United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S BROCHWICZ-LEWINSKY (of Counsel) Instructed by: Graham Leigh Pfeiffer & Co 15 Hulton District Centre Little Hulton Manchester M38 OBA
For the Respondent	MR G MANSFIELD (of Counsel) Instructed by: Engineering Employers Federation Broadway House Tothill Street London SW1H GNQ


 


JUDGE J R REID QC

1. This is an appeal by Mr Calderwood against the decision of an Employment Tribunal sent to the parties on 16 March 2000 following a hearing on 20 October and 15 November 1999 and (in chambers) on 26 January 2000. The Tribunal held Mr Calderwood had been unfairly dismissed and ordered payment of compensation in the amount of £187. The reason for the decision that he was unfairly dismissed was that he was made redundant without there having been any proper prior process of consultation. The reason that compensation was limited to £187 was that the Tribunal held that even if there had been proper consultation the result would have been the same and the outcome would have been delayed by no more than a week. The Tribunal's reasons were given initially by reasons in summary form and then amplified by Extended Reasons which incorporated the Summary Reasons.

The facts

2. Mr Calderwood, who was born in 1941, was employed by MacReadys at Farnworth from June 1979 until 2 April 1999 when he was dismissed as redundant. MacReadys is in the business of selling and distributing steel. Mr Calderwood had been one of nine steel warehousemen. In early 1999 MacReadys needed to reduce costs because of the very difficult trading climate. They needed to reduce costs from £57 per tonne to £42 per tonne. To help do this it was decided that the number of warehousemen at Farnworth would be reduced from nine to six. It was conceded that a redundancy situation existed and that the nine warehousemen at Famworth were the appropriate pool. The problem in this case arises out of the way in which the redundancy strategy was implemented
3. The findings of the Employment Tribunal were that on 17 March 1999 MacReadys' Regional Manager issued notices to the employees at Farnworth requesting voluntary redundancies and at the same time an assessment exercise was started to provide management with the necessary information should volunteers not be forthcoming. The assessment of the nine warehousemen was committed to Mr Westhead, the Operation Controller in charge of warehouse staff, and Ms Ward his assistant. They were given a redundancy selection assessment form which was a precedent extracted from a commercially produced handbook. That form set out ten criteria, namely: length of service, skills, experience, job knowledge, qualifications/training, effort, efficiency, attendance, time-keeping and disciplinary record. There was a space for other factors. Mr Westhead and Ms Ward were aware that computer skills were regarded as an important part of the skills of a warehouseman and that, in the light of the reduction of numbers, a good attendance record was important. Mr Westhead was found to be well equipped to carry out the task having been with the company for many years. Ms Ward had been with the company about two years
4. The assessments were undertaken by Mr Westhead and Ms Ward and the information was passed onto Mr Garner, the Operations Manager, who double-checked the assessments. The nine employees percentage scores were, respectively, 81,81,80,79,79,70,63,63 and 60. Mr Calderwood's score was 60 per cent. On 23 March Mr Calderwood met Mr Garner and Ms Ward. He was shown a copy of his form, but made little comment. He was asked to sign his form as agreed which he did, and was told that unless there were some volunteers for redundancy there would be no alternative employment for him. There were no voluntary redundancies and his redundancy was confirmed on 26 March. He was dismissed with effect from 31 March and paid the appropriate notice pay and redundancy pay.

Claimant's Submissions

5. Counsel for Mr Calderwood submitted that the decision of the Tribunal was perverse in finding that MacReadys had properly applied its stated selection criteria in view of the evidence before it. It should have held that the process of selection was unfair because there had been no fair or objective procedure for selecting who would be chosen for redundancy, that the criteria adopted were unfair and the way that the Respondent went about selecting who was to be made redundant made the duty to consult and the failure to do so all the more important. Counsel contended that there could be no certainty as to what the result of the redundancy procedure would have been if proper objective criteria had been applied and proper consultation conducted, and that therefore Mr Calderwood ought to have received substantial compensation.
6. Counsel made the point that Ms Ward had no specific instruction as to how to fill in the assessment forms and submitted she adopted subjective criteria, giving too much weight to the need for computer skills. In support of this he referred to the Employment Tribunal' s finding

that:

"it is unfortunate that these requirements [ie reliability and computer skills] were then "shoe-horned" into the standard selection form".

He suggested that Ms Ward's background in administration led her to adopt an approach which was unfair to Mr Calderwood. Taking Mr Calderwood's scores, he submitted that most of Mr Calderwood's marks had been scored too low and produced alternative scoring which (on his subjective assessment) would have given Mr Calderwood a score of between 78 and 82 per cent. Taking the various categories, he dealt in detail with the marks given and those he submitted ought to have been given. In summary, he attacked the marking as over-emphasising computer skills, failing to take account of the fact that a substantial part of Mr Calderwood's absence from work over the previous three years had been due to an accident at work, and taking into account a lapsed verbal warning.

7. Counsel submitted that the employer having selected proper criteria had then allowed Ms Ward to ignore them by making her own subjective assessment. He criticised the Tribunal for saying that the employer did "slavishly follow a selection form" and suggested that that this was precisely what Ms Ward did not do. The Tribunal expressed the view that it was not for the Tribunal to intervene or amend decisions taken for good commercial reasons nor was it appropriate for the Tribunal to be invited to re-score the applicant in the absence of any manifest unfairness on the part of the respondent, where the employer had gone about the exercise in a genuine way and where inevitably subjectivity had to be part of the exercise. Counsel criticised this approach and submitted that the scoring was:

"distorted by inappropriate, unchecked subjectivity to the point of rendering the exercise meaningless and wholly different in character and effect from that which it was (for the sake of fairness and objectivity) intended to be."

8. He submitted that it followed that no one could say that a properly conducted objective assessment would not have given Mr Calderwood better marks than his fellow workers and so have saved him from redundancy. He characterised the Tribunal's finding that there was no unfairness or undue subjectivity as "simply extraordinary". He stressed that in the absence of consultation it was all the more important that the selection process should be objectively fair and not marred by subjectivity. He went on to submit that the Tribunal had been wrong to suggest that Mr Calderwood could have said nothing in consultation to affect the outcome and the Tribunal's assumption that he would merely have reiterated the points made in his Originating Application which had been filled in without full knowledge of how the marking process had been carried out. From this, he submitted, it followed that the Tribunal had erred in following the principle set out in Polkey v AB Da1ton Services Ltd [ 1987] IRLR 503 and in not having regard to the guidance provided by King v Eaton Ltd (No 2) [ 1998] IRLR 686 and a substantial award should have been made.

Respondent' s submissions

9. For the Respondent Counsel submitted that the Tribunal's decision could not be described as perverse. For a decision to be said to be perverse the Appeal Tribunal must be satisfied the decision was plainly wrong or irrational. This was not the case. The Tribunal had held that the criteria were applied properly and there was nothing in the notes of evidence to suggest the contrary. The Tribunal had found that there were objective criteria, in particular the need for reliability and the ability to adapt to computer technology, and that these criteria were legitimate reasonable commercial factors to be taken into account. The challenge was not to those findings but to the application of those criteria to Mr Calderwood. There was no challenge to the finding that Mr Calderwood was deficient in the areas on which the company placed importance. The reason the dismissal was unfair was simply the failure to consult, but the Tribunal was entitled to hold that no consultation would have made any difference, and was entitled to take account of the points which Mr Calderwood made about his redundancy in his originating application.
10. In the Respondent's submission there was nothing in the decision which was contrary to the Eaton decision. The Tribunal was not embarking on a sea of speculation. It was simply deciding on the evidence as a matter of impression and judgment in a simple case that the consultation would have made no difference. There was no basis for overturning the decision.

Conclusions

11. The Tribunal made findings of fact that the Respondent had certain objective criteria and that no unfairness or undue subjectivity crept in. That was a conclusion it was entitled to reach. The reference to "shoe-horning" indicated only that the recording of the findings in relation to the criteria were not easily done in the categories in the form provided. The Tribunal rejected suggestions of unfairness in assessing Mr Calderwood. It specifically rejected the suggestion made in his Originating Application that his assessment was affected by an action he was bringing for personal injury against the Respondent arising out of an injury at work. The criticism that too much weight was given to computer skills was not, in the view of the Tribunal, made out. Ms Ward and Mr Westhead who made the assessment were between them, were well-placed to make the assessment and their work was double-checked by their superior, Mr Garner. There was clearly evidence to support this view, as appeared from the notes of evidence put before the Appeal Tribunal. The weakness in Mr Calderwood's position was that, despite his long service, his abilities in the job and attendance record were, in the properly reached opinion of the Respondent, not a match for the others in the redundancy pool. It is noteworthy that at no stage was it suggested that the criteria applied to Mr Calderwood were not applied to others in precisely the same way.
12. In his submissions that the marking was unfair Counsel was, in our view, driven to advance unsustainable arguments: for example that Mr Calderwood should have received a higher marks than 3 and 5 for "effort" and "efficiency" because these marks included an element in respect of computer skill whereas his effort and efficiency should have been judged on day to day tasks excluding the computer skills element in performing them. Similarly the submission that account should have been taken of the fact that a part of his absence was due to an injury at work ignored the fact that even entirely discounting that cause of absence, he still had the worst attendance record of any member of the pool. In relation to disciplinary matters Counsel was constrained to seek to ignore that he had had an oral warning in relation to his lack of computer skills a mere three weeks before the start of the redundancy process. 1
13. As to the argument that the Tribunal embarked on a forbidden sea of speculation as to what the results of a proper consultation process would have been, the Tribunal took the view that the sort of points that might have been raised were the sort of points made in Mr Calderwood's Originating Application. These can be summarised in this way: he was one of the longest serving employees, that he had time off as a result of his injury at work but no complaint had been made about that (though he made no mention of his more recent and longer absence for other reasons); he believed that he had been the subject of derogatory comments from Mr Westhead which resulted in his redundancy (perhaps a reference to his low score on the redundancy assessment); that if his performance at work was so poor he would have been aware of it at some stage (though he makes no mention of his inability to deal with computers), that he believed he had one of the best records, that he did not believe the redundancy form was fairly completed, and that his selection came about because of his proposed action against the company arising out of his injury at work (a point abandoned before the Employment Tribunal). Whilst these points did not deal in the same detailed manner as his Counsel's submissions with his objections to his selection for redundancy, they covered essentially the same ground. The outcome of a proper consultation dealing with all these points would, in the view of the Employment Tribunal, have been inevitable. In our judgment it cannot be said that the Tribunal in reaching that conclusion took into account inappropriate matters or that the conclusion reached was perverse. It was a decision well within the bounds of what the Tribunal could properly decide and it follows that the appeal fails.