United Kingdom Employment Appeal Tribunal

                                                                                               Appeal No. UKEAT/0460/10/DA

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

                                                                                                                At the Tribunal

                                                                                                                On 17 February 2011

                                                                             Judgment handed down on 14 June 2011

 

 

 

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

MR J MALLENDER

MS P TATLOW

 

 

 

 

MR P LANCASTER                                                                                                APPELLANT

 

 

 

 

 

 

TBWA MANCHESTER                                                                                       RESPONDENT

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

                                            APPEARANCES

 

 

 

 

 

For the Appellant	MR TOM BAILEY (Solicitor) Baileys Solicitors 37 Station Road Cheadle Hulme Cheadle Cheshire SK8 5AF
For the Respondent	MR DANIEL HOBBS (of Counsel) Instructed by: Ellis Whittam Solicitors Woodhouse Aldford Chester Cheshire CH3 6JD

 

 

 

SUMMARY

 

UNFAIR DISMISSAL – Compensation

DISABILITY DISCRIMINATION – Reasonable adjustments

AGE DISCRIMINATION

 

 

The Appellant, a senior art director at a marketing and advertising agency, was aged 50 when he was dismissed for redundancy. The Employment Tribunal did not err in dismissing the Appellant’s claim under the Disability Discrimination Act 1975.  He sought an adjustment by the substitution of some redundancy selection criteria which required communication skills which he contended placed him at a disadvantage as he has a social anxiety disorder with objective criteria such as attendance and length of service. The ET held that the substitution of the three offending criteria with those suggested by the Appellant would have made no difference to his final score. Applying DDA section 18(1)(a) the ET did not err in having regard to the extent to which taking the suggested step would prevent the effect in relation to which the duty is imposed in deciding that the adjustment was not reasonable. Further the ET did not err in holding that replacing all the redundancy selection criteria with objective measures would not be a reasonable adjustment. The ET was entitled to so conclude on the evidence having regard to the creative and senior level of the post held by the Appellant.

 

The ET was entitled to hold on the evidence that the Appellant’s age discrimination claim was to be dismissed.

 

The ET held that the Appellant’s dismissal for redundancy was unfair for failure to consult him. The ET erred in limiting the compensatory award to 4 week’s pay without considering whether the Respondent had made reasonable efforts to identify and offer suitable alternative employment and whether the Appellant would have accepted such employment. Case remitted to the Employment Tribunal for assessment of compensation in the light of evidence on this issue.

 

 

 

 

THE HONOURABLE MRS JUSTICE SLADE DBE

 

1.                  Mr Lancaster appeals from the dismissal by an Employment Tribunal (‘ET’) in a judgment entered in the Register on 20 July 2010 of his claims for disability discrimination on the basis that the Respondent failed to make reasonable adjustments and for age discrimination. The ET held that the Appellant had been unfairly dismissed. He appeals from the limit of four weeks which the ET placed on the calculation of the compensatory award. They so decided on the basis that his dismissal was

 

“procedurally unfair and having regard to Polkey v AE Dayton Services the Tribunal finds that if a fair procedure had been followed the claimant would have been dismissed four weeks after 13 May 2009.”

 

Summary Facts

2.                  The Appellant was employed by the Respondent marketing and advertising agency as a Senior Art Director from 24 February 2003 (not 2009 as appears in the judgment) until the termination of his employment on 13 May 2009.  He was dismissed for redundancy.

 

3.                  The Appellant was born on 7 July 1958 and so was 50 years of age when he was dismissed. He is a disabled person within the meaning of the Disability Discrimination Act 1995 (‘DDA’).

 

4.                  In their ET3 the Respondent stated that they are employed approximately 130 employees. As a result of the economic crisis in early 2009, Nissan, on whose account the Appellant worked, deferred or cancelled its spending with the Respondent. As a result of this and in response to other clients restricting their spending, a number of roles were placed at risk of redundancy.

 

5.                  The Appellant was placed in a pool of three with the two other Senior Art Directors for selection for redundancy. The ET held that the Respondent acted reasonably in adopting this pool.

 

6.                  The three Senior Art Directors were assessed against selection criteria. The Appellant was not consulted about the criteria. These included:

 

“1. ability to perform as a team player;

2. influence on performance and attitude to others;

3. actively participating in company activities and improving the organisation’s creative output.”

 

which attracted maximum scores of 25, 30 and 20 respectively: 75 points out of a maximum total of 425 for all the criteria.

 

7.                  In the first round of assessment, the Appellant scored a total of 198, Senior Art Director A, 298 and the third, B, 299.  By email on 7 April 2009 the Appellant was told that he had been placed at risk of redundancy. A notice to that effect was given to him at a meeting that afternoon. He was not consulted about the criteria used for selection for redundancy. The Appellant raised a grievance regarding his selection for redundancy. Although his grievance was dismissed, all three Senior Art Directors in the pool were scored again. This time the Appellant was given a score of 264, A 351 and B 347.  The Appellant was dismissed on 13 May 2009 having been summoned to a meeting that day by email of 12 May 2009.  He appealed against dismissal but his appeal was dismissed after a hearing on 5 June 2009.

 

The judgment of the Employment Tribunal

Disability discrimination

8.                  The ET recorded that the Appellant’s representative, Mr Bailey, a solicitor who also appeared before us, confirmed that the first provision, criterion or practice (‘PCP’) complained of in the Appellant’s claim under DDA section 4A for reasonable adjustments was the application of the three redundancy selection criteria referred to above (‘the three selection criteria’).

 

9.                  The case was also put in the alternative that all the redundancy selection criteria amounted to a PCP (‘the second PCP’).  The ET noted:

 

“9. The adjustments contended for by the claimant were in the case of the three selection criteria the removal of those criteria.

 

10. In relation to the PCP being all the selection criteria, the claimant’s representative contended that a more objective set of criteria such as attendance, disciplinary record, etc. should have been used.”

 

 

10.              It was determined at a Pre-Hearing Review that the Appellant was disabled within the meaning of the DDA. The impairment from which he suffers is a panic disorder and social anxiety disorder.  The ET found at paragraph 20 of their judgment that:

 

“…the employer did know that the claimant was disabled by 20 April 2009.”

 

 

11.              The ET held at paragraph 15 that the first PCP, the three selection criteria, placed the Appellant at a substantial disadvantage in that they

 

“placed him at a lower score than others in the pool and consequently being made redundant.”

 

 

12.              In considering the effect of the first PCP the ET removed the maximum number of points which could be scored for the three selection criteria, 75, from each of the total scores given to the Appellant, A and B. This would have left the Appellant with 189, A with 276 and B with 272.  The ET held at paragraph 19:

 

“Therefore the reasonable adjustment of removing those three criterion from the matrix does not prevent the provision, criteria or practice from having the disadvantageous effect i.e. selection for redundancy because the claimant still scored the lowest so he would have been selected for redundancy.”

 

 

13.              As for the second PCP, the ET were unable to agree whether the use of all the selection criteria placed the Appellant at a substantial disadvantage in comparison with non-disabled persons.  At paragraph 22 they held that:

 

“22. The majority of the panel held that it did, the minority held that it did not. However, this difference in opinion is immaterial because we had to go on to consider whether the employer had taken such steps as is reasonable to take in all the circumstances in order to prevent the provision, criteria or practice having that disadvantageous effect, see Section 18B.

 

23. The reasonable adjustment contended for by the claimant was to remove the criteria used by the respondent and to substitute it with objective criteria such as length of service, disciplinary record and/or sickness record.

 

24. We simply had no evidence and did not know whether if the respondents had made the adjustment of substituting objective criteria such as length of service, disciplinary record or sickness record for the subjective criteria they actually used, whether or not the claimant would have been selected for redundancy. Therefore once again we are not satisfied that the reasonable adjustment suggested by the claimant could have prevented the provision, criteria or practice i.e. the original selection criteria, from having the disadvantageous effect – the claimant being made redundant. Therefore once again the claimant’s claim must fail.”

 

 

Age discrimination

14.              The Appellant claimed that he was selected for redundancy because of his age. At paragraph 27 the ET held:

 

“We heard evidence and it was not disputed that the two others in the pool were also of a similar age in their late forties. We are not satisfied, therefore, that in being selected for redundancy the claimant is able to show any less favourable treatment than his comparator and accordingly his claim for age discrimination is dismissed.”

 

 

Unfair dismissal

15.              The ET held that it was reasonable for the Respondent not to place Senior Art Directors in a pool for selection for redundancy with Art Directors.  The ET held at paragraph 29:

 

“We find it is not for us to substitute our own view. We accept the rationale of the respondent that they found that the particular skills of the Creative Art Directors had ceased or diminished. We also accept it was a reasonably held belief that they did not wish to pool the Senior Art Directors with the Art Directors when identifying individuals for redundancy because in their experience a more senior individual doing a more junior position would lead to loss of morale.”

 

 

16.               The ET held at paragraph 30 that they

 

“…were not satisfied that the respondent consulted properly or fairly.”

 

At the meeting with the Appellant on 7 April 2009:

 

“…he was simply presented with a ‘notice of redundancy’ which specifically identified his job and a letter identifying he was at risk of redundancy providing him with a matrix and also advising him of the scores which identified him as the person being at risk of redundancy. We find that the claimant had not been properly consulted before the decision had effectively been taken to remove his position.”

 

 

Further the ET held:

 

“The meeting on 13 May was extremely brief and once again we find that this amounts to inadequate consultation.”

 

 

17.              In addition to failing to consult the Appellant properly or fairly the ET held at paragraph 31:

 

“We also find that limited efforts were made to seek alternative work for the claimant. Although Mr Tinker told the claimant in the meeting on 13 May he had looked for alternative work he did not provide any evidence of that either to the claimant or to us at the Employment Tribunal hearing.”

 

 

18.              The ET held at paragraph 32 that a reasonable employer would not have relied purely on subjective criteria. They found that:

 

“…it is dangerous for an employer to rely wholly on subjective criteria. There was no argument that there were no objective criteria at all contained in the criteria used by the respondent. Although it is a matter for the respondents to determine their own criteria and although we take into account the fact that this was a creative position at a senior level and therefore purely objective criteria might not have been sufficient, we find that a reasonable employer would not have relied purely on subjective criteria.”

 

 

19.              Finally the ET held that a reasonable employer would have appointed an external manager from another company within the group to hear the Appellant’s appeal.

 

20.              The decision of the ET which led to a compensatory award based on four weeks’ loss of employment is set out in paragraph 34:

 

“We have had regard to Polkey in this case. We find that the key reason why the claimant’s claim failed was for lack of genuine and meaningful consultation. We find that if genuine and meaningful consultation had occurred the claimant regrettably would have been dismissed in any event four weeks from the date he actually was dismissed on 13 May 2009. We make this finding because we find that the period between the date he was first notified as being at risk of dismissal and 13 May was taken up with his own grievances. We consider that once those grievances had been dealt with a proper procedure should have occurred with meaningful consultation and that would have taken a further 4 weeks.”

 

 

The Relevant Statutory Provisions

Disability Discrimination Act

21.              The DDA has been repealed by Equality Act 2010 but applied to the Appellant’s claim.

 

“Section 4A

(1)   Where –

(a)         a provision, criterion or practice applied by or on behalf of an employer…

...                                           

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice…having that effect.

 

Section 18B

(1)     In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to-

(a)         the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b)        the extent to which it is practicable for him to take the step;

…

(f)          the nature of his activities and the size of his undertaking;

 

(2)     The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments:

…

(j) modifying procedures for testing or assessment.”

 

The Disability Rights Commission Code of Practice: Employment and Occupation (2004)

22.              The Code does not impose legal obligations but employment tribunals must take into account any part of the Code that appears to them relevant to any question arising in those proceedings.

 

“5.24 There is no onus on the disabled person to suggest what adjustments should be made.

…

5.28 It is unlikely to be reasonable for an employer to have to make an adjustment involving little benefit to the disabled person.”

 

 

Employment Equality (Age) Regulations 2006

23.              The Age Regulations have been repealed by the Equality Act 2010 but applied to the Appellant’s claim.

 

“Regulation 3

(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if –

(a) on grounds of B’s age, A treats B less favourably than he treats or would treat other persons.”

 

 

Employment Rights Act 1996 (‘ERA’)

 

“Section 123

(1) Subject to the provisions of this section and section 124, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

 

 

The contentions of the parties

Disability Discrimination

24.              Mr Bailey for the Appellant contended that the ET erred in reasoning that because removing the three selection criteria, the first PCP, would not have prevented the Appellant’s dismissal, requiring their removal would not be a reasonable adjustment within the meaning of DDA section 4A.

 

25.              Further, in respect of the second PCP, the application of all the redundancy selection criteria Mr Bailey submitted that the ET erred in holding in paragraph 24 of the judgment that in order for an adjustment to be reasonable the Tribunal has to be satisfied that it would be effective to eliminate the substantial disadvantage caused by its application.

 

26.              Mr Bailey submitted that whilst pursuant to DDA section 18B(1)(a) whether taking the step would prevent the discriminatory effect of the PCP is a matter to be taken into account in assessing whether the adjustment would be reasonable, it is not determinative as the ET appear to have held.  Mr Bailey relied upon the judgment of the Employment Appeal Tribunal (‘EAT’), His Honour Judge Peter Clark and members in Romec Limited v Mr H S Rudham UKEAT/0069/07/DA paragraph 39 to submit that if there was a real prospect that the proposed measure would remove the disadvantage caused by the application of the PCP then it would be a reasonable adjustment.

 

27.              Mr Bailey relied upon the judgment of His Honour Judge McMullen QC and members in Cumbria Probation Board v Mr S Collingwood UKEAT/0079/08/JOJ at paragraph 50 that:

 

“It is not a requirement in a reasonable adjustment case that the Claimant prove that the suggestion made will remove the substantial disadvantage.  In this case the proper approach to Dr Taylor’s evidence in the context of the other material was that the Claimant should be given a chance; not that the matter should be concluded to his satisfaction irrespective of whether that was reasonable or not.”

 

 

28.               Applying those principles, Mr Bailey contended that if the redundancy selection criteria had been replaced with completely different criteria there must be a real prospect that the Appellant would have avoided selection for redundancy. Requiring proof that the proposed adjustment would eliminate the disadvantage caused by the PCP was said by Mr Bailey to be an erroneous approach.  Accordingly Mr Bailey submitted that the ET erred in holding in paragraph 24 of their judgment that because they could not be satisfied that substituting objective criteria could have prevented the PCP, the original selection criteria, from having the disadvantageous effect of the Appellant being made redundant, his claim must fail.

 

29.              For the Respondent, Mr Hobbs relied on the finding of the ET that even if the three redundancy selection criteria, the first PCP, were eliminated, the Appellant would still have been selected for redundancy. This was an important consideration in determining whether a measure was a reasonable adjustment.  An adjustment would not be required if it would have no relevant effect.  Although the mathematical exercise engaged in by the ET of removing from the total scores of all three Senior Art Directors the maximum score, 75, for the three criteria to which objection was taken, was wrong applying the correct approach of deducting from each of their total scores their actual scores for each of the three criteria, would have made no difference to the outcome. Accordingly removing the three redundancy selection criteria to which objection was taken was not a reasonable adjustment.

 

30.              As for the second adjustment sought, the replacement of all the redundancy selection criteria, Mr Hobbs contended that the Appellant’s case was not of sufficient clarity as to what the reasonable adjustment was said to be. Further, although they found that a reasonable employer would not have relied purely on subjective criteria, the ET found in paragraph 32 of their judgment that

 

“this was a creative position at a senior level and therefore purely objective criteria may not have been sufficient.”

 

 

31.              Mr Hobbs submitted that the ET applied the correct test in paragraph 24 of their judgment. They were entitled to decide that an adjustment of replacing all the redundancy selection criteria with objective criteria such as a length of service, disciplinary record or sickness record was not reasonable in light of the fact that they were not satisfied that it could have prevented the second PCP from having the disadvantageous effect of the Appellant being made redundant.

 

Age Discrimination

32.              Mr Bailey submitted that there was evidence before the ET of the age profile of the Respondent’s employees which showed that those who were past their ‘sell by’ dates were not retained in employment.  The Appellant who was aged 50 was managed out of the business.

 

33.              Mr Bailey contended that the ET failed to take into account the evidence of a witness for the Respondent, Mr Willig, who whilst denying that the Appellant was discriminated against on grounds of age, went on to say that the advertising industry on the whole is ageist. It was submitted in the Notice of Appeal and skeleton argument that this was sufficient to shift the burden to the Respondent to disprove age discrimination.

 

34.              Mr Hobbs referred to the Further and Better Particulars of the allegation of age discrimination provided on behalf of the Appellant. It was stated:

 

“14. For avoidance of doubt the Respondent’s discriminatory act was to tailor the redundancy process so as to remove the Claimant from the Respondent’s business on account of his age.

 

15. The tactics employed were (i) to use a shallow pool of redundancy candidates (three in total) and (ii) to use a [sic] redundancy selection criteria that would ensure that the Claimant would score very poorly and come bottom of that narrow pool.”

 

 

35.              As for the contention that the ET should have drawn an inference from the evidence of Mr Willig that the Respondent had discriminated against the Appellant on grounds of age, Mr Hobbs contended that this evidence was not relevant. Mr Willig spoke about the advertising industry in general. That was not relevant to the decision taken by the Respondent in the Appellant’s case. It would have been impermissible for the ET to draw any inference of age discrimination from this evidence of Mr Willig.

 

The Polkey reduction to the compensatory award for unfair dismissal

36.              Mr Bailey submitted that the conclusion of the ET in paragraph 34 of their judgment that if genuine and meaningful consultation had occurred the Appellant would have been dismissed in any event four weeks after the date of his dismissal on 13 May 2009 was inconsistent with their other findings as to why his dismissal was unfair. The ET found in paragraph 32 of their judgment that a reasonable employer would not have relied purely on subjective criteria. It was contended on behalf of the Appellant that the ET did not apply their minds to what the Respondent’s decision would have been if they had applied objective criteria or if an appropriate person had heard the Appellant’s appeal from his dismissal. At paragraph 33 the ET had held that

 

“it would have been the actions of a reasonable employer to appoint an external manager from another company in the group to hear the claimant’s final appeal.”

 

 

37.              Mr Bailey submitted that the ET failed to follow the well established principle explained in Britool Ltd v Roberts and others [1993] IRLR 481 that if the employer in an unfair dismissal case seeks to contend that the employee would have been dismissed in any event had fair procedures been followed it is for him to adduce such evidence.  Although the ET will reach their judgment on all the evidence, in this case there was no such evidence or the evidence was so scant that it could not support such a conclusion.  Mr Bailey submitted that this case was analogous to that considered by the EAT in Pinewood Repro Ltd T/A County Print v Mr G Page UKEAT/0028/10/SM in which it was held at paragraph 47 that there was no cogent evidence which would have allowed the Tribunal to speculate with the degree of certainty suggested in the Software case (Software 2000 Ltd v Andrews and others [2007] ICR 825) that the Claimant would have been dismissed if a fair procedure had been followed.

 

38.              It was submitted by Mr Bailey that the Respondent could not establish whether the Appellant would have been dismissed for redundancy if fair criteria had been used or his appeal heard by an appropriate appeals officer.

 

39.              Further Mr Bailey contended that even if the only reason for the dismissal being unfair was lack of meaningful consultation, the finding that the Appellant would have been dismissed four weeks after 13 May 2009 also fails to take into account that he may have obtained an alternative role in the group.

 

40.              In effect it was contended by Mr Bailey that the decision of the ET that the Appellant would have been dismissed in any event four weeks after 13 May 2009 was perverse.

 

41.              Mr Hobbs submitted that in accordance with the principles to be applied in assessing compensation are explained by the EAT, Elias P and members in Software 2000 at paragraph 54. Whilst it is for an employer who wishes to contend that the unfairly dismissed employee would have been dismissed in any event, the ET must have regard to all the evidence in making that assessment. It was contended on behalf of the Respondent that, applying the correct approach to the matrix scores, the Appellant did not achieve a score close to the others in the pool for selection. Although the ET were wrong in their arithmetic in calculating the numerical effect of removing the three selection criteria to which particular objection was taken, their conclusion that removing the three criteria would have made no difference to the decision as to which of the three Senior Art Directors was to be made redundant was unimpeachable as the Appellant would still have scored the lowest.

 

42.              It was submitted that the ET did not hold that no subjective criteria could have been included amongst those to be used for deciding which Senior Art Director was to be selected for redundancy. It would not be reasonable to strip out all subjective criteria. Accordingly it was reasonable for the ET to take into account the scores achieved by the three Senior Art Directors in the pool in deciding whether consultation about the criteria would have affected the outcome. Secondly it was submitted that the ET were entitled to keep in mind that the Respondent could have put the Appellant in a pool of one as it was his work which had diminished.

 

43.              The principle explained in paragraph 54(7)(c) of Software 2000 applied. On the facts it was open to the ET to conclude that if consultation had taken place the Appellant’s employment would have continued for another four weeks. The award of compensation based on an additional four weeks employment was one which the ET were entitled to conclude was just and equitable in all the circumstances.

 

Discussion and conclusion

Disability Discrimination

44.              As is statutorily required by DDA section 18B(1)(a) and explained by the EAT in Romec Limited v Mr H S Rudham UKEAT/0069/07/DA the extent to which a proposed adjustment would prevent the disadvantage caused by a PCP is a material consideration in determining its reasonableness.  His Honour Judge Peter Clark explained in Romec at paragraph 39 that if there was no prospect of the adjustment proposed in that case achieving its aim it would not be a reasonable adjustment. Conversely if in the judgment of the fact-finding tribunal based on the evidence before it there was a real prospect of the adjustment having the desired effect ‘it may be reasonable to expect the employer to take that course’.

 

45.              The EAT in Romec held at paragraph 40 that the ET in that case erred in holding that it was sufficient to establish the reasonableness of an adjustment if it would ‘give the Claimant an opportunity to prove himself’. The EAT held:

 

“That is the wrong approach.  It was for the Tribunal to ask itself and answer the question, to what extent would an extended rehabilitation programme allow the Claimant to return to full time work as an engineer?  Only after that question is answered can the Tribunal go on to answer the principal question, is that a reasonable step to take to remove the disadvantage suffered by the Claimant?”

 

 

46.              We agree with His Honour Judge McMullen QC in Cumbria Probation Board at paragraph 50 that:

 

“It is not requirement in a reasonable adjustment case that the Claimant prove that the suggestion made will remove the substantial disadvantage.”

 

 

Insofar as there is a difference between His Honour Judge Clark in Romec and His Honour Judge McMullen QC in Cumbria, in our judgment an adjustment which gives a claimant ‘a chance’ to achieve a desired objective does not necessarily make the adjustment reasonable. The material question for an ET in considering its effect, which is one of the factors to which regard is to be paid in assessing reasonableness, is the extent to which making the adjustment would prevent the PCP having the effect of placing the claimant at a substantial disadvantage. That enquiry is fact sensitive.

 

47.              The ET held that the first PCP of applying the three redundancy selection criteria of:

§  Ability to act as a team player;

§  Influence on performance and attitude of others;

§  Actively participating in company activity and improving the organisation’s creative output

placed the Appellant, who had a social anxiety disorder, at a substantial disadvantage in comparison with persons who were not disabled.

 

48.              The ET concluded that removal of the three criteria from the assessment for selection for redundancy was not a reasonable adjustment because it would not have materially affected the outcome of the scoring. Removal of these criteria would still have left the Appellant with the lowest score of the three Senior Art Directors who were in the pool for selection for redundancy.

 

49.              Although in our respectful judgment the ET erred in deducting 75 points from each of those in the pool, the total maximum points which could be awarded for these three criteria rather than the total points actually awarded to each of the Senior Art Directors for each of the three criteria, this did not alter the position of the Appellant as the lowest scoring person in the pool. The Appellant would have received a total of 226 points, A a total of 285 points and B a total of 291 points. Further, even if these criteria were replaced by the objective criteria suggested by the Appellant, length of service, disciplinary record and sickness record, it would only be if the Appellant scored at or near the maximum 75 points and A and B at or near no points that the Appellant would no longer have been the lowest scoring member of the pool. Such scores are so unlikely as to be discounted: if A’s and B’s disciplinary and sickness records had been so bad that they received no points would they still have been in employment? They would have scored some points for their length of service.

 

50.              In our judgment the ET did not err in concluding that because removal of the first PCP would not have affected the order of the scores of those within the pool and therefore the Appellant’s selection for redundancy, the removal of the three criteria to which particular exception was taken was not a reasonable adjustment. Employment Tribunals are statutorily required by DDA section 18B(1)(a) to have regard in particular to factors which include

 

“(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed.”

 

 

On the facts the ET could reach no other conclusion than that removing the three criteria would not have affected the outcome of the Appellant’s selection for redundancy even if those criteria had been replaced by three objective criteria given similar weighting. The adjustment contended for would have been of no effect. The ET did not err in holding that such an adjustment was not reasonable.  

 

51.              The majority of the ET held that the alternative PCP, the application of all the redundancy selection criteria, placed the Appellant at a substantial disadvantage in comparison with non-disabled persons. The reasonable adjustment contended for by the Appellant was the replacement of the criteria used with a more objective set of criteria such as attendance, disciplinary record and/or sickness record.

 

52.              Although the ET observed that they had no evidence and did not know whether the Appellant would have been selected for redundancy if objective criteria such as length of service, disciplinary record or sickness had been substituted for subjective criteria, their decision was based not on whether such an adjustment would achieve that objective but whether it could. The reason the ET dismissed the Appellant’s claim that the Respondent failed in their duty to make reasonable adjustments by replacing their criteria for selection for redundancy with objective criteria was that on the evidence they were not satisfied that making this adjustment could have prevented the Appellant from receiving the lowest score in the pool for selection for redundancy.

 

53.              The judgment of the ET should be read as a whole. Whilst the Appellant was contending for a substitution of all sixteen redundancy selection criteria with objective criteria the ET observed in paragraph 32 of their judgment that it was not suggested that there were no objective criteria at all in the criteria used by the Respondent. It is apparent that many of the criteria used, particularly those under the heading ‘Section 1. Expertise’, were objective. These include:

 

“Demonstrate understanding of brands and general marketing principles;

Knowledge of consumer market dynamics;

Knowledge and application of software tools.”

 

 

Further in paragraph 32 the ET acknowledged that it was for the Respondent to determine their own criteria. Whilst holding that a reasonable employer would not have relied purely on subjective criteria, the ET recognised that as the position of Senior Art Director which the Appellant held was a creative position at a senior level and therefore purely objective criteria might not have been sufficient.

 

54.              Accordingly the ET doubted the reasonableness of substituting the original criteria with purely objective criteria.

 

55.              On the facts of this case the ET held at paragraph 24 of their judgment that they were not satisfied that the second adjustment suggested by the Appellant could have prevented the PCP, the original selection criteria, from having the disadvantageous effect – that of the Appellant being made redundant. This was an assessment for the ET to make on the evidence before them. In our judgment they did not err in dismissing the Appellant’s claim under the DDA because they held that the first adjustment would not have made a difference and with regard to the second, they were not satisfied on the evidence that it could prevent the Appellant from being selected for redundancy.

 

56.              The ET did not err in dismissing the Appellant’s claim under the DDA.

 

Age Discrimination

57.              The ET did not err in failing to draw an inference that the Respondent had discriminated against the Appellant on grounds of his age from the suggestion that the advertising industry as a whole is ageist. There was evidence before the ET that the age profile of the Respondent’s employees in Manchester had become younger between 2009 and 2010. However that profile includes a variety of jobs. There was evidence before the ET that the Appellant was offered employment when he was over the age of forty and the two other Senior Art Directors in the pool for redundancy and who were retained were of a similar age to the Appellant. They were in their late forties. The ET did not err in concluding on the evidence that the Appellant was not dismissed on grounds of his age.

 

The Polkey reduction to the compensatory award for unfair dismissal

58.              It is worth repeating the well known provision in ERA section 123(1) that the amount of the compensatory award

 

“shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

 

59.              The principles relevant to the appeal from the limit of four weeks on the compensatory award made to the Appellant are well established. Elias P in the EAT summarised them in Software 2000 at paragraph 54:

 

“(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely.  However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.”

 

 

An ET may conclude that employment would have continued but only for a limited period.

 

60.              The ET in this case held that if genuine and meaningful consultation had occurred the Appellant would have been dismissed in any event four weeks after the date of his actual dismissal. The rationale for this four week period was that once the Appellant’s grievances had been dealt with

 

“a proper procedure should have occurred with meaningful consultation and that would have taken a further four weeks.”

 

 

61.              In the absence of any finding by the ET that the Appellant had been unfairly selected for redundancy the ET did not err in concluding that he would have been dismissed from his post of Senior Art Director even after proper consultation. However the ET failed to assess whether, if there had been proper consultation, the Appellant would have been offered and accepted alternative employment.

 

62.              The ET held at paragraph 31:

 

“We also find that limited efforts were made to seek alternative work for the claimant. Although Mr Tinker told the claimant in the meeting on 13 May he had looked for alternative work he did not provide any evidence of that either to the claimant or to us at the Employment Tribunal hearing.”

 

 

63.              In Virgin Media Ltd v Mr H Seddington, Mr J Eland UKEAT/0539/08/DM the issue which determined loss was whether the claimants would have found, and accepted, alternative employment. Underhill P in the EAT observed at paragraph 15:

 

“As to that, we do not think that the burden can be regarded as being at all points on the employer.  The burden may indeed be on him to raise the issue (if the employee has not) – that is, to assert that there was no suitable employment that the employee could or would have taken – and he will also have to provide appropriate evidential support for that assertion: the basic facts about alternative employment will be within his knowledge and not – at least not always or not completely – within the employee’s.  But if he raises a prima facie case to that effect, it must, it seems to us, be for the employee to say what job, or kind of job, he believes was available and to give evidence to the effect that he would taken such a job…”

 

 

64.              The ET did not make any finding of fact as to what efforts were made by the Respondent to find the Appellant alternative employment and his reaction to any alternative employment offered to him.  If other alternative employment could have been offered and may have been accepted the ET erred in failing to take this into account by placing a limit of four weeks on the compensatory award.

 

65.              Accordingly we allow the appeal from the compensatory award. The case is remitted to the same Employment Tribunal, if practicable, for evidence from both parties on whether the Appellant should have been offered and if so whether he would have accepted alternative employment. In the light of their conclusion on the facts the ET is to consider whether the compensatory award is to be greater than that based on four weeks’ additional employment.