United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C SHELDON (of Counsel) Instructed By: The Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR N THOMPSON (of Counsel) Instructed By: Messrs Ward & Rider Solicitors 2 Manor Yard New Union Street Coventry CV1 2PF


 


MR RECORDER BURKE QC:

1. By a decision promulgated with extended reasons on 13^th December 1999 the Employment Tribunal at Birmingham, chaired by Mr. van Gelder, concluded that the Respondent employee, Mr. Radford, had been unfairly dismissed. The employers, LTI Limited, now appeal against that decision; Mr. Radford resists the appeal on the basis of the reasons set out in the Employment Tribunal's decision and on additional grounds set out in his Answer to the employers' Notice of Appeal. We heard full argument from the parties on 8^th March 2001 and reserved our decision; we now give judgment upon the appeal and cross-appeal. We are told that there are 9 other claims similar to that of Mr. Radford and that his case is being treated, informally, as the lead case. We do not know what stage the other claims have reached or whether the individual facts of these cases differ significantly from those of the present case.

The Background

2. The employees are the manufacturers of 'black cab' London taxis; that is their sole product. Until 1997 they had for nearly 40 years produced the familiar model of taxi which required of their workforce traditional coach building skills and the ability to undertake rectification work. In 1997 they introduced a new model which was to be produced by a more modern approach; the demand for traditional skills was reduced; the employees were to work in teams; the need for punctual attendance of all members of the team was increased.
3. The employers recognised for collective bargaining purposes the TGWU, AEEU and MSF and entered into a series of joint collective agreements with those trade unions, the last of which was expressed to operate from 1^st August 1996 to 31^st July 1998; it was not, within the period relevant to these proceedings, replaced by a successor agreement.
4. In October 1998 as a result of a fall in sales and high levels of stock the employers realized that there would have to be redundancies. On 26^th October the unions and workforce were informed that 75 jobs would have to go; a memorandum issued to all the workforce identified that number and promised that there would be consultation with union and non-union representatives as to the selection process. There followed a series of consultation meetings over the next three weeks; the unions took the stance that the 1996-1998 agreement remained in force because it had not been replaced and no notice had been given to terminate it or any provision of it; the employers took the stance that the agreement had expired without replacement and wished to use for the selection process a matrix based on skill, service and attendance as provided by the expired agreement but with a variation pursuant to which, because they regarded flexibility as important, skills would be assessed not on the basis of the skills of the job which were undertaken in the particular trade categories in which the employees worked but on a wider basis. The unions did not approve this change; and the employers ultimately conceded to the unions and accepted that trade-based skills only would be used for assessment.
5. Because the employers believed, on legal advice, that if they assessed trade skills by scoring on a sliding scale there was a risk of the introduction of subjectivity, they decided, in order to preserve complete objectivity, to devise set tasks to be performed within a set period for each of the relevant skills; an employee who successfully completed the task within the period would pass and receive 10 points for that skill; an employee who did not would fail and receive no points for that skill.
6. The 1996-1998 agreement was departed from in the weight given to service in two respects; firstly service was to rate one point for each 2 years up to a maximum of 10 points; secondly, a principle in appendix 14 to the agreement, added to it in September 1997, whereby employees employed after the commencement of the agreement would be selected for redundancy ahead of employees whose service started before that date was no longer to be followed.
7. According to the findings of the Tribunal, the unions did not oppose this last change but did not agree the redundancy selection scheme as a whole. The employers decided to proceed without such agreement and implemented the scheme from 11^th November.

The Respondent

8. Mr. Radford was first employed by the employers in 1988; his current employment at the time of the redundancy exercise began in 1993. He was employed in the press shop as a press operator; but he had other skills; he could operate different types of press; he could operate a crane; he could work as a paint operative; he had an HGV licence. As the Tribunal pointed out, he was more versatile than many other employees; ironically, for he was a shop steward, the union's stance against the assessment of skills on a wider basis counted against him; all the press operators when tested for skills in their trade category passed; Mr. Radford's versatility counted for nothing; and when the total scores on all criteria for the press operators were counted Mr. Radford was identified as at risk of redundancy.
9. Mr. Radford was informed that he was at risk on 12^th November; he was given a copy of the criteria and of his score and given an opportunity to comment. It was open to Mr. Radford, as in the case of others in a similar position, to query his scores and to argue for re-assessment. In some cases adjustments to the markings were made. The Tribunal found that, to the extent that Mr. Radford raised concerns as to his individual scoring, the scoring was changed; Mr. Sheldon on behalf of the employers informed us that this finding (in the employers' favour) was an error and that although Mr. Radford and his convenor, Mr. McGee, had a meeting with the management at which his scores were debated, in his case they were not changed. The total number of compulsory redundancies was, meanwhile, reducing as volunteers appeared. However, despite his representations, Mr. Radford's scores were such that he fell within the number of those selected for redundancy. There was, as we understood it, no suggestion that his assessment had not been properly carried out on the basis of the selection process adopted by the employers. No further meeting with those selected took place; they, including Mr. Radford, were informed of their selection by letter and told of their right of appeal.
10. Mr. Radford exercised that right; his appeal was heard by Mr. Osmond, a manager who had not been involved in the selection process. His appeal was put, by Mr. McGee, on the basis that the changes in the scoring system had been unfavourable to him; but Mr. Osmond was concerned only to consider whether the scores achieved by Mr. Radford under the selection scheme in fact adopted were correct and that, pursuant to that scheme, Mr. Radford had been properly selected for redundancy. The Tribunal found that he was satisfied that Mr. Radford had thus been properly selected and dismissed the appeal.
11. We should finally add that, although there was no formal interview after his selection at which Mr. Radford discussed alternative employment, those selected were specifically given the opportunity to apply for vacancies, which were, publicized. Mr. Radford applied for a job but did not get it.

Incorporation of the 1996-8 Agreement

12. The Tribunal had first to consider whether the terms of the 1996-8 agreement relating to redundancy selection, from which, as we have indicated, the employers departed, were incorporated into Mr. Radford's contract of employment with the effect that the employers' departure from those terms would have constituted breach of contract. They concluded that they were not; it is this conclusion which is attacked by Mr. Radford's cross-appeal. It is, plainly, logical to address this issue first before turning to the arguments on the employers' appeal; if Mr. Radford's arguments in support of his cross appeal are correct and the relevant terms were part of Mr. Radford's contract of employment, the reasonableness of the employers' approach to the redundancy selection exercise would have to be seen in a different light.
13. The relevant collective agreement, called "Review of Terms and Conditions of Hourly Paid Employees" started, in paragraph 1 on page 1, by providing expressly that its duration would be for 2 years, from 1^st August 1996 to 31^st July 1998. It went on to make specific provisions, over many pages, for rates of pay, overtime rates and requirements, hours of work, holidays, the provision and use of safety equipment and for many other matters. Some of those matters were expressly covered, in Mr. Radford's case, in his written contract of employment, e.g. normal hours of work, holidays, method of payment; some were not, e.g. rates of pay, safety equipment. The provisions relating to redundancy were contained in Appendix 2, entitled "Company Policy and Procedure for Handling Redundancies". That Appendix set out that, following any management consideration for the need to reduce the workforce, "the employee representatives will be notified at the earliest opportunity of the reason for redundancy". It then provided for consultation with employee representatives to seek to avoid or minimize redundancies and mitigate their consequences by various means. Under the subheading "Method of Selection" it provided that employees should be selected for redundancy on the basis of retaining those who would be best placed to meet the future needs of the company, based on skills, service, attendance and timekeeping. The scoring system for those criteria was set out on a separate page. There were then numerous provisions as to consultation with employee representatives before final selection and with individuals after selection.
14. It is well-established law that an employee can only enforce against his employers the terms of a collective agreement, which is not enforceable in law between the employer and the trade union or unions who are the parties to it (unless it specifically provides that the parties intend it to be legally enforceable - which it did not in this case) pursuant to Section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992, if the relevant terms are incorporated into the employee's contract of employment. As Hobhouse J. (as he then was) said in Alexander v. STC (1991 IRLR 285) at paras. 9 and 10, the statutory scheme which governs the relationship between employees, employers and trade unions provides that there should be in existence and relevant to the actual position of the employees in a given workplace documentary agreements which are expressed in terms of obligation and rights but which do not themselves give rise to any contractual rights and that there are statutory rights which are enforceable before Employment Tribunals but do not give rise to contractual rights enforceable at common law. In order to establish incorporation, the employee needs to show that the relevant terms of the collective agreement were either expressly or impliedly incorporated into the individual contract of employment; and a term can only be incorporated if it is appropriate or apt to be a term of the individual contract of employment; see Alexander at pp. 292 to 293 and National Coal Board v. National Union of Mineworkers (1986 IRLR 439 at p.454).
15. The principles are summarized by Hobhouse J. in para. 31 of his decision in Alexander as follows :

"The principles to be applied can therefore be summarized. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those 2 parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not of itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt the correct construction may be that it is not a term of the contract. Where it is not a case of express incorporation but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn."

16. In this case there was, perhaps unusually in the case of the relevant industry, a written contract of employment dated 1^st February 1994. That contract did not make any reference to incorporation of the 1996-1998 collective agreement or to any collective agreement; indeed it did not refer to collective agreements at all; and it was common ground that Mr. Radford could not rely on express incorporation. The Tribunal correctly so concluded at para. 5.1 of its decision. However, it was submitted on behalf of Mr. Radford to the Tribunal that the terms of the collective agreement which related to redundancy selection were incorporated by implication. It was not in dispute that some of the terms of that agreement were or could have been so incorporated; but the Tribunal accepted the employer's submission that the terms relating to redundancy were not part of the day to day activities between the employers and the employees and were not by implication to be taken to have been incorporated into Mr. Radford's contract of employment; see para. 5.3 of the decision.
17. Mr. Thompson, on behalf of Mr. Radford, accepted that the Tribunal's finding that there was no implied incorporation was a finding of fact; he submitted, however, that the Tribunal fundamentally misdirected itself in two different respects. Firstly, he argued, the Tribunal erred in not regarding redundancy as a matter of day to day significance in the relationship between employer and employee. Secondly, he argued, the contract of employment in this case was in very bare terms and clearly depended on other documents for some of its essentials e.g. rates of pay; it followed that the parties to the contract of employment looked to the collective agreement to provide major provisions necessary for the individual contract; the collective agreement, he submitted, contained for the most part terms which were plainly intended to have contractual effect between employer and employee; and it was wrong in principle to select some provisions of the collective agreement as having such contractual effect while regarding others as not having that effect; and the provisions of the collective agreement were sufficiently precise to be capable of having such effect.
18. Mr. Sheldon, on behalf of the employers, submitted that the Tribunal had correctly directed itself as to the relevant principles and had made findings of fact which could not be disturbed on appeal save on familiar grounds which were not made out in this case. He drew attention to the Tribunal's acceptance that Appendix 2 of the collective agreement was described as a policy document which was dealing with subject matter which did not need to be imported into the individual contracts of employment because it was not part of the day to day activities between the employees and the employer; he submitted that that was an appropriate approach and that the Tribunal had properly taken the view that parts of the collective agreement should by inference be regarded as incorporated but that Appendix 2 had, for appropriate reasons, not been so regarded by the Tribunal.
19. Mr. Sheldon further submitted that the collective agreement had in any event expired by the relevant date and, therefore, was not extant at the material time in October 1998. That is plainly a correct assertion of fact; but it is not, in our judgment, an assertion which of itself defeats Mr. Radford's case on incorporation. It is clearly not the law that, if a provision of a collective agreement has become incorporated into an individual contract of employment, the expiry or other termination of that collective agreement in some way brings to an end the existence of that provision within the individual contract. Were the law otherwise, rates of pay fixed by a collective agreement and necessarily incorporated into individual contracts would cease to be binding between employer and employee on termination of the collective agreement; in Robertson v. British Gas (1983 ICR 351) the right to bonus payments held to be incorporated into the employee's contract survived the end of the collective agreement in which that right was spelt out. Accordingly, if any of the redundancy terms in Appendix 2 were to be incorporated into Mr. Radford's contract of employment, the expiry of the collective agreement would not affect the position; but if they were not so incorporated, such expiry would be irrelevant. We therefore reject Mr. Sheldon's submission based on the expiry of the collective agreement.
20. However in our judgment Mr. Sheldon's submissions upon the sustainability of the Tribunal's conclusions on the facts that the provisions of Appendix 2 as to redundancy and in particular as to the selection criteria and scoring system were not incorporated are sound. The Tribunal was entitled to take the view, as plainly it did, that those provisions were not intended to have "normative" effect and were provisions intended to apply as between the employers and trade unions only. The language of Appendix 2, which is described as a "Policy and Procedure" is more appropriate to that more limited intention. A procedure for redundancy selection is more akin to "the stuff of" a collective agreement than that of an individual contract of employment; the Tribunal was correct to take into account the fact that such procedures are not of day to day significance in the relationship between employee and employer and to bear in mind that Hobhouse J. in Alexander, at para. 27 said:

"Where, as in the case of redundancy, the situation is one which does not have daily implications but only arises occasionally the inference will be more difficult to sustain."

21. There may be, and often are, provisions in the context of redundancy in a collective agreement which, despite those words, are much more likely to be regarded as incorporated into individual contracts; in particular we have in mind provisions for enhanced payments in the event of redundancy over and above statutory redundancy pay; but such provisions are different in nature from provisions as to procedures for selection which are in issue in this case. We do not accept that the Tribunal erred in finding that the provisions in issue in this case were not matters of day to day significance between employer and employee or, having regard to the terms of Appendix 2 as a whole, in concluding that the provisions of selection procedure were not incorporated into individual contracts of employment in general or into Mr. Radford's contract in particular.
22. We also do not accept Mr. Thompson's submission that a Tribunal may not decide that some provisions of a collective agreement were and others were not implicitly incorporated. Alexander and the authorities therein cited make it clear that a Tribunal may so decide; some provisions of a collective agreement, e.g. as to pay, may be apt for incorporation and manifestly intended to be incorporated; others e.g. as to procedures as between employers and trade unions may be not apt for incorporation and manifestly not intended to be incorporated. The Tribunal had to make a factual decision upon the relevant provisions of the collective agreement in this case; it did so; and in our judgment its decision has not been successfully undermined by Mr. Thompson's arguments.
23. We therefore reject the cross-appeal and turn to the employers' criticisms of the Tribunal's decision.

The Selection Process

24. The Tribunal concluded that the dismissal of Mr. Radford was unfair for two reasons. Firstly they concluded, at para.5.8 of their decision, that the selection process was flawed because the skills test which we have described above, in para. 5 of this judgment, denied Mr. Radford the chance of being properly judged and so devalued skill as to contradict the employers' philosophy of a flexible workforce. Secondly they concluded in the same paragraph that the consultation and appeal processes were inadequate.
25. Mr. Sheldon attacked both of these conclusions. We will address the selection process first.
26. This case does not require any deep examination of established principles which an Employment Tribunal must apply in considering an employer's selection process in a redundancy situation. It is well known that the employers must establish a reasonable system of selection based, so far as is reasonably achievable, on objective criteria and then apply that system fairly in accordance with those criteria; see Williams v. Compair Maxam (1982 ICR156). It was agreed between Mr. Sheldon and Mr. Thompson that the Tribunal's task in considering the criteria used by an employer was to ask itself and answer on the evidence the question "could a reasonable employer have devised these criteria"; it was not the Tribunal's task to judge the employer's actions by forming their own views as to whether the criteria were or were not fair; their task was to consider whether a reasonable employer could have established and applied the criteria used by the employers in the present case.
27. Unhappily it appears to us that the Tribunal in this case did not approach the selection process issue by asking itself the question which, counsel agreed, was the essential question. The words used by the Tribunal in paras. 5.4 and 5.8 of the decision plainly indicate, in our judgment, that rather than asking themselves and answering that question the Tribunal fell into the error of asking themselves whether they believed the adopted criteria to be unfair. Thus they say, at para. 5.4, referring to the use of the all or nothing approach to the assessment of trade-based skills :

"It was an action which was neither legally justified nor fair".

without considering whether the use of that approach, on the basis of legal advice, was within or outside what could be adopted by a reasonable employer. We accept the argument of Mr. Sheldon that the Tribunal have in this case made the error of substituting their own view instead of considering whether a reasonable employer could have approached the process as these employers did. Mr. Sheldon suggested that the reason for this error on the part of the Tribunal might be that their decision, in December 1999, was made at a time when, as a result of the decision of the Employment Tribunal in Haddon v. Van den Bergh (1999 ICR 1150) decided on 29^th September 1999 and before that decision was corrected by the Court of Appeal in Foley v. Post Office (2000 ICR 1283), decided on 31^st July 2000, Tribunals may have felt encouraged in unfair dismissal cases to consider fairness in general terms rather than by applying the more restrictive approach of the earlier cases subsequently approved in Foley. There is no reference in the Tribunal's decision to Haddon; although the dates fit Mr. Sheldon's theory, it is not apparent from the terms of the decision that the Tribunal were consciously following the new approach which Haddon, for a limited period, appeared to prescribe; and in any event it is not fruitful to consider why the Tribunal may have fallen into error. The question for us is whether or not it did fall into the well known error of putting forward its own view rather than considering whether a reasonable employer could have acted as the employers in this case did.

28. In our judgment the Tribunal fell into error, too, in their reasoning by which they supported their view as to the fairness of the criteria adopted in the following respects. The Tribunal found, at para. 3.9, as fact that the employers had wished to adopt a flexible approach to skills by including in their assessment the various skills which the employees had but eventually conceded to the union's arguments that skills should be measured only in terms of what was required for the particular trade category and job into which each employee fell. At para. 5.4 the Tribunal concluded that, although it was an unfortunate consequence of this concession that Mr. Radford, who had other skills in addition to his skills as a press operator, was not able to have those other skills taken into account, the employers were not to be criticized for proceeding as the union required; and in so concluding the Tribunal were plainly correct; it is always important for an employer who faces a redundancy selection exercise to seek to agree criteria with the relevant unions or worker's representatives.
29. The Tribunal continued in para. 5.4 by criticizing the all or nothing application of the agreed but limited skills test. However in para. 5.8 the Tribunal in summarizing their conclusions said :

"A misconceived interpretation of the law led to the introduction of a skill test which denied the applicant the chance of being properly judged and so devalued skill as to contradict the respondent's own philosophy of a flexible workforce"

30. In so saying the Tribunal could or at least should not have been referring solely to the "all or nothing application of the skills test"; if they were so referring, there was in our judgment a failure of logic on their part. The way in which the skills test was applied did not bear in any way on the flexibility of the workforce; it was a form of measurement of trade-based skills only; it measured only those skills. The limitation upon the achievement of the employers' desire to achieve a flexible workforce arose not from the way in which the trade-based skills were assessed but form the fact that, as agreed with the unions, other skills were not tested at all; and the Tribunal had already at para. 5.4 correctly concluded that the employers were not to be criticized for the exclusion of other skills, unfortunate as it was for Mr. Radford that they were excluded.
31. Thus if and insofar as this criticism of the skills test adopted was based on its all or nothing application, it was illogical; if it was based on the inclusion only of the employee's specific trade-based skills, it was firstly unfounded in the light of the union's insistence that it should be so limited and secondly inconsistent with the Tribunal's own earlier conclusions that the employers were not to be criticised for proceeding, as the unions required, on a narrow basis rather than looking more widely at skills so as to achieve a flexible workforce.
32. The Tribunal, at para. 5.4, were critical of the "all or nothing" application of the trade-based skills test; they said, firstly, that the employer's decision to test skills by this method deprived the exercise of any real sophistication and reduced skill as a factor to a level of virtually no consequence as all the participants scored the maximum possible, secondly that the employers' fear that anything other than an all or nothing approach would be regarded as unfair was misconceived and thirdly that Mr. Radford was as a result disadvantaged because as an experienced press operator he might reasonably have expected to score quite highly as compared with others.
33. In our judgment the Tribunal erred in law in its assessment of and criticism of the employer's application of the skills test. It was for the employers, with the benefit of such advice as they had, to decide how to make an assessment of skills; and the Tribunal's task was to consider whether a reasonable employer could have chosen the assessment method adopted by these employers. It was not open to the Tribunal justifiably to criticise the employers for following advice on the basis that the advice to adopt a wholly objective approach was misconceived, in the absence of a finding that the employers knew or ought to have known that it was misconceived; but there was no such finding. Furthermore the Tribunal's view that such advice was misconceived was, if it was relevant at all, erroneous; it is well established that criteria for redundancy selection should be as objective as reasonably possible; an approach intended to achieve objectivity ought not to be categorized as unreasonable or unfair because it goes further towards achieving that end than other less purist approaches. It does not follow from the Tribunal's view that a more sophisticated approach would have been preferable that a reasonable employer could not have adopted the all or nothing approach.
34. The Tribunal's further criticism that the employer's approach rendered skills virtually meaningless because all the press operators passed the test was, in our judgment, unfounded. It was not suggested that there was any evidence that the employers knew or could or should have known that this would happen in the particular pool of press operators; nor was it suggested that there was any evidence that it happened universally or widely throughout all the relevant pools. Nor was it suggested that there was evidence that the skills tests, each of which involved a competence and a time component, were an unfair measure of ability. This criticism - and the same should be said of the third criticism - appears to us to have been made because the Tribunal was mistakenly focussing on what was fair to Mr. Radford and not on whether the employer's acted reasonably on an overall basis. The way in which the third criticism is expressed in the last two sentences of para. 5.4 of the decision demonstrates this error on the Tribunal's part.
35. Mr. Thompson submitted that the Tribunal's conclusions as to the skills tests constituted or were based on findings of fact, and in particular on findings that the approach used had an adverse effect upon Mr. Radford, that the decision to adopt it was based on legal advice which was erroneous and that, under Appendix 2 of the collective agreement, trade skills were to be tested on the more familiar basis of a scale rising to a maximum of 10 points which approach could reasonably have been used for the relevant redundancy selection exercise. However Mr. Thompson accepted that whether the legal advice was erroneous was not a conclusion of fact; and, while of course we accept that on appeal our powers in relation to findings of fact are rightly limited, our conclusion is that the Tribunal in considering the selection process in this case firstly erred in principle in the test which they applied and secondly supported their conclusions by reasoning which was flawed for the reasons which we have set out. Accordingly the appeal against the Tribunal's conclusions as to the selection process succeeds.

Consultation

36. The Tribunal concluded that the approach adopted by the employers in consulting individual employees and taking account of their concerns was "rather truncated and mechanistic". They based this conclusion on the following criticisms :

(i) although there had been the meeting, which we have described in para. 9 of this judgment at which Mr. Radford was given the opportunity to raise his concerns, there was no further meeting, after Mr. Radford's representations had failed, providing more detailed consideration of what might be done to ameliorate the consequences by way of alternative employment (para. 5.6 of the decision)

(ii) the appeal against Mr. Radford's selection was flawed because Mr. Radford's arguments that there were fundamental errors in the employer's approach were not considered and Mr. Osmond, who headed the appeal, unnecessarily limited his consideration to the figures achieved pursuant to the selection process which we have described (para. 5.7 of the decision).

While at the end of para. 5.8 of the decision the Tribunal, on a strict construction of the language used, appear to have relied only on their perceived shortcomings in the appeal as justifying the conclusion that the dismissal was unfair, the submissions to us on both sides assumed that the Tribunal intended to include as elements in its final conclusion as to unfairness both the criticisms which we have set out, together of course with the criticisms made by the Tribunal of the selection process.

37. Both sides, in argument, relied upon the decision of the EAT in Mugford v. Midland Bank (1997 ICR 399) in which the authorities as to consultation in the context of redundancy were comprehensively reviewed and the importance of individual consultation between employers and employees where jobs are at risk, before a final decision to dismiss is taken, even in a case in which there have been consultations between the employees and trade unions upon general matters as to the selection process was considered. The EAT, at p.406, said :

"Having considered the authorities, we would summarise the position as follows.

(1) Where no consultation about redundancy has taken 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 after 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."

In this case no criticism has been made by the Tribunal of the adequacy of the substantial consultation between the employees and the trade unions; the issue is as to subsequent individual consultation, once Mr. Radford had been identified, through the selection process, as at risk of being selected for redundancy. The Tribunal had to ask itself, looking at the overall picture as a whole, whether consultation was so inadequate as to render the dismissal unfair.

38. We remind ourselves, as Mr. Thompson was rightly anxious that we should, that if a Tribunal have asked themselves that question their answer is one of fact and degree which should not be criticised on appeal save on the usual and familiar grounds. However, in our judgment the Tribunal, in concluding that the employers acted unfairly in relation to consultation, in this case, erred in law for the following reasons.
39. On the Tribunal's findings of primary fact, when Mr. Radford was identified as at risk he was so informed by letter of 10^th November 1998 and given the opportunity of a meeting with management at which he was represented by Mr. McGee and was able to put forward all relevant matters; there is no suggestion that the meeting was unfairly restricted. The letter told Mr. Radford in terms that he would be able to discuss any relevant matters. This, clearly, included redeployment. Thereafter there was discussion as to alternative employment; that is plain from the Tribunal's finding that Mr. Radford was expressly invited to apply for a storeman's post; although the Tribunal found that the job had, in fact, already been allocated, they did not find that the person or persons who proposed the post to Mr. Radford knew that that was so or had acted in anything other than good faith. Furthermore, notices of all job vacancies were posted on noticeboards. It was not suggested by the Tribunal that Mr. Radford, who as a shop steward might be expected to be familiar with the vacancies notified, needed any help or further discussion in considering them or that, if he did need any further help or discussion, it would not have been available to him had he sought it. After the employers confirmed, on 18^th November, that Mr. Radford would be selected for redundancy, he was given the right to appeal, which he exercised.
40. Those were the primary facts at which the Tribunal ought to have looked overall in order to ask and answer the question which we have identified above. However, in our judgment the Tribunal did not ask that question and did not look at those facts as a whole. Instead they focussed on two specific points, namely the absence of a second meeting to discuss alternative employment and the nature of the appeal; this was a mistaken approach.
41. As to the first point, the Tribunal was critical of the employers for not holding a further meeting for that purpose as envisaged by Appendix 2 of the collective agreement; but the collective agreement was not binding as between employer and employee for the reasons we have set out in this judgment in addressing the cross-appeal; and although, as Mr. Thompson submitted, the collective agreement might be regarded as an illustration of best practice, it does not follow that a departure from its terms was unfair. The Tribunal said, at para. 5.6, that there was no justification for the absence of a second meeting; but such a justification was not necessary; what was in issue was overall fairness. Furthermore, under Appendix 2 a first meeting would have been limited to an explanation by management of the basis for selection and the employee's individual scores and the second meeting would have provided the employee with an opportunity to respond and to discuss the position on a wider basis; on the facts of this case that opportunity was not denied to Mr. Radford but was provided at the stage of the meeting which we have described; in effect the content of the two meetings proposed in Appendix 2 was combined into the one meeting.
42. On the basis of the primary facts, therefore, we take the view that the Tribunal's criticisms of the absence of a second meeting are inconsistent with the facts, as is their consequential criticism that the policy of redeployment was not seriously implemented.
43. The Tribunal's criticism of the appeal was also, in our judgment, unmerited. It found, at para. 3.17 of the decision, that at the appeal on behalf of Mr. Radford it was argued that the selection criteria adopted by the employers were not those agreed with the unions and set out in Appendix 2 and that Mr. Radford had been disadvantaged as a result; but we do not see how the employers could reasonably have been expected, on the hearing of one employee's appeal, to have revisited the issue of the selection criteria; to have done so would have been potentially to undermine the whole exercise and to create unfairness to those who had not been selected for redundancy in that exercise. In our view, in criticising the employers for limiting the ambit of the appeal, the Tribunal failed to take into account the inevitable limitations upon such an appeal in the context of the exercise which had been carried out.
44. We conclude, therefore, that the Tribunal erred both in failing to consider the history of consultation overall and in making individual criticisms of the employers' conduct which were unsound.

The Result

45. It follows from our conclusions that the employers' appeal against the finding that they had acted unfairly in dismissing Mr. Radford must be allowed.
46. We have next to consider whether, on the basis that the Tribunal erred as we have concluded they did, we should substitute for the Tribunal's finding a finding that Mr. Radford was fairly dismissed or whether we should remit the case to a different Tribunal. Our view is quite clear; on both of the areas which are in issue in this appeal, the selection process and consultation, we have no doubt that had the Tribunal asked itself the correct questions and assessed the facts free of the criticisms which, in our judgment, they should not have made, they would or could have come to the conclusion on the primary facts as found that the dismissal was not unfair. We see no basis for a remission. The appeal will therefore be allowed and a finding that Mr. Radford was not unfairly dismissed will be substituted for that reached by the Tribunal.