United Kingdom Employment Appeal Tribunal

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Cite as: [2012] UKEAT 0248_12_2802, [2012] UKEAT 248_12_2802

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Appeal No. UKEAT/0248/12/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 19 October 2012

Judgment handed down on 28 February 2013

Before

THE HONOURABLE MR JUSTICE UNDERHILL

MR B BEYNON

MR S YEBOAH

MENTAL HEALTH CARE (UK) LTD APPELLANT

(1) MRS C BILUAN

(2) MR A MAKATI RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MR JAMIE McCRACKEN

(of Counsel)

Instructed by:

Muckle LLP

Time Central

32 Gallowgate

Newcastle-upon-Tyne

NE1 4BF

For the Respondents

MR PARAS GORASIA

(of Counsel)

Instructed by:

Cheshire, Halton & Warrington Race & Equality Centre

The Unity Centre

17 Cuppin Street

Chester

CH1 2BN

SUMMARY

UNFAIR DISMISSAL – Reasonableness of Dismissal

The Employment Tribunal held that dismissals following a redundancy selection exercise had been unfair principally because employees’ capabilities had been assessed entirely on the basis of a series of exercises designed for use in a recruitment context and had taken no account whatever of their past performance; the results had been acknowledged by the managers in question to be “surprising” and to have led to the selection of some “very good workers”, but they had not been revisited because the process was thought to have been “robust”.

HELD, dismissing the appeal, that although some of the Tribunal’s subsidiary reasons for finding the dismissals to have been unfair (and in particular its criticism of the Appellant’s consultation) were flawed, its primary reason was unimpeachable.

THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION AND THE OUTLINE FACTS

1. This is an appeal against the reserved judgment of an Employment Tribunal sitting at Shrewsbury, chaired by Employment Tribunal Judge Thompson, holding that the Claimants (the Respondents to this appeal) had been unfairly dismissed. The two Claimants with whom we are concerned form part of a larger group: there is a question, which we are not asked to resolve, about the extent to which they are intended to be representative. The Tribunal in the same decision dismissed claims by the Claimants of racial discrimination; there is no cross- appeal in that regard. The Appellant is represented before us by Mr Jamie McCracken of counsel, who also appeared below. The Claimants are represented by Mr Paras Gorasia of counsel, who did not appear before the Tribunal, where the Claimants were represented by a lay representative.

2. The Appellant is part of the Castlebeck Group. It operates a small residential home/hospital for patients with mental health or learning disabilities at Plas Coch in Anglesey. The Claimants were employed at Plas Coch – Mr Makati as a nurse and Ms Biluan as a support worker.

3. In late 2010 there was a redundancy exercise at Plas Coch arising out of the closure of one of the wards, the Dinorben ward. The hospital as a whole had for some time been under-performing, and there had been problems with its management. 19 redundancies were required – a number, accidentally or otherwise, one below the minimum required to trigger the statutory requirement for collective consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

4. The decision was taken not simply to make redundant the staff who worked wholly or mainly in the Dinorben ward but to treat the pool for redundancy as all the nursing and support staff at the hospital. These numbered 58 in total, comprising 17 nurses and 41 support staff. Staff were selected on the basis of a marked assessment by reference to three criteria – (1) a competency assessment; (2) disciplinary record; and (3) sickness absence record. The maximum score available would be 100 (subject to one wrinkle to which we refer below), made up of 20 points each for disciplinary and absence record and 60 for the competency assessment. The competency assessment was sub-divided into three elements, each attracting 20 points – a written assessment; an interview (involving five pre-set questions, each attracting four points); and a “verbal group assessment”, which took the form of a group discussion of a hypothetical scenario presented to the employees. These methods of assessing competency were those used by the Appellant (and indeed, we understand, by Castlebeck) for the purpose of recruitment, and the relevant management and HR staff were familiar with them.

5. Once that decision had been taken there was a staff meeting on 18 November 2010. According to the Reasons (para. 10), Mr Reed, the Acting Manager of Plas Coch, told the staff that Dinorben ward would be closed and said that 19 employees would have to be dismissed and that all staff were at risk of redundancy. He said that there would be a consultation period of 30 days. He explained in outline the process of selection, including the criteria for assessment, and the timetable. The Tribunal continues:

“He indicated that there would be a right of appeal. He also indicated that there were 20 support staff vacancies at other MHC units of which 13 were in North Wales. He also stated that staff would be able to apply for any future position at Plas Coch once Dinorben was re-opened. At the end of the minutes it is stated:

“Staff were given the opportunity to ask questions and also advised that in addition to the HR led consultation process, there will be at least 2 further open staff meetings, the first of which will be next Thursday.”

The meeting was followed up by letters to individual employees confirming that they were at risk of redundancy and identifying the options of voluntary redundancy, redeployment and compensation for redundancy. The letter continues, as quoted by the Tribunal (Reasons para. 11):

“Further consultation meetings will be held in the coming weeks to consult with you on an individual basis, in which you will have the right to be accompanied by a trade union representative or a work colleague.

I have enclosed an FAQ leaflet which outlines some additional information which you may find useful. However, in the meantime, if you have any queries, please do not hesitate to contact me.”

There was a further staff meeting on 25 November giving more details of the forthcoming assessments.

6. The assessments took place over a period of three days in December, involving a team led by Ms Sue Browell, the Group HR Director, Bev Marriner, a former HR manager for the group, Kelly Phillips, the group Recruitment Manager, and three other HR staff. The interviews were carried out by one of the HR Team (Ms Phillips or one of the other three to whom we have referred) together with a manager with appropriate expertise: in the case of nurses, that meant one of a group of five nurses who had been brought in to assist, and in the case of support workers one of a group of five other managers. The marking of the written assessments was distributed between members of the team (all the nurses were marked by one of the five managers with nursing qualifications) followed by a moderation process which was intended, so far as possible, to assure a uniformity of approach. Ms Browell and Ms Marriner conducted the “scenario assessments”. This consisted solely of observation – they did not have any function as facilitators.

7. As will be apparent, none of the team conducting the assessments had any experience of working with the individuals who were being assessed: that would of course be typical in a recruitment situation, but it is in our experience unusual in a redundancy selection process. It is in our experience usual practice (at least where competence is a criterion, as nowadays it generally is) to obtain assessments of competence from managers who have worked with the employees in question and are in a position to judge their qualities – either by obtaining their views or by reference to past appraisals. Such assessments inevitably carry some risk of prejudice or undue subjectivity, but that is acceptable as long as the decision-takers are aware of the risk and guard against it so far as possible.

8. The Appellant’s witness statements contain no explanation of why it was decided in the case of this particular redundancy exercise to use a process which had been developed in the context of recruitment and, more particularly, one which eschewed any attempt to obtain assessments. The point seems however, to have been taken up by the Tribunal in its questioning of the witnesses. It said at para. 30 of the Reasons:

“The Tribunal heard evidence that the previous two Managers [that is, of Plas Coch] were dismissed by reason of competence. We were told that although there were some appraisal documents, there was a situation where Management had not carried out the appraisals they should have done and the respondent decided not to use more traditional criteria, such as length of service, past performance, views of Managers on team working or contribution of Managers comments on flexibility, by way of example, because they thought that they had a far better system in their recruitment process which would be far better used in all the circumstances. There were 2 or 3 Charge Nurses who could have given their views on other Nurses and Support Workers, but again for similar reasons the respondent decided not to use them and thought that it was more likely their system would be free of bias.”

Mr McCracken confirmed to us that it had indeed been the oral evidence of the Appellant’s witnesses (though it is not clear which) that they did not believe that reliable material existed on which a fair assessment of past or current performance could be based. Although we are wary of any reference to the oral evidence in circumstances where we have no note (and all the more so where Mr Gorasia did not appear in the Tribunal), that is consistent with what the Tribunal says in the passage quoted.

9. Employees were selected for redundancy strictly according to their scores. Mr Makati scored 59, the lowest of the four nurses who were made redundant: the first who “survived” scored 76. Ms Biluan scored 75 and was right on the line as regards the support workers group: a colleague with the same score survived (we were not told, and it is not material for present purposes, how the choice between the two of them was made). As was always likely to be the case, only a few employees scored less than 20 on disciplinary or sickness absence record, and in fewer cases still would a higher score on either of those factors have affected the outcome (though in fact it would have in Ms Biluan’s case). In the great majority of cases, the competence assessment was decisive.

10. It was the evidence of the Appellant’s witness that the outcome of the selection was in several cases unexpected. Ms Browell said, at para. 28 of her witness statement:

“There were definitely some surprises within the group. It became apparent when the list was disclosed to Lee Reed that some individuals who were perceived to be very good workers were selected for redundancy. Because the process was transparent and free from bias, despite the fact that these individuals were selected for redundancy they were not reinstated, and their redundancy was confirmed.”

Mr Reed said, at para. 20 of his statement:

“In some cases I was very surprised at the results. There were several employees who had been selected who I felt, from my experience as Hospital Manager, were very good workers. Nevertheless, because the process had been so robust, they were selected via the agreed processes and made redundant and even though they were good employees. Given that we adopted such a fair and transparent process, the decision to make them redundant could not be overturned. I therefore had to accept the situation even if I disagreed with the results.”

That reaction is not, perhaps, very surprising where – for the reasons which we have given – the Appellant had made no use of past performance appraisals and not sought to obtain the views of current managers. It might also be thought to shed a rather revealing light on the extent to which assessments of the kind in fact carried out correlate with actual experience in the workplace.

THE TRIBUNAL’S REASONS

11. The Tribunal’s Reasons are structured as follows:

(1) Paras. 1-4 are introductory. Para. 3 sets out the issues in relation to the unfair dismissal claim, as follows:

“1) What was the reason for dismissal?

2) On the assumption that it was redundancy was the correct pool chosen?

3) What were the selection criteria and were they fair?

4) Were the criteria applied fairly?

5) Was there proper and adequate consultation?

6) Did the respondent look to see if there was alternative work available for the dismissed claimants?

7) Was there a fair appeal system?

8) Did the decision of the respondents come within the range of reasonable responses of a reasonable employer?

9) In the circumstances (including the size and administrative resources of the respondents undertaking) did the respondent act reasonably or unreasonably in the treating their reason for dismissal as a sufficient reason for dismissing the claimants?”

(2) Paras. 5-39 contain the Tribunal’s findings of fact, which cover matters relevant to the race discrimination claim as well as to the unfair dismissal claim.

(3) Paras. 40-65 are entitled “Discussion & Decisions” and contain the Tribunal’s reasoning and decision on the claims. Paras. 40-47 are concerned with the unfair dismissal claim. The Tribunal deals in successive paragraphs with the nine questions listed in para. 3 (see above), save that the last two issues are dealt with together at para. 47.

12. It will be noted that the Tribunal does not set out in separate sections either the substance of the parties’ submissions or (as required by rule 30 (6) of the Employment Tribunal Rules of Procedure) a concise statement of the applicable law. We certainly do not deprecate departures from the standard template for Employment Tribunal reasons in an appropriate case: over-rigid adherence can sometimes cause its own problems. But this was not a straightforward case, and it would have been useful to have at least a summary of what were the principal points argued and of how the Tribunal directed itself in law. (As regards the latter, the basic principles are no doubt implicit in the Tribunal’s formulation of the issues; but, as will appear below, it would have been useful to know, for example, that the Tribunal bore in mind the risk, ever-present in this type of case, of “substitution”.) Overall, we have to say that while the Tribunal’s findings of fact admirably combine clarity and succinctness, at one or two points in the discussion section its criticisms of the procedure followed by the Appellant are rather over-summary.

13. The Tribunal’s conclusions on the issues identified at para. 3, and its essential reasoning, were as follows.

14. Issue (1). At para. 40 the Tribunal held that the reason for the dismissal was redundancy. It would be surprising if that had been seriously in issue, given that the closure of the Dinorben ward necessarily entailed a substantial reduction in the need for nursing and support staff.

15. Issue (2). The Tribunal held at para. 41 that the Appellant was entitled to treat the entire workforce as being in the pool for selection. It appears that that was, unsurprisingly, regarded by the Appellant as potentially contentious at the time, though we are not clear how contentious it was before the Tribunal.

16. Issue (3). At para. 42 of the Reasons the Tribunal held that the selection criteria used were not fair. We should quote the paragraph in full:

“We do not consider that the selection criteria was fair. The criteria used was that normally used by the respondent for the purposes of recruitment. This was not a recruitment exercise. This was not a situation where there was a re-organisation where new roles had been developed where such a recruitment exercise could have been of use and fair. By using this exercise and failing to consider such matters as length of service, appraisal records, the opinion of Managers who had known the employees concerned, so that views could be sought of the work records of the individuals concerned, we consider that the system used by the respondents was grossly unfair. This is borne out by the witnesses Mr Lee Reed and Sue Browell that we have referred to above.”

17. Issue (4). The Tribunal begins para. 43 of the Reasons by saying:

“If we are wrong about that [sc. in its view about the fairness of the criteria themselves] we find that the selection criteria used were applied unfairly in any event.”

Its criticisms in this regard are set out in the remainder of the paragraph. They are shortly expressed, though of course they have to be read with its earlier findings of fact. Five points are made:

(1) The Tribunal referred to “confusion and lack of guidance about the scoring system and the way that individual assessors approached the matter in different ways”. The reference appears to be to four points made at paragraphs 19 and 24 of the Reasons. These are as follows:

(a) Although the interview was supposed to attract a maximum score of 20, there were five questions, each with a maximum score of 5, yielding a possible total of 25.

(b) Para. 21 reads:

“The final assessment was a written assessment where individuals were given 5 questions to answer, one of which was sub-divided into 2 separate questions. The maximum score for this exercise remained at 20, notwithstanding that there were 5 questions.”

We are not sure exactly what the problem was; but evidently the Tribunal believed that there was room for confusion among those conducting the scoring.

(c) The scoring for the individual interviews was from 0-5, although the Tribunal noted that some assessors only marked from 1-5. The Tribunal noted that the assessors were not given any written guidance as to what each mark in the range connoted. Such guidance did in fact exist and was produced to the Tribunal. At para. 23 the Tribunal said:

“Sue Browell stated to the Tribunal that all the Assessors well knew these guidelines and would have used those in order to assess the individual employees concerned. The Tribunal asked Sue Browell to turn the sheet over that she had produced and asked her to recite them back to us. She struggled to do so and in her answers she used different wording.”

(d) Para. 24 reads as follows:

“The Tribunal also heard evidence that some Assessors collaborated before agreeing the scores and agreed the scores before they put them down on their score sheets, whereas other Assessors kept their own individual scores as they went along and then collaborated at the end to adjust their scores if necessary, together.

(2) The Tribunal was critical of the “scenario” assessments. It said that an assessment of the kind carried out, without any facilitation, was likely unfairly to favour those employees who had – to use our phrase rather than the Tribunal’s – an outgoing personality and that it would disadvantage those who were “retiring and thoughtful”. It suggested that that may well have been the case for Mr Makati, who it had observed as a witness and who had scored particularly low on this assessment.

(3) The penultimate sentence of para. 43 reads:

“On the sickness side, it could well be that Mrs Biluan would have been unfairly treated as against those who had less than 1 years service.”

There is no explanation of this point elsewhere in the Reasons, and neither Mr McCracken nor Mr Gorasia could offer any explanation of what the Tribunal had in mind. Mr Beynon suggested that it might be a reference to the fact that the “Bradford Factor Technique” used for scoring sickness absence weights a series of individual absences more heavily than a single prolonged absence, and that employees with short service would be less likely to have such a record. That may well be what the Tribunal had in mind, though it is unsatisfactory that it is not spelt out; but in that case we cannot see why it gives rise to any unfairness.

(4) The final sentence of para. 43 reads:

“We were also concerned about some of the comments made by Mr Lee Reed in his document of 31 October 2010 … when he talks about “if we can get away with this.”

The comment in question appears in the internal memorandum prepared by Mr Reed which records and explains the decision was taken to close the Dinorben ward and carry out redundancies accordingly. Under the heading “Actions” he lists “key issues for consideration” as a series of bullet points. The third reads:

“Competency assessment for all nursing and support staff employed at Plas (suggest this is undertaken as a generic exercise rather than Dinorben specific if we can get away with this. This will then let us lose the poor staff and retain the good)”

18. Issue (5). The Tribunal found that there had been no proper consultation. It said:

“There was a total lack of proper consultation within the meaning set out by Lord Justice Glidewell in R v British Coal Corporation that:

“Fair consultation means (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond (c) adequate timing in which to respond (d) conscientious consideration by an authority of a response to consultation.”

There was no such consultation in this case. There was no consultation as to the criteria to be used. There was no consultation with the claimants as to how it might be possible to avoid these redundancies. The claimants were never given their scores so that there was no discussion with them as to their accuracy or fairness or otherwise. There was in fact no meaningful individual consultation at all. The “consultation” that the respondents relied on were meetings of the whole workforce where management told the workforce what was happening. There was no trade union representation nor any individual representatives as far as the workforce was concerned in this case.”

19. Issue (6). This was dealt with (strictly, out of order) at para. 46. The Tribunal held that the Appellant “did pass that individual test”, by publishing details of available vacancies.

20. Issue (7). Para. 45 of the Reasons reads as follows:

“The appeals were to go to Sue Browell. That clearly would have been unfair. She was the Architect of this whole scheme, and she was also involved in the assessments. Further, the claimants did not have sufficient information, by way of their scores and the reason behind those scores to enable them to appeal in any event. Neither of the claimants did appeal. Mr Makati said that he just did not feel appreciated by the respondent and that was why he neither appealed nor applied for a possible vacancy.

21. Issues (8) and (9). Para. 47 reads:

“In all the circumstances the Tribunal is of the view that these dismissals did not come within the range of reasonable responses of a reasonable employer and the employer acted unreasonably in treating the reasons for dismissal of these particular claimants as sufficient reason for dismissing them.

22. The Tribunal thus based its finding of unfairness on essentially four aspects of the selection process: (A) the selection criteria used; (B) the way that those criteria were applied; (C) absence of proper consultation; and (D) the appeal process. The Tribunal relied on all four together. It does not state expressly whether any of its criticisms taken by itself would have led to the same conclusion, though the introduction to para. 42 suggests that element (1) at least would have sufficed by itself.

THE APPEAL

23. The Appellant in its Notice of Appeal challenges the Tribunal’s reasoning on the first three of those four criticisms. (Mr McCracken did in his oral submissions seek to challenge the fourth. Although the question whether he was entitled to do so could in some circumstances have been important the basis on which we have decided this appeal means that we need not resolve it; and we accordingly say nothing further about the appeal process.) We take them in turn.

(A) Choice of Selection Criteria

24. Mr McCracken’s primary submission was that in criticising the Appellant’s use of (in shorthand) “recruitment criteria/methods” in a redundancy selection exercise the Tribunal fell into the vice of “substitution” – that is, it considered not what it was reasonable for the Appellant to have done but what it would have done itself. We were reminded of the leading authorities. We need refer only to the seminal case in the redundancy context, Williams v Compair Maxam Ltd [1982] ICR 156, where Browne-Wilkinson J said, at p. 161:

“… [It] is not the function of the industrial tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted.”

Mr McCracken submitted that what the Tribunal was doing at para. 42 of the Reasons was substituting its own preference for what at para. 30 it described as “more traditional” selection criteria – specifically length of service and performance judged from appraisal records and/or the opinion of managers who had worked with the employees in question – for the criteria chosen by the Appellant. He pointed also to the fact that neither in this paragraph nor elsewhere does the Tribunal direct itself that it should avoid the risk of substitution or refer to the authorities warning of that risk – although, he says, they had been expressly drawn to its attention. Insofar as the Tribunal was saying that length of service ought to have been taken into account, Mr McCracken relied on BL Cars Ltd v Lewis [1983] IRLR 58 as establishing that there was no such rule.

25. We see some force in that submission. The question of what selection criteria to adopt is a well-recognised example of the kind of issue on which there will typically be a wide range of reasonable choices; and the same can be said for the methods of competence assessment to be used. So a finding that the use of recruitment/criteria methods is outside that range is a strong finding, and one which one would have liked to see made only after an explicit acknowledgement of the limited nature of the role of the employment tribunal. But in the end we cannot see a sufficient basis for finding that the Tribunal misdirected itself. The risks of substitution are very well known to any experienced tribunal and there is no rule that they must be expressly alluded to. Although the Tribunal in this case did not in terms say that the use of recruitment criteria/methods was outside the range of reasonable options, its description of it as “grossly unfair” shows adequately that that must have been its view. In truth, as is very often the case, the real basis for alleging “substitution” is not the language of the decision but its substance: Mr McCracken has to say that the criteria/methods were so obviously reasonable, even though not everyone would have used them, that the Tribunal could only have reached the decision which it did by asking what criteria/methods it would have used itself. In other words, it is a perversity submission presented in a somewhat less provocative guise (cf. the observations made by this Tribunal in Havering Primary Care Trust v Bidwell UKEAT/0497/07), at para. 24). We are not prepared to say that the Tribunal’s decision was perverse. We might or might not have reached the same decision ourselves, but it was in our view open to the Tribunal on the facts. It is indeed in our experience very unusual for an employer conducting a redundancy selection exercise primarily on the basis of competence to base its decision on that issue entirely on assessments of the kind carried out here, without any reference to past appraisals or the views of managers; and we have already noted that it produced some outcomes that took everyone by surprise. In those circumstances, whether or not a finding that the use of the criteria was unfair was inevitable, it cannot be said to be inexplicable.

26. Mr McCracken made much in his submissions of the fact that the Tribunal in the part of its Reasons dealing with the discrimination claim observed that “the elaborate system” adopted by the Appellant “did … obviate … possible bias” (see para. 63), which he submitted was inconsistent with its finding that it was “grossly unfair”. We cannot see any such inconsistency. The Tribunal was concerned in the passage in question with a different issue, namely whether there had been racial discrimination in the selection. Its finding for that purpose that the system adopted avoided the risk of “bias” did not necessarily mean that it was fair or that a more conventional way of selecting for redundancy would have been unacceptably vulnerable to choices being affected, consciously or unconsciously, by discriminatory considerations.

(B) Application of the Criteria

27. As appears from para. 17 above, the Tribunal’s criticisms of the way the criteria were applied were multifarious. We take them in turn.

28. Confusion about the scoring system. The Tribunal’s criticisms of the scoring system are set out at para. 17 (1) above. Though some are more serious than others, it is clear that there were anomalies in the scoring system and that the assessors may not have been as well trained as they should have been. Mr McCracken did not submit that the Tribunal was not entitled to have some criticisms along the lines that it did. His point was, rather, that small imperfections of this kind did not justify stigmatising the entire procedure as unfair, and that there was no reason to believe that they had worked to the prejudice of the Claimants. We accept that point as far as it goes. Findings of unfair dismissal should not be made whenever a redundancy selection procedure is sub-optimal: cf. the observations of Lady Smith in First Scottish Searching Services Ltd v McDine (UKEATS/0051/10), at para. 45. But it does not follow that these criticisms cannot be taken into account as part of the overall assessment of fairness – especially as the areas of confusion to a considerable extent reflect the application of recruitment criteria in an unusual situation, i.e. “issue (A)”.

29. The scenario assessments. The Tribunal’s criticism of the scenario assessments appears at para. 17 (2) above. We can see nothing wrong in what it says there. Again, the criticism would not by itself vitiate the fairness of the procedure, but it is a relevant factor in the overall assessment, and it is related to the Tribunal’s criticism of the way in which the procedure adopted was out of touch with actual performance.

30. Sickness absence. As noted at para. 17 (3) above, we cannot understand the criticism here.

31. Mr Reed’s “get away with it” comment. We are bound to say that we think that the “concern” expressed by the Tribunal about this comment – see para. 17 (4) above – was unjustified. We have quoted the context. As is apparent, what Mr Reed wanted to “get away with” was taking the whole workforce as the pool rather than those generally assigned to the Dinorben ward – an approach which the Tribunal itself endorsed (see para. 15 above). The reference to “getting away with it” seems to us pretty plainly to have been simply a recognition that that approach was likely to be unwelcome to the workforce as a whole; and we can see nothing sinister in it.

32. Overview. Not all the Tribunal’s particular criticisms seem to us to be justified. But in our view it was nevertheless entitled to find that the way in which the criteria were applied was in some respects unsatisfactory.

33. Mr McCracken submitted that the criticisms made at para. 44 of the Reasons – see para. 18 above – were misconceived. As summarised at para. 5 above, the Appellant had kept the workforce very fully informed of what was happening, and employees had been given the opportunity to raise questions, both at the meetings of 18 and 25 November and individually. Those selected had been offered individual meetings to discuss their options, and the Tribunal had expressly found (see para. 19 above) that they had been notified of the existence of vacancies by way of potential alternative employment. As for the specific criticisms made by the Tribunal, these were largely vitiated by a confusion between the requirements of collective consultation and what was fair and appropriate in a case like the present where no trade union was recognised and where the obligations under section 188 of the 1992 Act did not arise. The British Coal case to which the Tribunal referred was a collective consultation case (albeit under a sui generis procedure).

34. Mr McCracken picked up sentence-by-sentence the series of specific criticisms made by the Tribunal of the Reasons: -

(1) He accepted that there was no consultation about selection criteria; but he contended that that was not necessary in a case where there was no consultation at a collective level.

(2) Likewise, while he accepted that there was no consultation about whether there was any alternative to the closure of the Dinorben ward, he submitted that that too was not necessary in the circumstances.

(3) As regards the fact that employees were not told their individual scores, he said that that was not fatal to the fairness of the process. (It was not clear to us whether scores would have been revealed if there had been an appeal: it seems likely that they would, but neither Claimant did appeal.)

(4) He said that it was unfair to say that there was no “individual consultation at all”, because employees selected for redundancy were offered consultation about their options, including the possibility of alternative employment, which is generally the subject on which individual consultation is most important.

(5) He contended that it was unfair of the Tribunal, as it appeared, to devalue the two meetings of 18 and 25 November because they involved (almost) the entire workforce, rather than being “individual”, and simply “told the workforce what was happening”. On the contrary, meetings of that kind – with employees being given, as they were, the opportunity to ask questions on the spot or subsequently - were entirely appropriate.

(6) It is true that there was no trade union representation or other elected representatives, but that was a fact rather than a matter of criticism.

35. Mr McCracken’s points are well-founded. It is inevitable that the character of the consultation that is reasonable and appropriate may differ to some extent in cases where there is collective consultation with a trade union or other representatives and in cases where there is not. The scope for useful consultation on such issues as avoiding the redundancy situation altogether or the choice of selection criteria may well be less in the latter case; the focus for individual consultation will normally be on the circumstances involving the individual’s particular case, and in particular – though not necessarily only – the chances of alternative employment. It seems to us that the Tribunal took no real account of this. The process described by the Tribunal as summarised at para. 5 above seems to us to reflect very much the sort of consultation exercise that we would expect an employer to carry out.

CONCLUSION

36. We are thus in a position where we regard some of the Tribunal’s reasons for finding the Claimant’s dismissal as unfair as being legitimate but some as flawed. However, it seems to us reasonably plain, reading the Reasons as a whole, that the Tribunal would have reached the same conclusion even if it had confined itself to the former: indeed arguably the opening sentence of para. 43 (see para. 17 above) is intended to say so explicitly. In our view that would have been a conclusion which it was entitled to reach. We appreciate that the Appellant took a lot of trouble over this redundancy selection exercise and put a lot of resources into it, which is in principle to be applauded. But the fact is that it chose an elaborate and HR-driven method which deprived it of the benefit of input from managers and others who actually knew the staff in question, and which by its very elaborateness was liable to be difficult to apply consistently. That method produced results which were acknowledged to be “very surprising” but which were persisted in because the processes were thought to be so “robust”. We are not surprised that the Tribunal thought that a blind faith in process – the characteristic déformation professionelle of HR departments – had in this case led to the Appellant losing touch with common sense and fairness. The goal of avoiding subjectivity and bias is of course desirable but it can come at too high a price; and if the fear is that employment tribunals will find a procedure unfair only because there is an element of “subjectivity” involved that fear is misplaced (cf. what we say in Samsung Electronics (UK) Ltd. v Monte d’Cruz (UKEAT/0039/11/DM), at para. 27).

37. Accordingly, despite Mr McCracken’s cogent and able submissions, we must dismiss this appeal. We were not told what had happened about remedy. If the Tribunal has been awaiting the outcome of the present appeal the issue of remedy – including any “Polkey” questions – will have to be determined at a further hearing, unless (which would be very desirable) the parties are now able to reach agreement.

38. We greatly regret the delay in producing this decision, which is the result of pressure of work on the judicial member of the Tribunal.