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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hailwood v. Best Power Technology Ltd [2000] EAT 1253_99_1301 (13 January 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/1253_99_1301.html Cite as: [2000] EAT 1253_99_1301

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APPEARANCES

 

For the Appellant	MR R MOORE (of Counsel) Messrs White & Bowker Solicitors 20 Brunswick Place Southampton SO15 2AQ


 


HIS HONOUR JUDGE SMITH QC

1. In respect of this application we are going to give a judgment in relation to the matter because on some considerable points we are going to allow the matter to proceed to a full hearing of appeal, but on other points, we are not going to allow the matter to be argued on a full appeal. That is why we think it right that we should make our position clear. It is an application by Mr Moore on behalf of Miss Hailwood for leave to proceed to a full hearing in an appeal against a unanimous decision of an Employment Tribunal held over 4 days at Southampton, of which extended reasons were sent to the parties on 18^th August 1999, whereby the Employment Tribunal held that the Applicant before us, Miss Hailwood, had not been unfairly dismissed by the Respondent and that she had not been discriminated against on the grounds of sex or disability.
2. We have reminded ourselves of course, that the Applicant before us only has to show an arguable ground of appeal to be given leave. There is no purpose to be served by examining the decision in detail at this stage because we have already said we are going to give leave to proceed to a full hearing of the appeal on a number of grounds. We think it helpful to refer to the various grounds relied upon by Mr Moore today by reference to the skeleton argument.
3. The first ground upon which he seeks leave to proceed to a full hearing of the appeal is on the basis that the Employment Tribunal reached a perverse decision on the evidence in front of it in relation to warning, i.e; whether there was a sufficient warning of the redundancy situation, resulting from the reorganisation of the Respondent's business. Now that, in our judgment, is not a ground which should proceed to a full hearing. In our judgment it is beyond doubt that there must have been evidence before the Tribunal which entitled it to conclude and to make that finding it did, that the Respondents were justified in not giving more warning than they did because the information relating to the reorganisation was commercially sensitive. The Employment Tribunal have made a finding of fact at the end of paragraph 4 (a) at page 8 of the bundle to this effect, namely that the Respondent regarded this information as being commercially sensitive and was concerned that if it leaked out in advance of the final decision being ratified, it could have a disastrous effect on the commercial viability on the Company. We are not persuaded here that this was something that the Employment Tribunal had plucked out of the air, so to speak, there must have been evidence before them to that effect and for that reason we are not prepared to allow that argument to go forward to a full hearing for those reasons.
4. We now turn on to the matter of consultation. Here we are satisfied as a result of the careful argument of Mr Moore based on his skeleton argument before us today, that there is an arguable ground of appeal to the effect that the Employment Tribunal did not correctly deal with the matter of consultation and accordingly we allow that matter to proceed to a full hearing of an appeal. It is open to argument whether the approach of the Employment Tribunal at page 20 at paragraph 9 (I) is a correct statement of the approach to the duty to consult. There are passages in that paragraph which may give rise to an argument that the Employment Tribunal has taken an erroneous approach. Just how strong that case is, remains to be seen. We say no more than that it is an arguable point, although we should emphasise that we take the view that there is great force in the Employment Tribunal's observation, that the managers of a business are entitled to manage their business and make the economical and commercial decisions which they think appropriate. Nevertheless, to the extent that the Employment Tribunal perhaps give the impression that it is proper for an employer to present a reorganisation as a fait accompli as distinct from consulting with the affected employees with regards to a proposed reorganisation, it may be that there is an arguable point that the approach is erroneous and accordingly we give leave in relation to that matter on that basis. Additionally we give leave with regard to the Employment Tribunal's conclusions with regard to whether the Respondent's approach to the selection process for redundancy was a reasonable one in all the circumstances. We accept here again that this is an arguable ground of appeal on the footing of course that, as Mr Moore rightly submitted, there normally have to be transparent, objective criteria known to everybody affected, that is to say including of course, crucially the employees concerned, as to what they are being judged upon, so to speak, in the selection process, whereas here, even on the Employment Tribunal's own description of the way the employers went about the matter, they adopted a novel approach and it is arguable that the findings of the Employment Tribunal in paragraphs 9(e) and 9(f), in particular at page 18, may disclose an erroneous approach to the question they had to decide with regard to the reasonableness of the selection criteria approach taken by the Respondents, so we give leave in relation to that matter. We also give leave in relation to what is described at paragraphs 4 and 5 of the skeleton argument as "4. Breach of natural justice, 5.Tribunal's misdirection concerning effect of breach of natural justice". This relates to the reasoning on its face set out by the Employment Tribunal at paragraph 9(h) at page 19 of the decision. Again, although the reasoning is, in our judgment, carefully expressed, the conclusion of the Employment Tribunal is to the effect that there had been a procedural defect, and a serious procedural defect, in the failure to give Miss Hailwood an opportunity to respond to particular matters which were given adverse consideration with regard to her selection. Despite that conclusion, the Tribunal then go on seemingly to hold that, as it would not have made any material difference to the result, then it does not turn an otherwise fair dismissal into an unfair one. In our judgment again it is arguable in the light of the rule in Polkey and the decision in Spinks , to which we were referred, that that was an erroneous approach, or may have been, and that is an arguable point for the hearing by the full Tribunal. With regards to those points of consultation, of the selection criteria, and of breach of natural justice, we also give leave for the notice of appeal to be amended in the form helpfully placed before us by Mr Moore, to take the Haddon point, as we describe it here in our judgment, in the light of the clear reference by the Employment Tribunal, in relation particularly to the selection process at their paragraph 9(f) , "there was nothing inherently improper or unfair about the practice adopted by the Respondent and, in the Tribunal's view, it falls within the bounds of that which might be undertaken by a reasonable employer acting reasonably in similar circumstances". In the light of that observation by the Employment Tribunal, in our judgment it is arguable that that is an erroneous approach to Section 98(4) in the light of the important recent decision in the case of Haddon, and we give leave to that matter also to be taken forward on appeal in the terms set out in the amended notice of appeal.
5. Further, we allow the point to be taken to full appeal as to whether the Employment Tribunal failed to make any or any sufficiently clear decision with regard to the submission that was made that Mrs Whitworth should have taken into account when she was assessing the Applicant's performance interview that she was pregnant and should arguably have consulted with her colleagues in relation to that matter and put them in the picture in relation to that matter. In our judgment it is arguable that the Employment Tribunal should have dealt specifically with that submission, and that they did not make clear in their decision why they were rejecting that submission and in that way fell foul of the well known decision in Meek –v- City of Birmingham District Council, and accordingly we give leave for that matter to proceed to a full hearing.
6. Finally, with regard to unfair dismissal, we allow the issue with regard to alternative employment to go forward to be argued on the full appeal, again on the basis that that was a finding that was not justified in any way by the evidence, in other words, that it was perverse for the Employment Tribunal to find that there was suitable alternative employment. We appreciate there that we are placing a burden on the Chairman to provide some notes of evidence, but that should be a matter within a short compass because it relates to a photocopying job in the marketing department and whether it was at all possible for the Appellant, having regard to her substantial disability, to ever be able to perform the duties required in relation to that post. So those are the matters we allow to go forward on the unfair dismissal appeal.
7. With regard to the sex discrimination appeal we reject the ground of appeal based upon the alleged perversity of the Employment Tribunal's conclusion that the other members of the interviewing panel, other than Mrs Whitworth, knew of the Appellant's pregnancy. We take the view that there are absolutely clear cut findings of fact here made by the Employment Tribunal based upon evidence given by the three individuals concerned, that they did not have that knowledge. The Employment Tribunal have clearly accepted their evidence, found them to be reliable witnesses in this regard and in our judgment the points sought to be put forward by way of criticism of that conclusion based on Mr Solloway's evidence are just not sufficiently strong to justify that matter being allowed to proceed to a full hearing. We note that the Employment Tribunal did refer to Mr Solloway's evidence having been given before them and in our judgment it is asking too much of a decision of an Employment Tribunal to subject it to such a close analysis as is required to get this point off the ground. We reject that point. Accordingly, with regard to sex discrimination, the only point upon which we allow the matter to proceed to a full hearing, is the matter that we have already dealt with relating to the arguable failure of the Employment Tribunal to deal with the submission made to it by Mr Moore to the effect that there was arguable discrimination on the part of Mrs Whitworth in failing to take account of the Appellant's pregnancy as being a possible reason for her lack-lustre performance in interview. It is just arguable that the Employment Tribunal failed adequately to give any sufficient reasons for rejecting that submission, so that goes forward on the same basis as that matter goes forward under the unfair dismissal heading. Mr Moore accepted that in the light of our conclusion relating to the fact that we do not allow the perversity argument on sex discrimination to go forward, that there is no remaining ground of appeal on the basis of disability discrimination, so that we believe we have made the position clear from this judgment as to the matters upon which we do allow this appeal to proceed to a full hearing and those which we do not allow proceed to a full hearing.
8. In both cases the notes of evidence relating solely to the offer of alternative employment, are the only notes that are to be required from the Chairman. This matter should be listed for ( day, category C, bundle of documents must be agreed and there should be exchange of skeleton arguments and lists of authorities. An amended notice of appeal must be served in proper form.