United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J LEWIS (of Counsel) Instructed by: Messrs DLA Solicitors Princes Exchange Princes Square Leeds LS1 4BY
For the Respondent	MR D SANDERS (the Respondent in Person)


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal against a decision of the Employment Tribunal sitting in Sheffield, promulgated on 24 June 2003. The Employment Tribunal decided that Mr Sanders had been unfairly dismissed by his employer, the name of which is given in our papers as Tinsley Wire Ltd ("the Company"). Against this Decision the Company appeals.
2. Today we have heard oral argument by Counsel on behalf of the Company and by Mr Sanders personally. We have also read written submissions which he has filed, including a document entitled "Extended Reasons for Resisting the Appeal" and a letter dated 5 November. All of these we have taken into account.

The Tribunal's Decision

3. Mr Sanders had been employed by the Company or its predecessors since 13 October 1969. He was a Day Supervisor. On 1 November 2002 he was called to a meeting and given notice of potential redundancies in his work group. According to the Employment Tribunal's decision he had no forewarning of the meeting or prior indication of its purpose. No documentation was issued to him or anyone else.
4. The Employment Tribunal records that the meeting evoked a hostile response from Mr Sanders and others. The Employment Tribunal found that Mr Sanders made a personal threat to Mr Hobson, one of the managers (it does not record what the threat was). The Employment Tribunal found that no attempt had been made to identify volunteers by that time. It records that the process of selection was complete by 8 November; indeed, it says the decision to dismiss Mr Sanders was taken by 8 November when he was called to the next meeting which was on that day. The Employment Tribunal says no consideration was given to alternative employment and no further consultation took place. It records that Mr Sanders elected not to appeal. The Employment Tribunal found that the Company displayed a closed mind at the hearing on 8 November.
5. On the basis of these findings of fact the Employment Tribunal found that Mr Sanders had been dismissed on the grounds of redundancy and that the dismissal was unfair.
6. Essentially two reasons were given for this decision. The first reason related to the sheer haste of the decision. There was no forewarning or consultation. No attempt to explore voluntary redundancy prior to compulsory selection. The decision was irrevocably taken within a week. Nothing short of redundancy was considered before 8 November. We have summarised briefly what is put in a great more detail in paragraph 13 of the Decision.
7. The second reason relates to the selection process. Employees were selected for redundancy on the basis of a matrix. Some elements of the matrix involved a subjective assessment. Between 1 November and 8 November the assessment was made by Mr Hobson and Mr Pritchard who knew his work. Mr Hobson had been threatened by Mr Sanders, as the Employment Tribunal found. He was unwilling to attend a meeting on 8 November. The Employment Tribunal concluded that in the circumstances a reasonable employer would have taken steps to ensure that Mr Hobson did not participate and to co-opt a substitute in the selection process to work alongside Mr Pritchard. This part of the Employment Tribunal's reasoning is found in paragraphs 14 to 16 of its Decision. For this reason too it held the dismissal to be unfair.

The Law

8. Having established that the reason for dismissal is redundancy the Employment Tribunal then has to apply section 98 (4) of the 1996 Act. The determination of the question whether the dismissal is fair or unfair, having regard to the reasons shown by the employer:

(a) "depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

9. The law is well-established. The question is whether the employer acted reasonably or unreasonably in dismissing the employee. If the employer acted reasonably the dismissal is fair. Reasonable employers may act in a range of ways. Some may be more cautious than others. Some may be more generous than others. If the employer acted unreasonably, outside the range of ways in which an employer may reasonably act, then the dismissal will be unfair.

Appeal

10. An appeal to the Employment Appeal Tribunal lies only on a question of law. So long as the Employment Tribunal applies the correct test and does not act perversely or make findings for which there is no evidence, its decision is not appealable. It is only appealable if it raises a question of law.
11. However, a failure to give adequate reasons is a free-standing ground of legal error. Parties are expected to be told by an Employment Tribunal why they have won or lost. The extent of an Employment Tribunal's reasons will depend on the issues which it had to determine. Where there are important relevant issues in dispute the parties are entitled to expect that the Employment Tribunal will deal with them, so that they may know why they have won or lost and so that they may see, and the Appeal Tribunal may see, whether there is an error of law in the decision.
12. We turn to the main points with which the appeal is concerned. Although eight points in all have been argued, we propose, for the purposes of this decision, to concentrate on three main points.

Collective Consultation

13. It is clear law that when an Employment Tribunal considers the process by which an employer makes redundancies, it should look at the whole process: see Mugford v Midland Bank Plc [1997] IRLR 208 at paragraph 41, where in a context of both collective and individual consultation His Honour Judge Peter Clark said:

(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 ground of redundancy."

14. Consultation has both a collective and an individual aspect to it. Mr Sanders in his helpful letter dated 5 November quotes a section from an ACAS document headed 'Representation at Work. What is Consultation?" The passage reads as follows:

"Consultation is the process by which management and employees or their representatives jointly examine and discuss issues of mutual concern. It involves managers actively seeking and then taking account of the views of employees, either directly or through their representatives, before making a decision. Meaningful consultation depends on those being consulted having adequate information and time to consider it, but it is important to remember that merely providing information does not constitute consultation."

15. In this case it was part of the Company's evidence and part of its Notice of Appearance that there was collective consultation. The Notice of Appearance expressly says that there had been an extensive process of restructuring and reorganisation throughout 2001 and 2002. It says that the Company complied fully with the requirements to collectively consult and inform recognised trade unions and other relevant bodies. This is supported by what is said in the Company's witness statements (Mr Pritchard, paragraph 2, Mr Dale, paragraph 2) and also the statement of Mr Hobson at paragraph 3.
16. It is Mr Hobson who expressly refers to a document called the 'Lean Plant Project'. The Lean Plant Project was the name of the project which was dealing with reductions in the workforce. He referred, in his statement, to a particular page of that which indicated in the galvanising area, so far as supervision is concerned, that in May 2002 there were six employees but the plan was that there would be five.
17. So, the Notice of Appearance, the statements and at least one document which the Employment Tribunal saw, raise the issue of collective consultation.
18. In his helpful submissions to us, Mr Sanders accepts that the question of collective consultation was raised. He, in his extended reasons for resisting the appeal, says that the matters were discussed in detail at the hearing and elaborated on by witnesses' oral evidence. He says that it was agreed by one witness that collective consultation had not been communicated to relevant bodies and persons. He denies that the Company brief was seen by any of the relevant workforce. He says that the nature and degree of collective consultation was discussed at the hearing, utilising evidence from the agreed bundle. His case is that what emerged at the Employment Tribunal was that the collective consultation was inadequate.
19. This is an important point. It is an important point either way. If Mr Sanders is correct then what took place at the time of his dismissal in November came out of a clear blue sky. If the Company is correct far from it coming out of a clear blue sky there had been substantial consultation beforehand with the trade union. Although the Employment Tribunal does not record this, Mr Sanders tells us, as we would have expected, that he is a union member.
20. In our judgment this is an important and significant defect in the decision of the Employment Tribunal. The parties are entitled to know why they have won or lost on matters which were significant issues in the case. We have no doubt, by reason of the materials which we have mentioned, that this was a significant and important issue in the case. The Employment Tribunal's failure to deal with it leaves us not knowing how, in their own mind, they resolved the issue. It leaves us not knowing why, in respect of a significant part of its case, the Company won or lost.

Mr Dale's Note

21. We turn to a second aspect of the Employment Tribunal's Decision. In our recitation of the fact we have mentioned that on 1 November 2002 the small part of the workforce concerned had been told of the prospect of a redundancy. We have mentioned that a further meeting was held on 8 November.
22. By the time of the meeting of 8 November the period which the Company had allowed for a volunteer to come forward had elapsed. By 8 November the Company had done the scoring under its matrix. At the meeting of 8 November there is no doubt that Mr Sanders was told about that scoring.
23. The Employment Tribunal makes a finding in relation to the 8 November meeting in its Decision at paragraph 4 (i). It says:

4 (i) "On 8 November 2002, the applicant was called to a further meeting. Whilst he was informed that he was 'at risk' of redundancy, the Tribunal is satisfied that the decision to dismiss had already been made. Indeed, this is confirmed by the note compiled by Mr Dale at pare 46 of the bundle."

The Employment Tribunal went on to find that at the meeting on 8 November the Company had a closed mind.

24. It is clear that by 8 November Mr Sanders had been found to have the lowest score on the Company's matrix. That, however, is a quite different thing from saying that a decision to dismiss had already been made. The minute of the meeting dated 8 November, to which the Employment Tribunal referred, certainly makes it plain that Mr Sanders was given his own marks and they were explained to him. But he was also told that he could appeal against his selection.
25. The appeal procedure is in our papers. Eventually an appeal goes to a senior member of management who is outside the process of marking. To that senior member of management representations can be made by either side. For example, Mr Sanders could say, as he told us, that other members of management who knew him would have supported his high level of working ability.
26. If by its finding in paragraph 4 (i) the Employment Tribunal simply meant that by 8 November the marking had been done then of course it was correct. But if it means what it says, namely that the decision to dismiss had already been made by 8 November, it is wholly wrong to say that is confirmed by the note compiled by Mr Dale. It is not confirmed. The note compiled by Mr Dale makes express reference to the appeal against selection as part of procedure. The Employment Tribunal itself found that the purpose of the first limb of the appeal procedure was to facilitate a response from the selected employee with regard to the scoring applied to him: see paragraph 4 (k) of the Decision.
27. It therefore seems to us either that the Employment Tribunal has not meant what it said in paragraph 4 (i) or it has drawn a wholly wrong conclusion from the minute dated 8 November.

Mr Hobson's Involvement

28. The third aspect to which we turn is the Employment Tribunal's criticism of the Company for not precluding Mr Hobson from participating in the scoring of candidates and for not co-opting a substitute. In our judgment it is plain that the Employment Tribunal erred in law in this part of its Decision. The very wording of its conclusion is open to question. The phrase that is used is:

16 "the Tribunal is satisfied that a reasonable employer would have taken such steps and ensured (given the history) that the matrix was objectively and fairly applied."

29. Although the Employment Tribunal referred to the action of the reasonable employer in the preceding paragraph, it applies the test wrongly here. The question is not whether a reasonable employer would have taken such steps; some reasonable employers would, others might not. The question is whether it was outside the range of reasonable responses for the Company not to stand Mr Hobson down and appoint a substitute.
30. We think the Employment Tribunal must have gone wrong here in the test it applied, for if it reached the conclusion it did after applying the correct test, its decision would, in our judgment, have been insupportable and perverse. The fact that a threat had been issued to Mr Hobson could hardly be a good reason for standing him down from doing the very scoring which it was his job to do. Moreover, the Employment Tribunal makes its conclusion, as it says "absent any submission to the effect that it was not possible to co-opt a substitute." The submission had been made that the employer could only have co-opted a manager not familiar with the work. The whole point of scoring is to use a manager who is familiar with the work.
31. It was not appropriate for the Employment Tribunal to reach its conclusion "absent any submission to the effect that it was not possible to co-opt a substitute." That is to take too narrow a view of the submission which it had before it. The notion that the Company, acting reasonably, had to stand down Mr Hobson and appoint a substitute in these circumstances is in our judgment unsustainable.
32. We pause to say, in fairness to Mr Sanders, that it was no part of his case before the Employment Tribunal that Mr Hobson should have stood down. As he said to us, as far as he was concerned, it was perfectly appropriate for Mr Hobson to take part in the scoring. This was a point which the Employment Tribunal took. In our judgment it was plainly a bad point.

Conclusions

33. It follows, for these reasons, that we are satisfied that the Employment Tribunal has erred in law; and erred in law in respects which are quite sufficiently important for its decision not to stand. We will set aside the decision of the Employment Tribunal and remit the case for hearing by a differently-constituted Employment Tribunal.
34. For the avoidance of any possible doubt, none of the findings of the current Employment Tribunal are binding on the new Employment Tribunal. It starts with a clean sheet. We say this because there are other submissions which were made on behalf of the Company, some with more, some with less force, with which we do not consider it necessary to deal in this judgment.
35. We also wish to make it plain that we are far from saying that when the matter is remitted Mr Sanders' case starts off at any disadvantage because it is remitted. The Company will still have to deal with the very short length of time between 1 November when this work group was told that redundancy was in prospect for it specifically and in particular when volunteers were asked for.
36. We note that in one witness statement, filed on the Company's behalf, the Company expected that there would be volunteers; but a period of less than a week was actually allowed for volunteers. We mention that point simply to make it plain that this case starts off before the Employment Tribunal with a clean sheet, that our judgment simply criticises the legal approach of the previous Employment Tribunal and leaves the matter entirely open when it is remitted. We observe that the fresh Employment Tribunal will need to deal, not necessarily as a knock-down point by any means, with the collective consultation process. It will then need to deal with the issues relating to individual consultation, selection and overall reasonableness, unfettered by the approach of the previous Tribunal.
37. So the appeal is allowed. The case is remitted to a freshly-constituted Employment Tribunal for rehearing.