Appeal No. EAT/164/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 October 1996

Before
HIS HONOUR JUDGE J HICKS QC
MR K M HACK JP
MR P DAWSON OBE

SUN VALLEY POULTRY LTD	APPELLANTS	
MRS S A MITCHELL
& OTHERS	RESPONDENTS	

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T FISHER
(Solicitor)
Messrs Field Fisher Waterhouse
Solicitors
41 Vine Street
London
EC3N  2AA	
For the Respondents	MR T LINDEN
(Counsel)
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London
WC1N  3HA	

			JUDGE HICKS QC:   Mrs Mitchell, Miss Walker and Mrs Edwards had been employed for some time - in the case of Mrs Mitchell, I think the longest serving, for a very considerable time - by the Appellants, Sun Valley Poultry Ltd in their departments which were concerned with reception and telephones, post room and E-Mail.  

	The time came when the employers embarked upon a reorganisation, which reflected the introduction of a considerable amount of computerisation and other technical changes and entailed the combination of those departments into one, and the accompanying reduction of the staff of that section of the employer’s business from three full-time persons and two part-time to two full-time persons and one part-time.  That, as Mr Fisher points out, was not an isolated reorganisation; it was part of a substantial exercise in which the total number of jobs lost was much greater.  
	
	In the course of that reorganisation which, as the Tribunal found - and there is no challenge to this - created redundancies, and in which the jobs of the three Applicants were therefore at risk, the employers considered and took certain steps in relation to the possibility that one or more of the Applicants could still be employed in the new situation, and for the purposes of this appeal certain features of the way they dealt with that are particularly relevant.  

	One feature of it was that, as it was put by the Industrial Tribunal in its reasoned decision, they were invited to apply for those jobs as distinct from being offered them.  It may not be entirely clear exactly what the contrast between those two terms is in detail, but it certainly included the features that the jobs were initially advertised internally among a constituency that included a number of other employees as well as Mrs Mitchell, Miss Walker and Mrs Edwards, and that therefore there was no promise or even suggestion, as it seemed to them, that an application would, all other things being equal, be successful.
	The second feature which is of particular relevance to this appeal is that the qualifications for the new jobs were stated to include a requirement of A-Level English, which none of them possessed or could reasonably be expected to acquire within the time available - although there is no suggestion that any of them lacked the necessary command of English for the performance of the duties - and secondly, perhaps less importantly, if possible another language.

	It is part of Mr Fisher’s submissions for the employers that that requirement was what he calls a “genuine mistake” by a Mr Martin, the Information Technology Director, who was an American by origin and not familiar with the English education system.  That requirement persisted, certainly so far as Mrs Mitchell, Miss Walker and Mrs Edwards knew, until on 23 February, as a result of Mrs Mitchell’s seeing a second and different external advertisement which omitted this requirement, she raised the question with the management and was on that day told that the requirement no longer applied, and she told her colleagues.  

	The Industrial Tribunal, by a majority, found that Mrs Mitchell and Miss Walker were unfairly dismissed and unanimously found that Mrs Edwards was unfairly dismissed.  The reasons of the majority were first that in requiring the Applicants to apply for the new jobs, as distinct from “offering” them in the sense used by the majority, the Respondents were unreasonable, and the reasoned decision goes on to make it clear in what sense that word is used by saying:

“1.	... Not merely were they unreasonable, their decision to require that the applicants apply for the jobs was outside the parameters of how a reasonable employer would have decided the matter. 
2.	As a separate independent finding, the majority are satisfied that in the way in which they handled the process of enabling the applicants to apply for the jobs the respondents acted unreasonably.” ...

and again they clarify what test they are applying by saying:

“... The majority are satisfied that no reasonable employer would have acted, or indeed could have acted as these respondents did.”...

	The reason why there was a unanimous decision in the case of Mrs Edwards arose out of a difference in the history, so far as she was concerned, in that confronted with the requirement to apply, coupled with the requirement that there be an A-Level qualification, she immediately concluded that she could not expect to obtain any of the new jobs and made efforts to gain employment elsewhere.  She obtained the offer of a new job as a garage attendant before her employment would otherwise have ceased, and with the agreement of the employers left to take that job, so that in her case the issue of whether by the information given on 23 February the employers had redressed any unfairness which had hitherto obtained did not arise.

	That is probably a sufficient factual background against which to consider the appeal by the employers.  We propose first to deal with a submission by Mr Linden for the Respondent employees that on the face of the Industrial Tribunal’s decision the two grounds - the one which relates to the fact that the Applicants were required to apply for the new posts instead of being offered them, the second ground connected with the history of the A-Level requirement, if one may use that shorthand - truly were, as they themselves state, separate and independent grounds, so that if either was reached without error of law that suffices to entail that the appeal must be dismissed, regardless of whether the other ground is open to attack.  

	Mr Fisher, for the employers, disputes that submission and suggests that the decision of the Industrial Tribunal must be considered as a whole and cannot be separated in that way.  For our part we are satisfied that Mr Linden’s submission is correct.  This reasoned decision, which seems to have been prepared by the Chairman, notwithstanding that in part he was a minority, has, in our view, clearly been prepared with the greatest care and attention to accuracy and with the intention of giving the fullest expression to the majority view, and when that reasoned decision says that the two findings are separate and independent we see absolutely no reason for doubting that that means what it says.  It is in fact powerfully reinforced by a sentence at the beginning of paragraph 3 of the reasons, because there the Chairman says (speaking for himself alone):

“3.	But for the respondents’ correcting the position through Mr Wessling on the 23 February, and despite my finding that the respondents were not unreasonable in requiring the applicants to apply for the jobs, [that is obviously a reference to the first ground] I would have found the dismissals of Mrs Mitchell and Miss Walker unfair.” ...  

In other words he was clearly saying that in his mind, as well as that of the majority, the two grounds are separate and distinct, and that despite his disagreement with the majority on the first ground as to whether the jobs should have been offered, he would still have agreed with the majority had he not considered that the events of 23 February cured the other defect in the employer’s treatment of the situation.

	We are therefore satisfied that if the appeal fails in either of its limbs, then it fails altogether.  We propose to concentrate our attention in the first instance on what I have called the “A-Level requirement” point.  We take Mr Linden’s submissions that in fact that may be an over-simplification of a whole complex of matters which the Industrial Tribunal had in mind, but it is a convenient shorthand for this area of the decision.  

	Within that area, two sub-divisions arise.  There is first the question of whether the Industrial Tribunal erred in law in finding the imposition of the requirement in the first place unfair, so far as the Applicants were concerned.  As I have indicated, Mr Fisher’s submission on that point is that the Tribunal erred in law in failing to take into account that the mistake was an honest one, and an understandable, perhaps excusable one, given Mr Martin’s background.  In our view that is not a relevant ground for finding an error of law on the part of the Tribunal.  The issue on this point starts conveniently - although we emphasise that this is only the beginning and does not cover the whole of the ground - with the well-known passage which Mr Linden cited from the speech of Lord Bridge in the case of Polkey v A E Dayton Services Ltd [1988] ICR 142 at page 162F in which he says that: 

“... an employer having prima facie grounds to dismiss for one of these reasons [which include redundancy] will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as “procedural,” which are necessary in the circumstances of the case to justify that course of action [and then omitting other irrelevant reasons he comes to the case of redundancy and says]   ... in [that case] the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, [that is not the stage which is in question here] adopts a fair basis on which to select for redundancy [nor is that] and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”  [That is relevant, although it is a shorthand statement for a whole range of considerations which the employer, acting reasonably, should have in mind in enabling the redundancy to operate fairly as to its employees].

There is no hint or suggestion there, nor do we think as a matter of principle there could properly be a hint or suggestion, that a mere honest mistake on the part of the employer could excuse a failure to deal with that aspect of the matter reasonably, or so far as the Industrial Tribunal testing the matter is concerned, within the range of reasonableness of reasonable employers.  It is not a subjective question.  It is a question of what was the conduct of the employer and the effect of that conduct on the employee.  But even if we were wrong about that, and it were proper to look into the employer’s mind, it has to be remembered that the employer in this case was Sun Valley Poultry Ltd, not Mr Martin.  Sun Valley Poultry Ltd quite clearly, on the findings of the Tribunal as to the scope of its enterprise, was a very substantial organisation.  It cannot conceivably be supposed that it did not have the capacity or knowledge to apprehend that this was not a requirement that could reasonably be made of these Applicants, and indeed on the contrary it is quite clear that a senior member of the management told them that it was “a bit over the top” and yet did nothing until 23 February about removing it from the process that they had to go through. 

	In our view, therefore, this criticism of the Tribunal is unfounded.  They did not err in law in finding as they did, unanimously, that the employers acted unfairly and outside the bounds of reasonable fairness in imposing this condition.  That disposes of the appeal so far as Mrs Edwards is concerned, because the reversal of that requirement, or the removal of it vis-a-vis the Applicants, on 23 February clearly was too late so far as she was concerned.  Nor indeed, if theoretically it might not have been too late, did the employer in fact do anything about giving her the opportunity of reversing her decision to go elsewhere.  So the appeal against the decision that Mrs Edwards was unfairly dismissed must, on that ground alone, fail.

	So far as Mrs Mitchell and Miss Walker are concerned the question is whether the Tribunal, by a majority, erred in law in finding as they did that what happened on 23 February was not sufficient to remove the unfairness of the previous course of conduct, and for this purpose of course we apply the decision we have reached so far, that the Tribunal did not err in law in finding that the procedure down to 23 February was outside the bounds of reasonableness in that respect.    The finding of the Tribunal about that point is as follows:

“15.   Mrs Mitchell and Miss Walker had repeatedly pointed out that the ‘A’ Level English requirement meant a “closed door” to them.  The internal advertisements that came to their notice all required that qualification.  [Then there is a sentence referring to March 1995, which is probably an error, and certainly does not affect our conclusion] The first that the applicants knew of the removal of this requirement was from an advertisement in the Hereford Times of the 23 February 1995.  By that time there was “a full-time and a part-time role available” ie. one job, or two part jobs, had been filled, as we find.  There was no reference to the ‘A’ Level English.  There was merely a reference to “an excellent command of the English Language.”  Neither was there any reference to a foreign language, French or any other language.  Mrs Mitchell approached Mr Orledge.  The outcome was that on the 23 February Mr Wessling, the Human Resources Director, interviewed Mrs Mitchell and we accept that the Minute which he produced, R1/17, is substantially correct.”  [That includes his informing her that ‘A’ Level English was no longer a requirement and there was also a point about hours of work.]

The Tribunal accepted that the Respondents, while not very courteous, were reasonable in expecting that the message would be passed on.  The reference to lack of courtesy, we think, is not to suggest that Mr Wessling was in any way rude to Mrs Mitchell, but simply that it was no doubt a failure of courtesy on the part of the Respondents not to give that information to each Applicant individually; the Tribunal simply find that it was reasonable to assume that the message would be passed on, as indeed happened.

	The reasons go on:

“17.   The majority find that Mr Wessling’s correction of Mr Martin’s error, coming as it did on the 23 February, and in the wake of the discouragement of Mrs Mitchell and Miss Walker from applying for the jobs which the ‘A’ Level and French language had involved, was not such as to make the respondents’ overall approach to alternative employment, in relation to these two applicants, reasonable, by which is meant within the parameters of how a reasonable management would behave.   ...  The majority find that what happened on the 23 February was “too little too late” to remove the impression, reasonably gained by Mrs Mitchell and Miss Walker, that, whether because of their age or for whatever reason, they “were not wanted” in the new jobs.”

	The issue for us is whether that conclusion of the Industrial Tribunal showed any error in law.  Mr Fisher puts it in two ways, mis-direction and perversity.  So far as mis-direction is concerned we are quite satisfied that there was none.  There is a substantial paragraph 5 in the decision, which we need not read out because Mr Fisher accepts that, as it stands, it is an impeccable direction as to the law to be applied by reference to the decided cases.  We do not accept that there is any ground for concluding that the Tribunal, having directed itself correctly in that way, lost sight of that direction in their approach to the point with which we are at present concerned.  In the passage which I have just read from paragraph 17 is included the expression “reasonable, by which is meant within the parameters of how a reasonable management would behave.”  The Tribunal having correctly directed themselves that they were not to substitute their assessment for that of the employers in general, repeat that they are applying that test in particular when they reach their conclusion on this specific point.  We are satisfied that there was no mis-direction.

	The second basis upon which Mr Fisher puts his challenge is that of perversity, in other words that the decision of the majority was one which no Industrial Tribunal correctly directing itself in law could have reached.

	I have recounted a substantial part, but not the whole, of the factual background which the Tribunal found as the relevant facts and which, having so found, it was plainly entitled to take into account.  It is particular relevant in our view that, as they found, by the time this unfair requirement was to the Applicants’ knowledge removed, one of the 2 jobs originally available had been filled, so that the finding by the Tribunal that this was too late simply cannot in our judgment be said to be perverse.  Whether it is a finding that we or a different Tribunal would have reached is irrelevant.  The fact that it was one which the minority did not reach is irrelevant.  The question is whether it is one which no Tribunal properly directing itself and acting rationally could have reached.  In our judgment, it is well within that range and cannot possibly be characterised as perverse.  

	There are other background facts which are found in the Tribunal’s decision, including the Applicants’ reasonable belief as to what the authority and relationship of Mr Martin to them would be in the new organisation, but we need not go into that and other details because we need only say that, having been referred to all the relevant parts of the decision, we are quite satisfied that the decision on this point cannot be characterised as perverse.
	
	For the reasons that we have already given that suffices to dispose of this appeal, which must be dismissed, because what conclusion we might have reached on the distinct ground concerned with whether the jobs were “offered” as distinct from ones which the Applicants could “apply” for is not a question that we need resolve.  That being so there is really no point in our embarking upon it or giving necessarily brief and partial views on a point which we have not had to resolve as an element of our decision.  We therefore dismiss the appeal.