Appeal No. UKEAT/0437/07/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
                                                                                                    On 28 January 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR P R A JACQUES CBE 
MR S YEBOAH

	
LOOK AHEAD HOUSING AND CARE LTD	APPELLANT

1)	MR S ODILI
2)	MR J MENDES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS BETSAN CRIDDLE
(of Counsel)
Instructed by:
Messrs Levenes 
Solicitors
Ashley House 
235-239 High Road 
Wood Green
LONDON
N22 8HF	
For the Respondents	MR S ODILI
MR J MENDES
(The Respondents in Person)

SUMMARY

Redundancy – Fairness
Unfair dismissal – Reason for dismissal including substantial other reason

Tribunal found that a dismissal for redundancy was in the circumstances unfair.  The procedure for selection was not one a reasonable employer could properly have adopted.  The employers appealed and the appeal was upheld.  The Tribunal had failed to consider whether a reasonable employer would have approached the matter as the employer did, and in effect substituted its own view for that of the employer. Case remitted to a fresh Tribunal for reconsideration.

  

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

Introduction
1.	This is an appeal by the employers, the respondents below, who contend that the conclusion of the Tribunal that the respondent employees had been unfairly dismissed was wrong in law. Claims of direct and indirect race and victimisation discrimination were also pursued by the claimants, but they were dismissed and have not been appealed.

2.	The claimants were both employed as housing officers by the company, a registered charity providing housing, care and support services. Mr Odili was employed from 17 August 2005 and Mr Mendes from 9 May 2005, and both were dismissed on 28 September 2006. 

3.	The respondent employers contended that the dismissal was by reason of redundancy or alternatively some other substantial reason within the meaning of section 98(2) of the Employment Rights Act 1996. They contended that housing officers were deleted in a re-organisation and they further submitted that the procedure they had adopted when determining who to retain was fair and complied with both the statutory and their own internal procedures.

4.	The claimants submitted that redundancy was not the real reason for the dismissal; that in any event the selection criteria for choosing who should remain were unfair; that the employers had failed to comply with their own procedures or the statutory procedures; and that they had not been offered suitable alternative employment. They contended, in fact, that the reason for their dismissal was race discrimination, but that was rejected.

The relevant law
5.	Redundancy is a prima facie fair reason for dismissal under section 98(2) of the 1996 Act. Section 98(4) provides that: 
“the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer)
(a) depends 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 sufficient reason for dismissing the employee, and
 (b) shall be determined in accordance with equity and the substantial merits of the case.”

6.	The fundamental approach to assessing fairness in the context of redundancy dismissals was established in the seminal case of Williams v Compair Maxam Ltd [1982] ICR 156.  In that case the Employment Appeal Tribunal (Browne Wilkinson P, as he then was, presiding) identified the standards expected of an employer when dismissing for redundancy.  These require that as much warning as possible of impending redundancies will be given; that there will be consultation with any recognised unions about the redundancy criteria and their application; that the criteria should as far as possible be capable of objective assessment; that the selection should be in accordance with the criteria; and that the employer should consider offering suitable alternative employment instead of dismissal.

7.	It is, however, trite law that the Tribunal must not put itself into the shoes of the employer and effectively exercise its own judgment as to who should have been made redundant or offered alternative employment.   As the EAT said in the Compair Maxam case itself, in a passage cited with approval by the Court of Appeal in British Aerospace v Green [1995] ICR 106,109E:
“It is not the function of the [employment] 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.”

8.	This principle sets a limit to the extent to which tribunals should scrutinise the application of the assessment criteria.  In Green itself, the Court emphasised, following the decision of the Scottish EAT in Eaton v King [1995] IRLR 75, that a Tribunal should, in most circumstances at least, limit itself to a consideration of whether in broad terms the selection criteria are fair and whether they have been fairly applied.  There should not be a detailed scrutiny of individual scores or assessments in order to find some flaw in the selection.  Waite LJ said this (p.1016G):
“The use of a marking system of the kind that was adopted in this case has become a well-recognised aid to any fair process of redundancy selection. By itself, of course, it does not render any selection automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, including the degree of consultation which accompanied it. One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and Tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis. That applies both at the stage when the system is being actually applied, and also at any later stage when its operation is being called into question before an industrial Tribunal.”

9.	Millett LJ made observations to similar effect (p.1019G):

“The question for the [employment] Tribunal, which must be determined separately for each applicant, is whether that applicant was unfairly dismissed, not whether some other employee could have been fairly dismissed….The tribunal is not entitled to embark upon a reassessment exercise. I would endorse the observations of the Employment Appeal Tribunal in Eaton Ltd v King and others [1995] IRLR 75 that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based.” 

The Facts.
10.	The company provide housing and care support services for more than three thousand people. Some have mental health problems; others have learning disabilities, and some have experienced homelessness and are being housed under the Government Rough Sleeping Initiative. There are about 30 residential facilities across London and the Home Counties, and some 570 people are employed. Approximately 370 of these are of an ethnic minority.

11.	As housing officers, the claimants had to provide basic housing services, including signing up tenants, rental accounting and monitoring and reporting maintenance issues. They also had to take formal legal action, if appropriate, to enforce payment of rent, and would take possession proceedings to secure evictions. 

12.	Although principally concerned with housing management, housing officers would also have to liaise with housing support officers and tenancy support officers. These were officers who were employed to give support to residents within the hostels operated by the respondents, and to the tenants of individual properties.

13.	The two claimants worked with two other housing officers, Mr Okyere and Mr Sheridan. All but Mr Sheridan were of African origin. Each was allocated a patch of properties to manage. The allocation of the patch was carried out by a line manager, Ms Black. Together with her deputy, Ms D Grimmet, they supervised the work of the housing officers.

14.	Both claimants had previous experience in housing management, Mr Odili for one year, and Mr Mendes for four. Each was a graduate.  Mr Mendes’ first language was Portuguese, but he also spoke Spanish and was fluent in English. Mr Odili’s first language was English.

15.	Each was employed initially on a six-month probationary period. They were told that appropriate training would be given and that there would be appraisals and performance feedback. In fact this did not happen, despite requests by Mr Odili to Ms Black. Eventually Mr Odili organised training for himself and other housing officers in aspects of possession actions and housing law. This was after he had been told by Ms Black that housing officers had to be responsible for conducting their own court hearing.

16.	Mr Sheridan had no previous experience or formal training in housing management and in early 2006 he had attended Bow County Court in six possession cases, and they were all struck out because of procedural defects.  

17.	Each claimant completed the probationary period successfully and received letters confirming this from the Human Resources Department. The company’s intention was to provide continued development performance monitoring and regular supervision, but the Tribunal found that this did not happen.

18.	Senior management became increasingly concerned at the level of rent arrears. Mr Ingram, Director of Operations, engaged the services of an external consultant to review the respondent’s structures and procedures, and to advise on measures which might be taken to maximise rental income collection, whilst maintaining the best possible quality of services to the residents.

19.	The recommendation, which was adopted by the company, was the creation of a dedicated rental enforcement function within the housing management team including, when necessary, the taking of legal action. Three income recovery posts were to replace the four posts of housing officers. These new officers would be focused on the legal enforcement of rent arrears and also would manage complex legal cases and deal with all court work.  They would be graded two grades above the housing officer allocated at Grade C. The other functions formerly carried out by the housing officers were to be transferred to the housing support and tenancy support officers.

20.	On 6 June 2006 Mr Ingram told the members of the team about the proposals for restructuring, including the deletion of housing officer functions. The four housing officers were asked to indicate for which post they wished to be considered in the new structure. They could also elect for voluntary redundancy.

21.	The claimants and Mr Sheridan each elected to be considered for appointment as income recovery officers, but Mr Okyere elected for voluntary redundancy.  (The claimants specifically stated that they did not wish to be considered for the housing or tenancy support roles.)  The company had designed an assessment test and interviews to determine who should take up the three income recovery posts. At that stage they were in fact ring-fenced to the claimants and Mr Sheridan. In other words, provided they were of the appropriate standard, they would secure the posts.

22.	These three persons attended the Selection Centre on 6 July 2006. They underwent verbal reasoning and numeracy tests, as well as being individually interviewed. The interviews were conducted by Ms Black and another manager in the Housing Department, Ms Mole, and the written tests were conducted by a member of the HR Department. 

23.	The verbal reasoning and numeracy tests were of a type commonly adopted by the respondents in their selection processes at the level of the income recovery officers. They were designed to test reasoning and numeracy competency against a group of comparator persons drawn from a variety of educational and experienced backgrounds, as well as different racial groups. It was expected that over the three selection criteria, a candidate would average a score of at least 60%. 

24.	The claimants did not achieve that target. In the written tests, Mr Odili averaged 54% and Mr Mendes 37%; in the interview Mr Odili averaged 48.3% and Mr Mendes the same; by contrast Mr Sheridan averaged 62% in the written tests and 73.3% in the interview. The claimants were duly informed that they had not met the standard required for the post of income recovery officer whereas Mr Sheridan was informed that he would be appointed.

25.	The claimants submitted a written grievance on 12 July 2006 in which they alleged “favouritism, bordering on racial discrimination in the management and restructuring of the housing management team”.

26.	Mr Lewis, Head of Homelessness, was appointed to investigate the grievance. Essentially it was that Ms Black had pre-determined the outcome and determined that they would not be housing officers and that Mr Sheridan would. 

27.	The claimants, together with their union representative, met Mr Lewis on 25 July 2006. They considered Ms Black to be biased against them and thought that an interview was inappropriate, strongly maintaining that the job of income recovery officer was essentially the same as the previous job as housing officer.

28.	After the meeting Mr Lewis interviewed Ms Black, Ms Mole and Mr Sheridan and others. Ms Black expressed her view that the claimants were struggling to get by as housing officers. She said she had informed Human Resources of this, but nothing had been done because of the imminent restructuring of the housing management team. She denied preferential treatment in Mr Sheridan, but admitted that she found Mr Odili difficult, but not Mr Mendes. She said Mr Odili had always been reluctant to attend court on his own.  She also emphasised that all candidates had been asked the same questions in interview.

29.	Ms Mole also denied preferential treatment of Mr Sheridan. Mr Sheridan thought the tests were fair and in his opinion the role of the new officer was quite different from the role of housing officer, but he did say that he “felt a little strange” being interviewed by his Line Manager. 

30.	Mr Lewis informed the claimants by letter dated 15 August that he was not upholding their grievance. He considered that the selection process had been carried out fairly and that, contrary to the claimants’ views, the role of income recovery officer was significantly different from that of housing officer, having regard to its more senior status and the greater responsibility and more specialist skills that would be required. He rejected the allegation of favouritism.

31.	The claimants met Mr Ingram and Ms Stocks, two other members of management, on 18 August 2006 for a final consultation meeting about redundancy. The claimants wished the issue of redundancy to be postponed pending their appeal against the grievance outcome. 

32.	By a letter dated 22 August 2006 the claimants appealed against the outcome of the grievance. They considered that performance had not been properly taken into account since there were no records of their performance. They contended that they had more experience of court work than what Mr Sheridan had, and they argued that the two jobs were not significantly different. They also considered that the interview process was such that it militated against persons from their background.

33.	Ms Stocks provided the claimants with their scores in the written tests and invited them to speak to Ms Mole for feedback on their interview. 

34.	On 4 September the claimants met Mr Hampson and Ms Stocks. Mr Hampson was Director of Strategy and Service Delivery, and he was to hear the appeal against the grievance. Mr Odili claimed that psychometric testing was biased against the claimants because of their background, but he acknowledged that he had had notice of the tests and interview and conceded that he may have been too complacent. He continued to argue that the written job descriptions did not show any significant difference between the role of an income recovery officer and housing officer. 

35.	By letter dated 13 September Mr Hampson told the claimants that their grievance appeals had not been successful. Mr Hampson also considered, as had Mr Lewis, that there were significant differences between the two roles; that the skills were not necessarily readily transferable; that Ms Black could not have influenced the selection outcome as alleged; and he rejected the contention that the written tests were unsuitable and were adopted to the detriment of the claimants. 

36.	The claimants’ employment was then terminated on 28 September.  Subsequently the company appointed an African male and a white female to the positions, after using the same selection criteria as had been adopted for the claimants.

The Tribunal’s decision
37.	The Tribunal concluded that there was a genuine redundancy situation and thus a potentially fair reason for dismissal. That involves a finding in this case that the work of the new job was of a different kind to the work as housing officer. However, they were critical of a number of features of the employer’s approach which they found rendered the dismissal unfair.  Their analysis was broadly as follows.    

38.	The Tribunal accepted that the adoption of the verbal communication and reasoning skills and the ability to interpret numerical data were justified, having regard to the independence and responsibility of the posts involved. The addition of an interview to elicit how they might respond in their new role was also justified. 

39.	However, the Tribunal considered that it was not enough to limit the relevant factors in this way.  They felt that there should have been much greater account taken of the claimants’ previous performance and experience as housing officers and their good records in this respect should have been weighed in the balance. 

40.	Had this been done, then the Tribunal concluded that in all probability their performance/experience would have been at least as satisfactorily as Mr Sheridan.  They explained their reasoning as follows: 
“6.6 	Having regard to the similarities between the roles of housing officer and income recovery officer and bearing in mind that the Respondents were carrying out a ‘ring-fence’ recruitment exercise pursuant to their redeployment procedures on redundancy/reorganisation, in order to have acted fairly and reasonably in considering whether the new role would be suitable alternative employment for the Claimants there should have been much greater account taken of the Claimants’ previous performance/experience as housing officers and their good records in this respect should have been weighed in the balance. Had this been done, in all probability it would have been discovered that their performance/experience was at least as good if not better than that of Mr Sheridan. Accordingly, by failing to focus on previous performance/experience the Claimants were denied an offer of the only suitable alternative employment which was available to them….
6.7		The fact that Mr Sheridan was able to make a successful transition from housing officer to income recovery officer is a good indication that, with appropriate training, the Claimants would have been equally successful….”

41.	The Tribunal therefore seem to have concluded that an assessment of past performance was necessary for two reasons. The first was the similarity between the jobs; the second was their finding that this is what the company’s own procedures required.  The Tribunal added that it was unfair to reject the claimants whilst accepting Mr Sheridan “purely on the slight difference in the result of the tests and the answers given at interview”. 

42.	The Tribunal recognised that there was in fact a lack of any objective information about the claimants’ performance as housing officers, and they were critical of that fact. There were no supervision reports or appraisals or performance development reviews. More specifically, there was no information about the claimants’ performances involving court work, which the Tribunal considered would have been an indicator as to their suitability for the posts of income recovery officer.  They assumed, however, that had the information been available it would have assisted the claimants. (We have in fact been shown today some evidence from the claimants which suggests that although they were in court relatively rarely dealing with possession actions, their performance was perfectly satisfactory when they were.)

43.	The Tribunal was also critical of the marking system adopted by the interviewers. They considered it was not sufficiently transparent. Also the interviewers did not score independently, but took an average for each question after discussion between themselves. The Tribunal had regard to the notes made by the interviewers and considered that the differences in the scores appeared to reflect the detail in the answers.  The Tribunal stated that in their view the differences in the answers, as gleaned from the notes, seemed to be marginal, and the marks given to the claimants were not justified when compared to those given to Mr Sheridan.

44.	Furthermore, the differences in the scores overall were only marginal and could not be a reasonable basis for rejecting the claimants whilst accepting Mr Sheridan. 

45.	The Tribunal then went on to reject the findings of race discrimination.

46.	In short, these procedural failings – the failure to have regard to the previous performance; the unsatisfactory way in which the interviewers made their assessments; the Tribunal’s view that the marks given in interview were unjust; and the fact that the differences between Mr Sheridan and the claimants were in their view only marginal-  all combined to render the dismissals unfair.  The jobs were not significantly different; an assessment of past performance would have assisted the claimants and when coupled with a proper assessment of their interviews would have shown that there was little difference between the candidates.  Any reasonable employer would have allowed the claimants to undergo training for the new posts.

The grounds of appeal
47.	Ms Criddle, counsel for the company, submitted that following the standard set down in the Williams v Compair Maxam case, and more particularly the Court of Appeal decision in British Aerospace v Green [1995] ICR 1006 these  criticisms were misplaced.  The question was whether the company had adopted a fair procedure when assessing these jobs and had applied it fairly.  On any proper consideration of what the employers actually did, and in particular given the Tribunal’s own acceptance that the verbal reasoning and numeracy tests coupled with an interview were proper methods for testing their suitability, the finding of unfair dismissal was an improper conclusion for the Tribunal to reach.

48.	First, there was plainly a distinction between the post of income recovery officer and housing officer, and indeed the Tribunal itself noted that a majority of the duties of housing officers would not be done by the new income recovery officers but would transfer to the housing support staff.  The fact that there was such a distinction was manifestly the view of the consultant who had proposed the reorganisation, and of the managers who heard the grievance and the grievance appeal.  This was an important element in this case. Yet the Tribunal made its own assessment that the jobs were sufficiently similar for past performance to be not just a relevant criterion, but potentially a highly significant one.  It was not for the tribunal to substitute for the employer its own assessment as to the nature and differences between the jobs. 

49.	The Tribunal were not therefore entitled to conclude that different or additional criteria should have been adopted, and in particular the performance in the previous job. The fact that the claimants may have performed better if wider criteria had been adopted was immaterial.  As to the contention that the company’s own procedures required these factors to be taken into account, that involved a misreading of the relevant job selection processes.  This was only a material factor for short listing; that was not an issue here since the claimants had been short listed.  It was not a binding consideration at the point when suitability was finally being tested.

50.	In any event, given that the duties as housing officers had only marginally resembled those of the new position, the ability to perform the former post was of no or at best only marginal significance, and was a factor which a reasonable employer was entitled to ignore.  This was the view of Mr Hampson when he rejected the grievance appeal.  It was a sustainable decision for an employer to reach.

51.	The Tribunal had fallen into the error of substituting its own views as to how the selection process should have been carried out for that of the employer. 

52.	Furthermore, the Tribunal’s observation that a different assessment method would have demonstrated that these claimants were in all probability superior to Mr Sheridan was plainly not warranted. There simply was no evidence put before the Tribunal about this, and they made no reference to any such evidence. Indeed, the most cogent evidence about performance would have had to come from the line Manager, Ms Black, but in her view they were not satisfactory housing officers.  Had this information been taken into account, it would no doubt have been said to be too subjective.

53.	 Moreover, to describe the differences in the test and interview results as “slight” is simply wrong, as the most cursory consideration of the scores demonstrates. There were significant differences in the results obtained.
 
54.	The claimants represented themselves before us.  In addition to their observations, we had the benefit of having written submissions made by their then lawyer in the course of the Preliminary Hearing.  

55.	 They submit that the finding of the Tribunal is justified. They have referred us to some documents which were apparently before the Tribunal and show that they both were successful in taking repossession actions to court - indeed, were more successful than Mr Sheridan had been. There was no great significance between the two jobs.  In effect, the new one was simply emphasising one aspect of their previous job.  The Tribunal was right to say that there was no basis for assuming that Mr Sheridan could do the job and they could not. 

56.	The Tribunal’s finding that there were no model answers to the questions posed by the interviewers was accurate; there were simply discussion between the two interviewers as to the  kind of responses they expected. 

57.	The Tribunal had regard to a range of factors which they were fully entitled to take into account.  It was not a fair criticism to say that they had substituted their view for that of the employers.  There was an evidential basis for the conclusion, the reasons were sufficiently detailed, and the decision could not conceivably be considered to be perverse.  

Conclusions
58.	In our judgment, it is important to recognise that in this case the issue turns on whether the employer acted reasonably in refusing to offer the alternative employment to the claimants. More precisely, could a reasonable employer have reasonably concluded that the two claimants were not suited to the new jobs of income recovery?

59.	The employers in this case did in fact request the employees to identify which, if any, jobs they wished to be considered for in the new regime. One of the housing officers accepted redundancy. Neither of these claimants wanted the job of housing support or tenancy support officers and it was, of course, their right to choose not to do those jobs. They wished to be considered for the income recovery post. 

60.	The employer’s own assessment – and it has not been suggested that this was not their genuine assessment – was that this new post was two grades higher than the housing officer post. Notwithstanding that, the employers ‘ring-fenced’ the three new posts for the two claimants and Mr Sheridan, but this was subject to their satisfying the company that they were of the appropriate standard. In determining that question, the company applied the same numeracy and language tests as they would for anyone seeking a post in that particular grade. They supplemented that with an interview. 

61.	These were plainly appropriate methods by which to seek to test the ability of these claimants to do the job, as the Tribunal properly accepted. Given the results, the company considered that the claimants were not suited to this work. They did not meet the requisite criteria of achieving an average of 60% on the tests imposed. 

62.	It is to be noted that they fell short of 60% in both the written tests and the interview. Indeed they both fell well short of the 60% mark. By contrast, Mr Sheridan did not. Again, it was accepted by the Tribunal, contrary to the arguments of the claimants, that the assessments were not biased against the claimants or made in bad faith; allegations that they operated in a racially-discriminatory way were expressly rejected by the Tribunal.

63.	Given these results, why did the Tribunal consider the claimants ought to have been offered these jobs? They were influenced by four particular factors. The first was that the employer ought to have had regard to another factor, namely past performance, when determining whether they were suited to this new post.   This seems to have been on two bases; first, because there was in the Tribunal’s view sufficient similarity in the jobs, and also because this was required by the employer’s own procedures.  

64.	Second, the Tribunal took the view that the interview process was too subjective; indeed, the Tribunal also considered the marking to be unsatisfactory. It could not discern from the notes precisely why the marks had been allocated in the way they had, and it felt that the differences in the marks did not reflect the differences in quality of the answers.
65.	Third, the Tribunal felt that had the proper range of criteria been taken into account, the claimants would in all probability have done equally well, and perhaps better than, Mr Sheridan.  The assumption here is that the evidence would have demonstrated that their performances were good, and indeed better than Mr Sheridan.  Accordingly, they ought to have been offered training for the new post. The Tribunal concluded that, with training, they could have carried out the tasks satisfactorily.

66.	In our judgment, the Tribunal here has in certain areas fallen foul of the injunction not to descend into the arena and carry out its own assessment of the candidates. It was for the employers to determine what criteria were appropriate unless they failed to take into consideration some criterion that a reasonable employer would have taken into account. We do not think that the Tribunal was entitled to find that the jobs were so similar that any reasonable employer would have had regard to past performance. The employers had clearly taken the view that these jobs were significantly different; hence the difference in their grades.  They were entitled thereafter to establish the criteria for determining suitability for the new job.  An employer is entitled to take the view that past performance is of marginal, if any, importance when determining the ability to do a job which in its view required substantially different skills.

 67.	We do accept, however, that a Tribunal could in principle properly conclude, as this Tribunal did, that it was not reasonable for the employer to take into consideration a factor which under their own procedures they were obliged to consider. We have looked at the procedures considered by the Tribunal in this case.  We find them somewhat cryptic, but on balance we think that absent any evidence about how they operated in practice, the Tribunal could reasonably conclude that in failing to have regard to the past performance, the company was in breach of those procedures.  It is not clear from the documents shown to us and the Tribunal that past performance was a factor which would weigh only at the short listing stage, as Ms Criddle submits.  Nor are we satisfied that this was the position which the company was actually adopting before the Tribunal.

68.	However, the Tribunal then had to consider what a reasonable employer would have done in the absence of any objective material to make the assessment. Even if it can be said that that is the employer’s own fault, when making the assessment they had to operate within the context in which they then found themselves.  The Tribunal assumed, without any proper evidential basis, that had this information been available it would necessarily have been to the claimants’ advantage.  We do not think that they were entitled to do that. In fact, had the company asked for an assessment from the line manager, which would have been a perfectly proper way of considering performance, it would in fact have operated to the detriment of these claimants.

69.	Second, we consider that the Tribunal became too embroiled in the interview process. That is always going to be to some extent a subjective exercise, but the evidence was that there had been a discussion beforehand about the questions to be posed and the kinds of answers that the employers were looking for.  In fact, the Tribunal were not simply critical of the lack of independent marking, but carried out their own assessment of how the marks ought to have been assessed.  In our judgment that clearly falls foul of the observations of Waite and Millett LJJ in the Green case.  Moreover, in this context, in our view they placed too much emphasis on the assessment of these two claimants compared with Mr Sheridan. It is important to remember that this was not a case where there was any sort of competition between them.  Had the claimants demonstrated their suitability, they would have been awarded the job whether or not Mr Sheridan was also appointed. 

70.	Essentially the same error is shown in the observation of the Tribunal that the two claimants were only marginally short of the marks obtained by Mr Sheridan.  That was not the central question with which the Tribunal was concerned.  In any event, we confess that we find the observation difficult to understand.  On the written tests alone there was a real difference. 

71.	Finally, we accept Ms Criddle’s submission that the Tribunal, in concluding that these claimants could have carried out the jobs satisfactorily with training, has substituted its view for that of the employer. The view of the employer was that in order to have the relevant ability to do the job, 60% was the average mark that should have been achieved in those tests. As the Tribunal rightly noted, training would have been necessary even had that standard been met, but both claimants fell well below that standard and it was the view of the employer that in those circumstances they would not be likely to obtain the requisite standard to be achieved even with training. It is not for the Tribunal to substitute its own view for that assessment.

72.	Accordingly, we are satisfied that this is one of those cases where in certain areas the Tribunal has gone beyond the legitimate function of reviewing the procedure adopted by the employer and has reached its own view as to the merits of the decision taken by the employer.  At the same time, some of their criticisms, and in particular their finding that the employers do not appear to have followed their own procedures, seem to us to have been justified on the basis of the material before them.  So this is a case where some criticisms of the employer are sustainable and some are not and involve errors of law by the Tribunal.

73.	We have considered whether we could properly conclude that, notwithstanding these errors, the decision would inevitably have been the same or alternatively, as Ms Criddle submits, the only proper decision is that the employers had acted within the area of discretion conferred on the reasonable employer so that we can confidently say that the dismissals were fair.  We do not think that we can confidently reach either of those conclusions.

Disposal.
74.	It follows that in our judgment the case has to be remitted to a fresh tribunal to reconsider the issue of unfair dismissal.  The finding that there was dismissal for redundancy must stand, since that has been determined without any appeal. The issue is solely whether the employers acted reasonably in all the circumstances in failing to offer the new posts of income recovery officers to the claimants.   The Tribunal will have to hear evidence and further argument on that matter.