United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D MATOVU (of Counsel) Instructed by: Messrs. Martin Searle Solicitors 9 Marlborough Place Brighton BN1 1UB
For the Respondent	MR P GREEN (of Counsel) Instructed by: Messrs Griffith Smith Solicitors 47 Old Steyne Brighton East Sussex BN1 1NW


 


SUMMARY

UNFAIR DISMISSAL

Reason for dismissal including substantial other reason

Reasonableness of dismissal

PRACTICE AND PROCEDURE

Delay in ET judgment

The Employment Tribunal found in favour of the Claimant on his claims of unfair dismissal and awarded compensation with 25% uplift. On the Claimant's appeal to set aside the Judgment and remit for a fresh hearing, the Employment Tribunal's Judgment was affirmed. There was no culpable delay in the proceedings.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about unfair dismissal for redundancy, the dispute resolution procedure and delay in hearing and handing down a judgment by an Employment Tribunal. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent or the firm.

Introduction

2. It is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal chaired by Employment Judge Cowling, sitting at Brighton over five days, including a day in private, registered with reasons on 20 April 2008. The Claimant and Respondent were represented respectively by Mr Daniel Matovu and Mr Patrick Green of counsel. The Claimant claimed unfair dismissal. The Respondent contended it dismissed him fairly for redundancy or for some other substantial reason, and took jurisdiction points.

The issues

3. A different Employment Tribunal had decided a dispute between the parties in favour of the Claimant: he was entitled to claim unfair dismissal since he was an employee. The essential issues for the full hearing, as defined by the Regional Judge at a CMD, were to determine what was the reason for dismissal, whether it was unfair because either the statutory dismissal procedure or a reasonable procedure was not followed, and if so, whether the Claimant would have been dismissed in any event had a reasonable procedure been followed. The Claimant accepted that he did not appeal against his dismissal, and was facing a potential reduction in any compensation he received for that reason.

The judgment

4. The Employment Tribunal decided in the Claimant's favour.

"1. The Claimant's holiday pay claim has been settled and is dismissed on withdrawal by the Claimant.

2. It has been conceded by the Respondent that the dismissal of the Claimant was automatically unfair under Section 98A of the Employment Rights Act 1996.

3. The dismissal of the Claimant by the Respondent was procedurally unfair under Section 98 of the 1996 act.

4. Following a correct procedure would have made no difference to the decision to dismiss the Claimant other than to delay the effective date of termination of employment by twelve weeks.

5. The redundancy payment paid to the Claimant has satisfied the basic award.

6. The compensatory award to the Claimant is twelve weeks pay with an additional £250.00 to compensate the Claimant for loss of statutory industrial rights.

7. The total compensatory award excluding the basic award is increased by 25% under Section 31(3) of the Employment Act 2002 as a result of the Respondent's failure to fully comply with the Dispute Resolution Regulations.

8. The parties are invited to settle the calculation of remedy between themselves. In default of agreement, the Tribunal will list the case for the purposes of calculating the sum payable to the Claimant."

5. The Claimant appeals that judgment and seeks its setting aside and remission to a further hearing before a fresh Employment Tribunal, which could not take fewer than the previous five days, and which could take place four years after the relevant events. He would lose the benefit of the findings in his favour, cited at paragraphs 2 to 7 above. This makes the appeal extraordinary.
6. We have not lost sight of those substantial findings in favour of the Claimant, but we fear that they are lost on him and on his counsel. Mr Matovu put forward his arguments with no sense of proportion and did not recognise in his responses to firm case management in the hearing that his client's sense of a grave injustice, as he put it, was misplaced. Of the many cases coming before us where parties say or feel that, none can have been better vindicated that this Claimant's by this Employment Tribunal judgment.
7. HHJ Peter Clark held this Notice of Appeal had no prospect of success. But directions sending the appeal to a full hearing were given after a preliminary hearing by HHJ Burke QC and members. Directions had been given for a response by the Claimant to an answer given by the Employment Judge to a question under Bansi procedure, see Bansi v Alpha Flight Services [2007] ICR 308, where a party in receipt of a judgment thought to be jejune for want of a particular finding, rather than appeal, is invited to ask the Tribunal to reconsider such aspects. The Employment Judge has done that.

The legislation

8. The relevant provisions of the legislation are not in dispute, nor is any part of the extensive self-direction. We express our agreement with the Tribunal's holdings, as follow:

"45. … in determining whether the dismissal is fair or unfair, it is for the employer to show the reason for dismissal. It must be one of the potentially valid reasons specified in Section 98 of the Employment Rights Act 1996. Under Section 139 of the 1996 Act, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the requirements of the business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or expected to cease or diminish.

46. A company reorganisation may involve job losses which also satisfies the statutory definition of redundancy. Clearly if there is a reduction in the volume of work and a diminution in the need for employees, there can be a redundancy situation. This sometimes occurs when an employer reorganises the business so that it is operated on more efficient* lines whereby fewer employees are needed to do the work. The current test of redundancy places the emphasis on causation. The question for the Tribunals is, was there a redundancy situation and if so, was the employee's dismissal on account of that redundancy situation?

…

49. It is not open to an Employment Tribunal to question the commercial decision of an employer to effect redundancies provided the decision is made in good faith. We are satisfied that there was a genuine redundancy situation and that the decision to reduce costs by effecting redundancies, was a decision made in good faith by the Respondent. We are unanimously of the view that the reason for the Claimant's dismissal was redundancy which is a potentially fair reason.

50. Once the employer has shown the reason for dismissal, it is then for the Tribunal to determine whether the employer acted reasonably or unreasonably in dismissing for that reason. That question needs to be determined in accordance with equity and the substantial merits of the case and the circumstances to be taken into account include the size and administrative resources of the employer's undertaking.

51. We take as our starting point, the words of Section 98(4) of the 1996 Act. We realise that we must assess the reasonableness of the employer's action. We recognise and apply the test that there is a band of reasonable responses to consider in which one employer might reasonably take one view and be acting fairly and another quite reasonably another view and still be acting fairly.

52. In judging the reasonableness of an employer's conduct, a Tribunal must not substitute its decision to as to what the right course of action for that of the employer. The function of the Tribunal is to determine whether, in the particular circumstances of each case, the decision to dismiss fell within the band of reasonable responses, which a reasonable employer might have adopted.

53. In a redundancy situation, the factors which a reasonable employer might be expected to consider, include whether , any selection criteria were objectively chosen and fairly applied, whether employees were warned and consulted about the redundancy, if appropriate, whether the Union 's views were sought and whether any alternative work was available. These are guidelines and not rules of law so that a dismissal in breach of any one of them will not necessarily be unreasonable. In order for a dismissal to be reasonable, the selection criteria must be objective and must not merely reflect the personal opinion of the selector.

54. It is reasonable for an employer to attempt to retain a workforce balanced in terms of ability. Thus an individual's skill and knowledge are reasonable considerations providing they are assessed objectively. The precise choice of factors and their relative weight will be determined according to the current and future needs of the business.

55. When faced with a task of selecting employees for redundancy, it is common practice for employers to decide upon a number of different criteria according to which the employees in the pool for selection should be assessed. Where an employee complains of unfair selection, all the employer has to prove is that the method of selection was fair in general terms and that it was reasonably applied to the employee concerned.

56. Unless there are special circumstances which render consultation impossible, or unnecessary, a fair employer will consult with the employee before dismissal. The purpose of consultation is two fold. Firstly, it gives the employer fair opportunity to explain any factors which may have led to his selection for dismissal and of which the employee* may not be aware. By consulting with the employee, the employer may find that the needs of the business can be met in some other way than by dismissal and if not, what other steps the employer can take to mitigate the blow to the employee.

57. Secondly, consultation gives the employer the opportunity of considering other possible vacancies within the organisation which the employer might have assumed would have been totally unacceptable to the employee concerned. The question of what constitutes a fair and proper consultation in each individual case, is a question of fact for the Tribunal.

…

64. An employee informed that he is to be made redundant needs time to recover from the shock of the initial announcement, enabling him to collect his thoughts and then to take an active part in the consultation process. During the process of consultation, an employee will very often need to take legal expert employment advice and this can take time.

65. A fair employer will allow an employee adequate time in which to respond to a redundancy proposal and the employer must then spend time in considering any counter proposals. …"

*Note the word "sufficient" is corrected to "efficient" in paragraph 46, and the word "employer" in paragraph 56, line 5 is corrected to "employee", all by agreement.

What is in dispute is the application of those correct self-directions.

The facts

9. In his final submission in reply on day two of this hearing, Mr Matovu said, "This is quite a simple case". We agree, and yet it provoked 52 pages of submissions to the Employment Tribunal and 15 to 18 page skeletons. It is the kind of case Employment Tribunals have been deciding since compensation for redundancy was introduced in 1965, and for unfair dismissal in 1971. The Tribunal recorded the language of the actors in this drama, principally that of the Claimant, which is graphic and easily understood by anyone engaged in employment relations. Like the Tribunal below, we will continue to use it, acknowledging (as we do) that it would not be our choice of words.
10. The Respondent firm was losing money. It found a way forward, and a person to take it forward. It had to lose one of two employees at senior level, of whom one had more marketable skills than the other, the Claimant.
11. Expanding beyond that nutshell, the Respondent is a firm of solicitors in Brighton and its surrounding district, and employs (including members of the firm) about 75 people. The Claimant is a solicitor who qualified in 1987 and joined the firm in 1989, becoming a partner in 1992. He was paid a basic profit share, and a bonus calculated in relation to the amount of fees generated by him. He was in the second category of solicitor employed by the firm in that he was an equity partner, receiving an equity share and income varying with the amount of fees generated by him. He was an employee.
12. He was in the civil litigation department, headed by Mr Fry, who had joined the firm in 1981. Litigation included matrimonial and family work. Within the department was a department headed by the Claimant, dealing with personal injury. While the Claimant dealt solely with personal injury, Mr Fry undertook a variety of civil litigation and discharged on behalf of the firm the duties of finance partner.
13. The Tribunal said this about the market for this kind of work.

"9. From about 2000, in common with other firms of Solicitors, the Respondent began to experience a reduction in the profitability of litigation work including personal injury work. Government reforms had reduced the number of eligible applicants for Legal Aid Funding and other reforms encourages the parties to explore other means of settling disputes instead of resorting to law. Solicitors were also facing competition from specialist claims organisations.

10. This meant that personal injury work generally had become less profitable. In contrast, public funding for clinical negligence was still available. In addition, by virtue of the size of the claims, higher fees were usually generated for the solicitors involved in such work. The firm did not hold a Legal Aid Franchise for clinical negligence work and the Claimant was not a member of the Clinical Negligence Panel. As a result, the firm was prevented from undertaking legally aided clinical negligence work."

As a response, with the encouragement of the firm, the Claimant procured the services of Mr Warren Moore, pursuant to a decision made in February 2004, and he joined the firm in October 2004. His unique selling proposition was that he had a clinical negligence ticket, for the purposes of the Legal Services Commission, and so the firm could be awarded a clinical negligence franchise. The logic of this was apparent to the firm immediately, because small personal injury cases can be conducted by lower paid and less experienced employees in the firm, whereas larger scale injuries such as those occurring in clinical negligence could be conducted by the senior members at higher fees, and would generate more profit for the firm.

14. The civil litigation revenue had declined 20 per cent in the year 2004/2005. The Claimant's fee income had declined over the previous year from £100,000 to £60,000. On 9 February 2005, the senior partner, Mr Stewart, chaired a meeting of seven equity partners. They looked at the various departments and noted that no department was under-performing as badly as litigation. One of the equity partners at the meeting was Mr Smith. He was engaged in carrying the matter forward. A meeting was conducted with the Claimant on 11 February 2005. Mr Smith explained that the equity partners were concerned about the level of fees in the department, and the Claimant's as well, and it was disappointing. The Claimant was invited to create an action list. The Tribunal recorded this as an action plan, and that is because the Claimant, in his cross-examination, indicated that there was really no substantial difference. He indicated also that his list had been affected because his secretary was on holiday, and he was not able to compile it in as full a way as he would have wished. This was not drawn to the attention of anyone at the time.
15. At the same time, Mr  Moore, by then recruited only four months earlier, was asked to produce an action plan. He did so; he produced an update of the business plan he had produced, which so impressed the partners into taking him on. He had come with very good credentials, for in comparable periods in his previous firm, he had been able to achieve fees in excess of £400,000, as compared during the relevant time with the Claimant's £60,000 odd.
16. The partners met again on 22 February 2005. There was continuing concern over the worrying performance of the litigation department, and that there should be redundancy. The pool for selection was Mr Moore and the Claimant. Mr Fry, of course, in that department was an equity partner. He was a proprietor of the business, and not an employee, and Section 139 of the Employment Rights Act 1996, which deals with redundancy, deals only with reduction for the need of employees. Mr Fry met the Claimant and told him of the decision of the partners, and both Mr Fry and Mr Smith then held a meeting with the Claimant on 24 February 2005 where he was formally told that there would be a redundancy in the personal injury department. The explanation given was the low level of fees generated in the litigation department.
17. He was asked to attend a further meeting on 1 March 2005 and was then handed a copy of the Respondent's redundancy policy. By that stage (in fact, by 24 February) the Claimant had become very upset about what he regarded as the obvious decision to dismiss him. The partners who decided as between Mr Moore and the Claimant had before them what is described as a scorecard, which indicates (as one would expect in any redundancy exercise) the kind of considerations and criteria to be borne in mind in selection for redundancy. They included a need for the particular skills of any employee; the standard of their work performance; length of service and the need for a balanced workforce, amongst others.
18. The partners anxiously considered the two candidates and the Tribunal said this:

"29. After the meetings with the Claimant and Mr Warren, Mr Fry and Mr Smith met that same day to consider their decision. They went through the redundancy criteria in the redundancy policy and then looked at how the criteria were met by the Claimant and Mr Moore. They decided to select the Claimant for redundancy instead of Mr Moore. The Claimant did not have clinical negligence accreditation.

30. They decided that if they had made Mr Moore redundant, then his good work over four months in setting up the Legal Services Franchise and obtaining the DAS Legal Expenses Panel Membership for clinical negligence work would have been lost. They regarded Mr Moore as enthusiastic with business and marketing skills which the Claimant lacked, together with the ability and potential to generate substantial fees. In his last year with his previous firm Mr Moore had generated fees of £412,000.00. During the same period, the Claimant had generated fees of £62,000.00 for the Respondent.

31. They took into account the difference in their lengths of service and they felt they knew the Claimant's strengths and weaknesses. They considered whether there were alternative positions for the Claimant within the firm. They considered two areas of work. The Claimant had been undertaking contentious probate work but there were too few files to make this a viable option. The family department had a balanced team of three fee earners. The workload could not sustain another fee earner and the Claimant had not worked in the matrimonial department since it was sent up in 1997."

As a result, a letter was sent to the Claimant. He attended a meeting on 3 March 2005. He was given an explanation that the decision had been reached by Mr Fry and Mr Smith. He was given three months' notice, which ended on 2 June 2005. He was informed of his right to appeal, but chose not to do so.

19. The Tribunal's first task was to find the reason for dismissal, and this was held to be redundancy, accepting the Respondent's case and rejecting the Claimant's that redundancy was not the genuine reason. The Claimant contended in his written submissions that the true reason for dismissal was a sudden and unexpected change of policy or plan by the Respondent, in that the Respondent decided to continue executing the same business plan in July 2004 with different staffing.
20. The Tribunal next considered whether the statutory dispute resolution procedure had been complied with. It had in its hand a concession by the Respondent that the dismissal was automatically unfair, for there had not been a step 1 letter, contrary to the 2002 Employment Act, Section 31 and Schedule 3. The Tribunal then went on to make the following findings.

"47. In evidence, the Claimant conceded that, in his words, there were too many chiefs and not enough Indians and that within injury work, there was too much low paying minor injury work and too few major claims. Thanks to the Claimant, the Respondent was able to recruit Mr Moore, enabling the firm to become one of the very few in the area to be accredited to do profitable Legal Aid clinical negligence work. If the Respondent had lost the services of Mr Moore, they lost their Legal Aid Franchise and the prospect of undertaking profitable clinical negligence work.

48. The Claimant conceded in cross-examination that the level of his fees was often a source of real concern. The accounts at the end of the financial year, 31^st January 2005, disclosed dramatic reductions in the level of costs in the civil litigation department. The department had three partners and was running at a loss. The Respondent's business decision was to reduce the number of partners from three to two.

58. Although he Claimant is not an employment specialist, he has been a solicitor for almost twenty years and for sixteen years held a senior position in the firm, as a litigation solicitor. He saw the accounts and received a profit share. He knew that poor fee earning performance in any area of the work would invite a response from the equity partners who were the proprietors of the business. It is clear to us from the evidence that the realities of the situation that he found himself in, were very apparent to the Claimant and to his credit, these were properly acknowledged by him during cross-examination.

59. The Claimant was head of the personal injury department and was acutely aware of the reduction in the profitability of personal injury work, as a result of the removal of Legal Aid and how this was likely to impact on fees in future. Despite encouragement the Claimant had been unable to gain qualification within the area of profitable clinical negligence work.

60. To his credit, the Claimant introduced Mr Moore to the firm. Mr Moore brought with him, his considerable experience of clinical negligence work enabling the Respondent to acquire the sought after Legal Aid Accreditation and Panel Membership. In cross-examination, the Claimant acknowledged that the low level of his fees had been a source of real concern for the Respondent acknowledging that in the financial year ending 31^st January 2005, his fees were abysmal.

61. During cross-examination, the Claimant was asked to explain why he had used the phrase in documentation, that he had introduced Mr Moore "despite obvious risks to my position". The Claimant said that Mr Moore had shown himself capable of producing £400,000.00 costs for his previous firm. When asked what was meant by "obvious risks", the Claimant said that he would be done out of a job because someone new, better qualified and with a good performance record, was joining the firm, there was a risk that he would lose out to him.

62. From the moment that the Claimant could see that the Respondent was obliged by market forces to chose between the Claimant and Mr Moore, in the Claimant's own words, it was a hone horse race. Mr Moore had skills, qualifications and fee earning capacity which, to his credit, the Claimant conceded, he did not possess. From his responses throughout the redundancy process, the Claimant could see that when he was compared with Mr Moore, his selection for redundancy was inevitable. This did not mean that the selection exercise was bogus.

63. We have genuine concerns in assessing whether the3 Respondent properly consulted the Claimant. The period of consultation commenced on 24^th February 2005. The decision to select the Claimant was made after a meeting with him on 1^st March 2005. The Claimant had been with the firm for some sixteen years and held a senior position as a Partner and Head of the Civil Litigation Personal Injury Department.

…

65. … Because of the truncated consultation period in this case, it is our unanimous decision that the dismissal of the Claimant was unfair under Section 98(4) of the 1996 Act.

66. Consideration of what might have happened, had a fair procedure been employed, is relevant to the assessment of compensation. We have asked ourselves if longer consultation with the Claimant prior to his selection for redundancy would have made any difference to the decision to dismiss and we have unanimously come to the conclusion that it would not, save to delay his departure by the period during which proper consultation would have taken place.

67. In our unanimous view, that is a period of twelve weeks. We make no basic award, this already having been paid to the Claimant in the form of redundancy payment. We make a compensatory award consisting of twelve weeks pay and £250.00 compensation for loss of statutory industrial rights. The total compensatory ward will be increased by 25% to reflect the failure of the Respondent to follow Step 1 of the Dispute Resolution Procedure."

21. We have cited those in full, because they have been the object of fine tooth-combing examination before us, and because they contain what we hold to be the reasons of the Employment Tribunal.

The Claimant's case

22. On behalf of the Claimant, four essential complaints are made: (1) the dispute resolution procedure should have evoked a finding that step 2 was not complied with; (2) the decision was perverse; (3) delay vitiated the finding, and it should be set aside for that reason; and (4) insufficient reasons were given, if otherwise the Tribunal judgment stood.
23. As to the dismissal procedure, the concession by the Respondent as to step 1 did not alleviate the need for the Employment Tribunal to make a finding on the case as put to it that there was a breach of the procedure in respect of step 2 as well, and the Tribunal made an error. Had it considered that, then the uplift which would have been awarded to the Claimant was 50 per cent, and not the 25 per cent which was. The finding of a lack of consultation was in itself inadequate, because the only finding by the Tribunal was that the consultation was truncated, and so the period of unfairness of the procedure lasted only five days or so, whereas there was systemic unfairness in the dismissal itself.
24. As to perversity, the Tribunal made an error in its equiperation of the treatment in relation to the action plan or action list of respectively the Claimant and Mr Moore. Such is conceded by the Respondent. The scale of error is regarded by the Claimant as so high as to be perverse and cause the judgment to be set aside; whereas the Respondent regarded it as minor.
25. As to delay, this Tribunal delayed in two substantial tranches: first, in the stages between the first and second hearings, which was about a year, and then thereafter, in the promulgation of the judgment. A more detailed analysis of the chronology will follow when we give our conclusions.
26. Finally, this Tribunal failed to comply with its statutory duty to set out the reasons for its decision, for it did not, for example, descend into deciding disputes between the parties over what occurred at meetings, nor acknowledge what had happened at the Employment Tribunal (which is accepted by the Respondent); that the Respondent's witnesses were confused about some of the dates of meetings, and that this failure to give proper reasons also vitiated its decision.

The Respondent's case

27. Having accepted before the Employment Tribunal that step 1 was not complied with, before us Mr Green accepted that step 2 was not complied with either, yet he contended that the Tribunal was fully alert to that. It was not obliged to make a formal decision, since the gateway to automatic unfair dismissal (triggering an automatic uplift of 10 per cent, with a discretionary uplift beyond that) was open on that concession. If that were wrong, then the Tribunal had enough material from its finding against the Respondent, (not appealed) that there was inadequate consultation and that such consultation should have taken place to make this an unfair dismissal. The Tribunal held that it was unfair for that reason, and had not overlooked that the essential element in a step 2 meeting is the provision of information so that the Claimant can be in a position to deal with the matter properly. Alternatively, if there is an error by the Tribunal's failure to note formally a breach of step 2, the result is inarguably correct: automatic unfair dismissal with an uplift of 25 per cent.
28. As to perversity, the Respondent accepts that the Tribunal may seem to have equiperated Mr Moore and the Claimant in their responses, but this was indeed a minor part of its decision-making. Standing back and looking at the matter in the round, this error did not condemn the judgment, which it must be recalled was in favour of the Claimant.
29. As to delay, two issues were pointed out by Mr Green, although we had not invited him to respond, which were that part of the delays in question were caused by the Claimant's legal team itself and therefore must not be brought into account. In any event, the delays were not sufficient to cause a breach of the Claimant's right to a fair trial within a reasonable period of time.
30. Finally, the reasons of the Employment Tribunal were easily exigible, and Meek compliant (below).

The legal principles

31. The legal principles to be applied in this case appear to us to emerge from the following authorities.
32. An Employment Tribunal will not normally question the reasons for a business decision to declare redundancies if there is a basis of fact and some information available to the employer to make that decision (see James W Cook & Co (Wivenhoe) Limited v Tipper [1990] IRLR 386 per Neill LJ).
33. We accept the commentary in Harvey on Industrial Relations and Employment Law at paragraph D1.164. That arises from the judgment of the EAT, Slynn P and members in Orr v Vauughan [1981] IRLR 633 that whilst the choice of the method of reorganisation in a business is largely for an employer to determine, the employer must act on reasonable information reasonably acquired. Generally speaking, however, the wisdom of the decision remains beyond the Tribunal's scrutiny.
34. Delay, is a question of fact, and generally not appealable in a jurisdiction limited to questions of law (see Connex South Eastern Limited v Bangs [2005] ICR 763 CA per Mummery LJ).
35. As a rule of thumb in Employment Tribunals and the EAT, a judgment should be promulgated within three and a half months; (see Kwamin v Abbey National Plc [2004] ICR 841).
36. An analytic or clinical approach should be taken so that each period that is subject to criticism by way of delay is examined to determine whether there is culpable delay, or delay which threatens the fairness of the trial (see Porter v Magill [2002] 2 AC 357).
37. A tribunal should give reasons so that the parties can understand why they won or lost (see the Employment Tribunal Rules 2004 and Meek v City of Birmingham City Council [1987] IRLR 250).
38. An Employment Tribunal is to decide issues which are important to the resolution of the dispute before it (see Comfort v Lord Chancellors Department [2004] EWCA Civ 349 and High Table Limited v Horst [1997] IRLR 513). That does not mean it must decide every issue of fact or law placed before it, only those issues which are necessary for the inclusion on the dispute before it. Understandably, a tribunal faced with concessions made by representatives or acceptance of propositions made by key witnesses cannot be criticised if its Judgment is shorter and does not descend into formal decision-making.
39. When an allegation of perversity is made about a tribunal's judgment, a high threshold must be surpassed, requiring an overwhelming case to be met (see Yeboah v Crofton [2002] IRLR 634).
40. The EAT is not to conduct a detailed examination by use of the non-technical fine-tooth comb, or the scientific microscope, in order to promote such a case. An employment tribunal may make an error of law, yet the judgment may be upheld on appeal if it is unarguably correct (see Dobie v Burns International Security [1984] ICR 812).
41. The EAT will not hear new points on appeal unless exceptional circumstances arise, and there is no need to remit to the Employment Tribunal for further findings: Secretary of State v Rance [2007] IRLR 665
42. As to the dispute resolution procedure, particularly as applied in a redundancy situation, the judgment of the EAT, Elias P and members in Alexander v Bridgen Enterprises Limited [2006] IRLR 422 makes clear the purpose of these regulations and it is as follows.

"39. It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing; it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met.

41. We reject Mr Barnett's submission that the only information to be given is that identifying why the decision to effect redundancies has been taken. That is too restrictive an approach and would undermine the protection which the procedures are intended to give to employees. In our judgement, the reference in step two to "the basis for including in the statement…. the ground or grounds given in it" requires that an explanation is given as to why the employer is contemplating dismissing that particular employee. It is, after all, the contemplated dismissal of the specific employee which is in issue and may lead to tribunal proceedings, not just the decision that certain jobs will have to go. In a redundancy context, that will involve providing information as to both why the employer considers that there is, to put it colloquially, a redundancy situation and also why the employee is being selected. The latter is, in practice, likely to be far more important to an employee than the former. In general, employees will not individually be in a position to make any cogent observations about an employer's conclusion that redundancy is necessary, although sometimes the information provided may raise a question as to whether redundancy is the genuine reason for the dismissal. But more pertinently, the employee will want to make representations about his own selection and, of course, he will be in the best position to make observations about that.

43. More usually, however, a matrix approach is adopted to selection, as in this case. Various factors are identified and the relevant pool of employees is assessed under each of them. When that system is adopted, the basis of the selection- the reason why this particular employee has been selected- rests upon that assessment. We think that it is clearly necessary that the employer, in order to comply with step two, should in advance of the meeting notify the employee of the selection criteria. Without that information, it is impossible for the employee to give any sensible response to the proposed decision at all.

45. In our judgment neither of these submissions is correct. We see the force of Mr Barnett's submission that once given the selection criteria, the employee is in a position at least to address some arguments to the employer as to the justification for selecting him. But we –and in particular two very experienced lay members- are of the view that this is not enough to enable the informed response which essential procedural safeguards should allow. In our judgment in order to comply with the statutory provisions an employer should provide to the employee not only the basic selection criteria which have been used, but also the employee's own assessment. That will give the employee an opportunity to make representations not only about whether the criteria are justified and appropriate but also, more importantly, whether the marking given to him in respect of any particular criterion is arguably unjust, and why. It may be that he can correct some obvious factual error, such as being attributed with a disciplinary record he does not have, or what appears to be a rogue mark on one of the criterion, apparently wholly out of line with his work performance. His response will be difficult to formulate, and very much in a vacuum, without this information."

Conclusions

43. We reject the arguments of the Claimant and have decided that the appeal should be dismissed.

New points on appeal

44. At the outset of the appeal, an objection was taken by Mr Green to a point said to be made by the Claimant. We decided that we would hear the point on the merits before deciding the jurisdiction as to whether indeed it was a new point. There is no need for us to decide this, as Mr Matovu did not raise the point in his submissions to us. Although it excited him greatly in dealing with this point, it was resolved with grace in open court by an apology for his courtroom conduct, and we say no more about it.

Perversity

45. It is conceded by the Respondent that the Tribunal slightly muddled the issue of the equal treatment of Mr Moore and the Claimant in relation to what they were required to do, whether in the form of an action plan or an action list. We accept the submission that this is indeed minor. This case did not turn, in the eyes of the equity partners, on either the action plan or the action list for an unfavourable comparison between what each man had written. Far more was involved in the decision to declare a redundancy and to dismiss the Claimant. It was not based upon what the Tribunal might have thought was a similar approach taken to both of them as to timing and content. So, although there is substance in the Claimant's complaint about the way in which this matter might (we put it no higher) be seen, we hold that this was a minor factual matter.

Reasons

46. We are firmly of the view that this case is Meek compliant. It is 15 pages; it gives exemplary self-directions on the law. We have been taken at great length and without any objection by Mr Matovu to the concessions and acceptances made by the Claimant in notes of cross-examination provided to us, and agreed to be admitted only the day before our hearing. The Tribunal, faced with those concessions, which it refers to in its judgment, can be excused for not expanding upon the material which it has cited. But we do not accept that such criticism is well-founded. This judgment shines through any of the criticism, and having looked below the surface into the cross-examination, referred to in several places by the Tribunal, we see that its findings are soundly based and amply reasoned.

The reason for the dismissal

47. This too is clear from the Claimant's evidence in cross-examination. There plainly was what is conveniently referred to as a redundancy situation here, matching the terms of Section 139. A serious situation presented to the Respondent. The figures were stark; the language used about them was stark too. The Claimant accepted his performance in terms of fee revenue was abysmal. The department was losing money and something had to be done. This is not a case like Orr v Vaughan where a manager took a view without seeing the relevant material. The material was fully extant. The Claimant knew it and had prepared material for the relevant account meetings.
48. To suggest that there was any other reason for the redundancy and dismissal is, in our view, absurd, in light of the realities facing this firm and of the careful examination of the material which it had acquired. It recognised the situation more than a year earlier, when it decided to recruit Mr Moore, and it certainly did not take lightly the problems it was facing, in common with many other firms engaged in personal injury litigation under the exacting regime of the Legal Services Commission. The way forward was obvious: through legal franchise in respect of clinical negligence, which brings us to the next point of unfairness.

Selection

49. Again, the Claimant's graphic language (reported by the Tribunal) is important, "There were too many chiefs and not enough Indians". That means that there were more people in senior positions, than enough workers to support them. They were top-heavy; something had to happen. There were three partners. Mr Fry was a proprietor and therefore outside the scope of Section 139. He also had other duties. There were reasons for keeping him on. It is not seriously contended by the Claimant that Mr Fry should have gone. On the contrary, the only other candidate was Mr Moore, and yet Mr Moore was to be the salvation of this firm's sub-department dealing with injury litigation. As the Claimant himself put it, it was a one-horse race. Mr Moore was better qualified to bring in the silverware.
50. The Claimant made what are correctly recorded by the Tribunal as concessions in the passages we have cited from paragraphs 47, 48 and 58 and 59. There are at least half a dozen reasons why, if someone had to go, it should be him, not Mr Moore.

Consultation

51. Of course, that is not the end of the situation, because once the Respondent has considered there is redundancy and someone should go, there has to be a fair selection procedure, with consultation. Given that there was no real choice between these two, the only issue was whether the Claimant was consulted. The Tribunal found that he was in the know about the background, but the relevant decision and the material necessary to constitute a properly informed meeting was not available, for he was not seen prior to the drawing up of the criteria and consulted about them. The Tribunal found in favour of him in respect of the failure to consult him.
52. The reason for consultation is as was set out in the judgment of Elias P (para. 4 above). That is apposite both to a step 2 meeting and to a simple case of unfair selection for redundancy, unaffected by the statutory provisions. The whole purpose of any fair procedure, and of the step 2 procedure, is to ensure that an employee facing the prospect of dismissal is fully armed with material and information so as to make as good a point as he or she may make at a meeting. There was no such meeting. That was a breach of step 2. The Tribunal did not decide so in terms. The Tribunal decided that the dismissal would have occurred in any event, and we have to say that the Tribunal is correct to record it as a concession that the Claimant acknowledged that he would go. In the light of that, there is little more to be said.
53. The point arose forensically before us, because in his skeleton argument, Mr Green had boldly asserted that the Claimant had conceded that a fair procedure would have made no difference. That could not have been fleshed out at the stage of the skeleton argument, for the notes of cross-examination had not been accepted by the Claimant until the eve of this hearing. Once they were, we invited Mr Matovu pre-emptively to make any submissions about them. He declined to do so, and so we offered him the opportunity, in reply, to Mr Green. Mr Green took us line by line through the notes. They are impressive in supporting the finding by the Tribunal and the written submissions which he made below that the Claimant accepted that a fair procedure would have made no difference, as to which in reply, Mr Matovu said nothing. We uphold the submission that a fair procedure would have made no difference, as the Claimant accepted, so one wonders what this appeal was about.
54. In any event, the Tribunal awarded (perhaps it might be said over the head of that concession) 12 weeks' pay, in that during that period, there would have been proper consultation, but he would yet have been dismissed. There is no extant appeal against that finding and so the dismissal would have occurred in any event, which is a finding under Polkey [1988] ICR 142 HL, but it would have taken place 12 weeks later.

The statutory procedure

55. In his first examination of this appeal, HHJ Peter Clark, under Rule 3, determined there was no real prospect of success. It was not necessary for an Employment Tribunal once there had been a concession that there had been a failure to comply with step 1 to make such a finding if there had also been a failure to comply with step 2. With respect, we disagree with that. On the facts of this case, counsel had argued that there was a breach of step 1 and step 2. That is now accepted. It is true that the gateway to automatic unfair dismissal and an uplift is through a finding of a breach of any step, but where it is continuously maintained that there is a breach of two steps, a Tribunal ought to make a finding as to that. This Tribunal did not do so.
56. Nevertheless, we hold that error did not vitiate the decision, for it is unarguably correct that there was an unfair dismissal, it was automatically unfair. The reason why was not simply the failure to comply with step 1, but that the matters relevant to step 2 were found by the Tribunal not to have been complied with. While not citing step 2, all of the material necessary to make a step 2 meeting meaningful were covered by the condemnation of the Respondent given by the Employment Tribunal: the Claimant was simply not in a position, in the absence of the scorecard, and factors to be put in the minds of the equity partners, to have meaningful consultation with them. The effect is the same.
57. This Tribunal, when it considered whether to make an uplift (and it was obliged, unless there are exceptional circumstances, to make an uplift at 10 per cent) certainly had step 1 in mind; certainly had the failure to consult (which is an important part of step 2) in mind, and certainly had in mind the failure by the Claimant to appeal, which it might be said is a breach of step 3, if that were in play. So it awarded 25 per cent. This must be a matter of appreciation for an employment tribunal, having heard all the evidence. There is no particular aspect of the evidence which it is said to have disregarded or left out of account. We see no error in that approach.
58. We specifically reject the contention by Mr Matovu that this is a case which ought to attract 50 per cent. That would put it as the worst case that would come before a tribunal. Given that the range is actually between 0 and 50 per cent, fixing this at the midpoint, 25 per cent, cannot be said to be wrong in principle. After all, there was some consultation in the form of the Claimant understanding the background to this. There was also a failure by the Claimant to appeal. So we cannot see that it could possibly be said that the correct figure was 50 per cent. The Tribunal, we hold, was aware of the breaches of fair procedural rules when it fixed this figure. We will not interfere with it.

Delay

59. The chronology in this case is striking. On 2 March 2005, the Claimant was given his notice of redundancy, to take effect on 2 June 2005, which was the termination date. He filed a claim on 25 May 2005. A preliminary hearing was conducted on whether or not the Claimant was an employee, which was resolved in his favour on 5 August 2005, and so the hearing commenced (listed for two days) on 14 November 2005. Having heard Mr Matovu's advocacy, it is no surprise to us that this hearing did not complete within the envelope. It was adjourned part-heard; illness of a tribunal member intervening.
60. By 16 May 2006, the Claimant applied for the proceedings to be stopped and a fresh Employment Tribunal constituted. There was opposition to that, and a hearing was conducted on whether that application should succeed. There was a delay, in that the Tribunal appeared to fix a date when a member of the Tribunal was not available, and so on 18 September 2006, there was a hearing attended by the parties to consider whether the application should succeed. The basis for the application was delay. That application was dismissed on 4 October 2006. That order was appealed. The matter was dealt with by a judge at the EAT under Rule 3(7) and rejected, and the Claimant exercised his right under Rule 3(10) and appeared before HHJ Peter Clark on 7 November 2006. According to Mr Matovu's chronology, the judge dismissed the appeal, holding that a fair trial remained possible. There was no appeal. We have no doubt that that is correct. That is a complete answer to the delay point up to that date. On the next day, 8 November, the hearing resumed with live evidence again for two days. Whatever criticisms there may have been of the delay between those two dates, they were resolved by Judge Clark's final determination. A fair trial remained possible.
61. We then turn to the second period, which relates to what occurred after the end of the oral hearing. Again, it is no surprise to us, in the light of what we have seen, that this case was not over on 9 November; that is, it had expanded by 100 per cent. So the Tribunal ordered written submissions to be completed by 23 November. Mr Green complied; Mr Matovu did not. The Tribunal had set a date of 12 December, when it would meet in private to continue deliberations. It also accepted that since these were contemporaneous submissions, each side should be able to submit a reply to the other. Because of the way in which the timetable was then working out, the date fixed for the hearing was aborted and the Tribunal received a final round of submission on 13 December 2006.
62. It met on 8 February 2007 and its reserved judgment was on 20 April 2007. So an explanation needs to be given, because that is more than three and a half months after the end of the final submission; in other words, 13 December 2006 to 20 April 2007. It is about 18 days and would be culpable, absent an explanation. We have not called for an explanation from the Employment Tribunal, because we can see it before us. In the light of the slippage of time, caused initially by Mr Matovu, the Tribunal could not keep to its timetable and had to meet again at a later stage. That is a complete answer to the second period of time.
63. The only question then which arises is looking back on the whole period of time, is this judgment vitiated by delay? We go back to our original comments. This Tribunal found in favour of the Claimant on all the points that he raised. Generally speaking, when a complaint is made of delay or irregular procedure, it is made by an unsuccessful party, but here, the Tribunal had fully in mind the issues the Claimant was raising, because it found in his favour. Even if it were right to bolt on the first and second periods, we do not consider that a fair trial was rendered impossible as a result of this. It would certainly be wrong and disproportionate in any event to set aside the work of this judicial body and the findings in favour of the Claimant on the ground that it delayed.
64. We hold no culpable delay occurred after the submission, and that as to the intervening period, if we are wrong about HHJ Clark finally determining this matter, and therefore it is open to us, we would hold that the first period of six months was caused by an understandable and non-culpable delay, and a substantial part of the second six months was taken up by the Employment Tribunal dealing with the application made by the Claimant for it to stand down. That too is an acceptable explanation; it is certainly not culpable delay.
65. As a result of the delay which did occur between the two oral hearings, the Tribunal had a number of opportunities to remind itself, since the parties appeared before it again, and the evidence which was forthcoming at the second tranche of hearings was easily understandable and effectively was the principal part of the case. On that basis, we reject the contention that the hearing was unfair, or that there was an unfair trial as a result of the period of time which elapsed in this case.
66. Having canvassed counsel as to any matters omitted from this Judgment, no reply was received. We would like to thank Mr Green for his helpful submissions. This appeal is dismissed. Permission to appeal refused [Reasons not transcribed].