Appeal No. UKEAT/0418/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 May 2011

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MS K BILGAN
MR S YEBOAH

MR M ZEFF	APPELLANT

LEWIS DAY TRANSPORT PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M PAULIN
(of Counsel)
Instructed by:
Lyons Davidson Solicitors
Victoria House
51 Victoria Street
Bristol
BS1 6AD
	
For the Respondent	MR M SAHU
(of Counsel)
Instructed by:
Messrs Harold Benjamin Solicitors
Hill House
67-71 Lowlands Road
Harrow
HA1 3EQ

SUMMARY
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
REDUNDANCY – Fairness

The employee was one of five employees working in a department of the employer’s transport undertaking.  There were two controllers, one manager, and two administrative assistants.  In a downturn of business, the employer decided to close the “desk”, but keep the two administrative assistants doing the same job as before.  An appeal on the basis that the Tribunal should have found that the dismissal of the manager was unfair because there should have been selection criteria, consultation leading to the adoption of those criteria, the Claimant manager considered for appointment to a subordinate position, and that the decision to the contrary was perverse was dismissed: on the facts, the Tribunal had been entitled to regard the relevant posts as all being redundant such that no selection criteria were required, since no choice as between candidates for dismissal by reason of the redundancies was involved.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.	This is an appeal against a decision of the Employment Tribunal at London (Central), promulgated on 21 April 2010, by which the Tribunal dismissed the Claimant’s claim that he had been unfairly dismissed.

The Facts
2.	The facts in summary, taken from the Employment Tribunal’s decision, are these.  The employer was a large employer engaged in a transport undertaking.  It operated through four “desks”, as they were called, the chauffeur, car, van and bike desks.  The impression given by the decision is that the chauffeur desk was one of the smallest of these, if not the smallest.  It consisted of five members of staff.

3.	The Claimant was a manager of the chauffeur desk as from May 2008, and before that had operated as a controller.  There were two other controllers and two administrators, one a booking administrator and the other a desk assistant.

4.	The Employment Tribunal found that there had been a downturn in business in January 2009.  On 26 January 2009 the employer wrote to the Claimant to tell him that controllers were at risk of being made redundant because of this downturn in work.  On 28 January 2009 there was a meeting about this.  This was followed by an email on 9 February 2009 which told the Claimant that his position was at risk of redundancy.

5.	An informal meeting on 13 February 2009 followed, attended by all five employees on the chauffeur desk who met a Mr Payne, the associated Director of Operations for the Respondent employer, and a Mr Ritterband, the Operations Director.  It was made clear at that meeting that the chauffeur desk might close.  On 17 February 2009 a further meeting discussed ways in which a redundancy might be avoided.  Finally, towards the end of February 2009, Mr Ritterband and Mr Payne, and the company, took the decision to close the chauffeur desk.

6.	The Tribunal, as one of its findings of fact, dealt with what that meant.  At paragraph 21 it said that:

“Closing the chauffeur desk meant the requirement for a manager and two controllers working on that desk ceased.”

It went on to observe in the same paragraph that their roles were absorbed by other staff on the car desk and their roles were, therefore, redundant.  The Claimant’s role as manager was also redundant.  The requirement, said the Tribunal, for the two administrators role on the chauffeur desk did not cease; they were not made redundant.  They were moved to the car desk and continued doing the same jobs.

7.	The Tribunal thus concluded that there was here a redundancy which was a true redundancy.  Following the decision that the Claimant and the two controllers should be dismissed by reason of redundancy - their jobs having disappeared as the Tribunal found in the paragraph to which we have just referred - the question of suitable alternative employment arose.

8.	Bulletins were circulated by the employer referring to vacancies which existed within what was a large undertaking.  The Claimant did not receive three relevant bulletins: one on 2 February 2009, one on 18 February 2009 and one on 12 March 2009.  The only vacancies, so the Tribunal found, that the employer had were limited to those identified in the bulletins.  They were for a PA, an ambulance driver in Oxford, a telesales executive and, identified for the first time in the March 2009 bulletin, a sales executive in West London.

9.	The Claimant was told on 27 February 2009 that his employment would terminate on 27 March 2009.  He appealed against his dismissal.  The appeal hearing was arranged for 17 April 2009, but then rescheduled for 30 April 2009 at the Claimant’s request.  The decision to dismiss the Claimant as redundant was upheld on 12 May 2009.

10.	The Employment Tribunal was plainly addressed on the basis that the dismissal should be found unfair because the employer had not followed the statutory disciplinary procedures which then applied.  It held however that the Respondent employer did comply with that procedure.  The required three steps in the procedure are set out in Schedule 2 to the Employment Act 2002.  Step 1 requires the employer to set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.  That, said the Tribunal, had been done by sending the first letter on 26 January 2009.

11.	Step 2 is that a meeting must take place before action is taken, except where the disciplinary action consists of suspension, and must not take place (see paragraph 2) unless:

“(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and 
(b) the employee has had a reasonable opportunity to consider his response to that information.”

12.	The Tribunal concluded that Step 2 had been complied with by the employer.  That had happened at the meeting held on 17 February 2009.  It found, at paragraph 17, that:

“By that date the Claimant was aware of the basis for the proposed redundancies and that staffing levels on the desks was being reviewed and was also aware from 13 February 2009 that the chauffeur desk might close.”

The Tribunal accepted that the minutes of the meeting on 17 February 2009 reflecting what was discussed showed sufficiently that Step 2 had been satisfied.

13.	Step 3, provided for by Schedule 2, is that if an employee wishes to appeal he must so inform the employer and, if he so informs the employer, the employer must invite him to attend a further meeting.  Although at one stage Mr Paulin seemed disposed to argue before us that Step 3 had not been complied with because an appeal had to be, as he might put it, a full‑blown appeal and not, as he contended this was, a mere review of a previous decision, he accepted in argument before us that the schedule itself requires simply a meeting and that, he accepted, had taken place.  So, on the face of it, there had been statutory compliance and so, indeed, did the Tribunal decide (see paragraph 18).

14.	The Tribunal, therefore, concluded that the dismissal was not automatically unfair.  (We put in parenthesis here that Mr Paulin’s argument was effectively that the Tribunal should have considered the nature and scope of the appeal as part and parcel of its consideration whether the provisions of s.98(4) of the Employment Rights Act 1996 had been satisfied so that the decision to dismiss could be said to be reasonable.  His contention on behalf of the Claimant/Appellant being that it was not.)

15.	The Employment Tribunal had concluded, as we have noted, that there was here a true redundancy.  At paragraph 21 of its decision it dealt with the question of how the Claimant came to be dismissed by reason of that redundancy.  That led it to examine what the employer had concluded was the appropriate pool within which to consider the dismissal.  What it said requires recitation in full, both from its paragraph 21 and the central paragraph in its reasoning and in the discussion before us at paragraph 22:

“21. On the question of reasonableness and s.98(4) of the Employment Rights Act 1996 and dealing first with the issue raised by Mr Paulin about pools, the Tribunal accepted the Respondent’s evidence that it was reasonable to treat each desk as a separate pool so far as this was relevant.  The Respondent concluded that as a separate desk, the chauffeur desk would cease to exist.  The Tribunal accepted the Respondent’s evidence that the chauffeur desk did close despite the Claimant’s belief that it stayed opened.  Closing the chauffeur desk meant the requirement for a manager and two controllers working on that desk ceased.  Their roles were absorbed by other staff on the car desk and their roles were therefore redundant.  The Claimant’s role as manager was also redundant.  The requirement for the two administrator’s roles on the chauffeur desk did not cease.  They were not made redundant.  They were moved to the car desk and continued doing the same jobs.  The Respondent could have treated all four desks as one pool.  It was not unreasonable not to choose to do so.  Even if they had however, the Tribunal has not been persuaded that this would have improved the Claimant’s position.  The Claimant was a manager.  There were no other managers on the other desks.  Mr May had an overseeing role on the bike desk.  Given Mr May’s service, experience and salary, the Tribunal did not consider there was any prospect at all that the Claimant would be given Mr May’s job nor was this the Claimant’s case.  The only pool for any potential selection was the chauffeur desk.
22. The next question was whether this was a selection for a redundancy situation relating to the Claimant.  The Tribunal has concluded it was not.  The Claimant was in a discrete role on his own.  He was the only manager.  His role was redundant.  No selection arose.  No selection criteria were relevant.  It was fundamentally flawed to equate all five roles as the same.  They were not the same.  The jobs were not interchangeable.  The Claimant may have been able to do a controller or an administrator’s job but there was no evidence that the controllers or administrators could be the manager.  This was not a case of three people being made redundant from five similar jobs where selection and selection criteria would be relevant.  This was also not a case of five people being made redundant and there being two vacancies for administrators in the car desk.  If this was correct, all five should have been allowed to apply for such vacancies.  There were no vacancies here.  It would be a fiction to argue there were vacancies.  The correct analysis is that indicated by the Respondent.  The two administrator jobs were not redundant.  The requirement for administrators did not cease or diminish relating to chauffeur work.  Their positions simply transferred to the car desk.”

16.	We should add paragraph 23, which reads as follows:

“Turning to other questions as to whether the Respondent acted reasonably for the purpose of s.98(4) and in dealing with bumping or transferring the Claimant to a subordinate role, Mr Paulin submitted that the Claimant should have been moved into a subordinate role.  The Respondent’s evidence was that they never bump.  The Tribunal noted that the Claimant never raised this before his dismissal or in his letter of appeal or at the appeal hearing.  The Claimant’s position was always that he should have been able to apply for one of the two positions that remained on the chauffeur desk, i.e., the administrator’s jobs held by Mr Burns and Ms Choules.  Those two positions did not however, ever become vacant.  Bumping is a potential option in a redundancy situation.  There is, however, no obligation on an employer to consider it or apply it.  In certain circumstances it may be outside the band of reasonable responses not to consider bumping.  The Tribunal did not consider this to be such a case.  No, or no sufficient, reason to bump was put before the Tribunal to persuade the Tribunal that it was unreasonable not to bump the Claimant.”

17.	In response to the originating application before the Employment Tribunal the Respondent averred in the ET3, at paragraph 5.2, matters which appeared to be its case at the time but which plainly, given the passages we have just recited, did not represent its case before the Tribunal.  Thus in the ET3 the Respondent averred that all members of the chauffeur desk were selected for redundancy but that two staff from the chauffeur desk were offered suitable alternative employment within the Respondent company.  If that had been so, then applying the Tribunal’s analysis at paragraph 22, and upon the basis that the pool consisted of all five employees in the chauffeur desk, all five should have been allowed to apply for the vacancies of administrators of the car desk.  As we have said, whatever may have been the arguments before the Tribunal in detail, and we have not been provided with the skeleton arguments or further information, this does not seem to have been the way in which the case was put before it. Instead, it seems to have been argued that only three posts – those of the controllers and manager – were redundant.

18.	The Tribunal considered that the way in which the employer had dealt with its duty to ensure that alternative employment, if suitable, was made available to the Claimant, if that could be done, had not been well handled.  It found (paragraph 29) that the Respondent took no sufficient steps relating to securing alternative employment for the Claimant.  All that it did was, at the most, point the Claimant in the direction of the Respondent’s notice board. That would, it is clear, have formed the basis of a finding that the dismissal had been procedurally unfair, had it not been for the way in which the Tribunal approached s.98A of the Employment Rights Act 1996, subsection 2 of which provides:

“[…] failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of s.98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

19.	What the Tribunal reasoned at paragraph 30 was this:

“30. The Tribunal has however to apply S98A(2) Employment Rights Act 1996, and in this connection the Tribunal was not satisfied that the Claimant did enough or did anything to pursue any of the vacancies.  The Claimant was well aware of the vacancies in the bulletins dated 2 February and 18 February 2009, but took absolutely no action on them.  If the Claimant was in any way interested in those vacancies on or after 27 February 2009, the Tribunal has no doubt he would have made this known to the Respondent or made enquiries, or applied for those vacancies.  He had from 27 February to 27 March 2009 to do so, but he did nothing.  When asked why he did nothing he said he did not know why.  This was not a reasonable or satisfactory response.  The Tribunal can only conclude that he took no action on the vacancies as he was not interested in them in any way.  The Claimant is an intelligent man.  When made redundant at the age of 58, nearly 59, and facing unemployment it is inconceivable he would remain silent about these vacancies if he was genuinely interested in them.
31. As a consequence the Tribunal has concluded that the Respondent is entitled to the benefit of S98A(2) Employment Rights Act 1996.  If the Respondent had followed a fair procedure relating to alternative employment, the Claimant would not have been interested in the vacancies and he would therefore still have been dismissed.  Such defect in procedure does not therefore make this dismissal unfair.
32. Looking at the procedure overall therefore the Tribunal has concluded that it was fair.  The Claimant was redundant.  The Respondent complied with the Statutory Dismissal Procedure and overall followed a fair procedure.  There was sufficient consultation and sufficient consultation meetings.  As a consequence, this claim of unfair dismissal fails and is dismissed.”

20.	The Tribunal then went on to consider what would be the position if it were wrong in that conclusion.  It would have concluded that any potential compensatory award would have been reduced to nil because of the principle established in Polkey v A.E. Dayton Services Limited [1987] IRLR 503.  At paragraph 34, however, it returned to the applicability of s.98A(2):

“34. Similarly, if it was found that the Respondent had followed an unfair procedure, e.g. relating to consultation or the pool for selection, or selection criteria, the Tribunal would have concluded that the Respondent was entitled again, to the benefit of S98A(2) Employment Rights Act 1996, and concluded that the Respondent would have decided to dismiss the Claimant even if a fair procedure had been followed.  Dismissal would accordingly still be fair consequent to S98A(2) Employment Rights Act 1996.”

Appellant’s submissions
21.	Mr Paulin argues that the decision of the Tribunal is wrong in law on seven bases.  In a skeleton summary of his skeleton argument he has adumbrated those seven points.  

22.	We observe in advance that many of the points are uncontroversial if it is first accepted as a premise that the Tribunal was in error in its approach as set out in its paragraphs 21 and 22.  The Tribunal there had concluded that this was not a case of five people being made redundant, in which case there would have had to have been principled criteria by reference to which three would have been selected for redundancy or dismissal by way of redundancy and the other two selected for those posts which were not redundant.  This was, as the Tribunal analysed it, a case where there were three posts which were redundant.  That was the entirety of the posts with which they were concerned and, accordingly, there was no need to have any criteria for selection.  In effect the Tribunal’s approach to the issue was the same as would apply if, for instance, an employer decided to close a whole factory.  In such a case, to suggest that selection criteria were necessary to determine that each and every one of those working in the factory should be dismissed by reason of redundancy would be to ask the employer to take a wholly unnecessary step amounting to a charade.  That is accepted as correct in principle by Mr Paulin.  The premise is, therefore, what matters: whether it is that three posts were redundant, or five.

23.	With that introduction we can take the points that he made shortly.  It is suggested that the employer Respondent did not comply with step 2 and step 3 of the procedures under the Employment Act 2002.  The Tribunal erred in its approach to the issue of automatic unfair dismissal.  That is all based upon the contention that the employee should be notified of the selection criteria, and therefore, assumes that there were selection criteria.

24.	If there were selection criteria, and if they were appropriate, then we should unhesitatingly agree, as in this case would Mr Sahu who appeared for the Respondent employer, for the principle in Alexander & Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422 would apply (see paragraph 43) and Bond v Urmet Domus Communication and Security UK Ltd UKEAT/0103/10/JOJ, a decision of this Tribunal, Cox J presiding, of 27 May 2010. 

25.	Similarly, the points made about the nature of the appeal hearing are dependent upon the appeal being a proper appeal.  Thus, if selection criteria were necessary - which would be the case if there were a selection to be made of those within the appropriate category or pool - then the appeal process would have been flawed if, as here, it focussed upon the Claimant’s position without any regard to the selection of him as opposed to others as being the person or amongst the people to be dismissed.

26.	The second point he took was that the Tribunal erred in its approach to consultation in general when addressing s.98(4) of the Employment Rights Act 1996, relying upon the R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price & others [1994] IRLR 72.

27.	The third point, that the Tribunal erred in its approach to the requirement for selection criteria, relied on Bond, but also on the well‑known principles set out in Williams v Compair Maxam [1982] IRLR 83 at page 87 per Browne‑Wilkinson J.  They too depend entirely on there being a need for selection criteria and a selection process as such.

28.	The fourth point he took was that the Tribunal erred in its approach to identifying pools and to alternative and subordinate employment.  Here, he argued, that the Appellant had said to management that he would do any job.  This was in the context of someone who had himself offered to accept a reduction in salary in order to survive the downturn.  No doubt had he taken a lesser job this would have been for the period of the downturn, expecting that after he would have finished he might well have been restored to his former role or something approaching it, but his being prepared to do so would have preserved a role with the employer which by reason of the employer’s conduct toward him he was denied.

29.	It was not disputed that he had said that he would do any job.  Therefore, argued Mr Paulin, the Tribunal ought to have considered that as a starting point (see Fulcrum Pharma (Europe) Ltd v (1) Mrs S Bonaserra (2) HR Advantage Ltd UKEAT/0198/10/DM a decision of this Tribunal, Judge Ansell presiding of 22 October 2010).  Subordinate employment as a possibility ought to have been considered as part of the consultation; see Freud v Bentalls Ltd [1982] IRLR 443 in particular at paragraph 14 where Browne‑Wilkinson J had observed that:

“[…] good relations practice requires that, unless there are any special circumstances which render such consultation impossible or unnecessary, a fair employer will consult with the employee before dismissing him.”

30.	He complained that at paragraph 21 of the Tribunal’s reasoning the Tribunal, instead of criticising the employer for a lack of any selection criteria, had in effect indicated that it was applying its own views as to what those criteria would have been if relevant.  Thus, in the penultimate sentence, when dealing with the potential comparison between the Claimant and Mr May, it made reference to Mr May’s service, his experience and his salary.  Mr Paulin complained that the Tribunal’s conclusion that there was no prospect that the Claimant would be given Mr May’s job was by reference to those three criteria.  These had not been any part of the employer’s procedure in determining who should go and who should stay.

31.	As to this, we observe, he did accept that the Claimant had not suggested, through counsel at the Tribunal, that he should have been given Mr May’s job and Mr May be dismissed in his stead.  Indeed, it was plain, as it seemed to us, that the Claimant had not, as the Tribunal recognised at paragraph 23, ever raised the question of bumping before his dismissal or, for that matter, in his letter of appeal or at his appeal which occurred post dismissal.  We shall return to that point when we deal with the submissions made to us about paragraph 23 in our conclusions.

32.	He argued that the Tribunal, when dealing with alternative employment, had taken an inconsistent approach.  Given the findings it made at paragraph 28 to 31, it should have found that the Respondent had acted unfairly.  He added to this in oral submission that the Tribunal had (see paragraph 11) found that parts of the evidence advanced on behalf of the employer were deeply unsatisfactory and unreliable to the point of illustrating a tendency in one witness to fabricate evidence.  Given that, Mr Paulin submitted, the Tribunal should have accepted that which the Claimant said, and should not have found established by the employer what the Tribunal did hold to be established under s.98A(2).

33.	In his sixth point he argued that there had been an error of approach in relation to s.98A(2) of the Employment Rights Act 1996.  He drew our attention to the wording “..a procedure in relation to the dismissal of an employee”.  In his skeleton argument he referred to the decision before this Tribunal of HHJ McMullen QC in the case of Mason v The Governing Body of Ward End Primary School [2006] UKEAT/0433/05.  In that case at paragraph 25 the Tribunal said:

“To a limited extent only, then, the Polkey doctrine is reversed by s98A(2).  That occurs where there is a procedure as we have defined it, written or unwritten, contractual or non‑contractual, contained in an agreement or a policy which relates to dismissal of employees and which has not been followed.  It does not apply to any more general criticism based upon a failure to comply with the standards of a reasonable employer, whether as exemplified in the ACAS Code or not.”

34.	It was pointed out in argument to Mr Paulin that in the case of Alexander & Hatherley v Bridgen Enterprises Ltd at paragraph 56  Elias J, as then President of this Tribunal, said this about the same wording:

“We see no justification for so limiting that provision.  There is no basis at all for considering that the concept of procedure merely applies to such procedures as have been reduced into writing by the employer, nor is there any limitation on the nature of the failure to comply found within the terms of the subsection itself.  It is of course the case that if there is a fundamental failure, including a wholesale disregard of procedures, then that will almost inevitably mean that there is a breach of the relevant statutory dismissal procedure rendering the dismissal unfair under s.98A(1), and in that case s.98A(2) does not apply at all and the Polkey analysis continues to apply.  Subject to that, we see no limitation on the nature of the procedural breaches caught by the subsection.  We recognise that the section refers to ‘a procedure’ but we do not think that this is limited to cases where the employer fails to comply with his own established procedures (whether written or otherwise).  In our view it simply means any procedure which the Tribunal considers in fairness the employer ought to have complied with.  If the employer has failed to comply with a procedure which ought to have been carried out, that will not render the dismissal unfair if the employer shows that the employee would have been dismissed anyway even had that fair procedure been adopted.  (To this extent we would respectfully part company with the decision of this Tribunal in Pudney v Network Rail [2006] UKEAT/0707/05 (HHJ McMullen QC presiding) in which, obiter, a narrower construction of the section was suggested, but in circumstances where the wider construction we have adopted does not appear to have been suggested by either party.)”

35.	Mr Paulin was not disposed to argue here that the approach taken by Elias P was in error.  He did not invite us to resolve any dispute between his approach and that of HHJ McMullen.  (Had we done so, for our part, we would have been inclined to the view which appealed to Elias P.)  He argues that whatever approach was taken, whether the narrower approach exemplified by the decisions of HHJ McMullen QC or the wider approach taken by Elias P and the members of his Tribunal in Alexander, nonetheless there must be something which can be called “a procedure”; that is the wording of the section.  Here there was nothing that could qualify.

36.	The whole basis of the exercise here, he argues, was flawed.  It was flawed because first the employee had not properly been given to understand that the two administrators in the chauffeur desk would retain the selfsame jobs.  More pertinently, when it comes to the point in issue under alternative employment, he argues that a failure to provide details of available jobs to the Claimant and a failure to take any reasonable step towards securing suitable alternative employment for him could not properly be classed as “a procedure”.  Therefore, the approach of the Tribunal was flawed at the outset.

37.	Seventh, and finally, Mr Paulin took a number of points in respect of perversity.  He submitted first that the Tribunal’s decision was internally inconsistent.  This is in particular because of the approach which the Tribunal took to the evidence of the witness to whom we have already referred as illustrating a tendency to fabricate.  Given that she was one of the central witnesses for the Respondent, he argued that no reasonable Tribunal properly directed could have taken the Respondent’s assertions at face value, in circumstances where that very Tribunal had accepted that the Respondent’s HR Manager had fabricated evidence and given a shambolic account of the availability of alternative employment, and that in general the Claimant’s evidence was to be preferred to that of hers.

38.	As to this we should indicate immediately that the fact that the Tribunal considered the evidence of one of the employer’s witnesses to be flawed, even deeply, does not, in our view, mean that the Tribunal could not properly accept parts of the evidence offered on behalf on the employer, nor did it require them to accept the rest of the Claimant’s evidence uncritically.  It was open to the Tribunal, indeed it was its very job, to choose what facts it accepted and what it did not.  The starting point, if such it was, that it had grave doubts about the reliability of one witness would suggest that it took its task carefully and any conclusion it reached adverse to the Claimant was, in those circumstances, bound to be a considered one.  We do not see any possibility here of the internal inconsistency to which Mr Paulin refers.

39.	He argues that the Tribunal were in material misapprehension of fact - he calls it perversity - in concluding that the Claimant had not raised the possibility of subordinate employment before his dismissal.  It was reiterated by Mr Paulin in relation to the Tribunal’s findings at paragraph 23 that the Claimant had said that he would accept a cut in salary, that he had always insisted once he knew of the retention in post of the administrators that he should have been able to apply for that job; and he had said that he would accept any job.  Accordingly, it was simply not permissible for the Tribunal to say as they had at paragraph 23.

Employer’s submissions
40.	Underlying these points is the central question whether the Tribunal was entitled to find as a fact that which it did in relation to the closing of the chauffeur desk at paragraphs 21 to 23.  It was accepted by Mr Sahu, for the employer, that if this were properly to be regarded on the findings of fact of the Tribunal as a case in which there had been a pool of five, all of whose posts were redundant but only three of whom were dismissed, then the Tribunal’s conclusion at paragraph 22 that if that event all five should have been allowed to apply for the vacancies would be unarguably right.  It would follow, he accepted, that the submissions made by Mr Paulin as to the weaknesses of the consultation procedures would be well taken.  It would follow that here the Tribunal had simply approached the matter on the wrong basis.

41.	He maintained however that upon analysis the Tribunal was not saying in those central paragraphs that that was the case.  Rather it was saying that the closure of the chauffeur desk meant that the requirement for a manager and two controllers ceased.  It was their roles that were potentially redundant.  There was no issue of selection between them because all were made redundant.  It was the equivalent to the closure of the factory in the hypothetical example, where no selection would be required as between affected employees because all would be dismissed.

42.	There was here no correspondence of job as between the administrators and the controllers so as to put them within the same bracket.  Mr Paulin’s argument, Mr Sahu submitted, attractively presented though it was by reference to barristers deciding to sack the clerks in the clerks’ room and dispensing with the services of the senior clerk, but deciding on reflection to retain the two most junior clerks in service, would not be a fair analogy because the role of one clerk, however junior, is still a clerking role.  Here, the Tribunal had decided that the jobs involved very different tasks; they were not the same.

Discussion
43.	We have looked to see how the Tribunal has expressed itself.  We have to remind ourselves that a Tribunal’s decision addresses the arguments which are advanced to it in the light of the evidence which it has heard.  Therefore, when points are taken and focussed upon on appeal, they may not correspond closely with the points upon which emphasis was placed before the Tribunal, and it may be that the language which the Tribunal has adopted to answer those points may not be ideal for answering the points later raised on appeal.

44.	A Tribunal’s decision is not to be read as though it were the work of a Parliamentary draftsman.  Some infelicities may be excused.  It may often be, and in our view it is sometimes the case here, that what are presented as findings of fact, stark and unadorned, might, in the light of the arguments now addressed to us have been on clearer as to their foundations if more detail had been given as to how it was the Tribunal reached those conclusions.  

45.	Nonetheless, we ask ourselves as best we can what it was that the Tribunal here was determining.  It might have come to the conclusion that the Appellant had been unfairly dismissed.  Had it done so it may well have been that this Tribunal could not have interfered with its conclusions insofar as based upon findings of fact or an assessment of what was or was not reasonable.  

46.	What the Tribunal did decide, the identification of the pool being for the employer to assert and a Tribunal to assess, was that it was reasonable for the employer to treat each desk as a separate pool, albeit adding the words: “so far as this was relevant”.

47.	When it referred to “closing the chauffer desk” the Tribunal’s finding of fact, as we have already observed, implied the ceasing of work for a manager and two controllers.  “Closing the chauffeur desk” did not, on our reading of paragraph 21, mean that the Tribunal found that the two administrators would necessarily also cease to have a role.  It found, therefore, that when the administrators were moved to the car desk and continued “doing the same jobs” this was not a case such as it would appear the employer had originally asserted in his ET3, of them being dismissed but then reemployed under suitable alternative employment.  The words mean what they say.

48.	Taking paragraphs 21 and 22 together, the Tribunal was pointing out that there was here no question of selection and, therefore, no need for criteria.  It was emphasising that the role of the Claimant and controllers was effectively one and the same (the Claimant had indeed been called a controller in the first letters written to him about potential redundancy; it is what he had been in the past before he became a manager).  The Tribunal emphasised (see paragraph 22) that this was not a case of three people being made redundant from five similar jobs.  Rather, as it seems to us, what they were saying was that the roles for which the requirements of the business had ceased or diminished, applying the statutory definition of redundancy, were the roles of the controllers.  It was their presence that made the chauffeur desk the chauffeur desk.  They were the people to be considered for potential redundancy; they were all dismissed: hence the Tribunal’s conclusion there were no vacancies here, and their strong observation that it would be a fiction to argue that there were.

49.	In its last four sentences in paragraph 22, the Tribunal was plainly directing itself by reference to an argument addressed to it by the employer.  That was not to the effect that the jobs occupied by the administrators were redundant, but to the opposite effect, and the Tribunal accepted it.  That, it seems to us, is a conclusion of fact.  We have seen no material which can satisfy us that the Tribunal was not entitled to come to that conclusion of fact.  That being so, the arguments based upon there being a need for criteria, and for consultation about those criteria, necessarily fall away.

50.	As to the question of subordinate employment, the Tribunal’s approach in paragraph 23, as we understand it, was to accept the evidence of the Respondent that they would never bump.  The comment made, which is characterised by Mr Paulin as a material misapprehension of fact, namely that the Claimant had never raised bumping before his dismissal, is to be seen not as his failure to raise his ability to do subordinate jobs, which plainly he did raise: the Tribunal are here addressing the contention that somebody else should have been required to leave their position so that the Claimant might occupy it instead, in consequence of the redundancy of his former post.

51.	So understood, the Tribunal’s approach to bumping displays no error of law.  As it observed at the bottom of paragraph 23, there was no sufficient reason put before the Tribunal to persuade it that it was unreasonable not to bump the Claimant into a job previously occupied by another.

52.	We turn then to the question of suitable alternative employment.  Here the Tribunal found in favour of the Claimant but for the operation of s.98A(2).  Mr Paulin pointed out that the Tribunal had used s.98A(2) twice in the decision to justify its conclusions, first at paragraph 31, next at paragraph 34 (see above).  The Tribunal thought here that there had indeed been a procedural failing by the employer.  

53.	The wording of s.98A(2) is problematic.  The question what precisely is meant by “a procedure” in the context of that section is one which has plainly troubled this Tribunal before (see Mason; see Alexander). However, adopting the approach enjoined upon us by Mr Paulin and looking to see whether there is something which can be called a procedure, the Tribunal has here identified what it calls a procedure.  The very words are there: “If the Respondent had followed a fair procedure […]”.  We cannot hold it disentitled to so to find. The conclusion it reached, that the Claimant would not have been interested in the vacancies and would, therefore, still have been dismissed, was based upon its conclusions at paragraph 30.  No burden rests upon an employee to identify suitable alternative employment.  It is the employer’s duty to identify it and to take sufficient steps to secure it for the employee if he can. However, here the Tribunal had, perhaps surprisingly but nonetheless as a finding of fact, concluded at paragraph 4(ixx) that the only vacancies the Respondent had at all relevant times were those in their bulletins of 2 February, 18 February and 12 March 2009.  With the exception of that at 12 March 2009 those vacancies, PA Telesales Executive and Ambulance Driver, were ones of which the Claimant was, on the Tribunal’s findings of fact, very well aware.  The reasoning of the Tribunal, which led to its conclusion that the Claimant took no action despite his knowledge of the vacancies because he was not interested in them in any way, was open to it.  It had looked not at what the Claimant had said he would do, that is take any job, but what he actually did, that is despite knowing that jobs were available expressed, as the Tribunal put it, “absolutely no interest” in having them.

54.	It did not, therefore, regard his interest in those vacancies as genuine.  One vacancy was not drawn to his attention, that in the bulletin of 12 March 2009.  That was as a sales executive, it would appear.  Mr Paulin argues that the Tribunal speculated as to whether the Claimant would or would not have accepted that post.  He argues it was improper for the Tribunal to speculate here.  No doubt he had in mind that it is for the employer to satisfy the Tribunal under the section that he, the employer, would have dismissed the employee in any event even if he had adopted the fair procedure of drawing the vacancy to his attention.

55.	We do not regard this decision by the Tribunal as being one which is speculative to the extent where it is impermissible.  It is based upon what the Claimant had done in respect of vacancies which, on the face of it, seem very similar.  He had done nothing.  He had no obligation to find out about those vacancies, but the Tribunal was, in our view, entitled to come to the conclusion on the facts that he had no genuine interest in them.  If so, then on the evidence before the Tribunal there was no reasonable prospect that if the vacancy had been drawn to his attention, as would have happened had a proper procedure been followed, he would have applied for it and would have remained in the employment of the Respondent.

56.	Although s.98A(2) is couched in terms of the employer showing the Tribunal the necessary facts, and the evidence upon which the Tribunal here relied was not evidence advanced specifically by the employer, but appears to have arisen out of the cross‑examination of the Claimant, this does not, in our view, alter the applicability of the section.  It refers to the burden of proof where the probabilities after hearing all the evidence are established to the Tribunal’s satisfaction on balance to be that the employer would still have dismissed. If so, then the section is satisfied.  

57.	It remains for us then to deal only with the argument as to perversity as to which we simply do not accept.  We cannot say that either overall or in any particular respect the Tribunal’s finding was “wholly impermissible”, to adopt the well‑known phrase which in summary expresses the high test by which perversity is to be judged.

58.	We should, however, say this in deference to Mr Paulin’s argument.  We would have required much more to be said under paragraph 34 of the decision by the Tribunal if we were to feel that the conclusion of s.98A(2) Employment Rights Act 1996 applied there, as it applied to the question of suitable alterative employment.  Paragraph 34, however, is not a basis upon which the Tribunal decided.  It is a postscript.  It arises only if the Tribunal were wrong on its earlier findings.  Had the Respondent followed a procedure which was unfair in respect to consultation or as to pool or as to selection criteria, then we would have wanted more assistance from the reasoning in order to see how one could, in those circumstances (which are entirely hypothetical) have concluded that the employer would have satisfied the Tribunal that it would, in those circumstances, inevitably have dismissed the employee and done so fairly.

59.	However, as we have pointed out, this does not arise for decision since paragraph 34 is not a material part of the reasoning process. Nor does it, we consider, cast any reflection back upon its earlier reliance on s.98A(2), which, as we have said, we cannot see to be flawed in law.

60.	For those reasons, despite the full and eloquent arguments of Mr Paulin, we are constrained to dismiss this appeal.