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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sanmina SCI UK Ltd McCormack & Ors [2006] UKEAT 0066_05_1005 (10 May 2006)
URL: http://www.bailii.org/uk/cases/UKEAT/2006/0066_05_1005.html
Cite as: [2006] UKEAT 0066_05_1005, [2006] UKEAT 66_5_1005
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Appeal No. EATS/0066/05/RN
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF
At the Tribunal in Edinburgh
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS A E HIBBERD
MR J KEENAN MCIPD
SANMINA SCI UK LIMITED APPELLANT
W McCORMACK AND 15 OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
APPEARANCES
SUMMARY
The employers carried out a large redundancy exercise. The Employment Tribunal found that 15 employees were unfairly dismissed. There were failings in collective and individual consultation but the Tribunal found that, even had these not occurred, the employees would have been dismissed in any event. However, the Tribunal also found that there were defects in the way in which some of the criteria for selection were applied. They did not, in relation to these errors, consider whether dismissals would have occurred anyway and the employers advanced no arguments and deduced no evidence about that. The employers submitted the Tribunal had wrongly concluded that there had been such a defective application of the criteria as to render the dismissals unfair, and that in any event, the Tribunal ought of its own motion to have found that a proper application of these criteria would have made no difference to the outcome in the case of any of these employees. The EAT upheld the former argument to a limited extent, but rejected the latter.
MR JUSTICE ELIAS
This is an appeal against the unanimous decision of the Tribunal sitting at Glasgow over a period of 29 days between January and March 2005. The 16 claimants, now the Respondents to this appeal, were found by the Tribunal to have been unfairly dismissed. Their dismissals had taken effect in the context of a redundancy exercise. The Tribunal found that the dismissals were indeed by reason of redundancy – in fact only three employees had sought to contend to the contrary – but that their dismissals were unfair. The Tribunal fixed the compensation in relation to each of the employees. The employers now appeal many of the findings of the Tribunal. In the course of our judgment we make certain criticisms of this Tribunal, but that should not detract from our admiration for their extremely thorough, careful and well reasoned decision, which runs to some 160 pages.
The Tribunal heard evidence from Mr William Milliken, who was the former Operations Manager with Sanmina, the Appellant Company. He was given the responsibility of overseeing the whole redundancy exercise. They also heard evidence from each individual Claimant and from most of those members of management who had been responsible for carrying out the assessment to determine whether these particular employees should be made redundant. In each case Mr William Niven, a Vice President of the company, heard appeals against the decision to select these particular Claimants. Some of the Claimants alleged that the appeal had not been fairly carried out in their cases.
The Background
This summary of the background is taken from the very much fuller account of the facts given in the decision of the Employment Tribunal.
Sanmina is a contract manufacturer. It does not itself market any product but manufacturers products for IBM (in Greenock and in Hungary) and for HP (in France). It produces such products as servers, options and desktops and has a three year contract to provide these products to IBM. There is also a three year contract governing material asset recovery and repair, although that contract does not guarantee any particular volume of work. Sanmina had taken over this business from IBM in 2003. The employees had been transferred, pursuant to the Transfer of Undertaking (Protection of Employment) Regulations 1981. At that point 640 employees were transferred to Sanmina.
The manufacturing division consisted of a number of different areas and different products were manufactured in these areas. They were referred to as modules. The relevant areas were as follows:
Servers – approximately 250 employees were employed in this area.
Mobiles – that is the name given to personal computers or laptops – about 50 to 60 employees worked here
Desktops – Netvista – this is the term used to identify a personal computer for use on the desk. In this case the manufacture of this product was carried out elsewhere but the service was managed by Sanmina. Approximately 80 employees worked in this area. They provided engineering support, tested materials and were responsible for shipping the product to the customer. The manufacturer of these desktops was a company called FCI.
Options – This was also a managed service where Sanmina provided the engineering and material support for a company called Geologistics. Options refers to optional parts and accessories which the customer may wish to purchase for their computer
Automated Material Distribution Centre (AMDC) – About 40 to 50 employees worked here. This is the centre where materials are stored and they are distributed to the manufacturing lines.
Asset Management Recovery Service (AMRS) – This constituted about 40 employees. It involved collecting old computers from customers and either refurbishing them or stripping their parts out for sale.
Repair Service – About 30 employees involved in repairing computers and reshipping them to customers.
The employees were also divided into what were termed “exempt” and “non-exempt” groups of employees. The exempt employees worked in such areas as engineering, facilities and finance and were not paid overtime. There were about 300 such employees. The non-exempt – approximately 400 employees – were employed in manufacturing and were paid for overtime worked.
A significant feature of the production at Sanmina was that the business was affected by what was termed a “skew”. There would be monthly, quarterly and year end rises and subsequent falls in production. This was particularly noticeable in the sites manufacturing for IBM as the skew was linked to the incentives offered by IBM in relation to their sales. Sanmina dealt with this problem by using contract labour to meet peaks in demand.
The decision provisionally to effect redundancies was taken in October 2003. There were a number of reasons for this: the company was overmanned for the production required by IBM; it had failed to attract any new customers since the time of the transfer; and a proportion of the server volume production had been transferred from the Greenock site to a site in Hungary where production costs were lower; there was a lower than expected demand from IBM for servers; and options had moved to Hungary as had Mobiles. The proposed number of redundancies was 300.
Collective Consultation
Mr Milliken made a presentation to all managers on 10th December 2003. It took the form of a PowerPoint presentation. It included the offer of a severance package to those volunteering by the 2nd January 2004. The managers then in turn made an identical presentation to the employees in their departments.
Given the scale of the redundancies it was necessary to consult with “appropriate representatives” of the employees who may be affected by the proposed redundancies (see Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992). There was no recognised union and therefore it was necessary to identify specific employee representatives. Nominations to join the Consultation Committee were invited but none were received save from a Mr Yuile, one of the claimants, whose nomination was refused because it had been put in late. Nominations were to have been received by 15th December and his came on the 16th because he had been absent from work, being abroad, when the original presentation had been made.
In view of the lack of any nominations, the company approached the Employee Involvement Forum (EIF) to take on this consultation role. The representatives of this body had not been elected. The Tribunal found that the EIF was in fact approached on 10th December about the possibility of taking on this role. All the members of that body agreed to do so. Subsequently, three members of the Consultation Committee left, having accepted voluntary redundancy. Mr Milliken replaced them with three other from what was termed the “indirect” area. He thought that the direct area was sufficiently represented. Two employees who had previously had nothing to do with the EIF were put on the committee.
The first consultation meeting took place on 19th December 2003. By then some 85 employees had volunteered for redundancy but compulsory redundancies were almost inevitable. There was a further meeting on 8th January. Prior to that Mr McKeown, who was the Human Resources manager, provided members of the Consultation Committee with certain information. This included notifying them that the proposal was to dismiss 300 employees from all work groups and that the proposed method of selecting employees would be by way of “a ranking process, details of which will be agreed by the Consultation Group”.
Further details about the reason for the redundancies and the proposed criteria were given at the meeting on 8th January. The criteria included appraisals, absence, overtime worked and critical skills. The members of the Consultation Committee were asked to consider these criteria and the definitions of the assessment markings relating to them. It was also made clear that the pool would be the whole of manufacturing: all indirect employees would be assessed in one pool and all direct in another.
The Tribunal noted that certainly some of the members of the Consultation Committee did not discuss the proposed criteria with those whom they were representing. Minutes of the meeting were produced on notice boards but they were not provided to Claimants who requested them. The Tribunal noted that there was no satisfactory explanation for that.
There was then a third meeting on 13 January 2004. It discussed the criteria and the definitions for each element of the criteria. As to appraisal rating, it was suggested that it should be based on the last 2 years ratings; one of those had been carried out by IBM and one by Sanmina. Sanmina, in fact, appraised employees more aggressively than had IBM. The second criterion was criticality, a rather inelegant word to describe the critical skills necessary for the business. The third criterion was absence and it was decided that the reasons for absence, whatever they were with the exception of industrial injury, should be excluded from consideration during the assessment. The fourth criterion was overtime support; this was only relevant to non-exempt employees since only they had voluntary overtime. (The exempt employees had a different factor termed “commitment”.) The fifth criterion was potential. That involved an assessment of the individual’s ability to develop into further roles and to take on additional responsibilities.
There was lengthy discussion about these various criteria and although there was some evidence that certain members of the committee might have been out of their depth when dealing with these matters, the Tribunal found as a fact that the selection criteria had indeed been agreed with the Consultation Committee. The meeting concluded with the committee agreeing the weightings of the criteria which had been proposed by Mr Milliken.
Further consultation meetings took place on the 15, 20 and 27 of January and they focused on answering questions that had arisen during the consultation process. One of the particular questions identified on the 15 January was whether it could be justified to hire contractors when employees were losing their jobs. This question was not answered at that stage.
On 20th January the format for the appeal procedure was established and it was agreed that Mr Niven, the Vice President, should hear appeals and be accompanied by Mr McKeown. At the meeting on 27 January it was confirmed that each individual should have two meetings for individual consultation following which they would be requested to go home on garden leave pending the completion of the process. It was also agreed that when reviewing the scoring process for overtime support, extenuating or mitigating circumstances could be taken into consideration.
On 29 January the redundancy package was agreed. It was envisaged that each employee would receive a statutory redundancy payment plus a payment in lieu of notice and an ex gratia payment of one weeks pay for each full year or service, up to a maximum of twelve weeks.
On 3 February the committee focused on ways of mitigating the number of redundancies on site. The only area identified for review was the number of contractors working at the site. Mr Milliken justified the level of contract labour on the grounds of economic viability and key skills. He said that the company could not afford to carry any head count above requirement and, in particular, in the area of managed services the cost of employing regular employees was simply too high and would have resulted in the loss of that business. Mr Milliken produced a graph relating to manufacturing and told the committee that the restructuring plan meant that the Respondent intended to employ sufficient regular employees to meet the lowest levels of demand which occurred approximately four times a year, and to use contract labour to meet any rise required in production.
The Tribunal concluded that the thrust of this meeting was not in fact to review ways in which to mitigate the number of redundancies but rather to enable Mr Milliken to justify why the level of contract labour was as high as it was. The only area, the Tribunal found, where there had been any possible review was in relation to the repair section where it was suggested that five “debug” positions which were filled by long term contractors could be filled by permanent employees. The company agreed to consider that.
There was then a consultation meeting on 5 February, when it was confirmed that if collective consultation concluded prior to the end of the 90 day period, which was the 19th March, employees would be advised of their selection, placed on garden leave until the 19th March on full pay, and would be dismissed on that date with their redundancy/severance package. Certain questions left unanswered on 15 January, were also dealt with at this meeting. It was confirmed that any vacancy within the materials group would be advertised across the site. However, the Tribunal found that in fact these posts did not appear on the vacancy list of alternative employment.
The weighting criteria ultimately adopted was as follows. Appraisal was weighted at 300%, criticality at 200%, absence, overtime support and potential at 100% respectively. There were definitions provided in relation to each criterion, and each was ranked from 10 to 1.
A total of 300 employees were eventually made redundant, 163 were volunteers and 137 were compulsory. Of these, 7 were exempt and 130 non-exempt employees. Many of the Claimants contended were critical of the fact that there were so many more non-exempt than exempt but the Tribunal found that this was understandable given the need to maintain a balance between the two categories of workforce.
Mr Milliken met with managers to ensure that they understood the criteria and how they should be applied and they were then in turn instructed to inform the employees in their sections. In addition, second line managers, that is those to whom first line managers had to report on their assessments, were required to undertake a process of calibration, that is to compare the scores within their areas to ensure that no manager had scored his or her particular department very high or very low. There was therefore that second check.
Individual Consultation
There was also a process of individual consultation. Employees who had been potentially selected were given details of their scores and asked if they wished to raise any points on, amongst other matters, their assessments. In general, employees would take the information away in order to consider it although occasionally they made observations on receipt of the information. They were given a letter at the conclusion of the first consultation meeting confirming that the information had been given and notifying them of the date of the second consultation meeting.
The employees were placed on garden leave, on full pay, following that first consultation meeting and they remained on garden leave until the consultation process had been completed. Management considered this was a more compassionate way of dealing with the employees rather than keeping them at work, although the Tribunal noted that in fact it did have some adverse financial affect on those employees who would have liked the opportunity to earn shift allowance and overtime payments.
At the second consultation meeting, managers were provided with a standard script of information they were to provide to the employee and also to consider any points raised by an employee. Indeed, the ostensible purpose of the second meeting was to enable the employee to raise points regarding his or her own score. However, at the start of the meeting each employee was notified that he or she had been made redundant, and was given a termination date of 19th March. This was before any submissions on the assessment had been made by the employee.
After the second consultation meeting, if the redundancy was confirmed (and it seems that it always was) then the standard letter was sent out on 1 March confirming the termination of employments as on the 19 March. The standard letter giving that date was sent even if the second consultation meeting took place after that date.
There was a third opportunity to meet with the manager, if an employee so requested and occasionally he or she did so.
Appeals
Thereafter, there was an appeal hearing before Mr Niven, accompanied by Mr McKeown. The procedure was that these two gentlemen would meet the manager who carried out an assessment and put to that manager any points raised in the letter of appeal. Mr Niven recorded on an appeal summary sheet the notes of the meeting with the manager. At that stage he either concluded that the appeal had no merit, or in some cases he adjusted the scorings. Having done that, he would meet with the employee about the appeal. The employee would then give detailed reasons for the appeal and Mr Niven would explain why he agreed or disagreed with the submissions made by the employee, based on the information provided by the manager. The outcome of the appeal was notified to the employee in a letter from Mr McKeown. Where scores were increased they were not told to what level; they were merely informed in general terms, such as “your scores could well have been higher.” The Tribunal found as a fact that it was only at the Tribunal itself that some Claimants learnt whether their scores had been increased, and if so, by how much.
The cut off point.
The assessments were brought together, reviewed by the second line managers and thereafter the scores of various departments were forwarded to Mr Milliken. He and Mr McKeown then had to determine the cut-off point for the redundancies. Only those two managers were initially privy to the information about the cut-off point, although the Tribunal found that the employees were in fact able to find it out from the knowledge of who had been made redundant. The Tribunal also found, contrary to the evidence of Mr Niven, that he must have been aware of it also. Even if he had not known of it in terms, it must have become obvious to him.
The particular circumstances of each claimant.
The Tribunal then dealt at some length with each of the Claimants and his or her particular circumstances. This is found at pages 27 to 100 of the Tribunal’s decision. In relation to each employee, the Tribunal analysed the scores of the employee, the outcome of the various meetings and the information relevant to loss. The Tribunal then set out the submissions of the parties in relation to the question of whether the dismissals were by reason of redundancy and then their submissions on fairness.
Conclusions of the employment Tribunal
The Tribunal then set out its conclusions. It found that the Respondent had shown that the reason for dismissal was redundancy; it did so even although it was critical of the company for failing to reveal the full extent to which contractors had been used by the company. That is a finding which is not now challenged.
The Tribunal then dealt at some length with the question of fairness. It referred to the well known case of Williams v Compair Maxam Limited [1982] ICR 156 where the EAT laid down guidelines which a reasonable employer would, in the normal way, be expected to follow in the event of dismissal by redundancy.
The Tribunal then considered and analysed the question of fairness under a number of heads, namely collective consultation, the selection criteria (both whether they were reasonable and whether they were fairly applied) and individual consultations.
Collective consultation.
In analysing the question of collective consultation they took into account section 188 of the 1992 Act (to which we have made reference) which sets out a particular procedure for large scale redundancies of this kind. The Tribunal noted that it would be wrong to equate a breach of Section 188 with unfair dismissal, although they referred to the EAT decision of Hough and Apex v Leyland DAF [1991] IRLR 194 in support of the proposition that where an employer has failed to consult with the union, as required by section 188, that is a factor which can be taken into account when determining whether a dismissal is unfair. The original grounds asserted that the Tribunal had misdirected itself on the significance of section 188, but that particular ground was not pursued orally.
The Tribunal found that the members of the EIF had never been appointed or elected but nevertheless considered that in the circumstances, given that there were no nominations for the Consultation Committee, it was reasonable for the employers to invite members of the EIF to undertake the role of the Consultation Committee. They were, however, critical of the fact that Mr Yule was not placed on the committee and they considered that the decision not to add him was wholly unreasonable. True it was that he had submitted his application late but that was because he had not been present, being out of the country when the presentations were made on the 10 December. Another member of the committee was prepared to stand down to allow Mr Yuile to take his place, the Consultation Committee had not had its first meeting and no proper consideration had been given to his being allowed to join. The Tribunal found that Mr Milliken had in fact deliberately and consciously taken the decision to exclude Mr Yuile because he thought he may be a difficult character.
The Tribunal then considered whether the exercise had been started in good time and whether there had been effective consultations about ways of avoiding the dismissals. It concluded that there were not such appropriate consultations. They found that it was never suggested or discussed (save for the five debug posts) that jobs of regular employees could be saved by reducing the number of contractors on site. Nor was there any consultation regarding the possibility of training employees to fill roles occupied by long-term contractors.
The Tribunal did accept that the Consultation Committee had had a proper opportunity to consider the proposals and to respond to them. The Tribunal was, however, critical of the fact that although minutes were put on notice boards, they were not always secure and could be removed. In the circumstances they considered the employers should have made greater efforts to ensure that copies of the minutes we made available to employees.
The Tribunal considered that the failure to consult about ways to mitigate redundancies did render the procedures unfair, but they went on to find, following Polkey v A.E. Dayton Services Limited [1988] ICR 142 that there was a 100% chance of each Claimant still being dismissed in any event. This was because of the strong economic necessity that lay behind these redundancies. As to the failure to allow Mr Yuile to join the Consultation Committee, they considered that to be relevant only to the fairness of his own dismissal. We will return to that.
The Selection Criteria
The Tribunal noted that it was surprising that the length of service had been omitted but it did not think that it could properly be said that no other reasonable employer would have omitted this criterion. Overall it concluded that the criteria themselves were not unreasonable and were sufficiently precise, and there is no challenge to those conclusions.
The application of the criteria.
The Tribunal were, however, more critical of the application of those criteria. They accepted that in relation to appraisal, notwithstanding certain criticisms from a number of the Claimants, the approach adopted by management had been reasonable. Similarly, on the question of potential, although this gave rise to much dispute, the Tribunal concluded that the criterion had been fairly applied by the assessing managers.
But they held that there were three areas where the criteria had been unfairly applied.
The first related to the criterion of absence. The Tribunal noted that the impression was certainly given that although the reason for the absence would not feature in the initial assessment of absence (unless it was because of an industrial injury) it might be taken into consideration at a later date. They were satisfied that in fact that had not occurred. The Tribunal, after considering the decisions of Drake International Systems Ltd v O’Hare EAT/0384/03 and Dooley v Leyland Vehicles Ltd.1986 SLT 272, agreed that it was open to a reasonable employer not to have regard to the reason for absence at the initial stage but it concluded nonetheless that no reasonable employer would have adopted the position, taken by this employer, that the reason could never be taken into account at any stage. They held that a reasonable employer ought not to have fettered the right to consider individual cases where special circumstances arose. In particular, the Tribunal concluded that this approach affected the decision to dismiss two employees with a one-off long term ill health absence, namely William Simpson and James Gault.
The Tribunal were also critical of the application of the overtime criterion. Overtime was not a contractual requirement but it was frequently worked. It was considered crucial to the operational effectiveness of the business. So willingness to work overtime was seen as a sign of commitment. After highlighting certain inconsistencies in the way in which particular managers had applied this criterion, the Tribunal concluded that the application of the criterion had been unfair. They found that there was some confusion as to whether the reason for not working overtime was to be considered and they further held that the assessment was not applied consistently. Moreover, they also held that there was no evidence to say how the assessment of overtime should have been taken into account, or what score employees would have had had the proper criterion been fairly applied. This was a crucial finding because it led the Tribunal to conclude that all the dismissals, save for two, were rendered unfair.
As regards the reason for failing to do overtime, the Tribunals found that although at the Consultation Committee meeting on 27th January the employers had indicated that extenuating or mitigating circumstances would be taken into consideration, in fact that had not been the case. The reason for a particular employee refusing overtime was not considered material at any stage in the assessment process. Save in Mr Yuile’s case, the Tribunal noted that Mr Niven, on hearing appeals, did not take into account these extenuating or mitigating circumstances either.
In relation to a third criterion of criticality, the Tribunal noted that although the definition specifically emphasised that it should be related to an assessment of the skills of the employee and not the job they were currently doing, nonetheless in the area of servers, the two managers responsible for carrying out the assessment (Mr Ross and Mr Templeton) had focused only on the actual job being done. The Tribunal concluded that this was an unfair application of the criterion. It followed, they held, that the dismissals affected by the failure to apply this criterion fairly were unfair (page 121).
Individual consultation
The Tribunal were highly critical of the individual consultation process. The employees had been informed they had been selected for dismissal at the beginning of the second consultation meeting and- in most cases at least- prior to their making observations to the managers. No manager had amended marks as a result of observations made by employees. Moreover, the letter of dismissal dated 1st March was often prior to the meetings taking place. The Tribunal was satisfied that this was not a fair procedure and that no reasonable employer should have consulted in this way. There was no real opportunity for employers to contest their scores; they could and did make representations but it was largely going through the motions.
Again, however, as with their analysis on collective consultation, the Tribunal were satisfied that whilst this failure rendered the dismissal unfair, even had there been proper individual consultation, it would not have made any difference to the outcome. These employees would have been dismissed in any event. So there was no loss resulting from this particular failure to act fairly.
Appeals
51. The Tribunal then considered the question of appeals. It was to some extent critical of Mr Niven’s approach and considered that it was unconventional for him to raise matters with management prior to considering what the employees had to say but they concluded overall that it was well within the band of reasonable procedures which a reasonable employer might adopt.
The individual claims.
The Tribunal then analysed the position of each individual Claimant to determine the fairness or otherwise of their dismissals in the light of the overall findings that the Tribunal had made. For each employee they calculated compensation by first calculating loss up to the date of their decision (which was 10 June some ten weeks after the hearing) and they assessed future loss by reference to a period of time, which varied from case to case, thereafter. We will not analyse each of those cases in any detail here; we will return to deal with the specific findings in so far as they are now challenged on appeal later in this judgment.
The Grounds of Appeal
Save in one respect, arising out of a cross appeal by one of the employees, Mr Yuile, there is no cross appeal. Therefore the findings of the Tribunal favourable to the employer- in particular, that the dismissals were for redundancy, that the criteria were fair and sufficiently precise, and that some at least were fairly applied- stand.
The employer, however, now seeks to challenge most of the adverse findings of the employment Tribunal.
First, it is submitted that the Tribunal were wrong to find that there had not been proper consultation on the way of reducing the number of redundancies. There had been extensive discussion of the role of the contract workers and why they were necessary.
Second, the employers contend that the Tribunal erred in concluding that there had been no proper individual consultation. They point out that as the Tribunal itself noted, some managers did investigate points raised during the individual consultation process. Furthermore, some employees had more than two consultation meetings and in some cases they were represented by Trade Union Officers. The submission is that the employees did have an opportunity to contest the scores they had been given and that that is what is required for proper individual consultation.
In this context the employers also contend that the employees had the additional opportunity to challenge their scores on appeal. They cite, for example, the case of Mr McPaul, who did just that.
Third, the employers contend that the Tribunal ought to have found that the employer’s approach to the question of absence – and in particular not having regard to the reasons for absence, save in the case of industrial injury- was plainly a decision which a reasonable employer could adopt. It was, submits Mr Pennel for the employers, unreasonable for the Tribunal to consider that once clear criteria had been adopted there should have been the opportunity for exceptions to be made. It is submitted that the Tribunal effectively substituted their own view for the employer as to what would be the appropriate criterion relating to absence. They should have simply asked whether that adopted by the employer, following agreement with the Consultation Committee, was a proper and fair one.
A similar complaint is made about the Tribunal’s approach to overtime. It is accepted that different managers did approach the question of overtime differently, but the employers submit that the purpose of focusing upon overtime was to determine the level of commitment of the employees. In those circumstances, it was not unreasonable for a reasonable employer to adopt different methods of making that assessment. The Tribunal ought to have asked itself whether the approach taken by each manager provided a fair assessment of the level of commitment of the employee for whom he was responsible. The employers rely on British Aerospace v Green [1995] IRLR 433 to which we have referred. Furthermore, in this context it is submitted that the Tribunal erred in making a general finding that this rendered all the dismissals unfair without a specific consideration of the score of each Claimant and how it may have been affected if a proper approach had been adopted. Mr Pennel says that the Tribunal did have sufficient evidence to enable it to determine what assessment would have been made had there been a consistent application of the overtime criterion. In short, the Tribunal ought to have considered whether it would have made any difference.
It is also alleged that the Tribunal erred in law in finding that in the servers section there had been an unfair application of the critical criterion. It is alleged that the criterion were applied in a sensible and fair manner and that, looked at overall, the scores given on the assessments for this element were plainly justified and that the Tribunal is descending to unjustified detail to question them.
Finally, as to compensation, it is alleged that the Tribunal could not properly assess actual loss up to the date of their decision but only up to the date of the hearing itself. It is only as at that date that they had evidence as to actual loss being suffered by these employees. Future loss should have been assessed as from that date.
Apart from those general challenges to the broad conclusions of the Tribunal, the employers also appeal against some of the findings against them which were specific to individuals.
We will now seek briefly to summarise the reasons why each of the sixteen employees was found to have been unfairly dismissed. We do not here identify certain very specific matters applicable only to certain individuals.
The Tribunal, in its decision, set out in considerable detail the individual circumstances of each employee and the nature of the appeal in each of their cases. For the most part, the basis of these appeals reflected the broad submission which we have already outlined. There were certain other specific grounds in the original Notice of Appeal which were not, however, pursued orally and Mr Pennel intimated that he was not seeking to rely upon them.
The employees as a consequence can be considered and grouped under various headings.
First, the cases of McCormick, Cannon, McGowan and Hodelet are largely of a piece. They all worked in the servers area. In each case, they were found to have been unfairly dismissed, both because of the general failure to operate the overtime criterion and also because of the variation in the way in which the criticality criterion was applied. In each of their cases also the employer contended that the calculation of loss had been defective because of the date chosen for determining actual loss.
Then there was a separate group consisting of Fitzharris, McColl, Fairhurst, McPaul, Colhoun, Cooper and William Mitchell, all of whom except William Mitchell succeeded solely on the overtime ground. In his case, the Tribunal also concluded that there had been insufficient evidence available to the manager who assessed him to be able properly to carry out that assessment. The manager himself had only known Mr Mitchell for a short period and there was no evidence that he had sought input from anyone else.
In the case of Calder, the Tribunal held that he was unfairly dismissed both for the general reason relating to overtime but also because the employers had not in his case, as they had in the case of Mr Yuile, taken account of the fact that it was in part his health that prevented him from working as much overtime as he might otherwise have done.
Mr Simpson was found to have been unfairly dismissed both because of the overtime failure and because his own assessment should have been one mark higher. It was accepted that the relevant manager had relied upon what might have been erroneous evidence from a supervisor. In addition, it was found that the company, when assessing absence, failed to take into account the exceptional fact that he had been absent for one lengthy period only because of a back operation.
Mr Yuile’s case is somewhat different. He was found to have been fairly treated on appeal in connection with overtime because the employers recognised that he was precluded for health reasons from doing overtime. They accordingly gave him the average mark. He was found to have been unfairly dismissed because of the failure by the employers to put him on the Consultation Committee. As we have indicated, he requested that he should be allowed to be one of the employee representatives but that was refused. He also cross appealed against the finding that there was a 100% chance that he would have been dismissed in any event even if the collective procedures had been properly complied.
Mr Colin Mitchell was found to have been unfairly dismissed for a number of reasons. First, the Tribunal concluded that his score on the criticality was unfair because the Tribunal had not taken into account his experiences in the area of debugging. In his case also it was considered that the “potential” criterion had been unfairly applied because the particular manager, Mr Sharpe, had considered his attitude as an aspect of the potential criterion. The Tribunal concluded that this was inappropriate, given the definition. Furthermore, in his case he had applied for the job of Debugging Technician which was the one area where contractors were replaced by employees. However, he was not even interviewed for that post and it appears that the jobs were not in fact offered to those facing redundancy. The Tribunal found that the employers had no good reason for this. He appeared in person and made brief submissions to us.
Finally, Mr Gault, who was the one exempt employee, was found to have been unfairly dismissed purely on the grounds that his absence was the result of a single long-term health absence following a heart attack and a quadruple heart bypass operation. In his case the employers contended that the compensation was wrongly assessed because of the wrong date for determining established loss, this ground being common with other employees. In addition, however, the Tribunal assessed his future loss over a period of 12 months and the employers submit that that was too long and that the Tribunal ought to have found that he would have obtained further employment more quickly than that.
Submissions and conclusions
73. We can deal with certain of the grounds of appeal relatively briefly.
Collective consultation.
In our view the Tribunal were fully entitled to find that there was insufficient attempt to consider the possibility of alternative employment, and that the individual consultation had been largely a matter of going through the motions and did not really give employees an effective chance to challenge the decision to dismiss them. We agree with Mr O’Carroll, Counsel for most (but not all) of the employees, that in each case the Tribunal made findings of fact which supported their conclusions. In the former the Tribunal found that there was indeed discussion about the use of contractors, in some detail, but that this was to enable Mr Milliken to explain the company’s policy on the use of contractors rather than in the context of seeing whether they may in some areas be replaced by employees. That was an analysis of that meeting which they could properly make on the evidence they heard.
Individual consultation.
As to the question of individual consultation, the fact that the employees were told they were selected for redundancy prior to making representations about their assessments was powerful evidence that there was no real consultation, as was the fact that very little change was made in the scores as a result of the exercise. The changing of some scores on appeal does not undermine this finding; the employees are entitled to proper consultation before the initial selection has been made. The Tribunal was entitled to find that an effective appeal is no substitute for proper individual consultation.
In any event, in relation to both collective and individual consultation the Tribunal found that although these failings separately rendered the dismissals unfair, they did not sound in compensation. This was because they also found that there was a 100% chance that the dismissals would have occurred even had the employers not acted unfairly in these particular respects. Those conclusions have not been appealed. Since any basic award was met by the statutory redundancy payments made to these employees, it follows that, in financial terms at least, nothing turns on these two conclusions of the Tribunal.
The application of the assessment criteria.
We turn to consider what were the principal grounds of challenge, namely the application of the criteria of overtime support, absence and - although to a lesser extent and only in the servers department - criticality.
Mr Pennel reminded us of the authorities which set out the proper function of an employment Tribunal when considering cases of redundancy selection. It is not the job of the Tribunal to hear detailed evidence on the assessments and in effect to carry them out afresh. As the Court of Appeal held in British Aerospace v Green [1995]IRLR437, following the decision of the Scottish EAT in Eaton v King [1995]IRLR 75, a Tribunal should, in most circumstances at least, limit itself to a consideration of whether the selection criteria are fair and whether they have been fairly applied. There should not be a detailed scrutiny of individual scores or assessments in order to find some flaw in the selection. Waite LJ said this (para 13)
“The use of a marking system of the kind that was adopted in this case has become a well-recognised aid to any fair process of redundancy selection. By itself, of course, it does not render any selection automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, including the degree of consultation which accompanied it. One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and Tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis. That applies both at the stage when the system is being actually applied, and also at any later stage when its operation is being called into question before an industrial Tribunal.”
79. Millett LJ made observations to similar effect (para 25):
“I would endorse the observations of the Employment Appeal Tribunal in Eaton Ltd v King and others [1995] IRLR 75 that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based.”
80. Mr Pennel submits that in essence the Tribunal here has adopted the detailed scrutiny which these judgments countenance against.
Absence.
81. The submission here can be shortly stated. Mr Pennel says that there is clear and unambiguous authority to the effect that an employer is entitled to have an absence criterion which does not take into account the reasons for absence. The justification for such an approach was demonstrated by the Inner House of the Court of Session in the Dooley case (referred to in para 45 above.) There the employers paid no regard to the fact that an absence had been the result of injury at work when using absence as a selection criterion in a redundancy exercise. The employment Tribunal held that this rendered the dismissal unfair, but the EAT and the Court of Session disagreed. Lord Ross, giving the judgment of the Inner House, observed that in concluding that the employer should have had regard to the reasons for absence, the Employment Tribunal was making the impermissible error of substituting its view for that of the employer. He also indicated why this would in principle be unsatisfactory:
“The method of selection refers to absence, and is silent as to the reason for the cause of any absence. That this should be so, is quite intelligible. The reason for or cause of any particular absence may be clear, and, if it is disputed, some inquiry would be necessary to determine what the reason for or cause of absence was. In the context of selecting for redundancy, such an enquiry would not be practical. Accordingly it is understandable that all that has to be considered is absence and not the cause of the absence of the reason for it. Whether or not the absence is due to the fault on the part of the employee is neither here nor there. As is clear from the industrial Tribunal’s decision, what the respondent wished to ensure after the workforce had been reduced, was that they retained those men who could and would attend work on a regular basis. If an employee was regularly sick (though this was not due to his own fault), he might not be a person who could be relied upon to work regularly. Moreover an individual employee might be absent on a number of occasions for a variety of reasons, some of which were his fault and some of which were not; from the employer’s point of view, however, it would not matter whether the absences were due to the employee’s fault or not.”
A similar approach was taken more recently by the EAT in Drake International Systems v O’Hare EAT/0557/03 which followed Dooley and overturned a decision of the employment Tribunal which had held that it was unfair not to have regard to the fact that absences were caused by industrial injuries.
83. Mr Pennel says there are even stronger features which render this principle applicable here. The first is that, as we have said, absence for industrial injury was made an exception. Second, the criterion used was the Bradford criterion. This very significantly weights the nature of absences so that a long absence for a single illness is much less seriously treated than a series of short illnesses making up the same total duration. In other words, this objective criterion already focuses to a significant extent on the nature of the absence.
84. Mr O’Carroll accepts that in general an absence criterion which does not take account of the reasons for absence, particularly if based on the Bradford factor, is justified, but says that the Tribunal were fully entitled to find that in this case some flexibility should have been built into the application of the criterion to prevent unfairness. He points out that the Tribunal analysed the Dooley and Drake cases in terms and distinguished them. The Tribunal found that there was concern over the criteria and management had indicated that the reasons for absence would be added to the notes and considered at a later plant level review. That review was carried out by Mr Milliken and Mr Mckeown who decided to stick to the basic criterion and not to take the reason for absence into account, even when it was a single long term one. The Tribunal said that at least in marginal cases there was the impression had been created that it would feature in some way in the assessment. They were not impressed by the evidence of Mr Niven, who heard the appeals, that he could not be expected to consider the different medical reasons for absence because they said he would know what they were from the notes. The Tribunal found that although it was reasonable not to take this into account at the first stage, it was unreasonable for the employer to fetter its discretion so as never to take it into account.
Mr O’Carroll submitted that this was a legitimate approach. He also referred us to the case of Paine and Moore v Grundy (Teddington) Ltd [1981] IRLR 26 where the EAT held, as in this case, that a reasonable employer would have regard to the reasons for absence. Mr O’Carroll said that it all depended on the circumstances and that this was a finding that the Tribunal could reach.
We disagree. It seems to us that to allow exceptions to this carefully drafted scheme would potentially lead to injustice and the kind of debate which the Court in Dooley said should be avoided. In the Drake case the EAT (Judge Ansell presiding) commented that Paine and Moore was an old case and one which in any event did not involve the application of a carefully framed absence criterion, as here. We respectfully agree. In our judgment, the Tribunal has substituted its own view for that of the employer and simply adopted what it considered to be a fairer criterion. We are not persuaded that the circumstances justified it concluding that the only reasonable approach of management was to consider the reasons for absence at the final stage. In any event, it is not clear how this factor would weigh at the later stage if it is impermissible to take it into account at the initial stage. At best it could only be relevant in highly marginal cases, and it was not suggested that either of the two workers potentially affected, Mr Simpson and Mr Gault, fell into that category.
We are fully satisfied that it could not properly be said that no reasonable employer could adopt this criterion. Indeed, the experience of the lay members is that this criterion is not uncommonly adopted and is generally thought to be fair. Once the issue of reasons for absence had to be taken into account (at least for non-work related causes) invidious and difficult comparisons can creep in.
Accordingly, to the extent to which this rendered certain dismissals unfair, it involved an error of law by the Tribunal.
Overtime support.
Mr Pennel is highly critical of the Tribunal’s finding on this issue. In order properly to appreciate the force of his submission on this point, it is necessary to set out more fully some of the Tribunal’s reasoning.
First, the Tribunal set out the definition of overtime support which was as follows:
“10 = works all requested overtime
9 = works majority (more than 75%) of overtime requested plus all critical times
8 = works majority (more than 75%) of overtime
6 = works reasonable (50% to 75%) level of overtime
3 = some (25% to 50%) level of overtime supported, but timed to suit employee
2 = very limited (less than 25%) overtime support
1 = no overtime support”.
91. Then their conclusions as to why the criterion was unfairly applied were summarised as follows:
“We found as a matter of fact the assessment of overtime was not applied consistently by the various managers, and there was some confusion as to whether the reason for not working overtime - or working less than expected levels of overtime -was to be considered.
The minutes of the consultation meeting held on 13 January (R14/4) reflect the discussions of the Consultation Committee regarding the proposed criteria. The minutes state, with regard to the criterion of overtime, the following statement:
"Due to the nature of our business it is apparent that commitment to working overtime is crucial to our operational effectiveness.
As a business we frequently require to work overtime due to elements outwith out control e.g. material shortages and critical orders arriving at short notice.
This in turn requires us to work at weekends and also extra hours during the week. The measure is designed to recognise employees who have shown significant commitment over the last year and to this effect the scoring reflects this."
There was no dispute regarding the fact that in Servers there was an enormous demand for overtime to be worked. Mr Templeton, Manager, confirmed that overtime was offered virtually on a daily basis at short notice. The assessment of overtime for employees in Servers was based on the number of hours worked as a percentage of the number of hours offered. The productions highlighted the case of one employee who had worked in excess of 500 hours. It appeared from the evidence before us, that an employee in Servers
who worked 200 hours of overtime would score a 3.
Mr Lynch, Manager in AMRS, confirmed that the average amount of overtime required in his area, over the period, was 120 hours. He assessed each employee's overtime by calculating the actual hours worked. We noted that an employee in AMRS who worked 200 hours of overtime would score a 10 for this criterion.
Mr Clark, Repair Centre Manager, confirmed that in his department there was a pool of employees willing to work overtime, and those employees were accordingly used to cover the overtime requirements. Mr Clark had not felt it "fair" to penalise the employees who were not in this pool and who did not accordingly get the offer of overtime. He decided to award employees who worked no overtime, a standard score of 6 for the overtime criterion.
Mr Agnew, who had been a Manager in Mobiles, and who spoke for Ms Stewart's assessments, confirmed that In Mobiles the Managers had calculated the average number of overtime hours worked in the department, and had then reflected the number of hours overtime worked by each employee as a percentage of the average.
The above paragraphs highlight the inconsistent approaches of the various managers to the assessment of overtime. The paragraphs also demonstrate that the assessment of overtime was influenced not only by the number of hours actually worked, but also the area in which employees worked such is the nature of the respondent's business. For example, an employee in AMRS who worked 200 hours of overtime would score a 3. An employee in Servers who worked 200 hours of overtime would score a 3. An employee in the Repair Centre who worked no overtime would score a 6. We noted above that the assessment of overtime was to recognise an employee's commitment: if that indeed was the purpose of the assessment, it did not appear to be reasonable that an employee who worked no overtime would score more highly than an employee who worked 200 hours of overtime. This is particular so given the definition of 6 is "works reasonable overtime (50% to 75%).
We concluded that the inconsistent approach adopted by managers to the assessment of overtime resulted in this criterion not being fairly applied in any of the claimants' cases. We had no evidence before us to state what the correct approach to the assessment of overtime should have been, nor could we say what scores employees would have had, had the criterion been fairly applied. Furthermore, we could not guess at the difference a consistent approach to the assessment of overtime may have made to the final ranking positions of employees. For these reasons, we decided the criterion had not been fairly applied: this is a substantive error and rendered all the dismissals unfair.
We noted from the minutes of the Consultation Committee meeting on 27 January (R23) that a question regarding the assessment of overtime was raised. It was asked "Will individual circumstances be taken into account when assessing overtime support?" The answer was "Extenuating or mitigating circumstances may be taken into consideration when reviewing the scoring process." We found as a matter of fact that when assessing overtime managers carried out a factual assessment, not taking into account any reason why an employee may not be able to work overtime. We further found as a matter of fact that this approach was adopted by the second level managers who reviewed the scores, and by the managers who carried out the individual consultation.”
Mr Pennel accepts that the written criteria were not strictly applied according to their terms. But he says that it is plain from the Tribunal’s own findings that an inflexible application of the overtime formula would have led to significant injustice. In some areas there was no opportunity to work overtime. That, for example, was the position in the repair centre where, as the chairman’s notes make clear, the pool of workers referred to was chosen by a poll of the employees. So even workers keen to work the overtime would not have been allowed to do so. It would, he submits, have been grossly unfair to give such persons zero. That would seriously have misrepresented their commitment to the company.
Again, the fact that the volume of overtime differs significantly from department to department shows that it would be inappropriate and unfair to compare the employees across departments by a formula which simply identified hours of overtime worked. Fairness required some flexibility from department to department, and that was done. Giving the average mark to those who were not able to do overtime, for example, was a perfectly sensible approach to adopt. Other ways of dealing with the matter might have been adopted, but this was plainly within the band of reasonable responses for a reasonable employer.
He also says that the Tribunal ought to have asked itself what would have happened even had a proper and consistent approach to this criterion been adopted. The Tribunal plainly knew what the cut off point was - and we accept that that is so, despite Mr O’Carroll seeking to contend otherwise - and how each of the individuals had been assessed. Given the weighting of these criteria, which made overtime of only limited significance in the overall assessment, it must have been obvious, at least in some cases, that modest and sometimes even significant changes in the mark for overtime support could not have affected the outcome for that employee.
Mr O'Carroll submits that there was enough evidence to justify the Tribunal’s conclusions. There plainly was some inconsistency, and that is not disputed. The way of dealing with injustices was ad hoc and determined by managers in each department; it was not the result of any structured analysis, such as attempting to establish some alternative to test commitment for those unable to work overtime, in a similar fashion to that which had been done for the exempt employees. He also contends that the Tribunal were entitled not to speculate as to what might have resulted had an appropriate and common assessment taken place across the board. The employers did not in terms address the Tribunal on this point, and the Tribunal cannot be blamed for refusing to speculate if the argument, and the evidence in support of it, is not advanced before the Tribunal.
We have found this the most difficult aspect of this decision. The issue of the different application of this criterion does not seem to have been raised by anyone in their original claims. Some individuals did challenge the particular assessment for overtime made in their case, but they did not suggest that the application of this criterion was unfair because the approach across the departments was inconsistent. Indeed, the point only seems to have emerged in the course of the hearing. Mr Pennel did say that the employers were taken aback somewhat by the importance given to this aspect in the Tribunal’s decision. But as he accepted, it is not part of the appeal that the Tribunal was not entitled to take this point, nor is it alleged that the employers were denied a proper opportunity of dealing with it. The question we have to ask, therefore, is whether there was a proper evidential basis for the decision of the Tribunal on this point. We have come to the view that there was. We remind ourselves that it is not for us to say what we would have decided; it cannot in our judgment be said to have been a perverse decision.
We also find that the Tribunal was not bound to consider what would have happened even had the criterion been properly applied. They heard no argument directly on this point, and nor did the employers seek to contend whether and to what extent the scores might have altered had there been a consistent application of the criterion, or what that systematic application would have involved. The courts have frequently emphasised that there must be evidence from which the Tribunal can infer what would have happened had the decision been taken properly: see King v Eaton (no.2) [1998] IRLR 681 and Lambe v 186K [2005] ICR 307. They have also stressed that the reluctance to interfere with the decision of the employment Tribunal as to whether they have enough evidence to make a proper assessment as to what might have happened had a proper procedure been adopted, or whether this would be impermissible speculation. Recently in Gover v Property Services Ltd [2006]EWCA Civ.286 Buxton LJ said that where it is alleged that the dismissal would have occurred even if proper procedures had been in place, the Tribunal should:
“proceed [as] was set out in a passage of the judgment of Lord Prosser in King v Eaton(No 2) [1998] IRLR 686[19], cited with approval by this court in Lambe v 186K [2005] ICR 307[58]:
"the matter will be one of impression and judgment, so that a Tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been"
That, when applied to an ET, indicates very strongly that an appellate court should tread very warily when it is being asked to substitute its own impression and judgement for that of the Tribunal….”(para 22)
We do not accept that the Tribunal was bound to take up this point of their own motion. We bear in mind that in some cases the likelihood of the score being varied was minimal (such as in the case of Couper and McCaul who obtained full marks on that criterion). But the Tribunal noted that had a systematic approach been adopted, it might have varied all the scores in unanticipated ways and therefore it was not willing to assume even there that their situation could not be improved. There can be no doubt that some of the employees may have been very fortunate indeed in being so treated, but as we have said, it was not specifically submitted in relation to any of them that any change in the approach to overtime assessments would have made no difference, and the Tribunal was not obliged to determine what common approach would have ultimately have been adopted or how it would have affected the outcome.
Criticality.
The Tribunal found that the criterion of criticality was not properly applied in the servers department. They found the fact that the managers in that department, Mr Ross and Mr Templeton had focussed on the job that the employees were then doing rather than the full range of relevant skills of the employee. The Appellant submits that there was in fact direct evidence from Mr Ross that he had considered the overall skills of the individual and also the amount of time they had been doing the job. That, it is submitted, is at variance with the finding of the Tribunal. But the Tribunal did have evidence from Mr Templeton that marks were fixed by reference to the particular jobs that workers were doing. There was plainly, therefore, evidence to justify the Tribunal’s conclusion, as Mr O’Carroll alleged. Therefore, the fact that the evidence was not all one way does not affect that conclusion.
The Appellant submits that the Tribunal is subject to the same criticism here as in relation to the overtime criterion. In particular, it failed to consider whether the mark given was in fact a fair mark and it also failed to have regard to whether a change in the mark for these particular employees working in the servers department would have made any difference to their overall position. In this connection, Mr Pennel, contends that there is likely to be very little difference in practice in the mark that somebody scores if the focus is on the skills attached the particular job they are doing, or whether it is by reference to other independent skills they have which may be of value to the company. The skills required for the job they do will usually be a fair measure of their skills overall, or at least those likely to be of use to the Company.
The Employees’ answer is also in substance the same here as in relation to the overtime criterion, namely that the employer had not adduced any evidence to show what might have happened had a proper criterion been operated, and consequently there was no basis on which the Tribunal could be expected to reach an independent view, taking that point of its own motion.
We accept that there is much good sense in Mr Pennel’s point that the skills for the job will generally reflect the skills of the person, at least in so far as they are likely to be of continuing benefit to the company. But there is a difference, and the Tribunal was entitled to find that the criterion was not properly applied. That invites the question whether it made any difference to apply this modified criterion. We have resisted the temptation to take a view on that or refer it back to the Tribunal. Again the Tribunal was not asked to reconstruct the world as it might have been, and we cannot be sure what the outcome might have been, had they tried to do so. The employers were under an obligation to raise an argument of this nature before the Tribunal, and to adduce evidence to support its submissions. It may be that the Tribunal could, at least in some cases, have been persuaded that there was no prejudice resulting from any defects. But they were never asked to carry out the exercise.
Compensation
The Appellant contends that the Tribunal erred in its assessment of compensation. It fixed compensation by reference to the date of its judgment rather than the date when it heard the evidence. There was period of almost three months from the hearing in March to the judgment which was determined on the 10th June. Mr Pennel submitted that in assessing immediate loss the Tribunal could only properly do that in the light of evidence before it. He referred to Dignity Funeral Limited v Bruce [2005] IRLR 189 where the Inner House of the Court of Session emphasised that the application of a just and equitable test in section 123(1) of the Employment Rights Act must be underpinned by findings of fact. He said that the Tribunal only had findings of fact as at the date from when the evidence was given and the facts may have altered between then and June. Similarly, he says that in assessing future loss, once the Tribunal had determined a fixed period, this should have run from the date when evidence was given.
Mr O’Carroll submits that this is highly technical. He accepts that there is the possibility that the position for these employees might conceivably have changed from the time when they gave their evidence to the Tribunal to the point when judgment was handed down. But he says that it is wholly unreal to think that had the Tribunal considered that it should fix the immediate loss only by reference to the date when evidence was given, then in those circumstances the Tribunal would still have fixed the same period in respect of which future losses should be calculated. They would obviously have had an overall period of less in mind when determining the level of compensation. Moreover, he contends that if there were evidence that the position did change between when evidence was given and when the judgment was handed down then it would be open to the employers to go back to the Tribunal and ask for a review of the decision: see Yorkshire Engineering and Welding Company Limited v Burnham [1973] 2 AER 1176; [1974] ICR 77 (NIRC). The employer has not sought to do that and has not suggested that in fact there was any material change in the situation of any of these employees.
We agree with Mr O’Carroll’s submission. It seems to us highly artificial to require the damages to be assessed in the way suggested by the Appellant. Indeed, different employee will give evidence on different dates and it would be absurd for the Tribunal to have to identify, as the relevant date for fixing past or future loss, the point at which it received evidence from the particular employee about his or her own specific loss. Accordingly, we think there is nothing in this particular point.
Miscellaneous points.
106. We deal briefly with these in the context in which they were raised. The nature of some of the grounds of appeal as they related to particular individuals was that there had been some blemishes in the marks for particular criteria, such as in relation to overtime. We have to say that in our view it was not appropriate for the Tribunal to become embroiled in debates of that nature. For reasons given in British Aerospace v Green, we think that this was far too detailed an assessment of the individual criteria. We accept that there may be cases where an employee identifies what he or she considers to be a marked disparity between the mark given and what he or she claims it ought to have been. If that was raised internally on appeal, and there remains even after that no satisfactory explanation for an apparently significant disparity, then it could form the basis of an unfair dismissal finding. But a challenge which suggests a mere failure to assess accurately in a relatively minor way ought not, in a case of this kind, to be sufficient to establish an unfair dismissal. There are bound to be minor differences of judgment or even errors of judgment in calculations of this kind. To pick one mark in one of the assessments as being understated by one mark out of 10, as for example occurred in the case of Mr Simpson, cannot, in our view, begin to render his dismissal unfair. Moreover, in such a case it will be obvious if that mark made a difference, since it is not dependant upon the general complaint that the criteria were not consistently applied, which technically leaves all assessments uncertain. If it has not affected the result, there can be no justice at all in finding unfair dismissal on such a slender basis. Nor, in our view, should it even be a factor lending support to other grounds of appeal.
Individual Claimants
107. We now turn to look at the application of these principles to the individual Claimants. We also, in this section, identify those cases where certain additional points were raised in the appeal which were specific to particular individuals. As we have said, not all the grounds raised in the original notice of appeal have been pursued. In particular, there were various challenges to the amount of compensation awarded in individual cases which were not, in the event, argued before us.
108. Those individuals who were found to have been unfairly dismissed because of the defective application of the overtime criteria all continue to be unfairly dismissed because the appeal in their cases on that ground has been unsuccessful. That is so even in the case of Couper and McCaul who were given maximum points. That covers all the employees except Yuile and Gault. We do feel some unease about a conclusion that they all have been unfairly dismissed since it seems unlikely in the extreme that in every, or even most, of these cases their situation would have been improved even if the overtime criterion had been applied in the same consistent manner across all the departments. But as the Tribunal pointed out, that it is conceivable that had that happened others might have scored less. We do not know how close these particular individuals were to the break point for determining whether they would be dismissed or not and the employers, as we have said, did not press this issue before the Employment Tribunal. In those circumstances for reasons we have already given, we do not think that the Tribunal was obliged to carry out its own scrutiny and to reach its own independent view.
109. Some of the employees, namely McCormick, Cannon, McGowan and Hodelet were also held to have been unfairly dismissed because they worked in the server area and were found to have been the subject of a defective assessment of criticality. Again, essentially for the reasons we have given in relation to overtime, this was a sustainable finding. In their case the fact that their assessments were defective on two grounds also means that it would have been made more difficult for the Tribunal to have inferred that they had been dismissed in any event, even had the Employers conceded that the errors made no difference.
In the case of Calder, he also succeeded on the grounds that the Tribunal failed in his case to take into account the reasons why he was not doing overtime. The Tribunal considered that this was unjust given that in the case of Mr Yuile that had been taken into consideration. It is not necessary for us to dwell on this point at any length. Suffice it to say that we accept the contention of the Appellant that their circumstances were plainly different. Mr Yuile had an intrinsic health problem which prevented him from doing overtime; that was not the same in the case of Mr Calder. In any event, the obligation to take into account the reasons for not doing the overtime (as opposed to the possibility that they might be considered) was not built into the criterion and it may be that Mr Yuile was lucky to have it taken into consideration in his case. Had this been the only ground on which Mr Calder had been found to be unfairly dismissed, we would have found that the appeal in his case was successful.
Mr Simpson was another who was found to be unfairly dismissed by reason of the overtime criterion and the finding stands on that basis alone. He, in addition, was one of the two Claimants who was considered to have been unfairly dismissed because of the reason for his absence, in his case the need for a back operation. We do not think this was a sustainable conclusion for the reasons we have given. In Mr Simpson’s case there was also a determination by the Tribunal that his mark for overtime should have, been one mark higher. It was accepted by the Tribunal that the manager making the assessment had relied upon erroneous advice from a supervisor. As we have said, in our view the Tribunal was wrong effectively to review individual marks in this way, and this was not a sustainable ground for finding unfair dismissal.
We turn to Mr Yuile. The ground on which he was found to have been unfairly dismissed was that he was not one of the persons allowed to sit on the Consultation Committee. He had wanted to be included but had been refused for what the Tribunal had found not to be a good reason. However, we do not think that that rendered his dismissal unfair. It may have been a defect in the collective consultation process but the failure to put him on that committee had no bearing on the decision specifically to dismiss him. It could not properly be said that his own case would have been considered any differently had he been on that committee and we have no doubt that the Tribunal was right so to conclude. There should be no special protection given to those employees who were on the Consultation Committee. The failure to allow him to be a member of the committee was not a specific unfairness in relation to his particular case. If and in so far as it rendered the committee less effective than it would have been with his presence, that would be true equally in relation to all the employees, and not just him. Accordingly we think the Tribunal erred in concluding that this rendered his dismissal unfair.
He alone cross appeals on the ground that the Tribunal had erred in concluding that there was a 100% chance that he would have been dismissed in any event, even if the collective procedures had been properly complied with. He submits that this was not a justified finding and that he might have been treated differently had he been on the Committee. Effectively, we have dealt with that already. There was no proper basis for assuming that his case would have been assessed differently in those circumstances. That is what the Tribunal found and in our view they were manifestly entitled so to conclude. It followed that he had suffered no prejudice as a result of their failure to put him on that committee. Accordingly, even if this had been a proper basis for finding his dismissal unfair, we would have agreed with the Tribunal that he should receive no compensation on that ground.
Finally, he sought leave to amend his cross appeal. He was in fact given the average mark for overtime because he was not able to do it for health reasons. Because he was treated in that way, the Tribunal found that his dismissal was not unfair by reason of any failure in the overtime assessment. He has not appealed against that aspect of their finding. Mr O’Carroll submits that given the logic of the Tribunal’s analysis, he was unfairly dismissed for this reason in any event. It is not clear how others would have been assessed had this been consistently applied. We accept that Mr O’Carroll may well be right, but he only sought an amendment to the notice of appeal virtually at the conclusion of the case. That was opposed and we think that it would be wrong to allow that amendment at this stage
We now turn to Mr Colin Mitchell. He was found to have been dismissed not only because of failings in regard to overtime and criticality but also for two further reasons. In his case the Tribunal found that he should have been considered for alternative employment as a debugging technician. He had applied for a job and was not considered for it and the employers did not appreciate that he had the requisite abilities. That was plainly in our view a further reason for justifying their finding of unfair dismissal. It is a classic example of unfairness. In addition, the Tribunal found that it was wrong for Mr Sharpe, who was the manager who assessed him, to take into account “attitude” as an aspect of the criterion for potential. We think the Tribunal erred in that regard. It seems to us it is perfectly proper for a reasonable employer to take that factor into consideration. Had anything turned on it, we would have found this was not a sustainable decision but we deal with it briefly because nothing, in fact, does turn on it since the finding of unfair dismissal stands for other reasons.
Finally, Mr Gault was the one exempt employee. In his case the basis of the finding of unfair dismissal was purely on the ground that he had had an absence as a result of a single long-term health problem. We have already explained why we think the Tribunal erred in considering that this rendered any of these dismissals unfair. Nor is it clear that even had this been taken into consideration, it would have had any impact at all, given that even on the Tribunals own finding, the reason would only be relevant in marginal cases. In his case, therefore, since the dismissal turned solely on this finding and we have held that the Tribunal erred in reaching that conclusion, it follows that his dismissal was not unfair and the award of compensation cannot stand.
Conclusion.
It follows that whilst we have found some legal errors in the approach of the Tribunal, they do not affect the outcome that the Claimants were unfairly dismissed save in the cases of Mr Yuile and Mr Gault. We find that the Tribunal erred in concluding that they had been unfairly dismissed and the appeals in those two cases succeeds. We substitute findings of fair dismissal in their cases. The finding of unfair dismissal with respect to the other employees, and the compensation awarded to them, stands.
UKEAT/0066/05/RN