United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS SIDDALL (of Counsel) Instructed by: Messrs SAS Daniels LLP Solicitors County Chambers 6 Chestergate Macclesfield SK11 6BA
For the Respondent	MR SIMON FORSHAW (of Counsel) Instructed by: Messrs Martin & Co Solicitors St James's Buildings 79 Oxford Street Manchester M1 6FQ


 


SUMMARY

REDUNDANCY - Fairness

Fair consultation during redundancy also involves giving an employee an explanation for why he has been marked down in a scoring exercise.


 


HIS HONOUR JUDGE ANSELL

1. This has been the hearing of an appeal from a decision of a Manchester Employment Tribunal (Employment Judge Feeney) who, following a hearing on 14 and 15 September 2009 and in reasons sent to the parties on 26 October 2009, dismissed the claim for automatic unfair dismissal but held that the Respondent had been unfairly dismissed in relation to redundancy and also held that the Appellant had failed to provide written terms and conditions.
2. The appeal is focussed on the Tribunal's findings that the Appellant had failed to conduct adequate or effective consultation with the Respondent by reason of their failure to provide him with an adequate explanation of why he had received lower scores than the two other people in the pool for redundancy and also in relation to the Tribunal's decision not to make a Polkey deduction and/or make a finding under section 98(2) ERA 1996. Leave for this hearing was given by HHJ Peter Clark by order dated 14 January 2010.

Background Facts

3. The background facts can be taken from the Tribunal's decision. The Appellant is a printing business whose joint managing directors are Mr Rayson and Mr Briggs. The Respondent has worked for them for 23 years as an estimator.
4. In 2008 the company lost a major contractor, Barratts plc, and the first round of redundancies took place in July 2008. By the end of January 2009 it was clear that a further round of redundancies was needed because of a continuing loss of turnover. There was an incident at the end of January when Mr Rayson raised with the Respondent that he had heard the Respondent had been passing on confidential information to a friend who worked for a competitor which the Respondent denied.
5. A redundancy announcement was made on 27 January 2009. It appears that there were some discussions as to whether or not estimators were going to be included within the workforce liable to redundancies. The Tribunal made a conclusion which is not appealed that the Appellant had suffered a loss of business which made redundancies necessary.
6. Through discussions with the union it was agreed that the scoring matrix headings were to be attendance, quality, productivity, abilities, skills, experience, disciplinary record and flexibility. The Respondent was not a member of the union.
7. On 9 February a letter went out to employees informing them that there would have to be compulsory redundancies and that the staff selected for potential redundancy would be chosen via a point scoring matrix system, a copy of which was sent to the staff who were invited to discuss any queries with Richard Porter, the Commercial Director. The letter to the staff concluded, "Any members of staff likely to be affected by this will be notified in writing by 13 February 2009".
8. The scoring was carried out by Mr Porter and Mr Thornton, a sales director, on 11 February and the Respondent was informed on the 13th that the Appellant, having carried out a preliminary grading, indicated it was most likely that he would be selected for redundancy and he was invited to discuss the situation at a meeting on 20 February. The scoring matrix that the Respondent had received indicated the potential range of marking together with the standards and qualities that each level represented.
9. Prior to the meeting of 20 February, the Respondent had not received his actual scores but he did prepare a list of questions for the meeting which included a question, "Why was I chosen from a pool of three?" and "Can I see the scoring sheets for the selected criteria?"
10. The minutes of the meeting on 20 February record that the Respondent was given a copy of his personal scoring, although the Tribunal note that he did not, therefore, have much time to consider it. The Respondent asked why estimating was up for selection when they were busy and an explanation was given by Mr Rayson. He was also informed that the matter was closed in respect of the accusation in relation to the January incident. A further meeting was arranged for 27 February 2009.
11. The Respondent prepared for that meeting a list of nine questions and statements raising queries in relation to his own marking, in particular, in relation to the category of abilities, skills and experience. He said that he had five O levels, 2 A levels, a Diploma in Printing and 27 years experience and as regards flexibility he said the following, "I am as flexible as the next man. I have always been willing to tackle any task asked of me". He gave the list of queries to Mr Rayson at that meeting when he was given a copy of the matrix scores for the whole department and told to go away and look at it. Mr Rayson said that he would check the points that the Respondent had raised and get back to him at the next meeting.
12. As regards the three persons in the pool, namely, the Respondent, Mr Wardle and Mr Dyke, the marking was close but the Respondent had received overall the lowest scores. In particular, in relation to abilities, skills and experience he had received a mark of 8 along with Mr Wardle, Mr Dyke receiving 10 and in relation to flexibility the Respondent had received a mark of 6 as compared to 8 received by Mr Wardle and Mr Dyke. A further meeting was arranged for 6 March at which time the Respondent was given a letter, dated 3 March, responding to his earlier questions. In those questions the Respondent had raised whether Messrs Thornton and Porter were the best people qualified to perform an objective assessment and a response to that was received in the letter. In relation to the queries raised in connection with ability, skill and experience and flexibility, the response was in terms that, "The points you made are noted. We believe that the scores given by the assessors are reasonable and appropriate". The Tribunal noted, however, that the Appellant "… did not explain how the scores for the Claimant had been arrived on. They simply said they were reasonable and appropriate". We have seen the scoring sheets on our bundle of documents and although each sheet contained a column providing for "justification/comment/example of performance", no comments had been made on any of the scoring sheets.
13. Mr Rayson had attended the meeting on behalf of management and the Tribunal noted at paragraph 29 of their decision:

"Mr Rayson said on cross-examination that he did not realise that these were questions. However, he clearly did realise they were questions as he attempted to answer them. He answered the other questions more fully than he did 6 and 7. However, 6 and 7 and possibly 5 were the crucial questions in relation to the Claimant's scoring."

At the meeting Mr Rayson confirmed that the Respondent was being made redundant and advised him of his right to appeal.

14. The Respondent exercised a right to appeal by letter to Mr Briggs, dated 19 March 2009. The letter stated:

"I appeal on the grounds that there was no consultation with regards selection criteria, and the selection criteria chosen were not implemented in a fair and non-discriminatory fashion."

15. The Respondent also prepared an appeal note which raised the competence and ability of Messrs Thornton and Porter to "make sound objective assessment of my work" and continued:

"The assessments made by both assessors were based on opinion and feeling rather than sound quantitive statistics".

16. At the appeal meeting the Respondent again raised how he had been scored. Mr Briggs wrote to the Respondent on 1 April advising him that his appeal had failed. In relation to the scoring he stated:

"I have interviewed both Richard and Russell with regards to the scoring of the matrix. I am satisfied that the scoring was factual and correct. All the scores were high as you work in a department of very good employees and unfortunately you scored slightly lower than the others."

17. Before the Tribunal the two scorers explained how and why they had given the Respondent the scores they had. They stated that the Respondent did not help with job bagging and invoicing and also that he was a clock-watcher, being described as a 9 to 5 man. The Respondent answered these points stating that he did not do the invoicing because the other two wanted to do it - he was the senior estimator and would do the harder jobs. He also denied that he was a clock-watcher and, in particular, pointed out that he never did a 9 to 5 shift - this evidence the Tribunal accepted. The Respondent also again disputed that Messrs Porter and Thornton could assess his abilities, disputing their evidence that they saw most of his quotes. He claimed he sent 90 per cent of his quotes directly to clients. Again, the Tribunal accepted that evidence. The markers also stated that Mr Dyke had got higher marks because he had worked for a variety of companies before joining the Appellant. The Respondent claimed this was irrelevant because Mr Dyke's experience was in areas within which the Appellant did not work and, therefore, was of no direct benefit to them.
18. The Tribunal concluded this section of their decision in this way

"Of, course, he had not had an opportunity during the consultation process to answer the points in respect of the scoring as these matters had never been explained to him.

19. The Tribunal having reminded themselves of the legal issues and the principles involved and, indeed, citing a number of the authorities placed before them at the hearing, came to the following conclusions on unfair dismissal:

"General Unfair Dismissal

We do find however that the dismissal was unfair in relation to the same matter. We take into account that the claimant was not represented by a union throughout and therefore that he did not focus necessarily strictly on the crucial issues but he did raise all the crucial issues albeit amongst other issues relating to more mechanical issues such as how his redundancy payment would be calculated.

We find that it is necessary for an employer to provide an explanation of why an individual has received the scores he has and that in this case the respondent patently failed to do that even when directly asked. Mr Rayson's answer to the claimant's questions provides no explanation at all, simply saying that he had satisfied himself that the marking was accurate and reasonable. However, without the markers giving some indication of how they had arrived at the scores it was not possible for the claimant to properly take his arguments forward.

There were no mechanical errors with how the claimant was assessed as the matters requiring a mechanical, simply verifiable information such as attendance etc were the same for all employees. However, in terms of some crucial areas the claimant was marked down in particular by Mr Powell. He was marked down only to a small extent but the matters relied on were clearly matters which the claimant could have challenged and discussed with Mr Rayson and Mr Briggs in his meetings had he ever been told the reason why he had not received his marks.

He was told to some extent via the witness statements but obviously this was a considerable time after his dismissal and also to some extent by further matters raised by the respondent's witnesses in the Tribunal hearing. However once the decision to dismiss had been made, the consultation ended and the appeal determined, the receipt of that information was of no use to him.

We find that the matters relied on by the assessors to mark down the claimant were patently challengeable, in particular the surprising information that the claimant actually never worked a nine till five shift when the assessors appeared to be of one mind in relation to this. In addition the issue that they saw most of his quotes whereas the claimant's evidence was that they did not. These matters should have been aired in the consultation process. In addition the fact that the witness statements were identical, (Mr Thornton and Mr Porter's) in describing why they had reached the marks they had leads us to find them unconvincing. We understand that in the process of producing witness statements matters get synthesised but we find that their reasons for the marking unconvincing particularly in the light of the complete similarity between Mr Porter and Mr Thornton's evidence.

For the above reasons we find that the claimant's dismissal was procedurally and substantively unfair.

Regarding the accusation that the reason for dismissal was the allegation that confidential information leaked. We find that this is not a matter that had any connection with the claimant's dismissal. There was simply no evidence of any link.

Polkey

In relation to Polkey we find that there is no cogent evidence that the claimant would have been dismissed in any event. The marks were very close and if the claimant had had the opportunity to challenge his marks then the outcome had a reasonable chance of being different. There were never any complaints made to the claimant about his work. No issues were ever raised with him. There was no appraisal system and therefore at the end of the day the respondent had no way of establishing that their marks were accurate in respect of the claimant without even considering whether their marks were accurate in relation to the other two individuals."

Appellant's Submissions

20. On behalf of the Appellant, Mr Siddall complained about the Tribunal's conclusion in paragraph 3 of their decision where they appeared to set out a general principle, namely that:

"It is necessary for an employer to provide an explanation of why an individual has received the scores he has."

21. He also contended that the Tribunal were wrong to enter into the factual arena concerning the marking of these candidates. In particular, considering and even making findings in relation to the complaints raised by the Respondent in relation to the evidence given by the two scorers seeking to explain to the Tribunal the Respondent's scores. He argued that there was no obligation on the employers to justify the scoring, indeed, suggests that the authorities indicate that it is not generally incumbent on the employer to produce individual assessments of the employees and discuss those with the employees and contends that the Tribunal have, therefore, substituted themselves for the employer in reaching their decision (see Post Office v Foley [2000] IRLR 827).
22. Mr Siddall took us to a series of authorities in an attempt to justify these principles, firstly in Eaton v King [1995] IRLR 75. Lord Coulsfield, giving the decision of the Employment Appeal Tribunal sitting in Edinburgh, said this:

"11. There is nothing whatever in the findings to indicate that the assessment process was not carried out honestly and reasonably. There may be cases in which some inference can be drawn from the markings or findings that there was something unfair about the individual application of the methods of selection, but this is not such a case…… In fact it appears to us that what the employers did in this case was to set up a good system of selection, reasonably administered. It may very well have been possible to argue about the individual markings of individual employees, but that is a comment which applies as much to the marking of those who were not selected for redundancy as to that of those who were. If the view taken by the Industrial Tribunal were carried to its logical conclusion, there could be no alternative but to require the employer, in every such case, to produce all the evidence bearing upon all the assessments out of which the redundancy decision arose. That seems to us to go far further than is proper. Of course, every redundancy situation is one of distress for employees who are affected; and every redundancy situation is one in which hard decisions have to be made. It is, however, essential to remember that what is required of the employer is that he should act reasonably.

13. As regards consultation, it seems to us that very much the same observations can be made. There was no individual consultation prior to the selection for redundancy, but there was extensive consultation with the unions; and there was an opportunity given to the individuals to comment upon the proposal to make them redundant. Remembering that what the employer has to do in a typically difficult situation is to act reasonably, it seems to us that the Industrial Tribunal went too far in requiring, in effect, that the details of the assessment should be disclosed to and discussed with the employees, and that their conclusion cannot stand."

23. Although that case was subject to the successful appeal to the Court of Session, Mr Siddall contended that the reversal of the EAT's decision was on different grounds and there was no criticism of the passages to which he referred.
24. Then, in British Aerospace plc v Green [1995] IRLR 433 Waite LJ said this:

"13. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis. That applies both at the stage when the system is being actually applied, and also at any later stage when its operation is being called into question before an industrial tribunal. To allow otherwise would involve a serious risk that the system itself would lose the respect with which it is at present regarded on both sides of industry, and that tribunal hearings would become hopelessly protracted. There were therefore strong reasons of policy against allowing disclosure of the retained assessments at this stage, and no special circumstances justifying a departure from that policy."

25. Then in John Brown Engineering v Brown [1997] IRLR 90, Lord Johnston giving the EAT's decision, said this:

"2. The sole issue, in effect, before us was whether or not, having embarked upon the assessment exercise on an ad hoc basis in the sense that there had been no ongoing assessment of the workforce during normal employment, as a matter of policy, for reasons which were given, the employers withheld both the individual marks scored by those selected for redundancy and also those that applied to the comparators. The selection process involved an appeals procedure, and essentially the argument that was presented on behalf of the employees before the industrial tribunal, which it sustained, was that this was a sham in the absence of sufficient material, in the sense at least of individual scores, available to each employee so that he could at least complain as to his own assessment.

8. What is important to recognise at once is that that passage does not suggest that individual consultation is an essential, and confirms to our mind that in each case what is required is a fair process, where an opportunity to contest the selection of each individual is available to the individual employee, who can nevertheless achieve that opportunity through his trade union. Lack of consultation implies a loss of opportunity, not that the opportunity if given would have made necessarily any difference. Obviously individual consultation is the easiest way to assert even-handedness on the part of an employer, but we would not wish to suggest that it is necessarily required in every case. On the other hand, a policy decision to withhold all markings in a particular selection process may result in individual unfairness if no opportunity is thereafter given to the individual to know how he has been assessed. We recognise it may be invidious to publish the whole identified 'league tables', but in choosing not to do so the employer must run the risk that he is not acting fairly in respect of individual employees. It also has to be reasserted that it is no part of the industrial tribunal's role, in the context of redundancy, to examine the marking process as a matter of criteria under a microscope; nor to determine whether, intrinsically, it was properly operated. At the end of the day, the only issue is whether or not the employers treated their employees in a fair and even-handed manner.

9. Against that background, we consider, in the context of the present cases, that the industrial tribunal was entitled to conclude that withholding of the actual marks from each individual employee once the assessment had taken place did render the appeal system 'a sham' and, as such, constituted unfairness in the manner in which the agreed and acceptable criteria were being applied."

26. Finally, in Mugford v Midland Bank plc [1997] IRLR 208, HHJ Peter Clark in the EAT said this:

"41. (1) Where no consultation about redundancy has taken place with either the trade union or the employee the dismissal will normally be unfair, unless the industrial tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.

(2) Consultation with the trade union over selection criteria does not of itself release the employer from considering with the employee individually his being identified for redundancy.

(3) It will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy."

27. As a result of those authorities, Mr Siddall contended that the Tribunal's task in this case was simply to satisfy themselves that a proper marking system had been set up with identifiable criteria in consultation with the union; that the employee was informed of the outcome of the marking and that any comments made by the employee in a consultation meeting were fed back to the markers so that the dismissing officer could satisfy himself that the marking was fair and reasonable.
28. Mr Siddall argued that the Tribunal were only concerned as to whether the employer's marking system and the manner in which it was carried out fell within a band of reasonable responses and that a failure to provide more detailed information as to how a particular category was marked would not take the employer outside that band of responses. He contended that authorities certainly did not in any way establish a principle that it was necessary for an employer, having set up a reasonable marking system, to provide an explanation of why an individual had received the scores that he had - all that was required was a reasonable system for him to be able to challenge those marks which the employers had provided in this case.
29. Mr Siddall submitted that further examples of the substitution mindset of the Tribunal were to be seen in paragraphs 36 to 38 where the Tribunal analysed the evidence given by the scorers in relation to how and why they had given the Respondent the scores that they had and balancing those explanations against the Respondent's case. In particular, the scorers claimed that the Respondent should be marked down on flexibility because he did not help with job bagging and invoicing and also that he was a clock-watcher, being described as a 9 to 5 man. The Tribunal accepted the Respondent's evidence that he never worked a 9 to 5 shift and also noted that no one had ever asked him to do invoicing and job bagging and that as he was a senior estimator he would do the harder jobs. The Respondent had also disputed in evidence that the scorers could assess his abilities and disputed their evidence that they saw most of his quotes. Again, the Tribunal accepted his evidence that he had sent 90 per cent of his quotes out directly to clients because "no documentation was produced to support the Respondent's contention when such evidence should have been available".
30. Mr Siddall contended that the Tribunal's fact-finding exercise in this area was not merely aimed at the Polkey issue, i.e. even if the Respondent had been told the reason for his scores it would have made no difference to the eventual outcome but was clear evidence of the Tribunal substituting themselves as employers in terms of the marking exercise insofar as they were seeking to make findings in connection with the Polkey issue.
31. Mr Siddall contended that the better course was to deal with those issues once the issue of fairness had been determined (see London Ambulance Service v Small [2009] IRLR 663). Further, he criticised in particular the Tribunal's apparent requirement that the Appellant should produce evidence to prove on the balance of probabilities that its view of the Respondent's abilities was correct.
32. Mr Siddall then went on to also complain in relation to the manner in which the Tribunal dealt with the appeal process for Mr Briggs, meriting only a passing reference in the third paragraph of their conclusions on the issue of unfair dismissal. In particular, he complained that the Tribunal failed to address the verification by Mr Briggs of the scores and the extent to which the same fell within the bounds of reasonableness and also failed to address the extent to which the procedure on appeal may have been sufficient to allow a reasonable challenge by the Claimant of his scores.
33. He also criticised the Tribunal for describing the dismissal as both procedurally and substantively unfair against a background where the Tribunal were satisfied that there was a redundancy situation, that a suitable matrix was drawn up and that the correct pool was identified. For our part we find the distinction between procedure and substantial unfairness as regards redundancy to be a difficult distinction and, indeed, often quite academic and since the Tribunal went on to consider the Polkey question we cannot see any substance in this ground of the appeal.
34. On the Polkey issue, Mr Siddall reminded us of the guidance in Software 2000 Limited v Andrews [2007] IRLR 568 when Elias J (President) giving the EAT decision said this at paragraph 55:

"The basis of that is as follows: in the original Tribunal decision the Tribunal found that Mr Grace had been dismissed by reason of redundancy. The Tribunal found that there was no warning or consultation about the dismissal. Apparently, the company had assumed that Mr Grace did not have continuity of employment to raise an unfair dismissal claim and that, therefore, he was not entitled to any consultation."

35. Mr Siddall firstly complained about several occasions in the Tribunal's decision where in dealing with the Polkey issue the Tribunal posed the question as to, "Would the Claimant have been made redundant anyway?" He compares that against the language used by Elias J from where he spoke of the employer "… seeks to contend that the employee would or might have ceased to be employed". His substantial complaint is against the Tribunal when coming to the conclusion that "the outcome had a reasonable chance of being different" meant that there was still a possibility that redundancy would be the outcome. He argued the Tribunal wrongly considered there must be a probability rather than a possibility before a Polkey deduction could be made and also wrongly concluded that a Polkey deduction would be appropriate only if the Appellant was able to show that the Claimant would have been dismissed in any event on the balance of probabilities. Since the marks were close he contended that at the very least there was a one in three chance of the Respondent being dismissed and accordingly, a deduction of at least one third was appropriate.

Respondent's Submissions

36. For the Respondent, Mr Forshaw submitted that the case was essentially one about the reasonableness and sufficiency of the consultation process and the information that the Appellant had provided and that, therefore, any criticism of the Tribunal's conclusions amounted to a perversity appeal which had no grounds for success. He relied on a passage in Williams v Compair Maxam [1982] ICR 156 where Browne-Wilkinson J, giving the judgment of the EAT, said this:

"We must add a word of warning. For the purpose of giving our reasons for reaching our exceptional conclusion that the decision of the industrial tribunal in this case was perverse, we have had to state what in our view are the steps which a reasonable and fair employer at the present time would seek to take in dismissing unionised employees on the ground of redundancy. We stress two points. First, these are not immutable principles which will stay unaltered for ever. Practices and attitudes in industry change with time and new norms of acceptable industrial relations behaviour will emerge. Secondly the factors we have stated are not principles of law, but standards of behaviour. Therefore in future cases before this appeal tribunal there should be no attempt to say that an industrial tribunal which did not have regard to or give effect to one of these factors has misdirected itself in law. Only in cases such as the present where a genuine case for perversity on the grounds that the decision flies in the face of commonly accepted standards of fairness can be made out, are these factors directly relevant. They are relevant only as showing the knowledge of industrial relations which the industrial jury is to be assumed as having brought to bear on the case they had to decide."

37. He also relied on the passage from Mugford to which we have made reference which makes it clear that it is a question of fact and degree for the Tribunal to consider whether the consultation was adequate and sufficient. He also reminded us that the Tribunal in paragraph 44 of their decision had said this:

"It is not for the Tribunal to impose its standards and decide whether the employer should behave differently. It had to ask itself whether dismissal lay within the range of conduct which a reasonable employer could have adopted."

38. Mr Forshaw then submitted that in order to dismiss an employee by reason of redundancy fairly the person consulted must be able to understand the basis upon which the decision is taken and in particular, must be given sufficient information to be able to challenge the scores given to him in the completion of a redundancy exercise. In R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and Others [1994] IRLR 72 Glidewell LJ said this:

"24. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p19, when he said:

'Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(c) adequate time in which to respond;

(d) conscientious consideration by an authority of the response to consultation.'

25. Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely."

39. Although that case concerned consultation between British Coal and the NUM in relation to the closure of collieries, the passage has been subsequently adopted by the EAT in relation to consultation within redundancy in Rowell v Hubbard Group Services Limited [1995] IRLR 195 HHJ Levy said this:

"16. Though given in a different context than that of employment law, we think the passage of assistance to employers when they have to consult with staff in the context of dismissal for redundancy or dismissal. There are no invariable rules as to what is to be done in any given situation; everything will depend on its particular facts. However, when the need for consultation exists, it must be fair and genuine, and should, we suggest, be conducted so far as possible as the passage from Glidewell LJ's judgment suggests. Bearing these passages in mind on the one hand, as urged by Mr Lane, we have also borne in mind the warning given to us by Browne-Wilkinson J giving judgment in Williams v Compair Maxam Ltd, supra, about the care to be exercised before a judgment of an Industrial Tribunal is criticised as perverse. We have been forced to the conclusion that the submission of Mr Kolvin was correct and the decision of the Industrial Tribunal here cannot be supported."

40. Mr Forshaw also relied on the passage in John Brown, to which we have already made reference which spoke of a fair process "where an opportunity to contest the selection of each individual is available to the individual employee". Mr Forshaw submitted it was also significant that the passages in British Coal and Rowell were also approved by the Court of Session in Eaton v King (see [1996] IRLR 199 at paragraph 22). Mr Forshaw submitted that the Tribunal in the present case came to the view that the Respondent had not been given the proper opportunity to contest his selection because he was not given sufficient information upon which to do so. In a situation where there were only three employees and the marking was close it was open to the Tribunal to find that the consultation was not sufficient, having regard to the Appellant's failure to answer the questions asked of it by the Respondent as to why he was awarded the marks that he was awarded on the completion of the selection matrix. The employer had chosen to hand over the selection marks of the three candidates, although the marking sheets had contained no information other then the marks as to why particular scores were achieved. Mr Forshaw submitted that the appeal process did nothing to cure this defect because it was simply a repetition of how Mr Rayson had originally dealt with the matter.
41. In relation to the issue of the Tribunal substituting its own view, particularly the findings at paragraphs 36 to 38 in relation to the scoring evaluation, Mr Forshaw submitted that those conclusions primarily went to the Polkey issue and, indeed, the Tribunal had been asked to evaluate this evidence put before it by the Appellant as to the basis of the marks which were received on completion of the matrix. In relation to the fairness issue, it is clear from the Tribunal's conclusions that the conclusion they came to was simply that the matters relied on by the assessors to mark down the Claimant were patently challengeable.
42. Finally, in relation to the Polkey issue, the Software guidelines make it clear that it is for the employer to adduce relevant evidence on which he wishes to rely to show that the employee would or might have ceased to be employed in any event. The Tribunal in this case had found that there was no cogent evidence to enable them to attempt to reconstruct "what might have been" (see Software paragraph 54 (3)). Simply because there were three possible candidates with close marking did not mean that there was a one in three chance that the Respondent would be dismissed, indeed, on the Tribunal's analysis there was a reasonable chance that he would not have been dismissed.

Conclusions

43. We agree with Mr Forshaw's analysis. As Glidewell LJ made clear, fair consultation involves the provision of adequate information on which an employee can respond and argue his case or, as he put it:

"Fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted and to express his views on those subjects and the consultor thereafter considering those views properly and genuinely."

44. Had the Respondent been able to challenge the flexibility marking in the way that he sought to do before the Tribunal, those comments could have then been reported back to the markers for their consideration. If they then chose to adhere to their original scores it is difficult to conceive that the Tribunal would seek to interfere with that decision in those circumstances since there had been proper consultation. Authorities such as Eaton would then apply to prevent a Tribunal carrying out a microscopic analysis of the scoring system or points awarded. As Lord Johnston put it in the John Brown case:

"The only issue is whether or not the employers treated their employees in a fair and even-handed manner."

In our view the Tribunal's decision that they did not was not wrong or perverse.

45. The marking was close, the pool only consisted of three employees, and the Respondent was seeking further information not in relation to topics such as attendance or productivity but in the more subjective area of flexibility. There was no suggestion in the Tribunal's decision that the complaints about the Respondent's attitude, e.g. timekeeping, had ever been raised with him before and there appears to be no reference to any written appraisals when the scorers carried out their scoring system. The complete absence of comments on the scoring sheets was further evidence of the lack of information that was provided. The Respondent was clearly asking for more information in relation to particularly the flexibility issue and both at the consultation meeting stage and, indeed, at the appeal, no further information was provided.
46. It may well be that it is too broad a principle for the Tribunal to set out as they did that it is necessary for an employer to provide an explanation of why an individual has received the scores that he has. If those scores were to do with issues such as attendance, timekeeping, conduct, productivity, further explanation may not be necessary. It is, in our view, for a Tribunal to decide whether an employee has been given a fair and proper opportunity to understand fully the matters about which it is being consulted and to express its views on those subjects and with the consultor thereafter considering those views properly and genuinely and that may well include being given sufficient information to be able to challenge the scores given to him in the completion of a redundancy exercise. In the modern climate much of this information would hopefully have been available to an employee via a previous appraisal process.
47. Accordingly, we cannot find fault with the Tribunal's determination on this issue nor do we find fault on the Polkey issue. At the end of the day, the Tribunal determined there was no cogent evidence from the employer as to whether he would have been dismissed in any event, leaving only the evidence from the Respondent, which suggested that he would not have been dismissed in the redundancy selection exercise that actually that possibility was clearly accepted by the Tribunal. We, therefore, agree that there was no cogent evidence which would have allowed the Tribunal to speculate with the degree of certainty suggested in the Software case. In our view, the "one in three argument" is completely fallacious – it is not evidence based.
48. Accordingly, for these reasons this appeal is dismissed.