England and Wales Court of Appeal (Civil Division) Decisions

“The Applicant provides the following examples of differential treatment between black and white staff in the Department. When the Applicant got married in October 1996, there was no recognition of this event whatsoever within the Department, even through good wishes being given. Two months later, when a white Receptionist was married, the Department hosted an organized celebration of the event, to which the whole of the Department was invited, and a gift presented to the bride. The birthdays of white staff in the Department were also regularly celebrated, by parties to which all staff were invited, with food and ample alcoholic refreshments available, or through outings to a local pub. In contradiction to this, the birthdays of black staff received no recognition, and when the Applicant’s employment was terminated by redundancy, she likewise received no acknowledgement of her 8 years service with the Bar Council, such as a party, present, card or good wishes, whereas when white staff leave the Department, there is always a ‘leaving do’ arranged, either within the Department, or in a local pub.”

“7 We do not propose to repeat in detail the evidence which was given by the various witnesses who were called on behalf of the Respondents as this was the substance of the evidence which they gave to the Tribunal. What we have to consider in these circumstances is whether the Respondents properly carried out a selection procedure, having done as much consultation as they could in the circumstances, and whether it was fair of them to select the Applicant. Should we on the other hand reject the evidence which they gave as to the work being very much compartmentalised so that consideration ought to have been given to the question of length of service and whether the Applicant ought not to have been placed into a job with the consequent dismissal of somebody with less service. We discussed this matter at some length because initially the Members of the Tribunal were concerned that, first, the Applicant’s absence had led to a failure by the Respondents to discuss or consult with her as to the question of redundancy, and, secondly, whether in any case we ought to accept that evidence as to the compartmentalisation of the work or whether it would have been more proper for the Respondents to retain the Applicant in some sort of post while dismissing somebody with lesser service. In the end, however, and after a good deal of discussion, we have come to the conclusion that the selection of the Applicant was fair. It was not the Respondents’ fault that at the vital time they were unable to communicate with the Applicant, nor indeed was it the Applicant’s fault that she should have become ill in Nigeria and been unable to return to work in July. The Respondents were, however, confronted during those vital months with an inability to communicate or consult at all with the Applicant when it had already been obvious to them that the amount of work which was left to be performed by the Applicant did not amount to anything like a full-time job. We came to the conclusion that, in the circumstances, it was not unreasonable of the Respondents to decide that it was the Applicant who ought to be selected for redundancy and to proceed on that basis. The reason why we come to this conclusion is that we do accept the Respondents’ evidence that the jobs were compartmentalised and that it was reasonable of the Respondents in the circumstances to conclude that, as it was the Applicant’s job which had disappeared, it was the Applicant who should be selected for redundancy rather than that they should take what might appear to be the more normal route of dismissing somebody with lesser service and placing the Applicant into that person’s job, i.e. “bumping”. This would not, we find, have achieved the Respondents’ purpose in that they would then have had to re-train the Applicant. It seems to us to be unreasonable of the Applicant to expect the Respondents to do this rather than select for redundancy the person whose job had disappeared. We have, as we say, not found this an easy task. There was a great deal of discussion among the three Members of the Tribunal about the proper attitude to take towards this sort of case, but finally and having regard to the circumstances which presented themselves to us, we have come to the conclusion that we cannot criticise the Respondents for the way in which they carried out the selection process we cannot criticise either the fact that they did the selection process in the Applicant’s absence or the fact that they came to the conclusion that it should be the Applicant who was selected bearing in mind the findings which we have made earlier in this paragraph. Another point which occurred to us was whether we should say in these circumstances that the selection was fair or whether we should say that, because of the absence of consultation, we should consider the dismissal to be unfair but that, marking the chance, in accordance with the principles of Polkey, would mean that since it was inevitable that the Applicant should be selected there would be a very high percentage reduction, if not 100%, from any compensation which would be awarded to the Applicant. Again, after considerable discussion, we have come to the conclusion that we should say that the selection of the Applicant for redundancy was fair.

8 Finally, we pass to the question of racial discrimination and whether any evidence was given to show that racial considerations entered into the selection of the Applicant, either by way of any evidence which she gave or by way of any inferences we ought to draw from unsatisfactory answers given by witnesses called on behalf of the Respondents. We have come to the conclusion, again after some discussion, that we cannot here find that racial considerations entered into the question of dismissal. We can understand that the Applicant, who is black, could well have a suspicion that racial considerations did enter into her selection. The evidence, however, given by the Applicant and by witnesses who appeared on her behalf, did not convince us that this was the position. The earlier incidents mentioned by the Applicant in her evidence did not convince us that black staff were treated differently. We listened carefully to the evidence given on behalf of the Respondents. We have to bear in mind that the Respondents satisfied us that there was a reason for the dismissal of the Applicant and that they also satisfied us, after some discussion and hesitation, that the selection of the Applicant was fair. We could see nothing in the evidence which they gave which would indicate that any racial considerations entered into the selection of the Applicant. Consequently, we find that the Applicant’s claims fail.

9 We should mention that we come to this conclusion with some regret. The Applicant is clearly a person of high intelligence against whom no criticism could be advanced by the Respondents except possibly in respect of a failure to communicate with them from Nigeria, which is probably excusable. It is a matter of some regret to us that in these circumstances she should find herself redundant from a job which she was doing to everybody’s satisfaction. It is, however, unfortunate that changes in the way in which the Respondents carried out their work have left them in the position where they did not need the services of the Applicant and we cannot fault them in any way in respect of the decision which they took.”

“We therefore allow the appeal to proceed on ground 2 only of the amended Notice of Appeal and the further subsequent amendments which replace the old paragraphs 4 and 5 of the amended grounds.”

That sentence was reproduced in effect in the order of the First EAT of 24 November 1999. Thus although the judgment of the First EAT only expressly referred to the third sentence of ground 2, the order made did not limit that ground to that sentence.

“6 We note that the Extended Reasons do not contain the customary recital of facts found proved by the Tribunal. Neither do they disclose clearly what facts were found proved. In those areas where there was conflict of evidence, the Extended Reasons do not disclose which evidence was accepted and why. Furthermore, the Extended Reasons lack the customary quotations from the relevant parts of the statutes or statute to be applied. Perhaps because of that lack, coupled with the failure to recite the facts found proved, in our judgment the Employment Tribunal has fallen into error over the questions it should have asked itself with regard to the matters before it.

“If satisfied that a reasonably arguable point of law is established, the appeal tribunal will give appropriate directions …. to enable the appeal to proceed to a full hearing without unnecessary delay on all or only some of the grounds of appeal.”

That is the authority pursuant to which appeal tribunals in appropriate cases limit the grounds of appeal to those which raise reasonably arguable points of law. If the appellant is dissatisfied with the appeal tribunal’s decision so to limit the grounds of appeal, the appellant should seek to appeal the decision to this court.

“If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.”

“in the case of redundancy the employer will not normally act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by s. 57 (3) [Employment Protection (Consolidation) Act 1978] is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of s. 57 (3) this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under s. 57 (3) may be satisfied.”