United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T NESBITT (of Counsel) Instructed by: Messrs Irwin Mitchell Solicitors Imperial House 31 Temple Street Birmingham B2 5DB
For the Respondent	MS C McCANN (of Counsel) Instructed by: Messrs Berwin Leighton Paisner Solicitors Adelaide House London Bridge London EC4R 9HA


 


HIS HONOUR JUDGE D SEROTA QC

Introduction

1. This appeal relates to the procedure to be adopted where it is alleged that insufficient reasons have been given by an Employment Tribunal, and to issues concerning selection for redundancy. These issues concern both the identification of the relevant "pool" and also the application of selection criteria to employees in the pool.
2. This is an appeal by the Applicant from a Decision of the Employment Tribunal at Watford (P Willans Chairman), promulgated on 12 June 2003 after a four day hearing. The Employment Tribunal found that the Applicant was not discriminated against on the grounds of disability, nor unfairly dismissed. There is no appeal in relation to the findings on disability, and so we say nothing further about that part of the case.

Factual background and chronology

3. The Respondent supplies airline meals and operates kitchens at Heathrow Airport. It operates both hot and cold kitchens. Hot food is prepared in the hot kitchen and cold food in the cold kitchen. In 1983 Mrs Bansi began work for the Respondent's predecessor as a general assistant working in the kitchens. In 1996 she was promoted to Commis Chef.
4. On 25 January 1994 the Respondent took over the business and consequently the Applicant became an employee of the Respondent.
5. At the material time the Respondent prepared in-flight meals for two main customers. United Airways provided some 65% of its business and Air Canada some 30%. Mrs Bansi was employed as one of three Commis Chefs in the hot kitchen. The cold kitchen had no Commis Chefs, although some staff who had in the past been Commis Chefs had been transferred to the cold kitchen as general assistants, with their salaries red-circled. General assistants were lower paid and of lower grade than Commis Chefs. There were some twelve general assistants in the cold kitchen and one in the hot kitchen. As we have said, there were three Commis Chefs in the hot kitchen, together with approximately fourteen Chefs de Partie. Mrs Bansi's job included the preparation of curry using the recipe of a former Chef de Partie, who had left the Respondent in 1998 and had not been replaced.
6. The Employment Tribunal found that the roles of Commis Chef and Chef de Partie were separate. The Employment Tribunal found that the role of the Commis Chef was to produce meals according to specifications and within predetermined time limits, whereas the role of a Chef de Partie was to organise staff and work schedules to meet production targets and to maintain standards in line with Airline Specifications. This role extended beyond the preparation of food and involved the development of menus and recipes and participation in customer presentations. Although there was some overlap in the range of duties to be performed by Chefs de Partie and Commis Chefs, particularly at the lower grade of Chef de Partie, the roles of Chef de Partie and Commis Chef were clear and distinct and not simply graded and paid differently; see paragraph 2(3) to (5). Work in the hot kitchen included what was described as "pans" and "tables" work. Pans work involved cooking whereas tables work involved preparation of food. Mrs Bansi spent most of her time working on pans and pans work was considered to involve a higher skill than tables work.
7. On 4 June 2001 the Applicant reported sick with backache. The Employment Tribunal found that Mrs Bansi made no allegation at the time of a work accident and concluded that her back problem was not the result of such an accident.
8. The events of "9/11" (11 September 2001) caused a serious decline in the Respondent's business because of the immediate and dramatic downturn in air travel and the consequent reduction of demand by airlines for in-flight meals. The Respondent immediately laid off 100 agency staff. It sought cooperation with staff and asked that they agree to unpaid leave and rostered holidays. It identified the need, however, for 29 redundancies. In the event, most of these were obtained voluntarily and some by not filling existing managerial vacancies. As it happened there were only three compulsory redundancies, of whom Mrs Bansi was one.
9. Mrs Bansi returned to work on 16 September 2001 after an absence of some three and a half months. The Employment Tribunal was satisfied that she first complained of suffering backache as a result of a work injury at the beginning of October 2001.
10. On 10 October 2001, to Mrs Bansi's knowledge, the trade union (TGWU) was informed of the possibility of redundancies. The Employment Tribunal found that as at 22 October 2001 the Respondent had already decided that it wished to retain all Chefs de Partie who had a greater skill than Commis Chefs. It also found that the Respondent was short of Chefs de Partie and those employed were working excessive overtime. The Respondent identified the need to make two of the three hot kitchen Commis Chefs redundant. (See Decision paragraph 2(44) ). There was also the need for redundancies of general assistants outside the kitchens; we are not concerned with redundancies outside the kitchens. One Commis Chef then took voluntary redundancy. It is not clear at all from the Reasons of the Employment Tribunal when the decision to establish the pool was taken. However, on analysis we are satisfied that, as the Respondent maintains, the decision was taken before the exercise to obtain volunteers. Otherwise the rationale behind the Respondent's decision would make no sense. The Respondent made clear that it needed one (but no more than one) Commis Chef in the hot kitchen. If, as Mrs Bansi submitted should have been the case, at the time of the original request for volunteers, Commis Chefs and general assistants were in the same pool, there would be a risk that all three Commis Chefs would be selected for redundancy. Once the voluntary redundancy process had terminated, it was obvious that there was to be only one further redundancy in the hot kitchen, so it would not be possible for the Respondent to have lost both Commis Chefs. We are satisfied that the pool in which the Applicant was placed, with the other Commis Chefs in the hot kitchen, was established prior to the commencement of the voluntary redundancy exercise. Formal consultation began, we believe on 22 October 2001 with the trade union and criteria were agreed with the trade union. There had been a redundancy exercise in 2000 when certain criteria were agreed and the evidence as accepted by the Employment Tribunal was that the union and Respondent agreed that that exercise should be conducted in accordance with the criteria used for the 2000 redundancy exercise, to score people identified as liable to redundancy.
11. On 23 October 2001 the hot kitchen was briefed in relation to possible redundancies. The Applicant then attended three individual meetings in November. She was represented at all times by her shop steward, a representative of the TGWU. One of the relevant selection criteria was attendance and the Applicant scored badly because of her prolonged absences through illness. She scored the lowest of the two Commis Chefs who by this stage remained in the pool. She was selected for redundancy rather than Mrs Phagura, the other remaining Commis Chef, who had less service, but an infinitely better attendance record. Mr Phagura also did not have the NVQ that the Applicant did. On 16 November 2001 Mrs Bansi was warned that she was at risk of compulsory redundancy after the selection criteria had been applied to her. The Respondent considered redeployment and offered her a post as a general assistant. Mrs Bansi rejected the offer of employment as a general assistant because it was a lower grade and paid less. On 19 November 2001 Mrs Bansi was told that she would be made redundant; she appealed against the decision, but on 4 December 2001 her appeal was dismissed.
12. We note that the matter came before the EAT (presided over by Lord Johnston) at a preliminary hearing on 22 October 2003. On that occasion the EAT made the standard direction in accordance with paragraph 7 of the Employment Appeal Tribunal Practice Directions in relation to evidence adduced at the Employment Tribunal which did not sufficiently appear from the Decisions and Reasons. The EAT directed that the parties should attempt to agree that evidence within 14 days of the sealed date of the Order, and in absence of such agreement, within 21 days, either party might apply in writing to the EAT in relation to such evidence and might seek a direction that the Chairman's Notes be produced. There was no request by Mrs Bansi's representatives either to seek agreement of evidence with the Respondent's solicitors or to seek a direction from the EAT for the Chairman's Notes to be provided.
13. Paragraph 6 of the Order of the EAT was as follows:

"The parties shall co-operate in compiling and agreeing and shall, by no later than 49 days prior to the date fixed for the hearing of the full appeal, lodge with the Employment Appeal Tribunal 4 copies of an agreed, indexed and paginated bundle of material documents for the hearing of the appeal."

This is in accordance with paragraph 6(6) of the Practice Direction.

The Decision of the Employment Tribunal

14. The issues before the Employment Tribunal were essentially four (as concerns redundancy).

(a) whether the Respondent had selected too small a pool for deciding whom to select for redundancy;

(b) the Respondent's alleged failure to consult adequately with the trade union;

(c) failure of the Respondent to consider the reasons for Mrs Bansi's poor attendance record;

(d) whether the selection criteria were unreasonable or irrational or applied in an unreasonable and irrational manner.

Identification of the pool

15. The Employment Tribunal accepted the Respondent's case. In essence, the Employment Tribunal was satisfied that it was a matter for the Respondent's management to determine the skills that they needed to retain in the business to give them the flexibility that they required in the future; (Decision 4(viii)). The Employment Tribunal made the important findings (which we have already referred to) that the roles of Commis Chef and Chef de Partie were not interchangeable, as Mrs Bansi had alleged. We understand that Mrs Bansi had maintained that in fact she was a Chef de Partie, in effect if not in name, so she should not have been in the Commis Chef pool. The Employment Tribunal also accepted that the matrix agreed with the union would not work if applied to the entire group including Commis Chefs and cold kitchen staff. This might lead to the loss of all Commis Chefs, leaving only general assistants who could not perform all the work.

Failure to consult with union

16. In paragraph 5 of its Decision the Employment Tribunal accepted on the facts that there had been proper consultation and proper warning.

Failure to consider reasons for absenteeism

17. The Employment Tribunal was satisfied that the employers were under no obligation to consider the reasons for absenteeism because of the criteria agreed with the union. However, in any event, the Employment Tribunal was satisfied that they had been taken into account and that:

"Failure to accept any special pleading in her case did not in the unanimous view of the Tribunal make the actions of the Respondents unfair in this regard."

Unreasonable and irrational application of selection criteria

18. The Employment Tribunal was satisfied the criteria had been agreed with the trade union, there was a need to be fair to all employees and that the approach of the Respondent was "just and equitable".

The grounds of appeal

19. All grounds of appeal are prefaced by the word "wrongly and in error of law", but on analysis, Mrs Bansi is claiming that the Employment Tribunal was wrong in relation to the four specific issues we have set out. The Applicant's case is characterised by the Respondent as being an attempt to appeal on facts dressed up as points of law.
20. It soon became apparent to us that the overarching complaint made by Mr Nesbitt, who appeared on behalf of the Applicant, was that there was a general insufficiency of reasoning and general inadequacy of facts having been found. We note (and it seems to us it is a matter of significance) that there has been no appeal on the perversity ground. We have drawn attention to the Orders of the EAT (which were of course in standard form) in relation to evidence and Chairman's Notes. Mr Nesbitt initially sought an adjournment so that additional documents could be placed before the Employment Tribunal and, if necessary, the Chairman's Notes sought. This application did not meet with a sympathetic response and Mr Nesbitt then invited us to deal with the case on the material before us but if we were still against him, to adjourn for further documentation to be supplied at a later stage. He sought also to put in at the hearing a bundle containing some 180 pages. These documents had not been considered by the Respondent's Counsel, Ms McCann, nor, of course, by Members of the EAT. We declined to either agree to an adjournment or to allow the additional documentation to be placed before us. We naturally had regard to the overriding objective of the Practice Direction and the need to deal with cases justly. It is impossible to conduct business in the EAT unless Orders are complied with and time estimates adhered to. Where a volume of documents is put in at the last minute, Members will not have the opportunity of pre-reading them. They will not have been referred to in many cases in the Skeleton Arguments and the argument of a case in such circumstances is likely to take significantly longer than estimated, and in this case would almost certainly have overrun. There is no satisfactory explanation as to why Mrs Bansi's representatives could not have sought to agree evidence or obtain notes in accordance with the Order of the EAT. In the event we agreed with the consent of the Respondent to look at one additional document, namely the assessment form, to which we will refer later in this judgment.
21. In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 the Court of Appeal gave guidance as to the circumstances in which a Judge might be invited to amplify his reasons and findings where these are considered to be insufficient. The EAT has adopted the approach recommended by the Court of Appeal on a number of occasions and remitted cases to the ET for amplification of reasons at an early stage in the appeal process; see Adebowale v Peninsula Business Services (EAT/1135/02/DA) in which the President said that the Court of Appeal had

"expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for clarification".

We need not, therefore set out the dicta in English v Emery Reimbold & Strick.

22. In Be T (a child: contact) 2003 1 FLR 303 ( a care case) the Court of Appeal took the question of seeking clarification from a first instance Judge a stage further. Arden LJ , having considered English v Emery Reimbold & Strick Ltd went on to say that the principle applied to appeals in care cases as well as to other appeals. She said at p.320

"In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not, as a matter of courtesy at least, to draw the judge's attention to any material omission of which he is then aware or then believes exists. It is well-established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective (CPR 1.3, which does not as such apply to these proceedings); and in some cases, it may follow from the advocate's duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity so to do. Unnecessary costs and delay may result. I should make it clear that there are general observations for assistance in future cases, and that I make no criticisms of counsel in this case".

In our opinion it is certainly good practice where parties are legally represented in Employment Tribunals, for advocates to ask the Tribunal to amplify its reasoning where it is considered that there has been a material omission in its findings of fact or in its consideration of the issues of fact and law before it. Where reasons are given extempore the application should be made at the time. If reasons are given in writing the request should be made as soon as possible after the reasons are received. We would encourage advocates to seek clarification from the ET promptly in any case where there might otherwise be an appeal based on alleged insufficiency of reasons. It is much easier for Tribunals to deal with requests for clarification when they are fresh in their minds and the amplification of insufficient reasons and finding will save the parties time and expense and may in some cases obviate the need for an appeal and subsequent remission of the case.

23. The approach we have set out above is wholly consistent with the overriding objective and the principles that should govern appeals before the EAT.

Selection of the pool

24. Mr Nesbitt submitted that in identifying the group of employees from whom to make a selection for redundancy, the employer needs to do more than simply look at a group formed of those doing the type of work which is decided he can afford to lose or have less need for. The group should be widened to include those employees doing jobs within the scope or capacity of those who happen to be doing the roles that the employer has decided it can afford to do without, or need to do without; authority for this proposition is to be found in the case of Cowen -v- Haden Carrier Limited [1982] IRLR 225. This authority is directed essentially to the question of whether or not there is in truth a redundancy situation.
25. Mr Nesbitt went on to submit that the Employment Tribunal had accepted the Respondent's submissions but did not deal with the Applicant's legal submissions. The pool of two was "startling" and "unreasonable". It was illogical not to widen the group to include assistants. Mr Nesbit then submitted that it was wrong to allow the question of skills to determine the pool, as skill levels would only be relevant when it came to making a selection from the pool. The prior application of the skills criteria meant that the employer used unagreed and unconsulted criteria and had not kept to agreed criteria. He also submitted that the reasoning of the Employment Tribunal was insufficient to show why on the facts it had rejected the Applicant's case.
26. The Respondent submitted that the Employment Tribunal could not adjudicate on the employer's legitimate business decision nor substitute its own selection method for that of the employer's. It was only when jobs were interchangeable that the employer is required to widen the pool. Ms McCann drew our attention to the findings of the Employment Tribunal that we have already mentioned to the effect that the jobs of Chefs de Partie and Commis Chefs were not interchangeable, nor were the jobs of Commis Chefs and general assistants. It was, she submitted for the Respondent management to decide which skills it wished to retain.
27. We do not consider that there is any issue as to the law between the parties. The law in not controversial. In this regard, as in others, the Decision of the Employment Tribunal might have been expressed more clearly and in greater detail, but we are quite satisfied that its reasons and findings are sufficiently clear and do not disclose any error of law. There was no dispute between the parties as to the proposition that the pool cannot be limited to persons actually doing the work for which the requirement has diminished, but should include those who can potentially do such work. However, it is for the employer to select the appropriate skills it wished to retain. The Employment Tribunal was satisfied that the employer had applied its mind to this issue and made findings of fact that it needed to retain Chefs de Partie and that their role was different to that of the Commis Chefs. They had higher skills and only one Commis Chef and one general assistant were needed in the hot kitchen. The general assistant could not do the Commis Chef's job and, indeed, although it was submitted to the Employment Tribunal and to us that the Applicant should have been in the same pool as general assistants, it is to be noted that when she was offered the job of general assistant, she turned it down as being less skilled, less graded and lower paid. In our opinion, the findings of the Employment Tribunal in paragraphs 4(iv), 5(vii) and 5(viii) are determinative. Mr Nesbitt had criticised the reference to the Employment Tribunal having accepted that:

"The matrix agreed with the union would not apply if applied to the whole group. If the redundancy pool was widened, for example to include the Commis Chefs and the Cold Kitchen staff all of whom were general assistants, then it would risk a selection process where all the Commis Chefs were selected, leaving only general assistants who were unable to perform the roles required in the Hot Kitchen."

28. That submission is entirely understandable in the context of the pool having been established before the redundancy exercise and the seeking of voluntary redundancies had commenced. It was a subsidiary submission and the Employment Tribunal, it is to be noted, accepted broadly the Respondent's submissions without attempting to set out the detailed submissions comprised in over 39 pages.

Lack of consultation

29. It was submitted on behalf of Mrs Bansi that there was no evidence of consultation on the pool for redundancy and that the requirements of a proper consultation process had not been met. He sought to attack the findings of the Employment Tribunal on the basis of lack of supporting evidence; thus questions of consultation were not addressed and the Respondent's witness statements and documents relating to consultation were only produced at the last minute, and there were no minutes of meetings disclosed at which these matters had been agreed by the trade union. The Respondent says that this is because the question of consultation had not been raised previously; it did not appear in the Applicant's witness statement. Mr Nesbitt wished to show us a number of documents designed to show absence of consultation, but we were not prepared to allow him to do so. He submitted that the Respondent's evidence as to consultation flew in the face of its initial case, and paragraph 4:11 of the IT3 to the effect that:

"An HR 1 was issued on the 22^nd October, the date on which formal consultation with the Trade Union commenced. This was followed by a general briefing to all staff by the Flight Services Manager, notes of which were placed on the Notice Boards."

The evidence was in fact, that consultation had commenced prior to 22 October. Mr Nesbitt submitted that the evidence adduced was unconvincing and did not comply with the minimum of an obligation to consult. He submitted that the Employment Tribunal had failed to address arguments in relation to insufficiency of evidence and did not refer to his submissions or to the relevant evidence.

30. Ms McCann submitted that this is another case of the Applicant dressing up a question of fact as a question of law. The Tribunal found that the union was informed of the possibility of redundancy on 10 October and that the Applicant was aware of the possibility of redundancy from that time (see Decision paragraph 4(48) ). The Tribunal accepted (see paragraph 4(49) that the hot kitchen was briefed about impending redundancies on 23 October 2001 and that Mrs Bansi had three individual consultation meetings and on each occasion was represented by her trade union.
31. We are satisfied that the issue as to adequacy of consultation was not in fact raised, as Ms McCann submitted, until the cross-examination of the Respondent's witnesses, after Mrs Bansi had given evidence. This is the explanation as to why the matter was not raised in their witness statements. There is nothing in the IT1 to suggest that any lack of consultation relied upon is lack of consultation with the trade union. If there were any defect in consultation, we would have expected the TGWU to have been aware of this and to have complained about the matter and we would also expect Mrs Bansi to have called evidence on the point. Notwithstanding during the course of the redundancy exercise the Applicant was represented by her trade union, no such evidence was called and it was no part of the Applicant's evidence that there had been inadequate consultation with the trade union. The findings made by the Employment Tribunal, as it seemed to us in this regard, are based on the evidence they heard and it is not for the EAT to revisit the matter. If Mrs Bansi wanted to challenge the adequacy of the consultation process she should have made this clear in her IT1, witness statement and evidence and not left the matter until cross examination of the Respondent's witnesses.

Application of selection criteria

32. Mr Nesbitt's submission was that it was unfair and irrational for the Employment Tribunal not to look behind the reason for absence and that it should have considered the reasons for absence. He drew our attention to the decision of Paine & Moore -v- Grundy [1981] IRLR 267. He pointed out that the Respondent's initial case was that it did not look at the reason for absences and drew our attention to the witness statements of Ms Sophocleous, the Respondent's Human Resources Manager and Mr Bulmer, the Food Supply Manager. The fact that the trade union had agreed the criteria did not make them reasonable. The Employment Tribunal was wrong to find that the Respondent should not consider the reasons for absence and was wrong on the facts to find that it did. There was also no explanation as to how the Employment Tribunal concluded that the Respondent had in fact considered the reasons for absence.
33. It was submitted by Ms McCann that the criteria were agreed with the union and that the Employment Tribunal found this as a fact. Absence was an agreed criterion. The evidence was that if the employer was bound to examine reasons for absence (save in the case of disability and there was none in this case) it would become involved in the making of subjective judgments. The Employment Tribunal would only interfere if criteria could not be those selected by a reasonable employer. In the present case there was a finding that the Applicant's absence was not the result of industrial injury or disability and that in any event the Respondent, who would not have been required to do so, did consider the reasons for the Applicant's absence.
34. In our opinion this ground of appeal must fail also. As Mr Welch pointed out during the course of submissions, the criterion used, absence, is a standard criterion in redundancy exercises and enables an employer to apply an objective test. Both employers and trade union sides recognise the importance of there being an objective test which enables an employer to avoid having to take subjective decisions. It is a matter of great significance that this standard criterion has been agreed with unions. We accept, of course, that a trade union might agree to irrational criteria but that is of course unlikely. The criteria provide that absence in the case of disability should be treated differently. It may be that in cases that might be regarded as exceptional the reasons for absence might be relevant; for example where absence is wholly the fault of the employer. In the present case, however, it is clear that the Respondent assumed all absences to be without the fault of the employee and the union had agreed that absence without fault was to be a relevant criterion. We cannot go behind the Employment Tribunal's finding that the Respondent did, in any event, look at the facts behind the absence and in particular, they examined the allegation that the Applicant's absence had been caused by a workplace accident. The Employment Tribunal rejected that case. It seems to us, therefore, that this part of the Decision cannot be faulted.

Irrationality of selection criteria

35. The selection criteria (which were of course agreed with the union) had five criteria; competencies, with a maximum score of 200, attendance, with a maximum score of 100, conduct, with a maximum score of 100, service, maximum score 100 and qualifications, maximum score of 100. It had been agreed with the union that where an individual had no qualifications the total score should be divided by four, but where there was a qualification it should be divided by five. The average percentage score would determine whether the employee was at risk. We were supplied with the Applicant's redundancy selection form. This showed that the Applicant obtained 200 for competency, zero for attendance, 100 for conduct and 100 for service, thus if one ignored her qualification, her average was 100. If one took her qualification into account the average remained at 100. It was argued that the selection criteria were irrational because they did not work logically or fairly. This was because in the Applicant's case her qualification led to a result that was neutral. However, it is obvious that it was only neutral in this case because of the Applicant's other scores. Had the Applicant's other scores been different, her average score, when taking into account her qualification, would not have been neutral. It is complained that the Employment Tribunal failed to consider this point. On behalf of the Respondent it was argued that the Respondent needed to be fair to all its employees and the weighting of the criteria had been agreed by the union. The Employment Tribunal had found that the criteria were objective, had been agreed with the union and applied fairly. Although the reasoning of the Employment Tribunal is set out briefly, it is apparent that it accepted the submissions of the Respondent (which were not all summarised) and these are set out in the Respondent's written submissions at paragraph 4.x to 4.xxiv. In paragraph 3 of its Decision the Tribunal had made clear that its reference to the party's submissions was in summary only and it incorporated these submissions, set out in greater detail in the written submissions placed before it by the parties. Ms McCann also submitted that the NVQ was not a requirement for Commis Chefs and other Commis Chefs would not have been told that it was of any particular significance.
36. We do not consider that the selection criteria were either irrational or applied in an illogical manner. It is quite by chance that in the Applicant's case her qualification was neutral. This was only because of the scores she had achieved in other areas. If scores under the other four criteria had been different, then her qualification would have had a positive effect on her case. Again, this criterion had been agreed with the union. We see no flaw in the Tribunal's reasoning.
37. In the circumstances, the appeal fails on all grounds and must be dismissed.