Dabson v David Cover & Sons Ltd (Unfair Dismissal : Reasonableness of dismissal) [2011] UKEAT 0374_10

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dabson v David Cover & Sons Ltd (Unfair Dismissal : Reasonableness of dismissal) [2011] UKEAT 0374_10_0905 (9 May 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0374_10_0905.html Cite as: [2011] UKEAT 0374_10_0905, [2011] UKEAT 374_10_905

HIS HONOUR JUDGE SEROTA QC

1. This is an appeal by the Claimant from a decision of the Employment Tribunal at Southampton sent to the parties on 20 April 2010. The Employment Tribunal was presided over by Employment Judge Coles, who sat with lay members.

2. The Employment Tribunal dismissed the Claimant’s claim for unfair dismissal. The appeal was referred to a full hearing on the “sift” by Wilkie J on 19 July 2010. On 29 October 2010 the Registrar requested Employment Judge Coles to produce a brief note of the evidence of Mr Henry Green in relation to the question as to whether he had admitted that he had given an inaccurate score to the Claimant in respect of the scoring process in a redundancy selection procedure. The request from the Registrar does not appear to have been placed before Employment Judge Coles until 6 January 2011 and the Employment Judge replied on the same day.

Factual Background

3. We take this largely from the decision of the Employment Tribunal.

4. The Claimant was employed as the Respondent’s Transport Manager, having worked his way up from a yard boy when he joined the Respondent in 1981.

5. The Respondent was a family-owned transport business and, at the relevant time, employed approximately 450 employees over 12 depots.

6. In 2006, the Claimant was working as Transport Manager at Cooksbridge. A Mr Dickens was also employed as Transport Manager and both the Claimant and Mr Dickens had to apply for the post. Mr Dickens was appointed but, subsequently, became ill and the Claimant was appointed to the post. He was assisted by Ms Watts.

7. There were differences of opinion between the Claimant and senior management about working in an open-plan office. The Claimant maintained this affected the attitude towards him of the Depot Manager, Mr Taylor.

8. On 12 February 2009 the Respondent announced that redundancies would have to occur. It announced that 80 employees were at risk and some 22 of these would have to be let go.

9. The Respondent was obliged to enter into collective consultations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

10. There was no recognised trade union at the Respondent, which was therefore required to make arrangements for the election of employee representatives. The group at risk (which included the Claimant) was invited to nominate representatives. No nominations were forthcoming, save for Mr Taylor. He was accordingly “appointed” by the Respondent as the employee representative.

11. It was a significant part of the Claimant’s case that the Respondent was thereby in breach of its obligations under section 188 because, if a valid election of employee representatives could not, for some reason, take place the requirement to consult and provide information was required to take place with each affected employee, pursuant to section 188 (7A). The Employment Tribunal found this did not occur but, instead, the Respondent relied on treating Mr Taylor as a validly-appointed employee representative. The matters that were discussed with Mr Taylor included discussions for the reasons of the redundancies, the numbers involved and especially the criteria and proposed method involved in the selection process.

12. The Respondent’s proposals included redistributing the work carried out by the Operations Manager (Mr Taylor), the Transport Manager (the Claimant) and the Transport Assistant (Ms Watts) and to remove one post with the duties to be redistributed between a transport manager and a transport assistant. There was, accordingly, a pool of three, together with the Commercial Manager, Mr Byrne.

13. Mr Taylor obtained the highest scores in the competition for Transport Manager and he was called upon to mark the scores for the post of Transport Administrator, of which he was not a candidate. The Claimant maintained that the past friction between them meant that he might mark the Claimant down unfairly. The Claimant and Ms Watts, the two candidates for the post of Transport Administrator, were marked by Mr Taylor and moderated by the Director, Mr Henry Green. He, in fact, increased the Claimant’s scores when moderating Mr Taylor’s marking but the Claimant, nevertheless, ended with 21 marks as against Ms Watts’ 22.

14. The Claimant, in the competition for the more senior Transport Manager post, had been awarded two marks out of a possible two under the heading, “Ability to plan routes”. However, in the competition for Transport Manager, he had been awarded one out of two for, “Ability to assist with route planning”. Before the Employment Tribunal the Claimant argued with some vigour that the skills required for the, “Ability to assist with route planning” and, “Ability to plan routes” were identical and it was thus wholly illogical to mark the Claimant lower for the same skills required for the lesser post than he had achieved in the competition for the more senior post.

15. The Claimant was selected for redundancy. At the time, there was no challenge or appeal but three months later he saw the Respondent was advertising for his old post as Transport Manager and he, therefore, began to suspect that he had been forced out of his job by Mr Taylor.

16. The proceedings were commenced out of time and he maintained it was not reasonably practicable for him to present a complaint within three months and his time was extended.

17. It is apparent that the Respondent consulted and provided the appropriate information to Mr Taylor who, presumably, will have discussed this with those potentially affected by redundancy. Certainly, no suggestion has been made to the contrary.

18. Although a provisional decision had been made after the marking exercise that the Claimant would be made redundant, two consultation meetings were held with him before the final decision was made.

The Decision of the Employment Tribunal

19. The Employment Tribunal set out the facts as we have briefly summarised them above. It directed itself by reference to the classic case on fairness of dismissal for redundancy, Williams v Compair Maxam [1982] ICR 156, to which we will refer in due course.

20. The Employment Tribunal (at paragraph 25) expressed itself to be satisfied that the reorganisation undertaken by the Respondent:

“Was genuinely implemented in the honest belief that it was the sensible way forward in order to achieve efficiencies and cost savings and that, for whatever reason, within a relatively short period of time it had been genuinely acknowledged that the scheme was not working and that it was commercially sensible to revert back to the original arrangement of having a Transport Manager. In other words, the Tribunal was satisfied that the decisions made by the management in relation to this matter were for genuine commercial operational reasons.”

21. The Claimant argued that, as the Respondent had not complied with the requirements of section 188 in relation to the election of employee representatives, it was required to consult individually with employees, including the Claimant, with regard to the matters required to be the subject of consultation in section 188. The Employment Tribunal made clear that it was not dealing with a claim under section 189 of the 1992 Act alleging a breach of section 188, nor was it a claim for a protective award. Accordingly, it was neither necessary nor appropriate for the Tribunal to consider whether the Respondent had or had not complied with its obligations under section 188. The Tribunal:

“Was solely concerned with whether the Respondent had acted fairly within the meaning of the provisions of section 98(4) of the 1996 Act.”

22. The Employment Tribunal then went on, at paragraph 28, to say this:

“This conclusion by the Tribunal meant that the Respondent was not (for the purposes of this claim) obliged to consult directly with the Claimant regarding the matter set out in section 188, since it genuinely believed that this had been covered by consultation and agreement with employee representatives.”

23. The Employment Tribunal noted that the final meeting with the Claimant had taken place on 17 March 2009 but he concluded that this was, “In reality, a second consultation meeting”. The fact that the Claimant was dismissed at the end of the meeting would have been contrary to the dismissal and disciplinary procedures in force but those had, of course, been disapplied in cases where the dismissal was one of a number of dismissals in respect of which the duty under section 188 of the 1992 applied; see regulation 4(1)(b) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

24. Paragraph 30 of the decision is in these terms

“Having concluded that the preliminary general issues had been covered in the collective negotiations with employee representatives, the Tribunal was satisfied on the evidence that the Respondent did in fact consult with the Claimant adequately in relation to those matters which it was obliged to consult with him about. The fact that management had gone through the scoring exercise before consultation meetings took place does not, in the Tribunal’s judgment, render the consultation ineffective since the selection of the Claimant was specifically stated to be ‘provisional’ and subject to further consultation. It must be remembered that, in relation to the criticism of the scoring of the Claimant by Mr Taylor, this was subject to moderation by Mr H Green and, indeed, the scores were adjusted upwards in a number of instances.”

25. The Employment Tribunal went on to find there was no evidence Mr Taylor had deliberately under-scored the Claimant out of an improper motive. The scores had been moderated by Mr Green who, the Employment Tribunal was satisfied:

“Genuinely believed that the ultimate scores awarded to the Claimant were fair, reasonable and appropriate, resulting in confirmation of the selection of the Claimant for redundancy. It is not for this Tribunal to seek to ‘rescore’ the Claimant.”

26. Although the Employment Tribunal expressed sympathy with the Claimant it concluded that the decision to dismiss him was within the reasonable range of responses from a reasonable employer and, accordingly, dismissed his claim.

The Notice of Appeal and Submissions by the Claimant

27. Mr Gray-Jones submitted that the Employment Tribunal was wrong in law, or perverse, in finding that the Claimant had been fairly selected for redundancy and in finding that there had been adequate consultation. He further submitted that the Employment Tribunal had failed to deal adequately with the Claimant’s submissions; the Claimant had been unfairly selected for redundancy and the failure to conduct an appropriate consultation also rendered the dismissal unfair. The reasoning of the Employment Tribunal was said to be deficient in that it did not adequately tell the Claimant why he had failed and why the Respondent had been successful; see Meek v City of Birmingham District Council [1987] IRLR 250.

28. On the consultation issue Mr Gray-Jones raised two points: (a) the Employment Tribunal had ignored the need for individual consultation (b) the Employment Tribunal had given inadequate reasons for finding there was no need for there to be individual consultation.

29. Although it was accepted that the Employment Tribunal had directed itself correctly by reference to Williams v Compair Maxam, it was submitted that the Employment Tribunal’s decision on the law was very brief and that it had overlooked or ignored the breach of section 188 of the 1992 Act which was relevant to the overall fairness of the dismissal. The Employment Tribunal was wrong to consider that the consultation exercise had been sufficient to render the decision fair within the meaning of section 98(4) of the Employment Rights Act. There was an absence of individual consultation. Mr Gray-Jones drew attention to a number of authorities including Mugford v Midland Bank plc [1997] IRLR 208 and Alstom Traction Limited v Birkenhead and Ors UKEAT/1131/00. The Employment Tribunal should have looked at the overall picture, including giving full consideration to the failure to comply with section 188, including the absence of fair individual consultation.

30. Mr Gray-Jones accepted that the Employment Tribunal should not substitute its views for those of the employer nor seek to set too high a standard when assessing the fairness of a dismissal for redundancy. Further, it was conceded, if the selection criteria were fair and applied reasonably, the dismissal would not be unfair. In this case, it was asserted the Employment Tribunal was wrong to find that the selection for dismissal was fair.

31. A number of points were raised about selection generally but two, in particular, in relation to the scoring. It was submitted that there was an illogicality or perversity or a, “Fatal inconsistency in the marking” in awarding the Claimant two points for, “Ability to plan routes” in the competition for the senior position of Transport Manager but awarding him one point (amended on moderation to 1½ points out of 2) for, “Ability to assist with route planning” for the more junior role of Transport Administrator. It was then said that Mr Green had admitted that his scoring of the Claimant had been wrong when he moderated the marks. In those circumstances, as the correct score would have given the Claimant equal marks with the successful candidate, the Employment Tribunal was bound to find the dismissal was unfair; alternatively, it was submitted the Employment Tribunal had failed to deal with the Claimant’s submissions. It was submitted to us that the Employment Judge’s note showed that Mr Green had admitted making a mistake; during the course of submissions we indicated that we did not read his note in that way. It was then suggested that the Claimant’s counsel’s note should be preferred; this is not a submission with which we could possibly agree.

32. The Claimant also sought to argue a point, not explicitly raised on the Notice of Appeal, that the Employment Tribunal was wrong to find that the Respondent’s “genuine belief” was in any way relevant to the fairness of the selection process, including consultation. Mr Gray-Jones submitted that this submission simply fleshed out the allegation that there was an error of law, so he did not need to amend. Alternatively, if he did need to amend, it was a neat and discrete point, no prejudice had been caused to the Respondent, which had had his skeleton argument for a week and was able to deal with the point.

The Respondent’s Submissions

33. Ms Ling dealt firstly with issues of scoring and selection. She submitted that the marking was not inaccurate and that Mr Green had not admitted having made a mistake but, even if he had, it would not have rendered the dismissal unfair. The most that could be said was that, with the benefit of hindsight, Mr Green might have considered awarding a higher mark but that was not to say that he accepted he was wrong and it certainly did not amount to a demonstrable error on his part.

34. She reminded us that, in the absence of exceptional circumstances such as bias or demonstrable inaccuracy, employment tribunals should not consider scores given in a redundancy exercise; they were entitled, on the other hand, to consider the manner in which the scores were given. In the present case, there was no criticism of the selection criteria.

35. Ms Ling went on to submit that the criteria for the roles of Transport Manager and Transport Assistant were different; she drew our attention to Mr Green’s witness statement, at page 65 paragraph 25, and the note of the meeting, at page 118. In her submission, it was plainly within the range of reasonable responses for the Respondent to find that a senior manager required less skills than might be required by a junior employee in his role as a junior employee.

36. On the failure to consult and the general issue of fairness, we were referred to Hammonds LLP & Ors v Mwitta UKEAT/0026/10/ZT, a recent decision of the Employment Appeal Tribunal presided over by Mrs Justice Slade. In the present case, the Employment Tribunal, having directed itself correctly, found that the consultation process was fair. We were also referred to Mugford v Midland Bank plc [1997] IRLR 208 as authority for the proposition that the decision whether consultation was or was not adequate was a matter for the Employment Tribunal. In the present case, the Employment Tribunal found there was no need to consult individually. The reasoning of the Employment Tribunal at paragraphs 27 and 28 that the Respondent was not obliged to consult directly with the Claimant regarding the matters set out in section 188 was described as “impeccable” and we were taken by Ms Ling through the judgment in detail to support her submission that all relevant matters were taken into account by the Employment Tribunal. Accordingly, she submitted, the Employment Tribunal arrived at its conclusion having set out the correct test. It was entitled to conclude there was no need for further consultation on section 188 matters and that finding was correct. The Employment Tribunal was entitled to conclude that, having discussed section 188 matters with the informal representative, they were not obliged to discuss them further with individual employees. The failure to comply with section 188 and its significance was a question of fact and the failure to comply with it was not fatal to the Respondent’s case.

37. In relation to adequate consultation with individuals selected for redundancy, it was conceded that such consultations were required to take place. The matter is dealt with; it was submitted at paragraph 30 and wrapped up at paragraph 32. It was appropriate for the Employment Tribunal to deal with the matter as it did because the Claimant’s complaint was not that there had been inadequate consultation in the two meetings but, rather, that those meetings were held after the decision to dismiss was made; this was the point addressed by the Employment Tribunal at paragraph 30 where it found that the decision to dismiss was only provisional at the time these meetings were held.

38. The Claimant made no complaint about the content of the meetings rather than their timing, which made them dismissal rather than consultation meetings, a submission rejected by the Employment Tribunal.

39. The reasons, it was submitted, were adequate and Meek-compliant.

40. In response to the point raised by Mr Gray-Jones as to the relevance of a “genuine belief”, Ms Ling opposed an amendment; there was no explanation for the delay in taking the point but, in any event, it was a bad one.

41. The point was not argued in the Notice of Appeal and the reference to “genuine belief” was relevant to the question of bias, or inappropriate determination, to get rid of a particular individual. The lack of a genuine belief might lead the Employment Tribunal to find there had been unfairness because the selection criteria had not been appropriately applied. There was sufficient reasoning in the judgment to show that the Employment Tribunal had in mind, and answered, the question as to whether selection criteria had been applied fairly. Genuine belief was not a substitute for the test under section 98(4). The Employment Tribunal had set out section 98(4) so it should be assumed that they had applied it.

The Law

42. In the circumstances of this case, it is very important that we remind ourselves of the principles that must be applied when an appeal court considers an appeal from a decision of a specialist tribunal, such as an employment tribunal. We start by reminding ourselves of the function of the appeal court, in this case the Employment Appeal Tribunal. I refer to the important judgment of Sir John Dyson in MA (Somalia) v Home Secretary [2010] UKSC 49:

“Before we examine these two criticisms, we need to make some general points about the proper role of the Court of Appeal in relation to appeals from specialist tribunals to it on the grounds of error of law. Although this is not virgin territory, the present case illustrates the need to reinforce what has been said on other occasions. The court should always bear in mind the remarks of Baroness Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678 at para 30:

‘This is an expert Tribunal charged with administering a complex area of law in challenging circumstances….[T]he ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the Tribunal will have got it right….They and they alone are judges of the facts…Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.’”

43. Sir John Dyson went on to stress that the role of the court was to correct errors of law which would include cases where the Tribunal has misinterpreted the law or has misdirected itself by, for example, propounding the wrong test on some legal question, such as the burden or standard of proof, or committed a procedural impropriety such as breach of the rules of natural justice and “the familiar errors” of omitting a relevant factor or taking into account an irrelevant factor or reaching a conclusion on the facts which was irrational. He continued:

“However the Court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the Tribunal's assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account. ... It is often easy enough to find some ambiguity or obscurity in a judgment or determination, particularly in a field as difficult and complex as immigration, where the facts may be difficult to unravel and the law difficult to apply. If, as occurred in this case, a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms. All the more so where the effect of the failure to apply the direction is that the tribunal will be found to have done precisely the opposite of what it said it was going to do.”

44. It seems to us that these principles apply equally in cases of appeals from the Employment Tribunal to the Employment Appeal Tribunal, which has no jurisdiction to hear appeals on issues of fact decided by an Employment Tribunal. The matter was well put by Elias J in ASLEF v Brady [2006] IRLR 576 at paragraph 55:

“The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.”

45. We need to have in mind section 98 of the Employment Rights Act 1996:

“98. General

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it—

....

(4) [In any other case where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason 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 a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

46. We now turn to consider the law insofar as it relates to unfair selection for redundancy. We start by setting out section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992:

“188 Duty of employer to consultant representativesE

(1)Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.

(1A)The consultation shall begin in good time and in any event—

(a)where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and

(b)otherwise, at least 30 days,

before the first of the dismissals takes effect.

(4)For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives—

(a)the reasons for his proposals,

(b)the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

(c)the total number of employees of any such description employed by the employer at the establishment in question,

(d)the proposed method of selecting the employees who may be dismissed,

(e)the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect.

(f)the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed..”

47. The employer must make arrangements for employees to elect a representative. In the present case they did not do so and appointed, with the consent of the workforce, Mr Taylor to act as employee representative. In those circumstances, section 188(7B) applied:

“(7B)If, after the employer has invited affected employees to elect representatives, the affected employees fail to do so within a reasonable time, he shall give to each affected employee the information set out in subsection (4).

(8)This section does not confer any rights on a trade union, a representative or an employee except as provided by sections 189 to 192 below.”

48. It is important to stress that the rights set out in section 189 are confined to the appropriate declaration and a protective award and do not give rise to any further claim for compensation. The classic statement of the principles required for there to be a fair selection for redundancy are still to be found in the case of Williams v Compair Maxam. It is perhaps instructive to note that, at a time when it is suggested that the Employment Appeal Tribunal should sit without lay members, the Employment Appeal Tribunal, presided over by Sir Nicholas Browne-Wilkinson, drew heavily on the industrial experience of lay members:

“It is accordingly necessary to try to set down in very general terms what a properly instructed industrial tribunal would know to be the principles which, in current industrial practice a reasonable employer would be expected to adopt. This is not a matter on which the chairman of this appeal tribunal feels that he can contribute much, since it depends on what industrial practices are currently accepted as being normal and proper. The two lay members of this appeal tribunal hold the view that it would be impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances: the fair conduct of dismissals for redundancy must depend on the circumstances of each case. But in their experience, 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, 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.

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 Employment Appeal Tribunal held that what is now s188 showed the approach by Parliament to the correct handling of redundancies which would include there being early warning, consultation with the Trade Union [where there is one], and a pre-ordained basis of selection for redundancy. Browne-Wilkinson J also observed that it reflected the view that departure from any of the principles referred to earlier, is only justifiable in special circumstances.

49. Williams V Compair Maxam concerned a workplace where there was a trade union but it was held in Freud v Bentalls [1982] IRLR 443 that the same principles would apply to a workplace where there was no trade union. The essential matter to be determined where the employee’s only complaint is of unfair selection for redundancy, and no other complaints are made, is that the method of selection was fair in general terms and that it was applied reasonably in the case of [that employee] (from the headnote in Buchanan v Tilcon Ltd [1983] IRLR 417 per Lord Emslie, Lord President in the First Division, cited by His Honour Judge McMullen QC in Inchcape Retail Ltd v Symonds [2009] EAT/0316/09).

50. The EAT and the courts have considered on a number of occasions the principles that pertain to the investigation of marking and scores in a redundancy exercise and have made clear that close scrutiny is inappropriate. What is in issue is the question of fairness of the selection procedure and marking should only be investigated where there are exceptional circumstances such as bias or obvious mistake; see Eaton v King [1995] IRLR 75 (Employment Appeal Tribunal (Scotland)) subsequently upheld by the Court of Session. Lord Coulsfield observed at paragraph 11 that:

“every redundancy situation is one of distress for employees who are affected; and every redundancy situation is one in which hard decisions have to be made. It is, however, essential to remember that what is required of the employer is that he should act reasonably”

51. Further guidance is to be found in the judgment of Waite LJ in British Aerospace plc v Green [1995] IRLR 433 at paragraph 13:

“13. 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. To allow otherwise would involve a serious risk that the system itself would lose the respect with which it is at present regarded on both sides of industry, and that tribunal hearings would become hopelessly protracted.”

52. The judgment of Lord Johnston in relation to the issue of fair consultation in John Brown Engineering v Brown Ltd [1997] IRLR 90 is frequently cited. He started by referring to the judgment of Glidewell LJ in R v British Coal Corporation, ex Parte Price and Ors QBD ([1994] IRLR 72 on a case decided in a trade union context:

“In approaching the whole issue of consultation in the context of redundancy, we would adopt what Glidewell LJ stated in R v British Coal Corporation and Secretary of State for Trade & Industry ex parte Price and others [1994] IRLR 72 at p.75:

'Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(d) conscientious consideration by an authority of a response to consultation.

Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely.’”

53. He went on to make clear that:

“that passage does not suggest that individual consultation is an essential, and confirms to our mind that in each case what is required is a fair process, where an opportunity to contest the selection of each individual is available to the individual employee, who can nevertheless achieve that opportunity through his trade union. Lack of consultation implies a loss of opportunity, not that the opportunity if given would have made necessarily any difference. Obviously individual consultation is the easiest way to assert even-handedness on the part of an employer, but we would not wish to suggest that it is necessarily required in every case…........ It also has to be reasserted that it is no part of the industrial tribunal's role, in the context of redundancy, to examine the marking process as a matter of criteria under a microscope; nor to determine whether, intrinsically, it was properly operated. At the end of the day, the only issue is whether or not the employers treated their employees in a fair and even handed manner.”

54. So far as individual consultation is concerned we draw attention to the decision of His Honour Judge Clark in Mugford v Midland Bank plc [1997] IRLR 208:

“As to whether a reasonable employer would or would not consult with an individual employee is, it seem to us, essentially a question of fact for the industrial jury, properly directing itself”

55. He went on to note that trade unions rarely wish to become involved in the actual selection of individuals for redundancy although they may well negotiate selection criteria, provision for redeployment and a requirement to seek volunteers. In those circumstances:

“consultation between the employer and individuals identified for redundancy becomes important. It should normally take place before a final decision to dismiss is reached. It gives the employee an opportunity to put his case to the manager carrying out the selection, so that the latter may reach a fully informed decision.”

56. His Honour Judge Clark went on to refer to Stacey v Babcock Power Limited [1986] ICR 221 applied in Walls Meat Company Ltd v Selby [1989] ICR 601, the judgment of Balcombe LJ at 610F for the proposition that consultation can continue until the moment employment is terminated. He concluded that:

“(2) consultation with the trade union over selection criteria does not of itself release the employer from considering with the employee individually his being identified for redundancy.

(3) it will be a question of fact and degree for the Industrial Tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy.”

57. We stress that decisions that we have cited are not to be applied mechanicalistically; the vital question in each case is the overall fairness of the selection procedure: see Knox J in Rolls Royce Motor Cars Limited v Price and Ors [1993] IRLR 203 on the:

“Grave danger of erecting what was said in Williams v Compair Maxam into the terms of a statute.”

58. We have in mind in relation to the issue of overall fairness and the need to abstain from close scrutiny of the marking in redundancy selections by the Employment Tribunal in the absence of obvious mistaken bad faith, the cases of Semple Fraser LLP v Daly UKEAT(S)/0045/09 and Inchcape Retail v Symonds in which the matter was well put by His Honour Judge McMullen QC at paragraph 15:

“Once that the criteria are fixed, the scope for complaint by a redundant employee is quite narrow. But there can be challenges where objective factors come into play and simple mistakes can be corrected, such as length of service wrongly calculated or absence record unfairly attributed. It would be unreasonable to dismiss a worker whose scores were based on demonstrably wrong figures. However, absent an allegation of actual bias in a manager, criticisms of a points allocation for work performance or job knowledge will be difficult to make in fact and law.”

59. He continued at paragraph 29:

“Of course, as a matter of fairness, under the Employment Rights Act 1996 section 98(4) demonstrable inaccuracies or actual bias can be exposed so that in our earlier examples, length of service and attendance can usually be measured objectively. But once an element of subjectivity is put into the criteria, it is not for the Employment Tribunal to substitute its view as to what the scores should have been.”

60. At the end of the day, once an employer has demonstrated that the reason for dismissal is redundancy, which is a potentially fair reason under section 98(2)(c) of the Employment Rights Act 1996, the Employment Tribunal must determine, in accordance with well-known principles, whether the decision to dismiss was fair within the meaning of section 98(4). The decision to dismiss is a matter for the employer. If the decision is within the band of reasonableness, it is not for the Employment Tribunal to substitute its own views.

61. We would finally refer to the decision of Slade J in Hammonds v Mwitta in which she made clear that, even if there has been a breach of section 188, that does not mean necessarily that there has been a breach of section 98(4) of the Employment Rights Act in circumstances where the breach has caused no prejudice.

Conclusions

Consultation

62. The Employment Tribunal found that the Respondent relied on the fact that it had treated Mr Taylor as the employee representative and that matters required to be discussed by virtue of section 188 had been discussed with him. The Employment Tribunal noted, at paragraph 7, that the Claimant recognised there had been a redundancy situation and that he was properly identified as being at risk. He did not criticise the selection criteria (paragraph 11). At paragraph 27, the Employment Tribunal asked itself the correct question, namely, whether the Respondent had acted fairly within the meaning of the provisions of section 98(4) of the Employment Rights Act. The reference in paragraph 28 to the Respondent’s genuine belief that the matters set out in section 188 had been covered by the consultation with Mr Taylor was inelegantly worded but it is quite clear from reading the judgment as a whole that the Employment Tribunal considered the procedure to have been fair because, substantively, it was fair in the light of what the Respondent had done and because it had acted in good faith.

63. Were there to have been a breach of section 188 that would not have itself rendered the dismissal unfair; see, for example, Mwitta. The Employment Tribunal, at paragraph 30, concluded that preliminary issues had been dealt with in negotiations with the employee representative, Mr Taylor. Further, there were two individual consultations. The Claimant’s complaint was that these meetings were held after the decision to dismiss had already been made so that they were dismissal meetings rather than consultation meetings. This point was addressed in paragraph 30 by the Employment Tribunal which found that the decision to dismiss, prior to the conclusion of the second meeting, was only provisional and it rejected the Claimant’s case in this regard, as it was entitled to do.

64. At paragraph 32, the Employment Tribunal concluded that the redundancy process, including consultation was, “As adequate as could reasonably be expected” and wrapped up the matter by concluding that the decision to dismiss the Claimant was within the band of reasonable responses from a reasonable employer. It arrived at this conclusion having set out the correct test, considering the Claimant’s submissions and having made findings of fact on the important issues. It is inappropriate to use a fine toothcomb or to subject the reasons of the Employment Tribunal to unrealistically-detailed scrutiny; we are satisfied that the reasoning was adequate and it is clear to any reader of the judgment of the Employment Tribunal why the Respondent succeeded and the Claimant failed.

Selection

65. The Claimant correctly recognised that the Employment Tribunal should not go beyond seeing whether the selection, including the marking, was fair and should only investigate marking where there was an absence of good faith or obvious error. The Claimant concentrated on two points: (a) the “admission” by Mr Green of mistaken marking and (b) the submission that it was inconsistent to give a higher mark in the competition for Transport Manager than that for Transport Assistant in relation to route planning.

66. So far as Mr Green’s “admission” is concerned, we are satisfied that Mr Green never admitted he had made an error, and this is made clear by the note from Employment Judge Coles, to which we have referred.

67. The fact that, with hindsight, he accepted he might have awarded a higher mark does not amount to an admission of a mistake or render the selection unfair.

68. So far as the inconsistency in marking is concerned, there is no reason why the criteria required for the post of Transport Manager, “Ability to plan routes” are identical with those required for the post of Transport Assistant, “Ability to assist with route planning”.

69. My colleagues have extensive industrial experience and have pointed out that the particular skills required for the junior post may well be different from those required for the senior post. For example, the manager of a plumbing business is not required to be a skilled plumber.

70. The Employment Tribunal was perfectly entitled to conclude on the facts that, as the jobs were different, a different skill mix was required and there was, therefore, no inconsistency. This was clearly not a case where the skills are building blocks and need to be enlarged and increased as qualifications for moving up the employment ladder.

71. There was clearly evidence that justified the Employment Tribunal in coming to this conclusion; see, for example, paragraph 25 of Mr Green’s witness statement at page 65 of the bundle and the minutes of the meeting of 17 March 2009 at page 118, where this point was made. We cannot, therefore, interfere with the Employment Tribunal’s finding that the selection process was fair.

The Application to Amend

72. We have been given no explanation for the lateness of the application; for this reason alone we would have been minded to refuse the application. However, for the reasons we have given, we would have rejected the point in any event. The Employment Tribunal did express itself inelegantly that the Respondent was not obliged to consult with the Claimant on section 188 matters because it “genuinely believed” they had been covered by consultation and agreement with employee representatives. This was, of course, the case and the Employment Tribunal had well in mind the need for a fair consultation and expressly found, as we have pointed out, that consultation was adequate; see paragraphs 30 and 32, especially. In the circumstances none of the grounds of appeal succeed and the appeal is, accordingly, dismissed.

73. Before we conclude this judgment we wish to express our thanks to both counsel for their helpful written and oral submissions.

United Kingdom Employment Appeal Tribunal