Appeal No. EAT/247/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6 December 1994
	Judgment delivered on 23 February 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MR L D COWAN

	MRS P TURNER OBE

(1) MR K O'KANE (2) MR M BENNETT	APPELLANTS

GRAYSTON WHITE & SPARROW LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR B CARR
(OF COUNSEL)
Messrs Rowley Ashworth
247 The Broadway
Wimbledon
London SW19 1SE

For the Respondents	MR R BLOOM
(SOLICITOR)
Messrs Jacksons
1-15 Queeens Square
Middlesbrough
Cleveland
TS2 1AL

	JUDGE HULL QC:  Mr O'Kane and Mr Bennett were both mobile crane drivers employed by the Respondents, the well-known plant hire firm of Grayston White & Sparrow Ltd.  They were employed at the Swindon Depot, one of about 30 belonging to the Respondents.  The employment of each of them began in 1988; Mr O'Kane on 29 February and Mr Bennett 24 August.  Three other crane drivers at Swindon were also taken on in 1988; the employment of each of them began before that of Mr Bennett.  In 1992, these 5 men were the total force of crane drivers at the depot.

	In 1992 the Respondents experienced a considerable falling off of work at some of their depots, including Swindon.  The decision was taken to dismiss both Mr O'Kane and Mr Bennett.  It appears that this decision was taken by Mr Gilbert, the manager at Swindon.  It is agreed that on 16 June Mr Gilbert telephoned Mr Turberville, a shop steward, and told him that Mr O'Kane and Mr Bennett were to be made redundant.  On 18 June the Respondents wrote to Mr Wheaton, of the AEEU Construction Section at Dagenham, giving him notice purportedly in compliance with section 99 of The Employment Protection Act 1975.  The letter read:

		"In accordance with the above Act, we reluctantly inform you of the closure of our Swindon satellite depot.  This will involve the redundancy of three operators.  The depot will effectively close as a satellite operating unit at the end of June, 1992.  We intend to implement the redundancies on that date, with notice running from then.

		Should you require any further information, please let me know."

	On 22 June, nothing apparently having been heard from Mr Wheaton, the Respondents wrote again dealing with redundancies in several depots, and ending:

		"Please let me know should you wish to consult on these matters".

	There appears to be an issue of fact, which was not resolved by the Industrial Tribunal, on whether Mr Turberville made any attempt to consult the Respondents.  The Notes of Evidence record that he told the Industrial Tribunal (top of page 28) that on 22 June he approached Mr Gilbert and asked if he wanted to discuss the matter; but Mr Gilbert turned his back and walked away.  On the other hand, at page 31 of the EAT bundle, the Notes of the Industrial Tribunal record Mr Wood, a director of the Respondents, as saying that it was Mr Turberville who turned his back on Mr Gilbert.

	On 23 June, both Mr O'Kane and Mr Bennett were told by Mr Turberville that they had been selected for redundancy.  Two days later Mr Gilbert confirmed this to Mr O'Kane and eventually on 26 June both men were given notice of dismissal.  The letters are at pages 4 and 6 of our bundle.  Each letter made the very doubtful claim that there had been consultation with the union:

		"and where applicable with your shop steward"

and further claimed that the redundancies were being made in accordance with the Major Hirers Agreement.  Mr Bennett was informed that he had been selected for redundancy on his length of service.
 
	There was an important Collective Agreement between the Respondents and another substantial firm on the one side and the Amalgamated Engineering Union on the other.  This agreement is copied in our bundle at pages 42 onwards.  At page 59, there is paragraph 25, which deals with redundancy.  After providing for notification to the Trade Union in accordance with the provisions of what was then section 99 of The Employment Protection Act 1975, paragraph 25.2 provides:

		"In deciding which particular crane operator is selected for redundancy, the following guide lines will generally be applied:

		25.2.1	The primary consideration shall be the need to maintain a balanced labour force composed of crane operators whom the employer considers have the skills and experience most appropriate to the employer's needs...

		25.2.3	Subject to the foregoing considerations, and all other things being equal, selection for redundancy shall be on a "last-in first-out" basis, either in relation to a particular depot or in relation to the employer as a whole, depending upon geographical considerations and the economic circumstances and organisational structure of the employer."

	In July Mr Bennett and Mr O'Kane both complained to the Industrial Tribunal; among other matters, with which we are not concerned, each said that he had been unfairly selected for redundancy.  Mr Bennett, in his complaint dated 18 July, said that there had been no consultation between the Respondents and the Union, and that he was given no interview before redundancy but was just handed a brown envelope and treated to a lecture on the evils of the Union movement.  Mr O'Kane, in his application dated 22 July, complained that the Respondents had not given reasons in writing although he had requested them; he also said that there had been no consultation with either the Union or himself and that there had been unfair selection.  The Respondents entered Appearances traversing these contentions.  Mr 0'Kane was referring inter alia to a letter which he had written on 1 July 1992 to Mr Gilbert saying:

		"... please could you give me the details of how I was selected."

No reply was received for nearly a month and then on 29 July there was a letter from Mr Gilbert saying:

		"When being faced with the unpleasant task of having to make someone redundant, all things have to be taken into consideration, for example, servicing of your machine, ability and experience for driving other machines other than their own, attitude to work, industrial record, time keeping, length of service etc, these are some of the reasons to be considered and it is on this basis that you have been selected for redundancy."

	It appeared to all of us that this was a thoroughly unsatisfactory letter and did not set out what, at the hearing before the Industrial Tribunal, appeared to be the Respondents' true case, namely that Mr O'Kane had on 3 occasions during his period of employment been disciplined and it was for this reason that he was selected, distinguishing him from 3 other crane operators.

	The complaints were heard by the Industrial Tribunal on 13 January and 1 February 1993, sitting at Reading.  Mr Gorst chaired the Tribunal, and sat with 2 Industrial Members.  They found that there had been no unfair dismissal.  Their decision was promulgated on 10 February 1993.  The Full Reasons were criticised before us both by Mr Carr, who appeared for Mr O'Kane and Mr Bennett, and by Mr Bloom who appeared for the Respondents.  Each complained that the Tribunal had repeatedly failed to make important findings of fact on matters that were in issue and each referred repeatedly to the Chairman's Notes of Evidence, at page 25 onwards in the EAT bundle, in an attempt to demonstrate what the Industrial Tribunal must be taken to have found or as the case may be should have found.

	In paragraph 1 of the full reasons, the Tribunal say:

		"...Of the five [crane operators] they chose Mr Bennett because he had the shortest length of service and Mr O'Kane for although he had the longest length of service he had not been as satisfactory as either of the two retained, having, in the four years that he had been employed, attracted disciplinary sanctions on no less than three occasions."

In paragraph 3 of the decision the Industrial Tribunal make their only reference to the Collective Agreement, quoting the letters which were sent to the Applicants.  

	In paragraph 4 they say:

		"The respondents argued that notifying the applicants' Shop Steward and their Union and offering to supply any further information required, constituted an invitation to consult but added that had the applicants been seen individually, there was nothing they could have said which would have altered the decision to select those two."

	In paragraph 5, the Industrial Tribunal records Mr Bennett's evidence that:

		"shortly before his dismissal he had been working for a while from the respondents' Cardiff depot"

and also the evidence of Mr Davies, the Cardiff depot manager, that he had asked Mr Bennett whether he would be interested in working there on a permanent basis and got the answer "No".  They also recorded that the Respondents had said that it was because of that answer that the Applicant was not offered work at Cardiff.

	In paragraph 7 of their decision the Industrial Tribunal record their findings on the complaint of unfair dismissal.  They say:

		"At the end of the day, we are wholly satisfied that the respondents' reasons for dismissing the applicants was that they were redundant and that having regard to equity and the substantial mertis of the case, they acted reasonably in treating that as their reason in both cases.  We are satisfied that by notifying the Union and the applicants' Shop Steward they held themselves out as being willing to consult but that no request was forthcoming.  We are equally satisfied from the evidence given by Mr Gilbert that even if the Union or Shop Steward had been minded to take up the cudgels on behalf of their members it would not have made any difference to the outcome for the selection had been made on a sound basis."

	By Notice of Appeal dated 22 March 1993 both Mr O'Kane and Mr Bennett appealed to the Employment Appeal Tribunal.  At the hearing before us, Mr Carr put forward arguments which were first directed to the Collective Agreement.  He said that it was incumbent of the Industrial Tribunal to construe paragraph 25 of that agreement and then to consider whether, in selecting Mr O'Kane and Mr Bennett for redundancy, the employers had indeed complied with the agreement as so construed.  He observed that if the men were selected for dismissal in contravention of the agreement and there were no special reasons justifying a departure from that procedure, then the dismissal would automatically be unfair by reason of the provisions of section 59(b) of the Employment Protection (Consolidation) Act 1978.  He said that it was apparent from the evidence of Mr Gilbert and Mr Wood that Mr Bennett had not been the subject of consideration under sub paragraph 25.2.1; he had not been considered against his colleagues in the primary consideration of the need to maintain a balanced labour force composed of crane operators considered to have the skills and experience most appropriate to the employer's needs.  Since he had been omitted from that process, it was quite idle to say that he could fairly be dismissed under sub paragraph 25.2.3 on the basis of "last in first out".  With regard to Mr O'Kane, it appeared from Mr Gilbert's evidence that he might indeed have been compared with the other three crane operators under paragraph 25.2.1 but, whatever the result of this comparison, he had been dismissed not for his relative demerits in skill and experience but because he had a disciplinary record.  Mr Carr addressed to us an important argument on the meaning of paragraph 25.  He said that in paragraph 25.2.3 the words

		"subject to the foregoing considerations, and all other things being equal, selection for redundancy shall be on a "last in first out" basis..."   

had a limited meaning.  They were referring expressly to the criteria in paragraph 25.2.1 and 

		"all other things being equal"

meant equality in respect of those criteria; if matters were otherwise, it would mean that having carefully set out what were apparently the principal criteria in paragraph 25.2.1, the employers could then consider any other criteria whatever, find inequality somewhere or other, and dismiss on that ground.  That would mean that sub paragraph 25.2.3 opened a "Pandora's Box".

	Accordingly Mr Carr submitted that both Mr Bennett and Mr O'Kane had on the face of it been dismissed in breach of the provisions of paragraph 25 of the Collective Agreement.  He both complained and conceded that there was a complete absence in the decision of any analysis of the issues raised by the case and by his submissions to us.

	Mr Bloom submitted that the true construction of paragraph 25.2.3 of the Collective Agreement was not limited in the sense contended for by Mr Carr.  He said that there was no reason whatever why the expression "all other things being equal" should not be given an unrestricted meaning.  The very words "all other things" showed that the phrase was not limited to the "foregoing considerations".  Accordingly, the point made on behalf of Mr O'Kane was not a good one.  With regard to Mr Bennett, he complained that there was no mention of the contentions, now made, before the Industrial Tribunal.  Nor was there any reference to these contentions in the Notice of Appeal.  He said that before the Industrial Tribunal everyone accepted that the case with regard to Mr Bennett simply rested on the failure to consult him.  He did not object to these points being taken, perhaps recognising the imperfections in the Industrial Tribunal's decision and the fact that the Respondents were represented only by Mr Wood their director and the Applicants by Mr Wheaton the Trade Union Officer, but he contended that we should reject all the arguments advanced under section 59.

	We found ourselves seriously divided about the proper construction of paragraph 25 of the Collective Agreement.  We were embarrassed by the fact that the Industrial Tribunal had not considered the matter, and that we ourselves had not had an opportunity to consider the agreement as a whole.  We were all of the opinion that now that the point was being actively urged, it might well be that evidence might be adduced highly material to the true construction of this somewhat obscure provision.  We have agreed that we will not ourselves decide, on this appeal, the true construction of paragraph 25.

	The next part of Mr Carr's argument related to his submission that there had been no proper consultation with either of the Appellants.  He said that there was no consultation at all until after the decision to dismiss had been taken.  He referred us to  R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price & Others [1994] IRLR 72.  The modified colliery review procedure which was the subject of that application was intended to comply among other things with the redundancy consultation requirements of the Employment Protection Act.

	The headnote of that case states:

		"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.  The process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting.  The tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, that "fair consultation" means "(a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; (d) conscientious consideration by an authority of the response to consultation", would be adopted."

Mr Carr complained that the Industrial Tribunal simply did not consider this point.  It was true that the Industrial Tribunal might, had there been evidence to support it, have found that the decision to dismiss which was communicated to the shop steward on 16 June was a provisional one, so that consultation could still fairly take place but there was of course no finding to that effect.

	Mr Carr also complained that the Industrial Tribunal had made no finding as to whether the employers should, in addition to approaching the trade union, have consulted at a personal level with the employees.  This was particularly important because there was evidence that the trade union had wished to consult the employers and had been prevented from doing so.  Mr Carr referred to Rolls-Royce Motor Cars Ltd v Price and others [1993] IRLR 203, and in particular the headnote which states in part:

		"There is no principle of law that where consultation with the union on the choice of criteria to be applied in a redundancy situation has been taken as far as it is practicable to do, there ceases to be any obligation on the employer to consult with the union or the employees concerned about the application of the criteria to individuals.  Nor is there any rigid rule that the obligation on the employer is only to consult either the union or the employees about the application of the criteria for redundancy selection."

	Mr Carr also complains that the Industrial Tribunal made no reference whatever to the very frank concessions made by the Respondents in evidence.  Mr Wood said (page 26):

		"I think with hindsight it would have been better to have called the men in."

Mr Gilbert, the manager, said (page 27):

		"I was inexperienced and possibly at fault for not consulting with those to be made redundant.  I admit I should have spoken to men direct."

Mr Carr referred to Huddersfield Parcels Ltd v Sykes [1981] IRLR 115.  The headnote of that case reads in part:

		"The Industrial Tribunal were entitled, however, to conclude that the dismissal was unfair because the appellants did not offer or even discuss with the respondent the possibility of alternative employment.  It was open to the Industrial Tribunal to conclude that any reasonable employer would have discussed the possibility of alternative employment with the respondent before dismissing him.

		The argument on behalf of the appellants that the Industrial Tribunal's finding was perverse, bearing in mind the discussions that had taken place with the trade union about the selection for redundancy, could not be accepted.  It cannot be said that any reasonable employer is entitled to infer that an individual employee is privy to the negotiations that may take place between an employer and a trade union before a decision is made or an agreement is reached in relation to redundancy.  In the present case, the evidence showed clearly that the respondent was not aware of what was happening until the day he was dismissed.  His state of knowledge could have been ascertained quite simply by the appellants on that day and it would have been apparent to them that further discussion with the respondent was appropriate."

Mr Carr said that it was very strange that the Industrial Tribunal had not dealt with this most relevant issue.  This submission appeared to us to have great force, particularly in view of the circumstances that the union itself had entirely failed to respond to the employers' invitation to consult.  What possible right could the employers have to assume and so supine a trade union must have consulted with all the individuals concerned?

	Mr Carr also submitted that the finding of the Industrial Tribunal, that consultation would have made no difference, if that was indeed the basis of their decision, was completely contrary to the principles of Polkey v Dayton Services Ltd [1988] AC 344.  

	Finally, Mr Carr referred to the fact that very shortly before his redundancy Mr Bennett had been offered a job at the Cardiff Depot.  There was indeed other evidence that this job was still open at the time of dismissal.  In those circumstances, no reasonable employer could have overlooked the possibility that consultation might result in either Mr Bennett or Mr O'Kane asking for the job and being at any rate seriously considered for it.  The only excuse with regard to this point was that Mr Bennett had earlier refused the job, but that was when Mr Bennett had no reason to suppose that his job at Swindon was in danger and when he was, therefore, doing no more than assert that for private reasons he would rather not move.  It was a complete non sequitur to suggest that he would not have accepted or at any rate been interested in the job when he learned that his Swindon post was to go.  Mr O'Kane, of course, had not been consulted at all on this matter.

	Mr Bloom, as we have already mentioned, complained that a number of these points had not been taken before the Industrial Tribunal or, even, in the Notice of Appeal.  We have also referred above to his basic submission about the true construction of paragraph 25 of the Collective Agreement.  He conceded that there were respects in which the employers' letters to the trade union did not comply with the provisions of section 99 of the Employment Protection Act 1975, now of course substantially re-enacted in section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992.  He said that there was a background to this case, which could be seen from certain of the documents, which meant that neither the trade union nor the employees should have been surprised that redundancies were necessary.  He complained with great force that his principal difficulty was that the Industrial Tribunal had not found the facts on which they base their decision.  He said that the proper submission for the Appellants ought to be that this matter should be remitted to a new Industrial Tribunal.

	On the basis of these submissions, we thought it right to stop Mr Bloom and we heard Mr Carr in reply to such submissions as Mr Bloom had already made.  It was clear to us that Mr Bloom was not seriously contesting any submission that the case should be remitted for a re-hearing before a differently constituted Tribunal, but that he did of course resist Mr Carr's submission based on section 59 of the Act of 1978, that we should, after considering the evidence, substitute our own conclusion that the dismissal of each of the Appellants was unfair.

	Having heard Mr Carr to the conclusion of his submissions, we were all satisfied that we should reject his submission that we were entitled to substitute our own findings of fact for those of the Industrial Tribunal on the basis that no Industrial Tribunal properly directing itself could reach any other conclusions than those which were pressed upon us by Mr Carr.  Quite apart from our difficulty with regard to the true construction of paragraph 25 of the Collective Agreement, we cannot be satisfied that there might not be special reasons justifying a departure from the agreed procedure; a question which appears not to have been canvassed at all before the Industrial Tribunal.

	We agree however with the justice of the submissions made by both Mr Carr and Mr Bloom that there is a whole series of findings of fact which we should expect to see and which are omitted from this decision of the Industrial Tribunal.  We are very conscious that such a decision is not to be analysed or construed as though it were a statute, and that it is wrong to go through a decision with a fine toothcomb seeking every possible point of criticism.  Nonetheless we are all of the opinion that there are omissions from the reasons of this Industrial Tribunal which make it impossible for the parties to understand why they have won or as the case may be lost and we therefore order the complaints of each of the Appellants to be tried again by a differently constituted Tribunal which will no doubt receive submissions and evidence on the points which were raised, some of them for the first time, before us.