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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Peers & 99 Ors v Liverpool City Council [1994] UKEAT 284_93_0411 (4 November 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/284_93_0411.html Cite as: [1994] UKEAT 284_93_0411, [1994] UKEAT 284_93_411 |
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MRS R CHAPMAN
MRS E HART
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR J BOWERS
(Of Counsel)
Messrs Jack Thornley
& Partners
Solicitors
8 Warrington Street
Ashton-Under-Lyne
OL6 6XP
For the Respondents MR G P BAXTER
(Of Counsel)
Mr J S Wardle
Legal Services Department
Liverpool City Council
Municipal Buildings
Dale Street
Liverpool
L69 2DH
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Liverpool at the end of October and in November 1992. The hearing lasted 10 days. It was between Mr Peers and other former employees of the Liverpool City Council, all drivers or bin men in the Refuse Disposal Section of the Liverpool City Council Street Cleansing Department. The names of all the Applicants are in an appendix attached to the decision.
The decision of the majority was that the Applicants were fairly dismissed for the reasons notified to the parties on 17 February 1993. The Applicants were disappointed at their lack of success in the Tribunal and appealed by Notice of Appeal dated 29 March 1993. The Appellants' case was instituted by Originating Application presented as long ago as 30 July 1991. We understand that all the applications instituted on that date were in the same or similar form. The complaint was of unfair dismissal due to what was described in the applications as "a point system".
The response of the Council, in a Notice of Appearance dated 9 October 1991, was that the dismissals were for redundancy. The defence of the Council was concisely stated as follows: that the Council was required to take a series of difficult decisions in order to produce a lawful budget for the financial year 1991/92 against the background of risks of charge-capping, and competitive tendering under the 1988 Local Government Act.
To operate a refuse collection system after 1 August 1991, the Council were required to have placed its refuse collection service out to tender. The in-house tender was unsuccessful. The Council made a contract on 26 June 1991 with an outside contractor, Onyx UK Ltd. As a result refuse collection posts in the Council were no longer required. The Applicants had been employed as refuse collectors or drivers. Forty refuse collectors were re-deployed as street cleansing operatives. In order to determine the compulsory selection of employees the Council approved points based on redundancy selection criteria relating to aspects of the employees' work, including length of service, ill-health, absences, lateness and disciplinary warnings.
The Council's case was that the criteria were fairly and objectively applied to all the staff in the employment group on the basis that those employees accumulating the greater number of points would be selected for redundancy. Mr Peers, the front runner among the complainants in the case, fell within that category. Forty employees accumulating the lowest number of points were transferred to the Street Cleansing Division.
The Council stated that all the employees made compulsorily redundant were offered the facility of personal interview at which their personal situation was to be explained and any queries about the basis of their selection would have to be dealt with. All the employees seeking redeployment in the Council were invited by letter to register with the Council Re-Deployment Unit in mid-April 1991. In July 1991 arrangements were made for employees under notice of redundancy to be interviewed by a team of personnel officers to encourage employees, who had not pursued particular vacancies, to identify posts in which they would be interested.
We have referred to those early stages of the proceedings in order to identify what the issues were that the Tribunal had to decide. That is important for this reason. When it came to the appeal the Appellants instructed different Counsel, Mr Bowers, in place of Counsel who appeared before the Industrial Tribunal. He settled a series of amendments to the Notice of Appeal re-served on 1 September. An application was made at the opening of the appeal for leave to make those amendments. Leave is, of course, required. The application was opposed by Mr Baxter, who appeared for the Council.
Some of the amendments presented no problem and we grant leave for them. They are clarification of the way in which the case is put on the appeal. In so far as the amendments fell into that category Mr Baxter was content for leave to be granted. He opposed, however, the inclusion in the Notice of Appeal of paragraph 6 (v) which reads as follows:
"The Industrial Tribunal erred in law in that it failed to decide that there was a transfer of undertaking between the Respondent and Onyx and that the dismissals were by reason of the transfer or for a reason connected therewith and were automatically unfair or in the alternative the same were for economic, technical or organisational reasons entailing changes in the workforce but were unfair".
The purpose of that amendment was to introduce into the case, for the first time, a claim of unfair dismissal not based on the alleged unfairness of the process of selection for redundancy, but based on the direct effect of the Acquired Rights Directive and the provisions of The Transfer of Undertakings Regulations 1981. The Counsel then instructed for the Appellants did not seek any amendment at the Industrial Tribunal hearing or seek any adjournment in which to make this amendment.
In support of the application for leave to amend, which we refused for reasons to be included in this judgment, Mr Bowers argued that the Tribunal should exercise its discretion to permit the transfer of undertakings point to be taken. He referred us to the case of McLaren v The National Coal Board [1987] ICR 410 at 416C where it was said by Sir Ralph Kilner-Browne, in the judgment of the Appeal Tribunal, that the Appeal Tribunal has always tended to follow not only the letter but the spirit of the well known passage in one of Lord Diplock's speeches at the House of Lords:
"....to the effect that in certain types of judicial process it is not right to shut out one of the parties from arguing something which does really go to the heart of the matter, and in which either through oversight or, as in this case, through no possible knowledge, the matter was never tested in a court below".
Mr Bowers submitted that the amendment should be permitted because of the uncertain state of the law on transfer of undertakings, particularly in relation to competitive tendering and contracting out, at the time when the case was argued before the Industrial Tribunal. He referred to a number of cases of the European Court of Justice and in the English Courts which would demonstrate that, on the facts found by the Tribunal a transfer of undertaking had taken place. He referred in particular to the decisions in Schmidt [1994] IRLR 302 and Rask v ISS Kantineservice A/S [1993] IRLR 133. There are also references in his skeleton argument to decisions in the National Courts in Kenny v South Manchester College [1993] IRLR 265, Wren & others v Eastbourne Borough Council and UK Waste Control Ltd [1993] IRLR 425 and Dines v (1) Initial Health Care Services Ltd (2) Pall Mall Services Group Ltd [1994] IRLR 336. His submission was that, when one examines the law on the interpretation and application of the Directive and the Regulations enunciated in those cases, and looks at the facts found in this case by the Industrial Tribunal, there was a transfer of an undertaking. If that was so, the dismissals are automatically unfair. He went on to submit that if there was any question arising of any defence, such as the technical economic or organisational defence under Regulation 8(2), it might be appropriate to remit the matter on that aspect of the case to the Industrial Tribunal.
Mr Bowers correctly described the state of development of the law on transfer of undertakings as "rapid" and emphasised the point that, at the time when these dismissals took place and these proceedings started, the law was not as well developed as it is now. He submitted that the absence of the transferee Onyx UK Ltd from the proceedings would prevent no obstacle. He accepted that it was now out of time to join Onyx in the proceedings, but there would be no obstacle because any liability arising would be joint. There would be no objection to the case being decided solely against the Liverpool City Council, the transferor.
In our view, it is too late to make these amendments. It is impossible to say that all the facts relevant to the transfer of undertakings are contained in this decision. The decisions referred to by Mr Bowers all emphasise that, whether, in any particular case, there is an undertaking within the meaning of the directive or the regulations, and whether it has been transferred can only be decided by looking at all the facts. Because the point was never raised before the Tribunal, the Tribunal did not look at all the facts relevant to the question of a transfer. They focused, rightly, on the issues which identified in the IT1 and the IT3, the question whether the selection for redundancy was unfair. That is a different exercise to determining whether an undertaking exists and has been transferred. If this were allowed to be raised now, of necessity all the proceedings would be remitted to the Industrial Tribunal.
Mr Bowers appeared to be willing to accept any possible costs implications in that course. But it is not simply a matter of costs. In our view, this goes to a fundamental matter of the jurisdiction of this Tribunal. This Tribunal only has jurisdiction to hear appeals on questions of law arising from the decision of the Industrial Tribunal under Section 136 of the Employment Protection (Consolidation) Act, an appeal lies to the Appeal Tribunal on a question of law arising from any decision of or arising in any proceedings before an Industrial Tribunal.
The Tribunal were never asked to make a decision on the transfer of undertakings. They were never asked to hear evidence or argument concerning transfer of undertakings. They made no error of law because the Tribunal were not asked to decide that point. If, there was an error (and it is not for us to say whether there was or not), it was not an error on the part of the Tribunal; it was an error on the part of those handling the case for the Appellants.
It would, in brief, not be just to allow this point to be raised for the first time at the stage of an appeal three years after the dismissals took place.
We will now go on to the substance of the appeal.
There was no disagreement between the parties about the applicable provisions in the 1978 Act and the relevant authorities relating to a claim of unfair selection for redundancy. The only section we need refer to is Section 57(3) of the 1978 Act, which, though familiar, bears repetition, having regard to the arguments we heard today.
"(3) Where the employer has fulfilled the requirements of subsection (1), then, [and I omit immaterial parts] the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case".
We were referred to the classic judgment of the Employment Appeal Tribunal given by Mr Justice Browne-Wilkinson in Williams and others v Compair Maxam Ltd [1982] IRLR 83. The relevant passages are on pages 86 and 87. The Tribunal on page 86 emphasised the jurisdictional question. If the error of law is alleged to be perversity in the Tribunal's decision, it is necessary for the Appellant to establish that no reasonable Tribunal, properly directing itself in law, could have reached the decision it did. It was emphasised that it is not enough that the appellate court would not have reached the same decision, and Mr Justice Browne-Wilkinson went on to say:
"Obviously the cases in which this Tribunal can intervene on the ground of perversity are few, and the approach enjoined by the Court of Appeal to the exercise by this Appeal Tribunal of its jurisdiction generally must apply with even greater force to appeals on the ground of perversity".
He went on to enquire whether the Tribunal had correctly directed itself in law and said in paragraph 18:
"For the purposes of the present case there are only two relevant principles of law arising from that subsection [and that is subsection 57(3)]. First, that 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. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the Tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the grounds of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy `as a sufficient reason for dismissing the employee', ie the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee for dismissal".
The judgment states that the question for decision is:
"....whether a reasonable Tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted".
That is the question for us on this appeal. The judgment then set out, in general terms, some principles which a properly instructed Industrial Tribunal would know, in current industrial practice, to be principles which a reasonable employer would be expected to adopt. Most of them have been referred to at some time during this hearing. It was said that:
"..... there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, [and that was the case here] reasonable employers will seek to act in accordance with the following principles:
"1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service,
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment."
It was added at the end of that list that:
"The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim".
The only other cases referred to deal with a more specific question of reliance on matters of attendance record criteria and absence. The two decisions are these. First, the case of Paine & Moore v Grundy (Teddington) Ltd [1981] IRLR 267 at 268 where Mr Justice May, giving the decision of the Tribunal, said this about attendance record criterion:
"In general terms, if employers are going to rely upon what we will describe briefly as an `attendance record criterion' in redundancy cases, we think that it is desirable that they should seek to ascertain the reasons for the absences which made up the attendance record of the particular employees concerned and, for instance, if an employee happens still to be absent at the time that the redundancies have to be put into effect, that they should try to find out when that employee is likely to return to work. We think that this is merely a particular application of the much more general principle of industrial relations that employers should do all that is reasonable to ensure that they have in their possession as full information as is reasonable about their employees and the relevant situation before coming to any decision, for instance, to dismiss them on the grounds of redundancy".
After citing a paragraph from the decision under appeal there May J., continued:
"We are not, however, saying, as Mr Field also argued, that absences of a particular employee which are due to industrial accidents sustained by those employees in the employment of the relevant employers are necessarily to be treated in any different way from other absences. It must be a question of fact in each particular case how these matters are to be dealt with".
Finally in paragraph 9 it was observed by the Appeal Tribunal:
"We think that the Industrial Tribunal themselves clearly had the desirability of knowing the reasons for such absences in mind. This is apparent from [certain paragraphs of the decision] where they set out the facts and circumstances of the respective absences of the four employees who fell into this particular sub-class of those selected for redundancy".
They added that:
"But nowhere do we think ...... that the Industrial Tribunal asked themselves the two questions which in our opinion they should have done in this particular case and in similar cases on like or similar facts, namely, first, ought the employers, when applying the attendance record criterion to [and then they name the employees] to have enquired of the reasons for their respective attendance records; and secondly, if the employers ought so to have done and had, in fact, done so, would this have made any difference to the ultimate result? In considering those questions, the Industrial Tribunal must of course remember that the onus throughout, on the enquiry under S.57(3) of the 1978 Act, rests upon the employers".
(That last statement may not any longer give a correct view of the onus under Section 57(3), but it does not affect the validity of the earlier passage).
Finally, Mr Baxter for the Council referred us to a decision in the Scottish Courts, Duly v Leyland Vehicles Ltd Reported in 1986 Sessions Cases. He referred us to a passage at page 277 in the opinion of the Court which says this:
"The method of selection refers to absence and is silent as to the reason for or cause of any absence".
That that should be so is understandable. The reason for any particular absence may not be clear. If it is disputed some enquiry will be necessary to determine what the reason for the absence was. In the context of selecting for redundancy, such an enquiry would not be practicable. Accordingly, it is understandable that all that has to be considered is absence, not the cause of the absence or reason for it. Whether or not the absence is due to fault on the part of the employee is neither here nor there. As is clear from the Industrial Tribunal's decision, what the Respondents wished to ensure, after the work force had been reduced, was that they had retained those men who could, and would, attend work on a regular basis. If an employee was regularly sick even though this was not due to his own fault, he might not be a person who could be relied upon to work regularly. Moreover, an individual employee might be absent on a number of occasions for a variety of reasons, some of which were his own fault, some of which were not. From the employers' point of view however, it would not matter if the absences were due to the employees fault or not.
The rival submissions must be considered not only against that undisputed statement of the legal position, but also against the reasons which the Tribunal gave for their conclusion on the facts found by them. The Tribunal set out the background as follows. The Applicants had all been employed as bin men or drivers in the Refuse Disposal Section of the Street Cleansing Department. That activity was lost to the Council on the contracting out after competitive tendering. Redundancies took place. The complaint of the Applicants was that the points system, on which selection was made, was unfair on various grounds. It discriminated against those who had suffered industrial injury, perhaps through the Council's own fault. The redundancy exercise was not satisfactorily conducted. It was not, as a result of the criteria applied, a fair and reasonable selection exercise.
A number of other complaints were made relating to withdrawal of notices. They are not relevant to this appeal. On those complaints the Tribunal found that the Local Government Act 1988 required the Council to engage in competitive tendering. There was a review of the city's refuse collection service by the district audit service through Dr Warburton. The Council realised they had to make economies to meet their legal obligation to achieve a balanced budget.
The decision went through the various stages by which the decision was reached to have redundancies. When it came to settling the criteria the Council went into the matter in considerable detail as set out in the decision. Mr Cowley, Senior Assistant Director of Personnel was given the difficult task of devising from scratch a system of selection applicable to the redundancies which were going to be made by the Council. The Tribunal described the process by which he did this, the various models that he looked at and the various options he considered.
The Tribunal found that Mr Cowley was particularly exercised by the question of short absences through sickness and injury. His attention had been drawn to this problem by the District Auditor. It was necessary, in order to be competitive, to reduce the time lost through absences. People who were absent on sick leave did not receive any bonus, but those absent through industrial injury did receive bonus. There was comparatively little absence on sick leave, but much absence by reason of industrial injury. Mr Cowley formed the view, along with others concerned to devise an effective method of procedure, that it would be wrong to disregard a person's record of absence through industrial injury. To do so would be a failure to address the particular problem of the Council, but Mr Cowley was aware of the danger of penalising absence through injury.
Mr Cowley made his report. That was considered by the relevant committee of the Council. The criteria set out in a second report made by Mr Cowley were approved on 4 March 1991 by the Council's Personnel and Equal Opportunities Policy Committee. It was recommended that they be adopted should the Council decide that many redundancies were necessary. The criteria set out in a document we have seen on page 35 of a supplementary bundle are listed. They were: length of service, attendance record, including absence and punctuality, disciplinary record and bonus record. It was later decided that the criterion of punctuality would not be applied to the Refuse Disposal employees because some of the lateness records had been lost and the criterion could thus not be universally applied.
It is important to bear in mind that it appeared from the evidence before the Tribunal that the redundancy selection criteria were intended by the Council to be, where possible, of general application to redundancy situations faced by the Council. The Council had a meeting on 10 March 1991. A resolution was passed that the Refuse Collection should from April 1991 be based on 45 rounds staffed by five persons and that the redundancies thereby resulting should be achieved by voluntary means. Another resolution was passed on 27 March enabling the Council compulsorily to dismiss people. There were a series of meetings between the Council and Trade Union representatives at which redundancies were discussed. The Unions were against compulsion and urged other forms of saving. Redundancy notices were sent out on 12 April but were later withdrawn. The tendering process, including a tender from the Cleaning Department, was set in motion. The in-house tender was not accepted. The contract was awarded to Onyx for refuse collection.
The Tribunal described the way in which the criteria for redundancy were applied and the penalty points system. It was explained that selection was according to length of service. The longest serving were redeployed. Those who were redeployed under this arrangement moved into new jobs without further anxiety. The remainder had to decide whether to leave immediately or stay and avail themselves of the redeployment machinery. In connection with the selection of the 39 there was controversy between the parties. There was a lot of evidence about the atmosphere of conflict and ill-feeling which occurred in this exercise.
The selection was made. On 21 June 1991 further redundancy notices were issued. Re-deployments were effected. A counselling machinery was put in place. During the Summer of 1991, a team of four people from the Personnel Department gave counselling to those selected for redundancy who wished to avail themselves of the service. The Tribunal heard evidence of how the redundancy situation had been explained to the persons made redundant. It was explained what criteria were adopted.
During the counselling interviews no employee was told what points he had been allotted on application of the criteria. The counselling sessions were conducted in accordance with guidelines set out. On 26 June 1991, one of the Trade Union representatives asked for details of the allocation of points. That was initially refused, but the information was later sent on 20 September 1991, which, as Mr Bowers pointed out, was after the dismissals had taken place.
The Tribunal found that some members of the Refuse Collection Department were employed by Onyx. That is not relevant to the points canvassed on this appeal. The Tribunal came to the crucial parts of the decision subject to criticism by Mr Bowers. The Tribunal said in paragraph 6:
"Each of the applicants was dismissed by reason of redundancy. The question for us in each case was: having regard to that reason, were the respondents reasonable or unreasonable, in treating it as sufficient to justify the applicants' dismissal. In answering we had regard to equity and the substantial merits of the case. We had regard to the respondents' size and administrative resources: the decisions made by the corporation of a big city fall to be adjudged against very high standards; their capacity to redeploy is fairly wide".
Those comments reflect the wording of Section 57(3) of the 1978 Act.
The Tribunal went on to say:
"We reminded ourselves that we must not substitute our judgment for that of the respondents: the question for us was not what we should have done in their place, but whether their action lay within the range of options reasonably open to them".
That passage has been criticised by Mr Bowers, but the wording reflects the wording of the Employment Appeal Tribunal judgment in the Compair Maxam case.
The decision went on:
"The respondents (we unanimously held) were reasonably entitled to select people for redeployment by reference to their results when measured against the redundancy criteria. The particular criteria applied were reasonable. It was unfortunate that some of the lateness records had been lost and that punctuality had to be abandoned as a criterion, thereby depriving punctual employees of an advantage; but that could not be helped".
They continued:
"The remaining criteria were ones which that the respondents could reasonably claim would, if carefully applied, protect their future needs and work no avoidable unfairness on the employees. And they had the advantage of being completely objective".
The Tribunal referred to the dispute about the application of absence record as a criterion. The unanimous decision of the Tribunal was that the Council was reasonably entitled to apply the absence record in the selection. They set out a discussion of their reasons for it, and dealt with the alleged potential unfairness in the application of an absence record as a criterion. They referred to the two ways in which an employer could reduce the danger of the application of the absence record. One was looking at the reasons for the absence of the people under consideration. The Tribunal thought that that was not practicable. There were a large number of people involved, a large number of absences and a period of two years to consider. There was also the difficulty of distinguishing genuine from questionable injuries.
There was another way: that the points system used to achieve comparative results should be so devised as to reduce the danger of unfairness. Distinctions might be made between single, once for all absences of substantial length, and a series of shorter absences. The points awarded and the final weight given to the absence record could be put in a proper subordination to the criteria as a whole.
On that question the Tribunal was divided. The majority thought that the application of the absence record was fair. The reasoning of the majority was that a reasonable employer is aware of the potential danger of applying an absence record as a criterion. Under the system adopted on Mr Cowley's recommendation deficit points were awarded to reflect the number of occasions when an employee was absent, as well as the number of days absence. The majority thought that an employer who understands the danger inherent in the application of this criterion must, in good faith, devise a way of applying it that may reasonably be regarded as engaging the problem. There must be some provision which substantially reflects the genuine attempt to reduce the danger of unfairness.
And they ask: what do we make of the system devised by Mr Cowley? The answer of the majority was that, if they had been in Mr Cowley's place, they might not have adopted the scoring system he devised. There was much to be said, they thought, for an alternative system known as "the Haringey System". But they heard Mr Cowley's evidence about the constraints he felt under on length of service. He felt it might distort the gender and ethnic position of the work force, since longer serving employees were more likely to be male and white. There was a need to procure certain qualities in the work force to meet the future. They said that the first constraint was one that Mr Cowley was entitled to feel bound by. It did not matter that there were no women and, so far as they knew, no significant number of black people in the Refuse Collection Department. Mr Cowley, they pointed out, was devising a procedure for permanent use in the Council's entire operation, not one for this particular activity. There was no sufficient reason for this to be treated differently. Their conclusion was that Mr Cowley was reasonably entitled to apply length of service as only one of many criteria. He was bound, if he applied it, to subordinate it reasonably, but it was not for the Tribunal to prescribe what weight it should carry in the process of selection. Precisely how important length of service was, and the absence record was and precisely how either should be subordinated in the points system was for the Council to decide. They said that Mr Cowley's system represented an attempt in good faith and with a reasonable measure of success, to address an intractable problem.
Where absence record is reasonably a criterion it would probably not be possible completely to eradicate the danger that long sickness or injury would adversely affect some employees' score; not at any rate without a scrutiny of records or canvassing of medical opinion and perhaps investigative enquiry. That was not practicable in a large redundancy exercise such as this. The kind of scrutiny that would be necessary would, in its result, detract from the thoroughly objective results achieved in this case.
The third member of the Tribunal did not agree with that part of the reasoning. He set out then his own reasoning. The Tribunal said that they did not think there was anything in the criticism of the redeployment exercise that it was insufficiently prepared in advance. They thought it was a genuine effort to identify suitable candidates for the vacancies that actually existed.
The Tribunal in the concluding paragraph, said that they were of the unanimous view that the Council's withholding of information about selection from the employees who attended the counselling selection was an unacceptable practice. Guidelines were set out. They did not think it was sufficient reason for any of the prohibitions contained in the guidelines, which related to information which the employees were entitled to have, and what disclosure was made was too late, being after the dismissals had taken effect. Notwithstanding those criticisms the Tribunal asked the question: what effect on the fairness of the dismissals did the unquestionable defect in the counselling have?
The unanimous answer was that it did not vitiate the dismissals. They decided that it was not enough, when placed in all the circumstances as a whole, to make the dismissals unfair. It was a defect in the preliminary stage of an otherwise impressive redeployment exercise. It did not turn the exercise of the dismissals from being on the whole fair into being unfair. The final comment was that the Tribunal thought that any shortcomings in the way that the Council prepared their bid pursuant to the competitive exercise did not affect the fairness of the ultimate selection for redundancy.
Six submissions were made by Mr Bowers. They all boiled down to misdirections by the Tribunal about the proper construction of Section 57(3) and the approach that that section requires to the question of fairness and reasonableness of selection for redundancy, or they related to perversity of the Tribunal's conclusions, or a mixture of both. We have not been persuaded that any of them reveals an error of law on the part of the Industrial Tribunal.
I will briefly state our views on each of his submissions. The first, all embracing submission, which if correct, would make it necessary to remit the whole case to the Industrial Tribunal for reconsideration, was that there was a fundamental misdirection by the Tribunal as to the approach to the question of the alleged unfairness for selection. In general terms Mr Bowers described the attitude of the Tribunal to the question of fairness and reasonableness as abstentionist, non-interventionist and not in accord with Section 57(3).
The Tribunal should have considered the objective fairness and reasonableness of the selection process and applied the principles of Compair Maxam. They had not done that. He pointed to various passages in the decision referring to the "good faith" of the Council and the "genuineness" of its efforts. That was not the correct approach. It is not a question of honesty or good faith or genuineness. It is a question of fairness and reasonableness of the selection. He pointed to passages which he said revealed that the Tribunal had so distanced itself from the proper approach that there was a misdirection. In particular, he said that the Tribunal had failed to look at the question of fairness and reasonableness on a case by case approach. It was necessary to look at individual cases and not look, as it appeared to do, at the fact that this was a large scale-redundancy of many individuals.
Although it was not for the Tribunal to make decisions as to what were the proper criteria or who were the particular individuals to select for redundancy, it was required under Section 57(3) that they look at the question whether the selection had been fair and reasonable in the sense set out in Compair Maxam.
We are unable to accept that criticism. It is true in this case, as it is in so many cases, that one can pick sentences here and there in the decision for criticism particularly a decision of some length. This decision, after such a long hearing, was bound to be long. The decision ran to 16 pages. It is possible to pick sentences here and there which might indicate that the Tribunal lost the way on the proper application of the statutory provisions and the guidelines in the authorities.
It is necessary to read the decision as a whole. Mr Bowers accepted that. We are satisfied from reading the decision as a whole, in particular reading paragraphs 6 and 7, that this Tribunal adopted the correct approach.
We come to the individual criticisms listed by Mr Bowers. First, the treatment of the absence criteria. He said that an employer does not act reasonably if he fails to look at the reasons why the employees were absent and referred to the passage in Paine and Grundy, already cited. He said that, as a matter of principle, the fact that an employer chooses to dismiss large numbers of employees at once does not diminish his obligation to consider the case of each employee on its merits. Similarly, the Industrial Tribunal must consider each case before it on its merits. He referred to a number of passages in the decision to show that the Tribunal had not given to the question of the attendance record criteria and absence the scrutiny required. He emphasised that, as the employees were not told what points they had scored, they were not given any opportunity to challenge the scores attributed to them. He made a general point on the construction of Section 57(3) emphasising that, on its correct construction, the Industrial Tribunal has to look at the facts of each individual case and assess whether it is a reasonable or fair decision looking only at the facts of each case. It was perverse of the Tribunal and a misconstruction of Section 57(3) for the Tribunal to take the position that it was a large-scale redundancy. That wrongly affected their conclusion on the case.
In our view, the Tribunal were entitled to take the view, in assessing whether the selection was fair and reasonable, that this was a large-scale redundancy. That is one of the circumstances, which is covered by Section 57(3). The Tribunal is required to look at all the circumstances and ask whether the employer acted reasonably or unreasonably and whether the dismissal was fair or unfair. It is not possible, in our view, on that wording to exclude from the circumstances of one individual, the facts relating to the overall redundancy situation affecting many others, as well as him.
Mr Bowers made a second point relating to the lateness records. His point was that it was included in the criterion listed and prepared by Mr Cowley and approved by Council as an item. It was not in fact applied, but the only reason it was not applied was because there were no records to enable the Council to apply it. The effect of the decision of the Tribunal, ("that this could not be helped") was to allow the Council to take advantage of its own wrong or negligence. That was contrary to principle. We do not agree with this criticism of the decision. We did not think there was any perversity or misdirection involved in this conclusion. The position is that the criteria were designed, so far as practicable, to be of general application to redundancy situations faced by the Council. They would have to be adapted to particular cases. If there were no records relating to lateness, the Tribunal could hardly be criticised for omitting that criterion. It could hardly be criticised, because, as laid down in Compair Maxam, the criteria must be capable of being objectively and reasonably applied. The lateness criterion could not, if there were no records. The fact that the Council had lost the records is not, in our view, a reason for finding that the conclusion of the Industrial Tribunal on that point is perverse.
The next matter related to the length of service. Mr Bowers submitted there was a misdirection under Section 57(3) and perversity in the conclusions. The position was that regard was had to length of service. That appears from the decision. We refer to paragraph 11C. It was one of many criterion. The Tribunal said that it was not for them to prescribe what weight it should carry in the process of selection. We see no perversity or misdirection in that conclusion. There was more substance in Mr Bowers's contention that the reasoning of Mr Cowley was open to criticism. The one reason he gave in relation to the application of service criteria in this department was that there was a constraint which would have the effect of distorting the gender or ethnic composition of the work force. Longer serving employees were more likely to be male and white. It was pointed out by Mr Bowers, as found by the Tribunal, that there were no women and no significant ethnic minority in the Refuse Collection Department. Mr Bowers submitted that, in order to be fair and reasonable, the criteria applied must be relevant. The reasoning given by Mr Cowley, for the treatment of length of service, could not be regarded as relevant to the situation in the Refuse Collection Department.
We do not see that there was any misdirection by the Industrial Tribunal under Section 57(3) and we do not see that the decision of the Tribunal on this was perverse. We bear in mind that what were produced by Mr Cowley were criteria intended to be of general application. There had to be some flexibility in the way that it was applied. The Tribunal was satisfied that the circumstances justified length of service as one of the criteria. The weight to be applied to it was a matter for the Council.
The final submission made by Mr Bowers was that a perverse decision was reached by the Industrial Tribunal in the context of its criticisms of the counselling procedure. I have already quoted those criticisms e.g., and the fact that during those interviews no employee was told what points he had been allotted on the application of the criteria. Those points were only disclosed after the dismissals had taken place.
It appears from the documents and the findings by the Tribunal that employees were informed of what the criteria were. It is not correct to say that they were kept in ignorance of the criteria applied. Mr Bowers' point was that it was a fundamental question of fairness that a person, before he is made redundant, should be told what points he has scored on the application of the criteria. Only if that is done is he in a position to correct mistakes. He criticised the decision in paragraph 15(b) that this did not render the dismissals unfair. It was simply a defect in a preliminary stage. He said it was not a preliminary stage. The defect occurred at the time when the employees should have been given their points i.e., before the dismissal. It was wrong for the Industrial Tribunal to have looked at the matter from the point of view of whether it would have made any difference to provide this information. He questioned not whether it would have made any difference. In matters of fairness the question is whether a fair procedure was actually adopted. The Tribunal in our view, reached a decision which they were entitled to reach. Their view was that the overall procedure for the selection for redundancy was fair and reasonable despite these criticisms. That was a decision which they were entitled to come to on the material before them. We could only interfere with it if we could say, with confidence, that it was perverse or was the result of a misdirection. We have already explained why there was no overall misdirection. We are unable to find any individual misdirection.
The position is that we see no question of law on the appeal on which the Tribunal have erred. We accept the submissions made by Mr Baxter on behalf of the Council. He provided a useful summary of the position. We intend no disrespect for him when we do not find it necessary to set out all the individual points that he has made. It is not necessary to do so because the substance of his individual points is to point to what the Tribunal said and to submit, as we accept, that there was evidence on which the Tribunal could reach the conclusions of fact. The Tribunal's decisions as to what was fair and reasonable on the particular points of attendance records, length of service, lateness, counselling are all matters which were within the realm of the Tribunal's remit under Section 57(3).
We are satisfied for all those reasons that there is no error of law in this decision. The appeal will be dismissed.