SUMMARY
UNFAIR DISMISSAL
The Claimant was dismissed, following
a redundancy exercise in which three employees had to be selected from a pool
of four to fill three new posts which replaced five old posts (one of which was
vacant). The selection process was agreed with trade unions. The Claimant
scored substantially less well than the other three and was given notice of
dismissal. She conceded that she had been dismissed for redundancy but
contended that she had been set-up to fail and that one of the four employees
should have been excluded from the group.
During the Employment Tribunal hearing,
it emerged that in the course of the Claimant’s notice period, one of the three
selected employees had resigned. The Claimant was permitted to run the point
that she should have been given that employee’s post. The Tribunal rejected
her original case and the new point; they found that, although the exercise
included no formal passmark, the employers were entitled to treat the Claimant
as unsuitable to be appointed to any of the new posts.
On appeal the Claimant put forward
three arguments; they were:-
(1) On
the resignation of the selected employee there was no redundancy situation; and
she should be permitted to withdraw her concession that she had been dismissed
for redundancy.
(2) The ET failed to consider
fairness in the light of the agreed procedure.
(3) The
ET failed to consider the provision in that procedure for a 3-month trial
period and that it was unfair to dismiss the Claimant without giving her such a
trial.
Held:
(1) (a)
On the authorities – Langston, Kumchyk, Jones
v Burdett-Coutts – the Claimant should not be permitted to withdraw her
concession. Segor v Goodrich distinguished.
(b) In any event
the ET considered in sufficient detail whether the new posts were different
from the old posts; on their findings they were different; and the redundancy
situation continued despite the resignation.
(2) The
ET had considered the point and were entitled to conclude that the Claimant was
reasonably regarded as unappointable to any of the new posts.
(3) The
ET had considered the trial period; their assessment was not open to criticism
on appeal in the absence of perversity.
HIS HONOUR JEFFREY BURKE
QC
Introduction
1.
The Appellant, Ms Asif, appeals against part of the judgment of the
Employment Tribunal, sitting at London South, presided over by
Employment Judge Baron and given after a three‑day hearing in
March and May 2011. By that judgment, sent to the parties on 20 May
2011, the Employment Tribunal dismissed Ms Asif’s claims against the
Respondent, Elmbridge Borough Council, that she had been unfairly dismissed and
the victim of disability discrimination; the Tribunal also dismissed her equal
pay claim.
2.
In this judgment we will refer to Ms Asif as the Claimant and Elmbridge
Borough Council as the Respondent, as they were before the Tribunal.
3.
The Claimant was not represented before the Tribunal. Her original
Notice of Appeal did not distil the grounds that she wished to pursue into
easily comprehensible statements of errors of law on the part of the Employment
Tribunal; but at a preliminary hearing held on 19 October 2011 the
Claimant came armed with the services of Mr Catherwood of counsel under the
ELAAS scheme; and in effect he redrafted the Notice of Appeal and put the
Claimant’s case into shape to such an extent that the Employment Appeal
Tribunal, on that occasion HHJ McMullen QC presiding, allowed the
appeal to go forward to a full hearing but only on the grounds set out in
paragraphs 2.1‑2.6 of the amended grounds of appeal; all other
grounds of appeal were dismissed.
4.
Those grounds all go to the Employment Tribunal’s decision that the
dismissal of the Claimant was not unfair. The decision as to the other claims
raised by the Claimant is no longer the subject of any appeal.
Mr Catherwood appeared on behalf of the Claimant before us, as he did at
the preliminary hearing; Ms Thorp appeared before us on behalf of the
Respondents, as she did before the Tribunal. We are grateful to both for their
clear and helpful arguments.
The facts
5.
We take the history from the Employment Tribunal’s findings of fact.
The Claimant was employed by the Respondent from December 2007 as an IT
helpdesk administrative officer. There were two other employees with the same
job, Ms King and Mr Wray. Another employee, Mrs White, held a
similar post; but her area of responsibility lay in the Respondent’s telephone
system rather than its IT function. There was also a job entitled “IT support
services officer”, which was vacant at the material time.
6.
In early 2010 the Respondent decided to restructure its information
systems division. Phase 2 of that exercise involved the abolition of the five
posts which we have just described and the creation in their place of three new
posts of ICT customer services officer, which would include responsibility for
both IT and telephones. A redundancy procedure was agreed with the relevant
trade union. Under that procedure, where there was considered to be an 80 per cent
(or greater) similarity between old and new posts, employees would be
assimilated from old to new post. Where the similarity was 50 to 79 per cent,
employees in the old posts would be “ringfenced” for the new posts. It was
recognised that there was a pool of four who would be involved in the
competition for the three new posts, those four being the Claimant,
Mr Wray, Ms King and Mrs White, the fifth of the old posts being,
as we have said, vacant.
7.
When the new posts were compared with the old posts, it was determined
that there was not, in the case of any of them, an 80 per cent
match. The Respondent’s document derived from the exercise of comparison shows
a match of 77.14 per cent, except in the case of Mrs White’s job
where the match was 72.86 per cent. Therefore there could be no
assimilation; and the four employees in the pool were in competition for the
three new posts. The Tribunal accepted, at paragraph 18 of their judgment, the
evidence of Mrs Jackson on behalf of the Respondent that the new posts
differed from the old in that the postholders would be expected to be proactive
in developing solutions and would not be limited, as in the old posts, to
fixing problems. The greater responsibility and competency requirements of the
new posts were reflected in their being graded at grade 6; the old posts
had been, we were told, at grades 3‑5.
8.
The Tribunal did not set out the details of the process of consultation which
was carried out, there being no criticism of that part of what occurred. For
the same reasons, we will say no more about that aspect of the redundancy
exercise.
9.
All four employees were invited to apply for the new posts by completing
a form which contained various sections including “Qualification and
Education”, “Experience”, “Knowledge/Skills/Abilities” and “Special
Requirements”, consisting of elements relatively specific to the posts. Each
employee was interviewed on the basis of an agreed set of standard questions
(save for one irrelevant omission). Marks were allocated to each employee
under the above four criteria, based on the application forms and the
interviews that followed. Marks were also assessed for past performance,
conduct and attendance. The process had been agreed with the trade union.
10.
The total scores produced by the process were added up and expressed in
percentage terms. The Claimant scored 54.1 per cent overall,
Mr Wray 81.9 per cent, Ms King 82.8 per cent
and Mrs White 65.2 per cent.
11.
The process did not include a pass mark, i.e. a minimum percentage below
which an employee could not be offered one of the new posts. However, the
interviewing panel concluded that the Claimant was not appointable to any one
of the posts even if there had been a vacancy. In any event, at that stage
there was no vacancy; for the Claimant had been out-scored for the three posts
by each of the other three candidates. The Claimant was, therefore, told on
22 April 2010 that she would be made redundant with effect from
21 May.
12.
She appealed unsuccessfully; in the course of the appeal she complained
that she had been set up to fail and that her selection had been
predetermined. The Tribunal, at paragraph 27, rejected that part of her
case; and their conclusion on that issue is not challenged in this appeal.
13.
The three successful candidates were then, again pursuant to the agreed
process, given a three‑month trial period in the new posts. However, in
mid‑May, after the Claimant had been found to be unacceptable for any of
the new posts but before her notice expired, Mrs White decided that she
did not want to stay in the new post; and she resigned, during the Claimant’s
notice period. Although the Claimant was on the Respondent’s redeployment
register, there were no posts suitable for her. She was not offered the post
rejected by Mrs White. The Tribunal found at paragraph 29 that the
Claimant did not meet the essential criteria for the new posts and that, if
Mrs White had left before the interviews took place, the Claimant would
still have been interviewed as required by the process and therefore would have
found herself in the same position because she did not meet those essential
criteria. It was not, in the circumstances, appropriate for her to be offered
Mrs White’s post.
14.
The Claimant herself did not identify to the Tribunal, at least
initially, the Respondent’s decision not to offer her that post as unfair. At
the Case Management Discussion held some time before the substantive hearing,
she focussed her attention on two contentions: the first was that she had been
set up to fail and her failure had been predetermined; the second was that
Mr Wray should not have been included in the relevant pool. The
Employment Tribunal rejected both of those contentions, but, during the hearing,
the question of Mrs White’s post arose; and the Tribunal agreed to
consider that question. Ms Thorp, on behalf of the Respondent, did not
resist that approach.
The Employment Tribunal’s conclusions
15.
The Tribunal stated at paragraph 37 that the Claimant accepted that
the reason for her dismissal was redundancy; that concession is also recorded
in paragraph 1. The Tribunal therefore had to consider fairness in
accordance with section 98(4) of the Employment Rights Act 1996, as they
correctly said at paragraph 37. At paragraphs 38, 39 and 43
they set out the principles which governed that consideration in these terms:
“38. The ‘touchstones’ by which fairness is usually considered
are as follows [footnote: ‘See Williams v Compair Maxam
[1982] ICR 156’]. There must be appropriate warning to the employees likely to
have affected about the proposals, and thereafter proper consultation should
take place. Where there is a recognised union, as here, then the procedure and
selection criteria will be discussed and hopefully agreed. Those criteria
should as far as reasonably possible be ones which can be assessed objectively,
and not simply the opinion of one person. Redeployment will be considered
where possible.
39. The role of an Employment Tribunal in such a case is
limited. The matter has been considered very recently by HHJ Serota QC in the Employment Appeal Tribunal in Dabson v David Cover and
Sons Ltd EAT/0374/10. He reviewed the authorities and in
paragraph 65 helpfully and succinctly summarised the position as follows:
‘The Claimant correctly recognised that the Employment
Tribunal should not go beyond seeing whether the selection, including the
marking, was fair and should only investigate marking where there was an
absence of good faith or obvious error.’ […]
43. Having said that, it is not our function to substitute our
decision for that of the Respondent. We must consider whether the Respondent
acted within the range of reasonable responses of an employer in such
circumstances. Those circumstances included a reduction of expenditure, which
resulted in a reduction in the number of staff from five to three but an
increase in the expertise required from them, along with more limited
supervision.”
16.
At paragraph 40 they said that they were satisfied that the
redundancy process had been agreed with the union, that it was fair, and that
the result in the Claimant’s case had not been predetermined. At
paragraph 44 they set out that, apart from Mrs White’s post, no other
suitable posts were available and there was no complaint or criticism on the
Claimant’s part of any failure to offer her any post other than that initially
allocated to Mrs White.
17.
Thus the Tribunal, having set out the principles, had to direct their
attention to fairness in the specific context of the Respondent’s decision not
to offer Mrs White’s post to the Claimant. Their conclusions on that
issue were set out at paragraphs 45‑49 as follows:
“45. We have accepted the evidence on behalf of the Respondent
that during the application and interview process it had been concluded that
the Claimant was not appointable to the new post even if there had been a
vacancy. We have rejected any allegation of bad faith. In her witness
statement the Claimant made reference to the scores of each of the interviewees
in their last appraisals, and compared that with the final marks allocated.
That it [sic] to misunderstand the process. The process was directed to
ascertaining those who were most likely to be capable of fulfilling the new
role. The marks obtained in an earlier appraisal were therefore of marginal
relevance.
46. The process was clearly carefully prepared and had been
agreed with Unison. We are satisfied that it was properly applied in the
circumstances. The outcome was that the Claimant was not appointable. In such
circumstances we accept that there was absolutely no point in offering her the
post vacated by Mrs White. That would have negated the purpose of the
process.
47. Two further points were made by the Claimant in her closing
submissions. She said that she had been prevented from talking about her
telephone experience during her interview. The Claimant secretly recorded the
interview and produced what she said was an accurate transcript. On the
assumption that the transcript is correct (which is not a finding of fact) the
Claimant was told that she could not refer to telephone experience before
working for the Respondent when asked a question as to whether she had set up
any such systems for the Respondent. We do not consider that there is anything
in this point.
48. The final point is that in her submissions the Claimant said
that she had asked in her appeal for the scores to be reconsidered. That is
not something which had been raised previously during this hearing. The
transcript of the appeal is 75 pages long and we were not taken to the relevant
extract. However, in the absence of some grounds for calling the accuracy of
the scores into question we do not consider that it is the proper function of
an appeal in such circumstances to undertake a remarking exercise.
49. We therefore find the dismissal to have been fair.”
Grounds of appeal
18.
Mr Catherwood put forward his argument on behalf of the Claimant on
three fronts. They were, in summary:
(1) On the
Tribunal’s findings of fact there was no true redundancy situation by and
indeed before the date on which the Claimant’s employment came to an end; the
resignation of Mrs White had the effect that there was thereafter then a
pool of three employees for three posts; but the Tribunal did not consider that
possibility or the consequences for the parties of a conclusion to that effect
or examine and make findings as to whether the new posts were in substance
different from the old posts. If there was no substantial difference, the
requirements of the business for employees to carry out work of the particular
kind that the Claimant had carried out had not ceased or diminished.
(2) The
dismissal of the Claimant was in conflict with the agreed procedure for
redeployment and was, as such, unreasonable and unfair; but the Tribunal failed
to consider the issue of fairness in the light of the agreed procedure.
(3) The agreed
procedure provided for a three‑month trial period in the new posts to
enable employer and employee to identify whether or not the employee was
suitable for the role and to identify a development programme to achieve the
level of competency required; but the Claimant was not offered even a trial
period in any of the posts, including that which became vacant when Mrs White
decided to leave. The Tribunal did not consider unreasonableness in that light.
19.
Although the amended Notice of Appeal invites some reconsideration of
the Respondent’s scoring in the course of the selection process, Mr Catherwood
did not ask us to follow that invitation, save to a limited extent where
necessary for the above three points. No freestanding criticism of that
scoring was put forward, it being rightly accepted by Mr Catherwood on clear
authority (e.g. Eaton v King [1995] IRLR 25) that close
scrutiny of the marking in a redundancy exercise is inappropriate.
20.
We will address Mr Catherwood’s three points in the above order.
Redundancy
21.
Mr Catherwood’s argument in support of his first point, again in
summary terms, was that:
(1) By the
time of the termination of the Claimant’s employment there was no redundancy
situation; once Mrs White had resigned, there remained three candidates
for the three posts in the new structure.
(2) The
Tribunal were required to make specific findings as to the facts that justified
the conclusion that there was a redundancy situation (see e.g. Elliott v
University Computing Co (Great Britain) Ltd [1977] ICR 147, per
Phillips J at page 152A‑B); if they had done so, they would
have found that there was not at the relevant time a cessation or diminution of
the Respondent’s requirement for employees to carry out work of a relevant
kind.
(3) But the
Tribunal did not carry out that exercise; if it had done so, it would have had
to have considered the differences between the old posts and the new posts in
detail. For all of them there were job descriptions, which the Tribunal did
not refer to let alone examine in detail to consider whether the work had
sufficiently changed; and that exercise would have shown or at least could have
shown that the new posts were not sufficient to sustain the conclusion that,
once Mrs White had gone, there was a continuing redundancy situation. In
her letter putting forward the grounds of appeal against her dismissal, the
Claimant had made the point that there were no substantial differences between
her old post and the new posts; she made the same point elsewhere, e.g. in her
claim form. The issue of the degree of difference between old and new posts
was not important while there were four employees seeking three posts; but once
Mrs White had gone it was necessary for the Tribunal to consider those
differences in detail; yet they made no findings on that issue.
22.
Mr Catherwood accepted as a correct summary of the law what the EAT
(HHJ Serota QC presiding) recently said at paragraphs 49
and 50 of their judgment in Dabson:
“49. Williams v Compair Maxam concerned a workplace
where there was a trade union but it was held in Freud v Bentalls [1982]
IRLR 443 that the same principles would apply to a workplace where there was no
trade union. The essential matter to be determined where the employee’s only
complaint is of unfair selection for redundancy, and no other complaints are
made, is that the method of selection was fair in general terms and that it was
applied reasonably in the case of [that employee] (from the headnote in Buchanan
v Tilcon Ltd [1983] IRLR 417 per Lord Emslie, Lord President in the First
Division, cited by His Honour Judge McMullen QC in Inchcape Retail Ltd v
Symonds [2009] EAT/0316/09).
50. The EAT and the courts have considered on a number of
occasions the principles that pertain to the investigation of marking and
scores in a redundancy exercise and have made clear that close scrutiny is
inappropriate. What is in issue is the question of fairness of the selection
procedure and marking should only be investigated where there are exceptional
circumstances such as bias or obvious mistake; see Eaton v King [1995]
IRLR 75 (Employment Appeal Tribunal (Scotland)) subsequently upheld by the
Court of Session. Lord Coulsfield observed at paragraph 11 that:
‘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’”
23.
He accepted, too, paragraphs 29, 30 and 36 of the judgment
of the EAT (HHJ David Richardson presiding) in Morgan v Welsh Rugby Union [2011] IRLR 376 which are in these terms:
“29. There are some redundancy cases, of which this is one,
where redundancy arises in consequence of a re-organisation and there are new,
different, roles to be filled. The criteria set out in Williams
did not seek to address the process by which such roles were to be filled.
30. We shall turn in a moment to the authorities which support
this proposition. But it is, we think, an obvious proposition.
Where an employer has to decide which employees from a pool of existing
employees are to be made redundant, the criteria will reflect a known job,
performed by known employees over a period. Where, however, an employer
has to appoint to new roles after a re-organisation, the employer’s decision
must of necessity be forward-looking. It is likely to centre upon an
assessment of the ability of the individual to perform in the new role.
Thus, for example, whereas Williams type selection will involve
consultation and meeting, appointment to a new role is likely to involve, as it
did here, something much more like an interview process. These
considerations may well apply with particular force where the new role is at a
high level and where it involves promotion. […]
36. To our mind a Tribunal considering this question must apply
section 98(4) of the 1996 Act. No further proposition of law is
required. A Tribunal is entitled to consider, as part of its
deliberations, how far an interview process was objective; but it should keep
carefully in mind that an employer’s assessment of which candidate will best
perform in a new role is likely to involve a substantial element of judgment.
A Tribunal is entitled to take into account how far the employer established
and followed through procedures when making an appointment, and whether they
were fair. A Tribunal is entitled, and no doubt will, consider as part of
its deliberations whether an appointment was made capriciously, or out of
favouritism or on personal grounds. If it concludes that an appointment
was made in that way, it is entitled to reflect that conclusion in its finding
under section 98(4).”
24.
Ms Thorp submitted that:
(1) The Claimant
had conceded at the Case Management Discussion and at the substantive hearing
that the reason for her dismissal was redundancy. The issues that she raised
at the CMD were (a) the outcome of the selection exercise being predetermined
against her and (b) Mr Wray not being entitled to be in the selection
pool. At the hearing there had emerged as a new issue that it was unfair to
dismiss the Claimant when Mrs White had left. The Tribunal had addressed
and found against the Claimant on all three issues. The suggestion that there
was no redundancy situation had never arisen; that there was a redundancy
situation on the grounds of which she had been dismissed was conceded. The
Claimant should not be permitted on appeal to raise a wholly new assertion that
there was no redundancy situation when she was dismissed, which was in
contradiction to her concession at the hearing.
(2) In any
event, the Tribunal made findings of fact which were sufficient to support the
conclusion that there was a continuing redundancy situation. The new jobs were
different from the old jobs; the requirement for the Claimant and her
colleagues to carry out work of the kind carried out in the old jobs had ceased
or diminished, and that position was not affected or altered by Mrs White’s
departure.
The concession
25.
It was apparent to us, and indeed not in dispute, that the Claimant had
conceded at the CMD and throughout the substantive hearing that the reason for
her dismissal was redundancy. The Respondent, not unnaturally, sought to rely
upon that concession. Mr Catherwood submitted that, if a litigant in
person makes a concession as to a central issue which, on the evidence before
the Tribunal, might be factually incorrect, the Tribunal should nevertheless
enquire as to whether the concession is correct and that, on appeal, that
litigant in person should be permitted to resile from the concession.
Ms Thorp did not agree.
26.
We intend no criticism in saying that neither Mr Catherwood nor Ms Thorp
was equipped fully to argue the concession issue with the benefit of a full
examination of the authorities. We therefore asked Mr Catherwood and
Ms Thorp to provide further written submissions on the issue; they did so,
and we are grateful to them both for the hard work that they have both manifestly
devoted to the point.
27.
In Langston v Cranfield University [1998] IRLR 172, the EAT (HHJ Peter Clark presiding) considered the line of
authorities, starting with Kumchyk v Derby City Council
[1978] ICR 1110, which established the general principle that, save in
exceptional circumstances, a party will not be permitted to raise new points on
appeal which could have been raised below. It was held that the ineptitude of
a party or his representative in conducting the case below is not a reason for
permitting a new point to be taken on appeal. However, in an unfair dismissal
for redundancy case, the Tribunal is bound to consider issues of selection,
consultation and alternative employment as part of the broad question of
reasonableness, even if not expressly raised.
28.
In Jones v Governing Body of Burdett‑Coutts School
[1998] IRLR 521 the Court of Appeal (a few months after Langston,
which was not cited) expressed the principle in this way at paragraph 20,
per Walker LJ, with whom Morritt and Stuart‑Smith LJJ agreed:
“20. These authorities show that although the Employment Appeal
Tribunal has a discretion to allow a new point of law to be raised (or a
conceded point to be reopened) the discretion should be exercised only in
exceptional circumstances, especially if the result would be to open up fresh
issues of fact which (because the point was not in issue) were not sufficiently
investigated before the Industrial Tribunal. In Kumchyk the Employment
Appeal Tribunal (presided over by Arnold J.) expressed the clear view that lack
of skill or experience on the part of the appellant or his advocate would not
be a sufficient reason. In Newcastle the Employment Appeal Tribunal
(presided over by Talbot J.) said that it was wrong in principle to allow new
points to be raised, or conceded points to be reopened, if further factual
matters would have to be investigated. In Hellyer this court (in a
judgment of the court delivered by Slade LJ which fully reviews the
authorities) was inclined to the view that the test in the Employment Appeal
Tribunal should not be more stringent than it is when a comparable point arises
on an ordinary appeal to the Court of Appeal. In particular it was inclined to
the view of Widgery LJ in Wilson v Liverpool Corporation [1971] 1
W.L.R. 302, 307, that is to follow
"the well-known rule of practice that if a point is
not taken in the court of trial, it cannot be taken in the appeal court unless
that court is in possession of all the material necessary to enable it to
dispose of the matter fairly, without injustice to the other party, and without
recourse to a further hearing below."
29.
In Mensah v East Hertfordshire NHS Trust
[1998] IRLR 531 the Appellant raised allegations of race discrimination in her
originating application; she pursued only some of her allegations at a
directions hearing and at the substantive hearing. She was not represented.
On her appeal to the EAT she sought to raise the unpursued allegations. The
Court of Appeal reversed the decision of the EAT in her favour, in reliance on
the principles we have set out; see paragraphs 22‑27 of the Judgment
of Peter Gibson LJ, with which Henry LJ and
Sir Christopher Slade agreed.
30.
In reliance on these principles Ms Thorp submits that the Claimant
should not now be permitted to raise on appeal a new issue, namely whether
there was a redundancy situation at the time of her dismissal, which was
admittedly not raised below. The fact that she was not represented at the CMD
or at the substantive hearing is irrelevant; she did seek at the latter hearing
to raise a new factual issue that had not been raised before and was permitted
to do so; but she did not seek to raise the point which she now sought through
Mr Catherwood to advance and should not be permitted to do so. There were
no exceptional circumstances, and on the Claimant’s argument (although she did
not admit that it was right) there would have to be further factual findings
made and further evidential investigation, which the Tribunal did not
undertake.
31.
Mr Catherwood in his written submissions does not seek to challenge
the above principles. He concentrates his attention on the Claimant’s
concession in the light of the recent decision in the EAT, Langstaff P
presiding, in Segor v Goodrich Actuation Systems
[2012] UKEAT/0145/11. Segor was a highly unusual case. The
Claimant claimed to have been the victim of discrimination in a number of
respects. The Tribunal rejected all her complaints save one; that she had not
been appointed to a particular role because she was a French national. The
Respondent did not challenge that as an assertion of fact; they claimed that
they had a defence, described as a technical defence, that they could not so
appoint the Claimant because of the terms of manufacturing licensing agreements
between themselves and the Government of the USA. As to that complaint, the
Tribunal sought further submissions from the parties. When the Tribunal
reconvened to consider those submissions, the Claimant’s representative, who
was not in current professional practice, was thought by the Tribunal to have
conceded that the Claimant did not wish to argue that the technical defence was
not open to the Respondent, if, to put it in shorthand, the Respondent’s
explanation was genuine. The Tribunal then found against the Claimant on the
remaining part of her claim.
32.
The EAT allowed the Claimant’s appeal and remitted the claim to the
Tribunal. The fundamental basis of the EAT’s Judgment is that what had been
said by the Claimant’s representative was not a clear, unequivocal and
unambiguous concession. At paragraphs 11 and 13 the EAT said:
“11. What we should say, however, is this. A
Tribunal will always want to take care where a litigant, particularly one who
is self-represented or who has a lay representative, seeks to concede a point
or to abandon it. It may be a matter of great significance. Though it is
always for the parties to shape their cases and for a Tribunal to rule upon the
cases as put before it, and not as the Tribunal might think it would have been
better expressed by either party, it must take the greatest of care to ensure
that if a party during the course of a hearing seeks to abandon a central and
important point that that is precisely what the individual wishes to do, that
they understand the significance of what is being said, that there is clarity
about it, and if they are unrepresented, that they understand some of the
consequences that may flow. As a matter of principle we consider that a
concession or withdrawal cannot properly be accepted as such unless it is
clear, unequivocal and unambiguous. […]
13. But the issue for us is whether in the course
of a hearing to determine the issue of a defence the Claimant had effectively
abandoned a principal plank of her case. The Respondent sought to characterise
the complaints that the Claimant was making as falling under either a technical
head or a factual head. Technical discrimination would be discrimination upon
the basis that the Regulations left no space for the Respondent employer to do
anything differently however much they may have wished to; the factual claim
was effectively that the Respondent had discriminated against the Claimant
because of ill feeling toward her based upon her nationality, race or sex.”
and, having reviewed the evidence as to what had happened before
the Tribunal, the EAT concluded, at paragraphs 26 and 34:
“26. It is plain from Ms Yates' account that the
Judge demonstrated he was unclear as to how Ms Akintola was putting the
case. There is some reflection of that in the notes themselves. We have
considerable sympathy with the Judge and the Tribunal, but the exchange as
recorded falls short on any view of an unequivocal, clear and unambiguous
abandonment of part of the case. […]
34. It is sufficient for the purposes of this appeal
to say that, having examined the evidential material, having taken into account
the arguments by Ms Cunningham, we have nonetheless come to the conclusion
that it is simply not possible to say on appeal, appreciating that we may by
virtue of our position and limited material not have available to us the full
force of the matters before the Tribunal in Birmingham, that Ms Akintola
clearly, unambiguously and unequivocally abandoned part of her claim. Just as
it would be surprising for the Tribunal to have come to the conclusion it did
without there being some basis for doing so, it would equally be surprising if
the Claimant had abandoned her claim at that time, and the continued apparent
promotion of the self same claim in submissions by Ms Akintola (without
immediate objection, it has to be said, from Ms Cunningham) demonstrates
that the situation was properly to be described as confused, and in those
circumstances, given that the Claimant has thereafter maintained that this part
of the claim was not abandoned or withdrawn, we consider that the appeal must
be allowed. The error of law was in the Tribunal not carefully adopting the
approach that we have identified.”
33.
Basing himself on Segor, Mr Catherwood argued that
the Tribunal ought not simply to have accepted the concession made by the
unrepresented Claimant and ought to have investigated whether she had correctly
understood the nature and content of her concession, for instance by asking
her, “Do you accept the kind of work that you had been doing was different from
the kind of work that the new job required?” Her concession, in the absence of
clear answers to such questions, maintained Mr Catherwood, was not clear,
unequivocal or unambiguous.
34.
Ms Thorp responds that there was, in the present case, no lack of
clarity or difficulty of interpretation. The Claimant did not abandon any claim
in the middle of the hearing, still less in unclear terms; her position was
made clear at the CMD and remained clear throughout the substantive hearing.
There was no need for the Tribunal to ask her questions; they ensured that she
did indeed accept the reason for dismissal and did not need to go any further.
35.
We prefer Ms Thorp’s submission. In Segor there were two
difficulties about the Claimant’s supposed concession: the first was that it
was a surprising concession, made in the face of what would appear to have been
extremely well‑known legal principles; the second was that what was being
conceded was far from clear; there were very real difficulties in understanding
what was or was not being conceded or what position on the relevant issue the
Claimant was in truth taking. In the present case, in contrast, there was, in
our judgment, nothing that rendered the Claimant’s acceptance of redundancy as
the reason for her dismissal anything other than clear, unequivocal and
unambiguous. Further, although as a matter of principle the fact that the
Claimant was unrepresented does not avail her, the Respondent’s redundancy
policy and the consultation document, provided to those affected by the
restructuring exercise, both contained clear and accessible explanations of the
meaning of redundancy. The Claimant could not be said to have made the
concession that she did make in ignorance.
36.
Further, if there was, on the facts as they turned out after Mrs White
resigned, no longer a redundancy situation, it did not follow at all that the
Respondent had appreciated that and that redundancy was not the cause of the
dismissal.
37.
If the Claimant were now entitled to withdraw from her concession and it
became necessary, as Mr Catherwood urged, for a much fuller examination of the
differences between the old posts and the new posts to be made and then to be
the subject of findings by the Tribunal, there would arise precisely the
situation in which a concession should not be allowed to be withdrawn and a new
point should not be allowed to be raised, on well‑established principles which
we have set out. In such circumstances, those principles make it clear that a
party should not be permitted to raise a new point, whether or not the subject
of the concession below, at an appellate stage. We can find no exceptional
circumstances that would justify the granting of such permission in this case.
Substance
38.
In any event, if we were to grant that permission, we would be bound to
come to the conclusion that it would not in the end assist the Claimant. There
is nothing to show or even suggest that the Respondent’s understanding that
there was a redundancy situation or that redundancy was their reason for
dismissing the Claimant ever changed. The issue which the Tribunal had to
address was correctly appreciated by the Tribunal when, at paragraph 37
they said:
“The Claimant has accepted that the reason for her dismissal was
redundancy. The Tribunal must therefore consider whether in all the
circumstances the dismissal was fair or unfair in accordance with
section 98(4) of the Employment Rights Act 1996.”
39.
In thereafter addressing the issue of fairness the Tribunal, as
Ms Thorp submitted, can in our judgment be seen to have considered the
similarity or otherwise of the old jobs to the new to a sufficient degree. At
paragraph 19 they referred to the fact, which was no doubt not in dispute,
that there was not an 80 per cent match between the existing and the
new posts but there was a 50 to 80 per cent match between
them. As we set out earlier in recounting the facts, they accepted the
evidence of Mrs Jackson that the new roles required the holders to be
proactive in developing solutions, a requirement that did not exist in the old
roles. The new roles were to be at grade 6, as opposed to grades 3‑5.
At paragraph 43 the Tribunal found that the new posts required an increase
in expertise and a lesser degree of supervision.
40.
Ms Thorp told us – and Mr Catherwood, who was not present at
the hearing before the Tribunal, very fairly did not object – that during the
course of the hearing considerable time was taken up by the Tribunal’s looking
with the witnesses at the old and new job descriptions and asking questions
about them of the Respondent’s witnesses; and that is consistent with the
findings to which we have referred. Mr Catherwood is correct to point out
that the judgment does not contain a detailed analysis of the differences
between the two sets of job descriptions, but that was, in our judgement,
unnecessary. If the Tribunal’s Judgment is read as a whole, it can be seen
that they regarded the new roles as substantially different from the old
roles. They did not need to go any further than that. The Claimant’s
concession was consistent with those findings; but the Tribunal did not simply
proceed on the basis of the concession; they made findings of fact which support
the continuing existence of a redundancy situation despite the resignation of
Mrs White.
41.
For these reasons, the first of Mr Catherwood’s three lines of
attack upon the Tribunal’s judgment fails.
The redundancy procedure
42.
Mr Catherwood relied upon the Respondent’s redundancy policy, which
said:
“Every effort will be made by the Council to reduce the number
of possible redundancies. This may include:
Training, re-training or redeploying employees to different work
for which there is a requirement […].”
43.
He relied, too, on the redeployment policy, which stated:
“If the employee does not have sufficient experience for the
vacant post, they may be offered the role on a trial basis for a period not
exceeding three months. This allows the employee and the manager to identify
whether or not the employee is suitable for the role and to identify a
development programme to achieve the level of competence required over an
agreed period.”
44.
These provisions, he submitted, should have caused the Tribunal to
conclude as a part of fairness that there should be no departure by the
Respondent from those principles that guided the exercise being carried out or
at least no such departure without strong justification. It was therefore
perverse of the Tribunal to say, as they did at paragraph 45:
“The process was directed to ascertaining those who were most
likely to be capable of fulfilling the new role. The marks obtained in an
earlier appraisal were therefore of marginal relevance.”
45.
The procedure required careful assessment of past performance; there was
no pass mark; and past performance as part of the exercise was fed into the
scoring. It had therefore been assessed; her lack of success at interview –
success at which was not a formal criterion – should not have been held against
the Claimant.
46.
We are not persuaded that the Tribunal erred in law in this area.
Ms Thorp drew our attention to a passage in Darlington Memorial Hospital NHS Trust v Edwards
[1996] UKEAT/0678/95, HHJ Hull presiding, in which the EAT said that the
criteria for selection for new posts did not have to be the same as those used for
the redundancy selection exercise. We agree with that view; but it is not
directly applicable in this case. What is, in our judgment, central is that,
when the four candidates for the three posts were assessed pursuant to the
agreed procedure, the Claimant achieved a score which was much lower than those
achieved by Mr Wray and Ms King and significantly lower than that achieved
by Mrs White. Once the Tribunal had rejected the Claimant’s case that
failure had been preordained, there was no further challenge to the bona fides
of the marking or to the Respondent’s conclusion, which the Tribunal accepted
at paragraphs 29 and 45 of their judgment, that the Claimant did
not meet the essential criteria for the new posts and was not appointable to
them.
47.
As Ms Thorp pointed out, the amended grounds of appeal do not
contain any pleading of perversity; even if they did, no overwhelming case of
perversity has been made out. The description of the process in the last two
sentences of paragraph 45 was based on the evidence that the Respondent
gave.
48.
We heard rival arguments about the way in which the scoring was
achieved, particularly as to past performance. We were, as we have said
earlier, rightly not asked to go deeply into the scoring; neither was the
Tribunal. These rival arguments did not, as we saw them, illuminate the
parties’ positions to any real extent. The Claimant’s case was based on a more
general criticism, which we have endeavoured to summarise. The extent to which
past performance was taken into account (the area of difference between
Mr Catherwood and Ms Thorp) is not in our judgment of real
importance; it must have been open to the Respondent to conclude that an
employee had, in the assessment exercise, done so badly that they did not
regard that employee as appointable to a new post with greater responsibilities
at a higher grade.
49.
While we understand why the Claimant may feel aggrieved that she was
adjudged not appointable to any of the new posts, when there was no formal pass
mark in the agreed procedure, it was for the employer to decide whether any
candidate had come out of the assessment exercise so poorly as to be
unappointable. On this point Ms Thorp referred us to Samsung Electronics (UK) Ltd v Monte‑D’Cruz
[2011] UKEAT/0139/11, in which, where the claimant in the course of a
restructuring was not selected for a new post, the EAT, presided over by
Underhill P, as he then was, said, at paragraph 38:
“First, as regards para. 103 of the Reasons (see
para. 33 above), we note that the Tribunal found that "it would have been
reasonable" to use past performance appraisals, not – which is the
relevant question – that it was unreasonable not to do so. We are reluctant to
convict the Tribunal of substitution on what may be a mere verbal inexactitude,
though it is a bad start. The real point, however, is that if the Tribunal did
in fact mean [to] say that it was unreasonable of the Appellant not to use past
performance appraisals, we do not believe that that decision was open to it. What
assessment tools to use in an interview of this kind – which is not, we should
repeat, a redundancy selection exercise – is prima facie a matter for the
discretion of the employer. If the tools used had been plainly inappropriate
that might be influential in the issue of the fairness of the dismissal, but we
do not believe that that could be said here. The Appellant regarded Business
Region Team Leader as a new job, whatever similarities it might have had with
the Claimant's previous role; and it is understandable that it should choose to
interview for it on a forward-looking basis (cf. the observations of Judge
Richardson in Morgan, at para. 30). It is true that the criticism made
in this paragraph is not clearly picked up in para. 110, which summarises the
Tribunal's reasons for finding the process unfair: this focuses on the
Appellant's apparent use of other (less reliable) indicators of past
performance. But it is hard to say that it did not form part of the Tribunal's
reasoning.”
50.
And in paragraph 39 he said:
“Good faith assessments of an employee's
qualities are not normally liable to be second-guessed by an employment
tribunal: cf. [Symonds] at para. 29.”
51.
The principles there set out have relevance to this case.
Mr Catherwood in reply accepted that the central criteria in the agreed
process were not outside the scope of reasonableness; and it was for the
Respondent, from the scores which emerged from that process, to decide whether
or not the Claimant was or was not appointable to the new posts, subject of
course to it being demonstrated that the conclusion that they reached on that
issue was made in bad faith or outside the scope of reasonableness, neither of
which was established on the facts. The Tribunal were entitled to conclude
that the process had been properly applied and that the outcome was that the
Claimant was not appointable to the post vacated by Mrs White.
Trial period
52.
The Tribunal set out the passage in the redeployment policy on which
Mr Catherwood relied. He, very fairly, told us that he did not argue that
the Claimant was entitled to be redeployed on a trial basis as a matter of law;
his submission was that, in the circumstances of this case, the Tribunal in
considering reasonableness should have taken into account, but did not take into
account, the similarities between the old and new posts, the fact that the
Claimant had performed her old job without criticism, that there was a vacancy
(Mrs White’s post), and the fact that every effort should have been made
to avoid redundancy and to see whether through a trial period the Claimant
could have achieved the necessary level of competence. Rather than take those
factors into account, the Tribunal, at paragraphs 29 and 46,
considered only the failure of the Claimant to meet the essential criteria.
53.
Ms Thorp submitted that the redundancy policy provided for a trial
period, “If an offer of alternative employment can be made”, but in the
Claimant’s case no such offer could be made because, on the Tribunal’s
findings, there were no available posts other than that vacated by
Mrs White; and the Tribunal held that offering the Claimant
Mrs White’s post, whether or not on a trial basis, would have had no
purpose because the Claimant did not meet the essential criteria for the job.
The Tribunal were at the very least entitled to find that that was not an
unreasonable approach for the Respondent to take.
54.
In our judgment, Mr Catherwood’s submissions amount to an attempt
to re-argue the Claimant’s factual case on the Tribunal’s approach to
reasonableness. The Tribunal expressly considered the redeployment policy at
paragraph 44 (and note that the policy did not suggest that the granting
of a trial period was compulsory). The Tribunal considered whether the
Claimant ought to have been offered the job vacated by Mrs White at
paragraphs 44‑46. They were aware of the trial period provisions
(see paragraph 28); it was during such a period that Mrs White left.
They made findings about the contrast between the old and new posts, to which
we have referred earlier; and there was no suggestion of criticism of the
Claimant in her old post. If the Tribunal’s judgment is read as a whole, the
factors to which Mr Catherwood directed our attention were all considered;
and in any event once the Claimant had failed to meet the essential criteria of
the new post the Tribunal were entitled to find that it was not unreasonable
for the Respondent not to offer her Mrs White’s post, whether on a trial basis
or otherwise. It was for the Tribunal to consider these factual elements and
to assess whether the Respondents had acted reasonably or unreasonably in not
offering Mrs White’s post to the Claimant and not for us, in the absence
of any argument based on perversity, to reconsider them or to make our own
assessment.
Conclusion
55.
We should add to the above that Mr Catherwood asked us to consider the
elements of reasonableness to which we have referred in the foregoing paragraph
cumulatively as well as individually, and we have done so; but, in our
judgment, taken together, the criticisms made of the Tribunal’s approach to
reasonableness do not demonstrate any error of law.
56.
Accordingly, for the reasons we have set out, this appeal must be
dismissed.
