United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Northgate HR Ltd	Mr James Wynne (of Counsel) Instructed by: Messrs Ayres Newmark Solicitors 14c Park Vista Greenwich London SE10 9LZ
For Mr N Mercy	Mr Lawrence Bruce (of Counsel) Instructed by: PJH Law Orion House 14 Barn Hill Stamford Lincolnshire PE9 2AE


 


SUMMARY

Unfair dismissal – Reasonableness of dismissal

Redundancy – Protective award

Once there is an unimpugned finding that a body constitutes appropriate representatives for consultation in respect of proposed redundancies under TULRCA 1992, the individual employee has no standing to seek a protective award under that act.

Where the ET is considering the application of selection criteria in a redundancy situation and identifies "glaring inconsistencies" it is an error of law to limit a finding of unfairness only to situations where there is bad faith in their application.


 


THE HONOURABLE MR JUSTICE WILKIE

1. The EAT has before it appeals by Mr Mercy against decisions of the Employment Tribunal at Leicester (the ET) as well as cross appeals by Northgate HR Ltd (Northgate) against certain decisions of the ET. Before we deal with the procedural position to-day we first set out briefly a history of the matter.
2. In 1991 Mr Mercy commenced employment with Peterborough Software (UK) Ltd. This changed its name to Rebus Human Resource Ltd at some point during the 1990s. In 2002 Rebus established a body known as the Employee Consultation Council (ECC). On 10 December 2003 Northgate Information Solutions plc announced that it had purchased an option to buy a majority shareholding in Rebus. On 12 December 2003 the ECC held a meeting to discuss the prospective takeover. On 23 January 2004 Northgate sent forms HR1 to the Department of Trade and Industry and 3 days later, on 26 January 2004, there was a presentation to the ECC and to the workforce in the course of which it was indicated that reductions in headcount of the order of 180 would be looked for on the amalgamation of Northgate with Rebus. It indicated that in the first instance volunteers would be looked for and that there would be consultations with the ECC as to, amongst other things, methods of selection.
3. By 12 March 2004, at the end of the search for volunteers for redundancy, and after a period of consultation involving the ECC, Northgate announced that there would be as few as 25 compulsory redundancies. On 15 March 2004 Mr Mercy and a Mr Deane were respectively informed by their line managers that each of them was "at risk" of redundancy.
4. Following that, the selection criteria to apply to the choice between Mr Mercy and Mr Deane were agreed with their respective line managers. On 16 March a Ms Race of Northgate met Mr Deane's line manager to discuss his performance in the redundancy selection exercise. On 17 March 2004 Mr Mercy had his last appraisal and on 18 March 2004 Mr Mercy's line manager conducted his redundancy selection assessment. Shortly after, Ms Race met with Mr Mercy's line manager to discuss his performance in the redundancy selection exercise. On 23 March 2004 Mr Johnson wrote separately to Mr Mercy and to Mr Deane and informed them of the outcome of the redundancy selection exercise which was that Mr Mercy had been selected to be made redundant. Mr Mercy exercised his rights to two internal appeals on 11 May and on 9 June and on 18 June 2004 his employment came to an end.
5. On 6 August 2004 Mr Mercy submitted his ET1. He claimed both unfair dismissal and a protective award. The essence of his complaint of unfair dismissal was that Northgate had chosen the wrong pool for selection. The pool for selection should have been Mr Mercy and his line manager Mr Yates and had he been pooled with Mr Yates he would not have been selected for redundancy. As a further line of argument on unfair dismissal he says that he was unfairly dismissed because no information on pools was provided to the representatives as required under section 188(4) of the Trade Union and Labour Relations (Consolidation) Act 1992.
6. His complaint for a protective award reads as follows:-

"The respondent failed to comply with its obligations under section 188 of the TULRCA 1992 in that:

(a) the respondent did not consult with appropriate representatives of affected employees (which included the applicant).

(b) the representatives consulted did not have the authority required under section 188(1)(B)(b)(1) TULRCA 1992 from the affected employees to receive information and to be consulted about the proposed dismissals on their behalf,

(c) the information required by section 188(4) of TULRCA 1992 was not provided as required,

(d) there was no consultation with any representatives of the employees of the Northgate IS business, only the employees of the respondent were consulted despite Northgate IS employees being at risk of redundancy.

Therefore the applicant claims a protective award under section 189 of the TULRCA 1992."

7. The first hearing by the ET of this matter was on 2-3 December and 11 February 2005. The outcome was that the complaints of unfair dismissal and for a protective award failed and were dismissed. The reasons for the unfair dismissal are set out in 8 numbered paragraphs to which we will return in due course. The ET dealt with the protective award in paragraph 19. They said this:-

"We hold as a fact that the consultative committee was properly constituted and that the consultation process, in accordance with if not the absolute letter, certainly the spirit of the consultation process took place. In our view, it would almost be an abuse of process given the nature of this case to make a protective award. That part of the application (which we find was not the important part) is dismissed…."

8. On 13 June 2005 Mr Mercy appealed against the ET's decisions. He raised three points concerning the protective award. Point one was that the tribunal had failed to give any or sufficient reasons for the dismissal of his claim for a protective award. Point two was that there was no evidence to support the tribunal's finding of fact that the respondent complied with its statutory duties in respect of consulting with appropriate representatives alternatively that finding was perverse. Point three was that there was no evidence to suggest or show that the respondent had complied with the requirement under section 188(4) to disclose in writing to the appropriate representatives the information set out in section 188(4)(A)(f) of TULRCA.
9. Under detailed grounds on point one the notice of appeal cited Meek v Birmingham City Council. Under point two the detailed grounds are as follows:-

"(a) the tribunal erred in law in concluding that the consultative committee were "appropriate representatives" under section 188. Under section 189 it is "for the employer to show that the employee representatives had the authority to represent the affected employees".

(b) under section 188(B)(b)(i) that authority is "authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf."

(c) the tribunal asked itself the wrong questions at paragraph 7. The correct question was "did the body consulted have authority from the affected employee to be consulted over the proposed redundancies".

(d) had the tribunal asked that question the answer would have been no as

(i) there was no evidence before it that the council had authority to consult over the proposed dismissals

(ii) one of the members was appointed not elected

(iii) the council had not been elected by Northgate HR employees who were affected by the redundancy exercise, the exercise was one of synergy between duplicated roles within Northgate and Rebus only the Rebus council was used as a vehicle to try to show compliance with section 188."

10. On unfair dismissal point four cited the failure of the tribunal to consider whether any failures to follow the letter of section 188 of ULRCA impacted on the subsequent dismissal of the claimant. Point 5 reads:-

"The tribunal misapplied or misconstrued the law regarding the finding that it was within the range to dismiss where one point separated two employees for redundancy and there was a "glaring inconsistency" in the claimant's scores. No reasonable employer would have dismissed in circumstances where on objective investigation a glaring inconsistency existed.

Point six further and in the alternative the tribunal's finding of fact that the respondent was selected fairly for redundancy was perverse. The evidence before the tribunal suggested in its words, there was a "glaring inconsistency" in the scoring of the appellant and his comparator on the respondent's redundancy selection criteria by cross reference to the bare criteria and their definitions, and to the contemporaneous appraisals of both men upon which the scoring was said to have been based. In the absence of any, and any adequate explanation for such glaring inconsistency, and given that there was one mark between the appellant and the retained employee the tribunal's finding was perverse"

11. On 12 September 2005 at a preliminary hearing attended by counsel for Mr Mercy, but not by Northgate, the EAT ordered that the appeal be adjourned pending an application to the employment tribunal for review.
12. That application took place and was successful. The ET granted a rehearing on the discrete issue as to whether the provisions of section 188 and 189 of the TULRCA 1992 had been complied with. That hearing took place on 27 March and 4 April 2006 and gave rise to a decision contained in reserved reasons sent to the parties on 12 June 2006.
13. At paragraph 5 of that decision the ET confirmed their previous finding of fact that the ECC consulted was the appropriate body to have been consulted. In paragraph 14 the ET found that what followed after the meeting of 26 January 2004 had been "a model consultation process". In paragraph 16 the two lay members of the tribunal expressed themselves as highly impressed at the achievements of the consultation exercise. A reduction in head count of 180 was what the company required but it was achieved by under 30 compulsory redundancies a major achievement for which both the ECC and the Human Resources department deserved congratulations in the view of the ET.
14. The conclusion of the tribunal turned on the fact that on 26 January 2004 only the power point presentation headings had been handed to the ECC. The argument that was raised on behalf of Mr Mercy was that, as the law had developed, the information required to be given under section 188(4)(a)-(f) had to be disclosed in writing to the appropriate representatives at the outset of the consultation period rather than at some point during it. Having been referred to recent authorities, the ET, at paragraph 30, concluded that the statute required that the information set out in section 188(4) was provided in writing at the outset of the consultation period. It therefore followed that there had been a breach of the section. On matters of remedy, however, whilst the ET was not prepared to make a nominal award it reflected its view that as a matter of fact the consultation exercise had been highly successful and limited its award to one week which it made to Mr Mercy.
15. On 17 July 2006 Northgate appealed against this decision of the ET. The grounds of appeal were that the ET had erred in law when it held that, because the written information required under section 188(4) had not been provided before the start of the consultation period, there had been a breach of section 188(4).
16. On 21 August 2006 Mr Mercy submitted a cross appeal on this issue. He alleged that the finding by the ET that the process following the appellant's failure to comply with section 188(4) was a model consultation process was perverse and/or based on no evidence. Accordingly the decision to make a one week protective award was an error of law as it did not properly reflect the extent of Northgate's breach of its collective redundancy consultative duties.
17. On 3 August 2006 HHJ McMullen reviewed the EAT file. He assumed that Mr Mercy had abandoned his appeal on section 188 in the light of his successful application for a review. As for the unfair dismissal appeal he made a rule 3 direction on the grounds that, insofar as it appeared to be a perversity challenge, it had no real prospect of success. He also ruled that Northgate's notice of appeal against the review judgment would go to a full hearing in accordance with an order he had already made.
18. On 31 October 2006 the Honourable Lady Smith in chambers considered on the papers Mr Mercy's application pursuant to rule 3(10). She ordered that the appeal be set down for a full hearing. As part of that order the following appeared at paragraphs 5:-

"If it is considered by any party that a point of law raised in the appeal or cross appeal cannot be argued without reference to evidence given (or not given) at the Employment Tribunal, the nature of which does not, or does not sufficiently, appear from the written reasons of the Employment Tribunal, then the parties so contending shall within 14 days of the seal date of this order give notice to the other party, and they shall seek to co-operate in the agreement of a statement or note in that regard; in the absence of such agreement within 21 days of such request, either party shall be at liberty to apply on paper within 7 days thereafter to the Employment Appeal Tribunal on notice to the other party in relation to such evidence (whether for the purpose of resolving such disagreement or seeking answers to a questionnaire or requesting chairman's notes from the relevant employment tribunal)."

This is a standard order made where a full hearing is ordered. No such application has been made by Mr Mercy or Northgate. Pursuant to one of the other standard directions there was an exchange between the parties of skeleton arguments in February 2007 in preparation for to-day's hearing. The written submissions made on behalf of Mr Mercy are 38 pages in length added to which there is a 4 page chronology. There is nothing in that lengthy document which directs the reader to any of the points of appeal numbers one, two or three referred to above. Mr Wynne, counsel for Northgate, enquired of Mr Bruce, counsel for Mr Mercy, whether any of these points were still being argued. Mr Bruce confirmed that they were not.

19. Assuming that the points were not being pursued Mr Wynne, by letter dated 5 March 2007, sought permission to raise as an additional answer or reply to Mr Mercy's appeal and cross appeal the following ground:-

"The Employment Tribunal lack jurisdiction to hear almost all of Mr Mercy's claim for a protective award because section 189(1) limits the power of a non representative to make a complaint to the following situations:

1.1 the case of a failure relating to the election of employee representatives; and

1.2 any other failure that is not a failure relating to employee representatives.

2. All the matters raised in Mr Mercy's skeleton argument, save those that address unfair dismissal, allege failures relating to employee representatives (since these alleged failures describe breaches of section 188(1),(2),(3),(4) and (5).

3. Mr Mercy has not pursued in his skeleton argument any of the grounds 1-3 of his grounds of appeal dated 14 June 2005 and in any event, grounds 1 and 3 fall away as a result of the tribunal review of its decision on the protective award. All of Mr Mercy's grounds of cross appeal dated 21 August 2006 should fail on the basis that the tribunal had no jurisdiction to hear these complaints."

20. We note that on 23 January 2007 Mr Bruce for Mr Mercy had submitted a further ground of cross appeal on his behalf namely:-

"The tribunal erred in law in holding that, for the purposes of section 189(3) of the 1992 Act, the description of employees whose benefit its declaration was made was limited to the respondent – appellant alone. The tribunal's judgment, on review, was silent as to the description. Upon request, and having heard argument on the point, on 19 January 2007 the tribunal held as above. It is submitted that, for the purposes of section 189(3), the correct description is all employees whom the appellant – respondent proposed to dismiss as at the time it was held to be in breach of section 188."

21. At the start of the hearing Mr Wynne for Northgate indicated that he had a preliminary matter to raise namely whether the order of Lady Smith for a full hearing of the unfair dismissal appeal was validly made under rule 3(10) as there hadn't been an oral hearing. Mr Wynne and Mr Bruce agreed that we should hear the substance of the argument and consider in parallel whether there was any real prospect of success in the unfair dismissal appeal and, if so, go on to consider its substance.
22. Mr Wynne also applied for permission to raise the jurisdictional point. Having referred the EAT to Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 and, in particular, paragraph 18 both Mr Wynne and Mr Bruce agreed that the jurisdictional point was a discrete one of pure or hard law requiring no or no further factual enquiry and therefore it was appropriate for us to consider that point before proceeding to hear Mr Bruce on his dual appeals and Mr Wynne on the substance of his appeal. Accordingly we now turn to consider the jurisdictional issue.
23. The appeal concerning the protective award

Part IV chapter II of the TULRCA 1992 contains provisions for the procedure for handling redundancies.

24. Section 188 is entitled "Duty of Employer to consult Representatives". Insofar as is relevant it provides as follows:-

"(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals…

(1B) For the purposes of this section the appropriate representatives of any affected employees are –

(a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or

(b) in any other case, whichever of the following employee representatives the employer chooses –

(i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf...

Sub-section (2) makes provision for the subjects about which consultation shall take place and indicates that the consultation shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

"(4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives (a)(-(f)…

(5) That information shall be given to each of the appropriate representatives.

(5A) The employer shall allow the appropriate representatives access to the affected employees and shall afford those representatives such accommodation and other facilities as may be appropriate.

(7A) Where –

(a) the employer has invited any of the affected employees to elect employee representatives and

(b) the invitation was issued long enough before the time when the consultation is required by sub-section 1A(a) or (b) to begin to allow them to elect representatives by that time

the employer shall be treated as complying with the requirements of this section in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.

(7B). If, after the employer has invited affected employees to elect representatives, the affected employees fail to do so within a reasonable he shall give to each affected employee the information set out in sub-section (4)."

25. Section 188A sets out detailed requirements for the election of employee representatives which are required to be satisfied by section 188(1)(B)(b)(ii). Sub-section 2 of this section provides for "a bye election" in the event that one of those elected ceases to act as an employee representative and any of those employees are no longer represented. Such election shall also satisfy the requirements section 188A.
26. Section 189 is headed "Complaint and Protective Award". Insofar as is relevant it providers as follows:-

"1. Where an employer has failed to comply with a requirement of section 188 or section 188A a complaint may be presented to an employment tribunal on that ground –

(a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant;

(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related,

(c) in the case of failure related to representatives of a trade union, by the trade union, and

(d) in any other case by any of the affected employees or by any of the employees who have been dismissed as redundant.

1A. If on a complaint under sub-section 1 a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.

1B. On complaint under sub-section (1)(A) it shall, be for the employer to show that the requirements in section 188A have been satisfied.

2. If the tribunal finds the complaint well founded it shall make a declaration to that effect and may also make a protective award.

3. A protective award is an award in respect of one or more descriptions of employees –

(a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

(b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188

ordering the employer to pay remuneration for the protected period."

27. Section 190 is headed "Entitlement under Protective Award" and insofar as is relevant provides as follows:-

"(1). Where an employment tribunal has made a protective award, every employee of a description to which the award relaters is entitled, subject to the following provisions and to section 191, to be paid remuneration by his employer for the protected period."

28. Section 192 is headed "Complaint by Employee to Employment Tribunal" and insofar as is relevant provides as follows:-

"(1.) An employee may present a complaint to an employment tribunal on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part to pay him remuneration under the award.

(3.) Where the tribunal finds a complaint under this section well founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

(4.) The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section and not otherwise."

29. As we have indicated above the complaints made to the employment tribunal, and initially appealed to the EAT, included complaints about whether the ECC constituted appropriate representatives in relation to the proposal to reduce the headcount which contained within it the possibility of Mr Mercy and others being made redundant. The tribunal found against him on that issue of fact. He does not pursue his appeal in respect of that issue. In addition he made complaints concerning the failure by the respondent to supply information under section 188(4) at the appropriate time, or at all. The tribunal dealt with that issue substantively on the original occasion and on the occasion of the rehearing ordered after a review. At no time did the respondent argue that the ET had no jurisdiction to do so. At that stage it would not have been open for them to do so as, if the ECC was not an appropriate representative body, the duty of the respondent would have been to provide the appellant the information pursuant to section 188 7B. Once, however, the tribunal ruled that the ECC was an appropriate body and/or the appeal against that aspect of the tribunal's decision was abandoned then the question whether the ET, or the EAT, has any jurisdiction to entertain complaints of failures under section 188(4) falls to be decided.
30. In our judgment, now that points one, two and three are no longer being pursued, Mr Mercy had no standing to apply to the ET for a protective award. His complaints that the ECC did not constitute appropriate representatives would have fallen within section 189(1)(a). If that complaint had been sustained then his complaint about not being provided with information pursuant to section 188(4) would have fallen within section 189(1)(d) being a complaint of infringement of section 188(7B).
31. Given, however, that the conclusion of the ET, no longer attacked, was that the ECC did constitute appropriate representatives by virtue of the respondent satisfying the burden upon them imposed by section 189(1A) then the complaints in respect of alleged infringement of section 188(4) fall within the terms of section 189(1)(b) where the complaint may only be presented to an ET by the employee representatives.
32. It follows, therefore, that as the litigation presently stands Mr Mercy had no jurisdiction to pursue a protective award. Indeed it was open to the respondent to have pleaded in the alternative that in the event, as they alleged, that the ECC did constitute appropriate representatives, then Mr Mercy did not have standing to seek to bring a claim for a protective award. They did not do so. The matter has, however, now properly been raised before the EAT and in our judgment it must succeed.
33. Of course it is the case that an individual employee can bring a claim in respect of a protective award under section 192(1) but that is a monetary claim arising out of a protective award made under section 190(1) where the party claiming the protective award will, almost invariably, have been either the employee representatives or a trade union. The statutory scheme is perfectly clear in distinguishing who may bring a claim in the ET and for what. As we have indicated the position is abundantly clear that, in the circumstances which now prevail in the litigation, Mr Mercy, as an individual employee, did not have standing to bring his complaint under section 189. It follows that the ET had no jurisdiction to make a declaration or make a protective award under section 189(2).
34. The outcome, therefore, is that the respondent's appeal on the protective award on the grounds raised before the EAT to-day succeeds. The decision of the ET on the rehearing following the review awarding a protective award to Mr Mercy must be quashed. Mr Wynne and Mr Bruce both agreed that, if we found, as we do, in favour of Mr Wynne on the jurisdictional point then their respective appeal and cross appeal in relation to the protective award fall. We therefore dismiss the respondent's appeal so far as it concerns the ET's findings of breach of section 188(4) and we dismiss Mr Mercy's cross appeal in respect of the amount of the protective award.
35. Unfair dismissal

Mr Mercy seeks to attack the finding that the dismissal was fair in two ways. The first is based upon his assertion that the tribunal failed to properly to have regard to the breaches of consultation procedure of the respondent when considering whether his dismissal was unfair. In effect this is a perversity ground attacking the tribunal's conclusion that, but for a technical breach of section 188(4), the consultation was "a model". In our judgment that is an appeal which has no real prospect of success. In the face of all that the tribunal said and saw in the evidence and in the outcome of the consultation process to which we have referred already, it is quite impossible to argue that the tribunal's conclusions about the quality of the consultation process namely that it was "a model" was anything other than open to it on the evidence. Therefore we dismiss the unfair dismissal appeal based on want of proper consultation. Mr Bruce did not seek to persuade us to the contrary.

36. This leaves the substance of the appeal against the finding on unfair dismissal which is based on alleged flaws in the way the ET dealt with the selection process.
37. In his skeleton argument Mr Bruce sought to raise an argument in respect of the respective assessments of Mr Mercy and Mr Deane in respect of communication skills. This was not a matter which was adverted to by the ET. Nor was it a matter which was raised in the grounds of appeal. It was a matter which was said by Mr Bruce to arise from the evidence and, in particular, a combination of the documents recording the appraisals and assessments of Mr Deane and Mr Mercy and the outcome of a piece of cross examination, whether by Mr Bruce or the tribunal is unclear, of Ms Race. He has set out his contentions in this respect in a number of paragraphs in his comprehensive written submissions to us. Mr Wynne says that we should not consider this point. It was not properly raised in the notice of appeal. Insofar as it depends on matters of evidence and, in particular, cross examination of Ms Race, there is no material before the EAT to support the ground. The order of Lady Smith, passing the matter to a full hearing, made the standard direction under paragraph 5 in respect of applying for notes of evidence. The appellant has failed to comply with that. He therefore says that we should refuse to entertain this ground of appeal.
38. Mr Bruce, to his credit, did not seek to argue that there had been anything other than a failure to comply with the direction of Lady Smith nor had there been any attempt to amend the notice of appeal to include this particular point. He therefore accepted that it would be entirely improper for the EAT at this stage to embark on a substantive consideration of this new ground of appeal raised only in the written submissions and not in the notice of appeal. Therefore we agree with Mr Wynne and we do not consider that particular line of argument.
39. It was common ground that an ET is not permitted, where the material is available before it, to embark on a "re-marking" of the assessments of potentially redundant employees which formed the basis of the selection. In the present case the selection was to be based on the assessments of Mr Mercy and Mr Deane by their line managers supported by their most recent appraisals, and given what Ms Race called a "sanity check" by her, a person who was uninvolved with them in a line management sense. Thus she ran the rule over the assessments made by the two line managers. We have seen the outcome of that process. It is clear that she did make certain changes to those assessments. The outcome of those changes was that in terms of points scored by Mr Deane and Mr Mercy they each had exactly the same number of points. The selection criteria provided that where, as appeared to be the case between Mr Mercy and Mr Deane, the marks on the assessment were equal, then the person who had the longest service would be retained and the other would be made redundant in effect. Last in, first out, as a tie break.
40. The ET was well aware of the danger of falling into the trap of subjecting such assessment material to a meticulous examination and, in effect, re-marking the assessment themselves. In paragraph 4 of its decision the tribunal said as follows:-

"The other matter that we have to consider is, and it is important for the claimant to understand this. Over a hearing, which witnesses were cross examined, the tribunal actively involved themselves with questioning. The purpose of that questioning was to establish whether there was bad faith in the selection process. Simple error of judgment or a failure exactly to follow this practise may be unfortunate, but that does not necessarily make the matter unfair. It is not our job to do the respondent's job in hindsight for them."

Having set the scene the tribunal then returned to this issue in paragraph 13 in which they said as follows:-

"The way they did it was to ask the manager of the complainant to make his assessment having regard to what he knew about the claimant and also the claimant's own annual assessments. The manager of the other man was asked to do the same thing and to mark accordingly on the same basis as the claimant was marked. The difficulty, of course, is that there were two different managers who might favour their established colleague. That difficulty was recognised by the respondents. So they had, what they called a third party to bring "sanity" to the exercise. That was to check between the two to see whether there were glaring inconsistencies. We recognise that that system is a good one, again if good faith is being used. No judgment of an individual who is working with his intellect can be solely on the basis of objective opinion, there has to be an element of subjectivity. The risk, however, is not the manager marking a person down. It would be a cause of what we used to call in this tribunal years ago of "the blue eyed syndrome" where a manger supporting his particular candidate would manipulate the marks up so as to put his candidate in the best possible position. That we looked at very carefully in this case, because having accepted, essentially that on both sides there was good faith, that seemed to us to be the risk. In fact, the marks that came out from the two individual managers were very similar. They were very close indeed. One mark separated the claimant from his competitor. The marks were given a sanity check….

15. The real point in the case was the closeness of the markings, in the pool of two excellent workers. Best practice the two lay members who have substantial experience in redundancy exercises say it must be right that showing every ones markings in an enormous redundancy exercise with a pool of 100 plus… would lead to industrial relations sclerosis. In this case, however, it was just two people. The best thing to have done, would be to show the other man's markings and to have discussed them fully with him. That is why we went into the markings ourselves. We were not trying to re-mark What we were looking to see if there were glaring inconsistencies. There was one, the mark on the issue of the complainant's capabilities in technical skills and project management was on the mean side but it was not outside the "band" of reasonableness so as to indicate bad faith that itself would indicate an unfairness."

41. In our judgment, and save for one crucial matter, the approach of the ET cannot be faulted. They were clear that they approved of the method by which selection was undertaken. They were clear that they were not entitled to re-mark the assessments and they did not. They were clear that the "sanity" check was appropriately made to identify what was described as "glaring inconsistencies". The role of the ET was not to re-mark but to see whether there was anything in the way in which the selection was done which pointed to the decision to dismiss one rather than the other being outside the range of reasonable responses. In our judgment, if there was a "glaring inconsistency" then that could be evidence of unfairness, though not necessarily so. Had the ET limited itself to stating that they had identified one glaring inconsistency, in relation to the complainant's capabilities in technical skills, had gone on to say that the mark on that issue was on the mean side but not outside the band of reasonableness and had, accordingly, decided that the dismissal was fair, then there could have been no complaint with the outcome or the reasons for it.
42. The problem, however, was that the ET expressed itself in a way in which it appeared that they were looking for a glaring inconsistency as evidence of bad faith which itself would indicate an unfairness. The passage in which they say so, at the end of paragraph 15, when allied to the passage in paragraph 4 in which they said that the purpose of questioning was to establish whether there was bad faith in the selection process suggests that the ET was saying that the only circumstance in which unfairness could arise, where there was glaring inconsistency in the operation of the selection criteria, was where there was bad faith. In our judgment that goes too far in restricting the circumstances in which an ET could, consistent with its obligation not to take a fine tooth comb to the decisions of the respondents or to re-mark the assessments, nonetheless intervene. The lawful basis for intervention would be where glaring inconsistency, whether as a result of bad faith or simple incompetence, evidenced a decision which was outside the band of reasonableness. The position, therefore, is that we are left with the impression that the ET applied an erroneously restrictive test when considering the impact of what it concluded was a glaring inconsistency upon the fairness or otherwise of the dismissal. In those circumstances we are persuaded that the ET in its decision erred in law and, accordingly, the appeal must succeed.
43. We are not in a position to make a decision on the material before us and therefore the outcome of the appeal is that the matter must be remitted to a new tribunal to consider unfairness, but limited to the application of the selection criteria.
44. We announced this decision at the hearing but indicated that we would give full reasons which we now do. Both Mr Bruce and Mr Wynne asked for permission to appeal to the Court of Appeal our decisions, respectively, on whether Mr Mercy has standing to bring a protective award claim and that the finding that the dismissal was fair was tainted by an error of law. We declined to give permission to appeal to the Court of Appeal on either of these issues.
45. Mr Bruce then made an application that the respondent pay the costs attributable to the protective award appeal and cross appeal. He said that raising the jurisdictional issue at the last minute meant that the costs of preparing his cross appeal and resisting the respondent's appeal on the protective award were wasted. We refused that application. Mr Wynne said that it was not unreasonable not to raise the point until after it was clear that grounds one, two and three of Mr Mercy's appeal on this issue were no longer to be advanced. We think that the point was available to him, in the alternative, as we have stated above and ought to have been raised before the ET and earlier before the EAT. The real point, however, is that Mr Bruce contested the jurisdictional issue, has asked for permission to appeal our decision on this point to the Court of Appeal, and had to be prepared to argue the substance of his cross appeal on the protective award in the event that he had succeeded in defeating Mr Wynne's argument on jurisdiction. Accordingly, the fact that Mr Wynne raised the point at the last minute did not mean that Mr Bruce would not, in any event, have had to prepare his arguments on the cross appeal and on the substance of the protective award point. Accordingly we refused to award him any costs.