United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0244/15/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

                                                                                                             At the Tribunal

                                                                                                             On 29 January 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

(SITTING ALONE)

 

 

 

 

 

 

DR C MAGOULAS                                                                                                 APPELLANT

 

 

 

 

 

QUEEN MARY UNIVERSITY OF LONDON                                                  RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR JAKE DUTTON (of Counsel) Direct Public Access
For the Respondent	MISS JANE TRACY-FORSTER (of Counsel) Instructed by: Eversheds LLP Kett House Station Road Cambridge CB1 2JY

 

 

SUMMARY

AGE DISCRIMINATION

 

The Employment Appeal Tribunal dismissed an argument that there was a duty on the Respondent to adduce evidence that it had considered alternative(s) to the provision, criterion or practice (“PCP”) that it adopted: first, on the facts of the case (as if any viable alternative had existed it would have emerged in the long redundancy consultation process, and none did); and second, as a matter of law, as no authority binding on the Employment Appeal Tribunal suggests that there is any such duty.  The Employment Appeal Tribunal also dismissed the linked argument that the Employment Appeal Tribunal was bound to consider “manifest alternatives” to the PCP, as, on the facts, there was no such alternative.

 

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

 

Introduction

1.                  This is an appeal from the Employment Tribunal (“the ET”) sitting at East London.  In a Decision sent to the parties on 19 March 2014, the ET dismissed the Claimant’s claim for unfair dismissal and for indirect discrimination on the grounds of age.  I shall refer in this Judgment to the parties as they were in the ET below.

 

2.                  In amended grounds of appeal the Claimant challenges three aspects of the ET’s decision.  He contends: first, that the ET erred in not applying the burden of proof; secondly, that the ET erred in relation to proportionality; and thirdly, that if the ET did err in those respects that error infects its finding that the dismissal was not unfair.  In relation to the third point I accept that if the ET did err, in finding that there was no unlawful discrimination on the grounds of age, that would mean that its decision on unfair dismissal would have to be remitted to it.  As the structure of the ET’s own decision recognises, the finding on unfair dismissal is linked to the assessment of unlawful age discrimination, and the ET recognised that its finding on unfair dismissal was contingent on this finding on age discrimination.  On the facts of this case what the Claimant’s submission is that the Respondent adduced no evidence that it had considered alternatives to the Claimant’s redundancy and the ET was bound in the absence of any such evidence to hold that the Respondent had not shown that the provision, criterion or practice (“PCP”) was “justified”.

 

3.                  The Claimant has worked in the field of academic research for over 25 years.  He was a Research Fellow at the Imperial Cancer Research Fund between 1992 and 1997 and of the National Institute for Medical Research between 1997 and 2000.  On 1 April 2000 he joined what was then the Queen Mary Westfield College and is now the Respondent (Queen Mary University of London).  He joined as a Non-Clinical Lecturer in the Department of Neurosurgery, which was part of the School of Medicine and Dentistry (“the SMD”).  The Claimant stayed in this post until he was dismissed with notice, and that dismissal took effect on 30 November 2012.  The Claimant was born on 17 November 1959 and was 53 years old at the date when he was dismissed.

 

The ET’s Decision

4.                  The ET set out the parties’ list of issues.  The Claimant and Respondent were each represented by specialist solicitors and by experienced counsel.  The fact that the parties had drafted and agreed a list of issues is of some significance in the light of the arrangements Mr Dutton advanced this morning.  The parties’ issues concerning unfair dismissal included the choice of a pool from which redundant employees were to be selected, the provision of information to the Claimant in order to enable him to challenge scoring and selection, the application of those criteria to the Claimant, whether the procedures about redeployment had been followed, whether the Respondent put younger and less suitable employees in posts that were suitable for the Claimant, and whether the Claimant had been paid his entitlements.  In short, the argument on unfair dismissal was whether or not the Claimant had been unfairly selected for redundancy.

 

5.                  The agreed issues about age discrimination were whether the restructure favoured younger employees to the detriment of older employees contrary to sections 5 and 19 of the Equality Act 2010 (“the 2010 Act”) and in particular, if so, whether the Respondent’s advertisement of positions for Early Career Research Fellowships was a PCP that put the Claimant and others of his age at a particular disadvantage when compared with others and if so whether it was a proportionate means of achieving a legitimate aim.

 

6.                  The ET recorded the agreement of the parties that the Respondent’s witnesses should be called first since the bulk of the evidence about the fairness of the dismissal was to come from them.  The ET summarised the legal principles.  It recorded the Respondent’s main case that the reason for dismissal was redundancy.  It recorded that the second limb of the statutory test was relevant.  It directed itself in a way that has not been criticised on this appeal by the Claimant.  The ET then went on to summarise the law about indirect discrimination.  It cited section 19 of the 2010 Act.  This provision required the ET to decide if an employer was applying a PCP, whether the employer would apply or had applied it to people who did not share the protected characteristic of the employee, whether it put those who shared the protected characteristic at a particular disadvantage compared to people who do not, and, if so, whether the employer could nonetheless show that the PCP was a proportionate means of achieving a legitimate aim.  The ET then referred to the Judgment of Baroness Hale in R (E) v JFS [2010] IRLR 136 at paragraphs 56 to 57, and to paragraph 17 of her Judgment in Homer v Chief Constable of West Yorkshire Police [2010] IRLR 601.  The ET reminded itself at paragraph 33 of its decision that it is for the employer to establish justification.

 

7.                  The ET’s key legal directions were in paragraphs 33 to 35.  I summarise 12 here.  They are: (1) an employee will only justify a PCP if it shows that the PCP is a proportionate means of achieving a legitimate aim; (2) the test is an objective test and not a band of reasonable responses test; (3) the Tribunal must not conflate legitimate aim and proportionality; (4) what amounts to a legitimate aim is not defined in the 2010 Act and is a question of fact for the Tribunal; (5) the measure must pursue the aim, but it is not necessary for this to have been specified at the time, and an ex post facto justification is possible (see Seldon v Clarkson Wright & Jakes [2012] IRLR 590); (6) an aim that is inherently discriminatory will not suffice and will not be a legitimate aim; (7) reducing cost can be a legitimate aim in some circumstances, for example in allocating resources between competing demands, but it cannot justify an otherwise discriminatory provision; (8) the principle of proportionality requires the Tribunal to strike an objective balance between the discriminatory effect of the PCP and the reasonable needs of the employer’s business; (9) there is no guidance in the 2010 Act about this, and it is for the Tribunal to assess proportionality; (10) in general, the greater the disadvantage caused by the PCP, the more cogent the justification that is needed; (11) an employer can rely on a justification defence not thought of at the time of the discrimination (see Cadman v Health & Safety Executive [2004] IRLR 971); and (12) some evidence is required to establish the defence, but see the Seldon case per Elias P, as he then was, at paragraph 73.  There is an important citation from that decision at paragraph 36 of the ET’s Decision:

“We do not accept the submissions … that a tribunal must always have concrete evidence, neatly weighed, to support each assertion made by the employer.  Tribunals have an important role in applying their common sense and their knowledge of human nature … Tribunals must, no doubt, be astute to differentiate between the exercise of their knowledge of how humans behave and stereotyped assumptions about behaviour.  But the fact that they may sometimes fall into that trap does not mean that the Tribunals must leave their understanding of human nature behind them when they sit in judgment.”

 

8.                  The ET then quoted section 136 of the 2010 Act about the burden of proof.  The ET explained in paragraph 39 of its Decision that it bore in mind the familiar two-stage test from Igen v Wong [2005] IRLR 258 and the annexe to the Judgment in that case.  The ET observed that the detailed consideration of the shifting burden of proof was only necessary in a finely balanced case and the burden of establishing the defence was firmly on the employer.  I asked Mr Dutton in the course of his submissions whether he accepted that the directions that the ET gave itself about indirect discrimination were correct, and he accepted that they were.  This is an important background to the submissions that he made about the errors that he said the ET fell into in this case.

 

9.                  The ET prefaced its findings of fact by saying that the evidence had been extensive, as had the questions testing it.  The ET did not try to resolve every issue but considered them all in reaching its decision.  The findings that it did make were those that were necessary to reach its decision on the issues raised by the parties.  The ET found that the SMD had always been able to cover its own costs but that by 2011 there was concern about funding changes.  A review was commissioned.  This review found that there would be a projected deficit by 2013-2014.  It was therefore agreed in July and August 2011 that there should be a consultation with a view to restructuring the SMD in order to make savings.  A redundancy committee was established in August 2011.  The establishment of such a committee was required by the Respondent’s relevant policy.  In September 2011 proposals for consultation were published.  This document explained the background.  The SMD had relied on a funding stream which was being cut.  The proposal was to increase other sources of income, particularly from research, and to make cuts of £3million.  Directors of institutes were asked to review academic activity.  Formal consultation took place in September and October 2011, and no issue was raised about that.

 

10.              After the consultation a further document was published.  The proposal was to cut about 42 posts in the SMD.  The Blizzard Institute, where the Claimant worked, was to bear the lion’s share of the cuts: 17.46 full-time equivalent posts were to be removed.  The same selection criteria were used as before.  The document explained how these would be used.  The ET set this out at paragraphs 48 to 54 of its Decision.  One criterion had an exception which favoured young researchers (see paragraph 50 of the Decision).  The Claimant also criticised the “strategic fit” criterion for being too subjective.  The Respondent’s case was that the criterion was clear, and was well understood by academics.  The document explained that an individual had to cross thresholds in the criteria in order to avoid being identified as at risk of redundancy.  The academic staff were assessed against the criteria, and 43, including the Claimant, were identified as at risk of redundancy.

 

11.              The Claimant was asked to attend a meeting.  He was told that he would get information before the meeting and that the assessment would be explained to him.  The Claimant was accompanied to the meeting, which was chaired by a Professor Curtis.  The Claimant thought that his papers should have been assessed by external experts, but everyone was assessed internally.  The Claimant questioned the assessment in various ways, as was explained by the ET at paragraph 61 of its Reasons.  He was asked whether there were any exceptional circumstances in his case.  He said that he was an enthusiastic teacher who would have taught more if he had been asked to do so.  He argued that the strategic objectives had not been clearly formulated and that the strategic fit criterion was not clear.  He handed in a document summarising his case.  Professor Curtis replied to that.  The ET summarised what he said in paragraph 64 of their Reasons.

 

12.              The people who had been identified as being at risk of redundancy were considered at a meeting on 31 May 2012.  The Claimant’s points were raised, but the group considered that he was still at risk, and he was told that in a later letter.  He was told that he would be invited to a meeting with the Redundancy Committee to discuss this.  He said that Professor Curtis had not dealt with his points and asked for comparative data about other academics to help him mount his arguments.  At the meeting one of his arguments was that he did not know how he had performed in comparison with others.  The conclusion of the committee, which he was told in a letter of 12 July 2012, was that he was still at risk and would be recommended for dismissal.  He was signed off work with stress on 26 July 2012.

 

13.              At the same time the Respondent had advertised for 20 Early Career Researchers (“ECR”).  These posts were self-funding, attracting up to an extra £100,000 under a Government scheme.  The staff identified as being at risk went down to 28 after a review meeting, and that had been reduced to a figure of 19: three likely compulsory redundancies, 14 voluntary redundancies and two possible redeployments.  The ECR posts were not open to those who had not been independent researchers before 1 August 2009.

 

14.              In paragraph 73 of its Reasons the ET recorded that Professor Robinson had put some questions to Ms Garry by email on 12 July 2012.  One of the issues that he had raised was the advertisements for the ECRs.  I was told by Miss Tracy-Forster, who represented the Respondent at the hearing (Mr Dutton was not counsel at the hearing), that the redundancy committee had been concerned about the fact that the Respondent appeared to be recruiting to new posts at the same time it was making people redundant.  The raising of that concern, she told me, led to a consideration by the Respondent of the PCP that was involved in the recruitment of the ECRs, and it had been reassured at the time, wrongly as it now transpires, that that PCP was not discriminatory.

 

15.              On 10 August 2012 the Claimant was given three months’ notice of dismissal for redundancy.  He was told that the Respondent would look for suitable alternative employment during his notice period.  He was given and exercised a right of appeal.  He contended that the process had been unfair because he had not been given comparative data and others had been.  He said that the selection was unfair, the criteria had been applied inconsistently and unequally, that the “strategically important” criterion was not objective, and that the recent advertisement for ECR posts showed discrimination on the grounds of age (they would mostly be between 30 and 40 years old, whereas he was over 50 years old).  By the time of the appeal the Claimant had been sent anonymised comparative data.  It had been provided to the unions during the consultation.  At the appeal the Claimant again said that the strategic fit criterion was subjective.  He questioned the assessment of his research and said that the Respondent had not tried hard enough to find suitable alternative employment for him.  The appeal was dismissed.  It is notable that he did not at that stage raise any argument that there were alternatives to his dismissal such as the taking of a pay cut by him or the imposition of pay cuts on others.

 

16.              The Claimant was one of three employees who were at risk and did not accept voluntary redundancy.  The two other employees in this position appealed successfully, as the ET recorded at paragraph 82 of its Decision.  The ET also recorded that the Claimant did not appear to take much interest in redeployment initially but went to a short meeting about it when the system had been explained to him.  The Respondent looked into redeployment nonetheless but could find no suitable posts.  The Claimant later applied, unsuccessfully, for a post for which he was not shortlisted.  He was told that this was because he did not have the necessary experience.  His argument was that he could have been trained for this post, but the Respondent’s case was that it needed someone who could ‘hit the ground running’.  The Claimant at that stage applied for no other posts.  He identified no posts other than the ECR posts.  Later on he applied for two posts for Lecturers in Biomedical Sciences; he was not short-listed.  He asked for feedback but received none.  He applied in June 2013 for a post as a Senior Lecturer in Neuroscience; he was not successful.  The ET did not receive any evidence that he had received any feedback in relation to that application either.

 

17.              The ET noted that there was documentary evidence of a significant level of concern about the Claimant’s research performance dating back to March 2008 (see paragraph 87 of the ET’s Reasons).  The Claimant had been told in 2007 that his work was not part of a submission to the Higher Education Funding Council for England as it was “insufficiently aligned” with the themes of the rest of the Neuroscience Department.  He only achieved grant income of £9,180.44 in the three academic years from 2008, which was less than the £65,000 threshold in the ‘research activity’ criterion.  It was common ground that the Claimant’s publications did not fall in category 1 of the four categories in the selection criteria because they were not publications in leading non-specialist publications.

 

18.              The ET decided at paragraph 90 of its Reasons that there was a “redundancy situation” and that the Claimant’s dismissal was not unfair.  The choice of performance criteria, which reflected a strategy focussed on research, was within the band of reasonable responses, the ET found.  The criteria were not so subjective and unclear as to be unfair.  An element of subjectivity was unavoidable; for example, in assessing whether a publication was within the top 10 per cent of publications.  Decisions about individuals were subject to the oversight of the redundancy committee.  That was a sufficient safeguard.  The ET found that the “strategic fit” criterion was a well understood concept in the academic world.  It had been referred to as long ago as 2007 in correspondence with the Claimant.  In any event, the Claimant was not prejudiced, as he did meet that criterion (see paragraph 94 of the ET’s Reasons).  The evidence that the Claimant did not cross the thresholds in the selection criteria was strong, the ET found in paragraph 96 of its Reasons.  It gave a number of examples in this regard.  The ET concluded, “[he] was fairly selected … by reference to fair selection criteria”.  The ET held that there had been adequate consultation.  Its pace had been slow and careful.  It was not unfair that the Claimant did not get comparative data sooner.  This was not a comparative exercise, and giving him the data sooner would have made no difference to the outcome.  A sufficient search for suitable alternative employment had been carried out by the Respondent.  The 20 ECR posts were not suitable, as the Claimant did not meet the criteria for appointment to them.  The 2013 vacancies appeared after the obligation to find suitable alternative employment had ended.

 

19.              The ET postponed its ultimate conclusion on unfair dismissal until after it had considered the Claimant’s indirect discrimination claim on grounds of age.  The ET said that the indirect discrimination complaint related to the ECR posts.  The selection criteria disproportionality favoured the young because of the 1 August 2009 date.  That that was so was supported by the Respondent’s data that successful candidates were between the ages of 32 and 42, with an average of 36½.  The Respondent’s case was that there was no age requirement because an older person might be an ECR because of a career change, but in any event, said the Respondent, it arose from a funding requirement imposed externally; the reason for it had been to encourage the appointment of new researchers to give them a chance, and, perhaps, to generate new ideas.  The ET found that 1 August 2009 cut-off point was a PCP.  It was applied to the Claimant.  The ET accepted that it put the Claimant’s age group at a particular disadvantage compared with the younger researchers.  Older researchers were less likely to meet the criterion.  The Claimant did not meet it because he had been a researcher for many years before 2009.  The ET was satisfied, however, by the Respondent’s evidence that it had established a defence of justification (see paragraph 106 of its Reasons).  The Respondent’s legitimate aim was to increase its research profile and to reduce costs:

“106. … Judged objectively, engaging ECRs was a proportionate means of achieving this objective as new employees were funded by the State rather than by the Respondent and were, therefore, at least cost neutral and might possibly even contribute to the [Respondent’s] income. …”

 

20.              This was not a case where the discriminatory conduct was justified by cost alone because the PCP was not imposed by the Respondent but by an external funder and the aim was plainly to encourage new research.  The ET therefore found that there was no unlawful indirect discrimination on the grounds of age and that the Claimant’s dismissal had not been unfair.

 

The Tribunal’s Decision on the Application for Reconsideration

21.              The Claimant applied for a review.  The ET refused that application because there was no reasonable prospect of the decision being varied or revoked.  The application had been based on a “new finding of fact” in the decision of a different ET in a different case.  The ET held that the new evidence would not probably have had an important influence on the outcome.  That is not challenged on this appeal.

 

The Tribunal’s Response to the EAT’s “Burns/Barke” Questions

22.              On 1 December 2014 HHJ Eady QC asked the ET to answer three questions under the Burns v Royal Mail Group plc [2004] ICR 1103 / Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 procedure.  They were whether either party had put a positive case whether the PCP was a proportionate means of achieving a legitimate aim and if so what their case had been.  The ET replied that the Respondent had advanced such a case, and they then summarised it.  The Respondent pleaded a case in justification in its response, the agreed list of issues reflected this, all of the Respondent’s witnesses gave evidence in chief about the ECRs and were cross-examined on that evidence, and the ET summarised that evidence.  The ET was also asked, thirdly, whether either party had submitted that there were alternative means of achieving the legitimate aim.  The ET’s answer was that they had made some submissions about the ECRs.  Mr Palmer, who was counsel representing the Claimant, had focused on the issue of disproportionate effect, the ET responded, a point on which he succeeded.  I infer from that that he did not deal with alternative means in his submissions.  Neither party had suggested alternative means, and the ET would not have expected the Respondent to do so.

 

Discussion

23.              The cases cited by the ET at paragraphs 33 to 36 of its Decision are authority for the propositions, among others, that: (1) the test for establishing the defence of justification is objective; (2) an ex post facto rationalisation is possible; (3) the ET, not the Respondent, must strike an objective balance between the discriminatory effect of the PCP and the reasonable needs of the employer’s business; and (4) some evidence is needed, but it is for the ET to weigh it in a sensible way.  Mr Dutton, for the Claimant, submits that the ET erred in law by failing to consider the impact of the PCP on the disadvantaged group.

 

24.              I reject that submission in its narrow form.  The impact of the PCP on the disadvantaged group was obvious.  Its effect was that few if any members of that group could be appointed as an ECR.  The ET was well aware of this.  It is inherent in its finding at paragraph 104 that the PCP put older researchers at a “particular disadvantage”.  The ET knew precisely what the discriminatory effect of the PCP was and that that was what it was required to weigh against the justification advanced by the employer (see its correct self directions in the second part of the first sentence of paragraph 33 and in the first sentence of paragraph 35 of its Reasons).  The ET directed itself that the greater the disadvantage the more cogent the justification had to be (paragraph 35).  The ET was then required to apply its common sense to and work out the answer on the proportionality issue.  Contrary to Mr Dutton’s submission in its narrow form, I do not accept that the ET only considered the question of proportionality by reference to the needs of the Respondent’s business.  It weighed the justifications based on the needs of the Respondent’s business against the effect of the PCP on the Claimant.

 

25.              Nor do I accept that the ET was required, having dealt at paragraph 104 of its Reasons with the discriminatory effect, mechanically to repeat those findings in paragraph 106, which is separated from paragraph 104 by two lines of text.  To be fair to Mr Dutton, I do not think that he was submitting that it should.  Indeed, he accepted when I asked him that if there had been no alternative to the course that was adopted by the Respondent the ET’s decision was open to it.

 

26.              Mr Dutton put forward a variation of this argument.  This was that there was a duty on the employer in order to discharge the burden of proof to put forward evidence about less discriminatory or less onerous alternatives.  The employer did not do so, therefore the defence must fail.  He made a linked submission, which was that there was a duty on the ET to consider manifest alternatives to the PCP but there were manifest alternatives here and the ET erred in law by failing to consider those.  Mr Dutton relied on a passage in the Judgment of Mummery LJ in R (Elias) v Secretary of State for Defence [2006] IRLR 934, in which he said there was no onus on the Claimant in that case to show that the criterion in that case was not justified and no onus on the court:

“131. … as part of the exercise of margin of appreciation or area of discretionary judgment allowed by the court to the State, to search around for a justification of the birth link criteria in order to help the Secretary of State out of a situation of his own making.”

 

27.              The procedural background in that case was complicated, but essentially the Appellant challenged by way of an application for judicial review an indirectly discriminatory criterion in a compensation scheme operated by the Government.  At first instance the Judge had held, among other things, that the criterion was indirectly discriminatory and that it was not justified.  The Court of Appeal agreed with that analysis.  Mummery LJ said at paragraph 47 that it was important to remember that the claim was not brought under the Race Relations Act 1976 (“the 1976 Act”); it was a public law claim in which the Claimant contended that the compensation scheme was unlawful because it contravened the 1976 Act.  The claim involved difficult points of law on comparatively few documents (see paragraph 48 of the Judgment).

 

28.              He listed the issues that arose in the indirect discrimination claim at paragraph 126 of the Judgment.  These included whether the Secretary of State could rely on an ex post facto justification and whether the Secretary of State had a wide margin of appreciation in forming the criteria.  At paragraph 129 of the Judgment, Mummery LJ did not doubt the correctness of the general proposition that indirect discrimination can be justified ex post facto; he said it depended on the circumstances, however.  On the facts of that case, that proposition faced several legal and factual difficulties.  One was that the onus was on the Secretary of State, and another was that because justification had not been considered when the criteria had been adopted there was no evidence about it.  I interpose to say that that is a very different case from this, because of course there was evidence before the ET about justification.

 

29.              Thirdly, said Mummery LJ, the Secretary of State had failed to comply with a duty imposed by section 71 of the 1976 Act.  I do not read Mummery LJ’s comment in paragraph 131 of the Judgment as contradicting the passage from paragraph 73 of the Seldon case on which the ET relied.  In that passage Mummery LJ was commenting on the effect of that argument; he was not saying anything about the role of an ET in an employment claim where the employer has adduced evidence about justification.

 

30.              Mr Dutton also relies on the dictum of Lord Mance in JFS at paragraph 97 that justification can “prove difficult to show” where it had not appreciated when a PCP is adopted that it is indirectly discriminatory.  I make three comments about that observation.  First, it is a factual observation not a legal rule; secondly, in any event, the comment was made in a wholly different factual context (a public law challenge to a school’s admissions criteria); and thirdly, Lord Mance’s remarks were obiter as he is a member of a majority of the Supreme Court that held that the criteria were directly discriminatory so that the question of indirect discrimination did not arise.  There is no binding authority in this context that obliged the ET to hold that, as Mr Dutton contends, in this context a Respondent cannot discharge the burden of proof if it has not considered alternatives.  I have three reservations about Lord Mance’s observations, which I have just mentioned, but in any event his observations simply do not go that far.  Mr Dutton also relies on the judgment of Lord Hope.  Lord Hope was in the minority in the JFS case.  He held that the policy was not directly discriminatory.  Of the four Supreme Court Justices in the minority, two held that the policy was justified and two did not.  I do not consider that I am assisted in this very different context by the views of Lord Hope in JFS.

 

31.              For his second submission, that there were manifest alternatives and the ET was bound to canvass them even if the parties did not, Mr Dutton relies on a decision of this Tribunal in Naeem v Secretary of State for Justice [2014] IRLR 520.  He says that that is what the ET decided in that case.  My first reservation about that decision, and it is an important one, is that the observations that this Tribunal made about justification were obiter as this Tribunal had held, allowing the cross-appeal, that the PCP was not discriminatory.  That simply meant that this Tribunal was not obliged to deal with the issue of justification, which was the issue raised by the appeal.  On appeal the Court of Appeal upheld the EAT’s decision on the effect of the PCP and did not consider the question of justification.  My second reservation is that I do not know what evidence was before the ET about what are described by the EAT in its decision as “manifest alternatives open to the employer”.  My third reservation is that I consider that there are considerable difficulties in an appellate Tribunal finding that there are manifest alternatives to the course that has been adopted by an employer, particularly since, unlike the ET, it is not in a position to canvass these with the Respondent’s witnesses.  It is all very well for an appellate Tribunal to think that something is an obvious alternative, but the appellate Tribunal has no factual knowledge about running the business and may very well be wrong in its assessment that an alternative is manifestly obvious.

 

32.              I do not consider that I am obliged to follow the obiter approach of this Tribunal in Naeem, and I decline to do so, because of the reservations I have just expressed.  I am particularly reluctant to do so in this case, where the issues that were addressed by the ET were defined by the parties on the basis of expert legal advice, but even if there had been such a duty on the ET to ask itself if there had been a manifest alternative to the PCP which was actually adopted by the employer, and even if that duty applies where no alternative is suggested by the Claimant during the hearing, I do not consider that the supposed manifest alternative relied on by Mr Dutton in his skeleton argument and his oral submissions is any such thing.  He submits, in short, that the aim of cutting costs could have been realised by freezing or by cutting of pay, the Claimant’s or that or those of others, and/or by temporarily laying off staff, by reducing hours or by flexible working.  The only cost, he says, which needed to be saved was the Claimant’s salary.  I am not sure that that is right, because 14 employees were taking voluntary redundancy to make the necessary savings and possibly two were being deployed, but even if that is wrong there was no evidence before the ET that the Claimant would have agreed to a pay cut or that the other staff would have agreed to the measures suggested by Mr Dutton, none of which could have been imposed by the Respondent against the relevant employees.

33.              More fundamentally, however, and this is the point that was relied on by Miss Tracy-Forster in her succinct submissions, the point seems to me to be that the dismissal of the Claimant was the culmination of a long and careful process of restructuring that had involved a long and careful consultation process.  The consultation process itself had taken about a year.  It is inconceivable, in my judgment, on the facts, that if there had been any viable alternative at all to the compulsory redundancy of the Claimant that that would not have emerged during that long process.  For those reasons, I reject the submissions that have been made by Mr Dutton.

 

Summary

34.              I consider that there are four main points in summary.  First, on the facts of this case there was no viable alternative to the compulsory redundancy of the Claimant.  If there had been such a viable alternative, it would have surfaced during the long and careful process of restructuring, consultation and selection that the ET described in its Reasons.  It is not feasible or realistic at the end of such a process to impose a further requirement on an employer to investigate the various tweaks that Mr Dutton suggested in his submissions, which I have just summarised.  I pressed him in argument for an alternative PCP that would have been less discriminatory, and the PCP that he came up with was that those who ought to be selected for redundancy would achieve the cost reduction sought by the Respondent.  It seemed to me that this was an unfeasibly vague and messy criterion for an employer to have to apply.  When I put that point to Mr Dutton, he said that it would not be if it was applied pragmatically on a case by case basis, but the difficulty is that the process of restructuring a consultation had taken a year, the ET was entitled to assume that everything had been looked into and considered during the course of that long process and nobody had come up with any suggestion other than that at the end of the process there was going to have to be at least one compulsory redundancy.  Mr Dutton accepted in answer to a question from me that if there was no alternative the ET’s decision was not erroneous, and that seems to me to be the position: there was no alternative, and the ET’s decision is not flawed by any error of law.

 

35.              Secondly, it follows from that analysis both that the Respondent discharged the burden of proof on the defence of justification and secondly that there was no duty on the ET on the facts of this case to consider obvious alternatives.

 

36.              The third point is that if my analysis of the facts is wrong I do reject the submission that as a matter of law there is a general burden on an employer or on an ET to look into alternatives in every case.  Whether there is such a burden either on the employer or on the ET must of course depend on the facts of the individual case.  Nothing in the authorities that I have been shown supports such a general duty, and, in my judgment, nothing on the facts of the case requires such a duty to be imposed here.

 

37.              Fourthly and finally, I should mention that for the first time in reply Mr Dutton sought to advance an argument based on section 149 of the 2010 Act.  Even if he is entitled to raise that argument in this way, it seems to me that it adds nothing to the arguments with which I have already dealt.

 

Application

38.              I refuse permission to appeal to the Court of Appeal.  No point of law arises in this case, because, as I hope I have indicated in my Judgment, it seems to me that the point just does not arise on the facts.  On the facts of this case, there was no viable feasible alternative to the PCP that was adopted by the Respondent.