reason alone. That would in our view be absurd, and unfair to the commendably high general standard of decision-writing by the chairmen of employment tribunals, whether divided or unanimous. Our task of deciding if the correct legal test has or has not been applied in this case is in our view to be approached without any particular preconceptions, but by attempting to analyse for ourselves, from a fair reading of their stated reasons, what it is the majority have actually done and why.
14. What the correct test should have been is now placed beyond doubt by recent authority. The issues of fairness and reasonableness in relation to Mr Watson's dismissal needed to be judged by the test of the "range of reasonable conduct", for a reasonable employer in the circumstances facing the appellant in the spring of 1999. Only if the selection system itself, or the way it was applied in Mr Watson's individual case, fell outside that range could his dismissal for redundancy properly be characterised as unfair under section 98(4) of the Employment Rights Act 1996. See Beddell v West Ferry Printers Ltd [2000] ICR 1263, Foley v Post Office [2000] ICR 1283, 1287, reaffirming that well-established principle after the doubts that arose following the decision in Haddon v Van Den Bergh Foods Ltd [1999] ICR 150. The "range" approach is applicable to the systems, procedures and decisions of an employer on a redundancy dismissal just as to misconduct etc.: see Waite LJ's reference to "the range of fairness and reason" in British Aerospace Plc v Green at page 1009H.
15. On whether it was this or some other test that was in fact being applied by the majority of the tribunal in the present case, we find no clear answer merely in the language of paragraphs 13 and 14 of the extended reasons, or the references to "a fair employer". It may or may not be significant that there is no reference whatsoever to a "range" of possible systems that might have been used, or markings awarded, by a reasonable employer; and the respondent's own answer on this appeal referring to the tribunal as having acted in accordance with the principles in Haddon is understandable given the date, but hardly dispels doubt. It is necessary therefore to go to the detailed reasoning and conclusions of the majority themselves as applied to the actual facts.
16. Three reasons are given for the conclusion that Mr Watson had been the victim of a flawed process, so that his entire selection for redundancy was unfair. The first was that the scoring system used was "more appropriate for a shop-floor rather than someone in an office position", because the categories used and weightings applied were insufficiently flexible to match the applicant's individual situation in not taking account of his having made more savings in purchasing than any of the other buyers in that particular year. Second, the majority expressed their view that the assessment system was flawed, because the "flexibility/co-operation" and "team contribution" categories covered substantially the same behaviour, as was shown [our emphasis] by the fact that both Mr Watson and Mr Wright (who each liked to stick to his own speciality, and work on his own) were marked down in both categories. Third, the majority criticised the actual marking awarded for "quality and quantity of work" on the ground that it was "not feasible for a fair employer" to give the same marks for this to employees with longer and shorter experience; and it was inconsistent with the marks given for "effective use of time" where the less experienced buyers scored less.
17. In our judgment, Mr Linden was right in submitting that on each of those three points the majority's stated reasons show them to have been addressing some question other than the range of what might have been done by a reasonable employer. Even if not overtly intending to substitute their own view as to how they would themselves have acted, we think they fell into exactly the error against which tribunals are enjoined by British Aerospace v Green, of allowing themselves to get involved in an over-detailed exercise of picking away at individual aspects of the standard selection system used by the employer and of its application in the particular case: even down to making criticisms of individual markings awarded. Moreover the actual criticisms of the employer's system and its application are not even particularly logical or well-founded. They could not in our judgment reasonably support a conclusion that these fell outside the range of fairness and reason.
18. Specifically, there is nothing in the broadly defined performance categories or the weightings that can be said to make them by nature inappropriate for office employees, or so lacking in flexibility as to make their use for such employees unreasonable. The purpose of having standard assessment forms and criteria of this nature (which had been used before, and as noted by the chairman contain nothing out of the ordinary for industry generally) is of course is to provide as objective and consistent a basis as possible for what must inevitably be a difficult and unpleasant decision for all concerned. It is inherent in the nature of the exercise that the criteria must be capable of being applied uniformly across a broad range of employees, and this inevitably means that they will be expressed as these are in general, not individually tailored, terms. There was nothing in the criteria to prevent Mr Watson's particularly good performance in one aspect of his duties as a buyer in the past year from counting in his favour in at least two categories: "job knowledge/skill" and "quality/quantity of work", each of which carried the heaviest weighting, and for both of which he was awarded the 4-point 80 mark score for "…accomplished more than expected … Performance recognised as contributing extra value". We see no rational ground for holding as the majority did that the whole system was unfair if it did not give special credit for savings achieved by buyers in the past year.
19. Nor do we think it could properly be regarded as unreasonable for an employer to have two separate categories for flexibility/co-operation, and team contribution. We accept Mr Linden's submission that these can be reasonably regarded as measuring two distinct attributes: a person can be very flexible and willing without making so much measurable contribution as others, and vice versa. Similarly the majority's criticisms of the marks awarded for quality and quantity of work and effective use of time appear to us, as Mr Linden submitted, to involve at least one non sequitur: for example a less experienced employee may well work as hard as everyone else, yet a more experienced one may use time more effectively and produce more actual results, so it is far from unreasonable if a different score is awarded for the second category.
20. In our judgment therefore neither the nature nor the substance of the majority's criticisms of the employer's redundancy selection exercise in this case can be consistent with a proper application of the "band of reasonable conduct" approach. We conclude that they must have misdirected themselves in the test of fairness and reasonableness embodied in their references to "a fair employer" and to the results as being "unfair".
21. It necessarily also follows that the decision cannot stand on the alternative ground of the secondary conclusion expressed by the majority in paragraph 15, of procedural unfairness because of inadequate consultation. They could hardly have changed their meaning of fairness between the two paragraphs, and we cannot say that their actual decision on this issue must have been right beyond all argument whatever the test they applied: even though in our judgment the existing findings about the way matters were put to Mr Watson at the Monday meeting and what happened subsequently could have led a tribunal properly applying the correct test to a similar conclusion.
22. For the reasons given above the tribunal's decision on the issue of unfairness has to be set aside. This means that the decision on compensation falls as well, though for the sake of completeness as the question whether a possible reduction should have been addressed was separately argued before us, we record our conclusion on it. This is that had the majority been right in their primary conclusion (that the whole process of selection for redundancy used in this case was so fundamentally flawed as to make the applicant's dismissal altogether unfair, as a matter of substance as well as procedure) there would have been nothing wrong in law in the tribunal proceeding to make a full award of compensation without considering a reduction, on the authority of the decision of the Court of Session in King v Eaton (No. 2) [1998] IRLR 686. (There was no suggestion that this case fell into the small exceptional category identified by Lord Mackay LC in Polkey at page 153F where a decision without adequate consultation may yet be defended as "fair" because the facts are so cut and dried that any consultation at all would have been futile.) Conversely if the dismissal had been unfair only on the secondary ground, of inadequate consultation, it would in our judgment have been necessary for the tribunal to have considered the application of a Polkey reduction as part of the normal process of assessing the loss properly flowing from the actual unfair dismissal found, which on that analysis could hardly have been the 67 weeks' loss of employment used as the basis for the tribunal's award. But given the majority's conclusion on the major issue of the substantive unfairness of the whole process, that did not in fact arise; so the appeal would not have succeeded on that ground alone.
23. In the result we allow the appeal, and set aside the decision of the tribunal in its entirety. We accept the submissions of both sides that there is no alternative to the entire case being remitted for rehearing and redetermination, and accordingly remit the case to a differently constituted tribunal for rehearing and redetermination of all relevant issues. Subject to any further relevant evidence either side may seek to adduce, we consider that the previous tribunal's unanimous findings of fact may quite properly be taken as the practical starting point for the rehearing. It may be also of assistance to any fresh tribunal on a rehearing (or the parties themselves if they wish to consider the possibility of a negotiated solution) if we indicate the views we have ourselves formed on the basis of those existing findings and the material before us. These are that

(1) the minority conclusion of the chairman, that neither the selection process itself, nor its actual application in selecting Mr Watson provisionally for redundancy, had been shown to be unfair in terms of section 98(4) was in our judgment the correct one on the "range of responses" test; but

(2) conversely, the material before us fails to establish to our satisfaction (by that test) that there was in truth an adequate process of consultation here, or any attempt at joint consideration of possible alternatives to the immediate dismissal of Mr Watson.

24. The adequacy of consultation in a given case is of course a matter of fact and degree, for the tribunal to determine: cf. Mugford v Midland Bank Plc [1997] ICR 399. However in our judgment it falls short of an adequate and reasonable standard of consultation for an employee to be told on Monday that he is selected for redundancy dismissal intended to take place on Friday, and then be effectively left with the burden of instituting "grievance" procedures if he wishes further consideration to be given to him in the face of what he understands to be a fait accompli. This is particularly so for an employee in Mr Watson's position with a long record of satisfactory service, to whom the announcement at the initial meeting would obviously have come as a severe blow: and it is also relevant that he did not have the assistance of any representative at either meeting, the only consultative forum having been an internal staff body without the separate expertise an independent trade union could have provided. If reasonable consultation is to mean what it says, it must involve a joint approach to what should be viewed as a mutual problem, not merely having available an adversarial "grievance" process which puts the burden on the employee to justify his own retention. Again, if consultation is not to be futile (and it was not suggested this was such a case) it must acknowledge at least the possibility of realistic alternatives to the immediate dismissal originally proposed, and allow for these to be properly explored. On the present material, the way Mr Watson was dealt with in the week of his dismissal appears to us to have fallen short of the range for a reasonable employer in those two respects.
25. At the conclusion of the appeal hearing before us, each side made a putative application for leave to appeal should our reserved decision on any issue be against them. However the case does not appear to us to involve more than the application of established principle to particular facts, and we do not grant leave to appeal.