Appeal No. EAT/0971/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 2001

Before
HIS HONOUR JUDGE WILKIE QC
MR D CHADWICK
MS B SWITZER

1) MS L HOLMES 2) MR A MURRAY	APPELLANT

CRICKLADE COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROY LEWIS
(Of Counsel)
Instructed by
Messrs Michael Scott & Co
Solicitors
27 Brittania Street
London
WC1 9JP	
For the Respondent	MR JAMES TAYLOR
(Of Counsel)
Instructed by
Messrs Steele Raymond
Solicitors
43 Richmond Hill
Bournemouth
Dorset
BH2 6LR	

JUDGE WILKIE QC

1.	This is an appeal by Andrew Murray and Lesley Holmes against the decision of an Employment Tribunal dismissing their applications for finding of unfair dismissal, the extended reasons being given on 21 June 2000 following hearings on 1 and 4 February, 27 and 31 March and 17-18 May.

2.	We have been greatly assisted in dealing with this appeal by the efforts of both Mr Lewis and Mr Taylor of Counsel who appeared respectively for the Appellants and the Respondent before us and were also the advocates for the Applicants and Respondent in the Tribunal.

3.	The matter comes to us for full hearing following a preliminary hearing on 6 April 2001 which identified 2 points which were arguable.  The first was whether the Tribunal’s decision was perverse in so far as it concluded that meetings which took place with each of the Applicants on 3 and 6 July 1998 constituted adequate consultation with them having regard to the findings of fact that the Employment Tribunal has made.

4.	The second is that the Employment Tribunal in its extended reasons does not expressly deal with the question whether Mr Murray’s dismissal was unfair in so far as his claim of unfairness was that he was unfairly dismissed by reason of redundancy for want of sufficient consultation.  Mr Murray had submitted his claim not only on that basis but also on the basis that he was dismissed by reason of trade union activities and was selected for redundancy by reason of trade union activities.  There is no appeal in respect of the decision insofar as it constituted a dismissal of Mr Murray’s claim.

5.	In our judgment there is nothing in the point.  The Employment Tribunal in a lengthy and careful decision appears simply to have forgotten to deal explicitly with Mr Murray in the same way as it dealt with the other 2 Applicants only one whom, Lesley Holmes, has appealed against its decision.  It is plain to us that the omission to include Mr Murray expressly in the conclusion reached in respect of the other two, was simply a slip on the part of the Tribunal and there is nothing of substance in it.

6.	We therefore have to consider the argument of perversity.  The backdrop to the dismissal was a recently troubled history of the business studies department of the Respondent college.  Each of the Applicants was a member of NATFHE which was the relevant recognised trade union.  A situation had arisen in the spring of 1998 which management of the college considered required decisions on whether to continue or suspend certain courses and whether to reduce the number of full time staff and restructure the staffing requirement by reference to the revised teaching requirements.

7.	During the course of that spring there was a process of consultation.  It involved consultation with the trade union, and communication with the business studies staff as a group. It also involved consideration of individuals’ input into the process, in the form of an individual update of the skills and qualifications held by each individual.  Finally it involved an individual meeting with each of the business studies staff shortly before the acting principal Mrs Blakemore took the decisions on the structure of the staff and the extent of the courses to be offered.

8.	The trade union was consulted on a number of occasions.  There was a meeting on 5 May 1998 at which, amongst many other things, a proposed staffing structure was put forward involving a reduction in the number of staff from six to four.  Those four were to fill posts which were proposed in outline as involving a full time lecturer in the subjects respectively of accounts, law, economics and management.

9.	There was produced for the purpose of this consultation a short description of the courses that each of those members of staff would be expected to teach and some indication of the qualifications that they would be expected to have.  At the suggestion of the trade union, made in the course of that meeting, an exercise in the form of a skills audit was embarked upon under which each individual member of staff was asked to update their CV so as to give management up to date information of their skills, qualifications and experience.

10.	It was made clear in a meeting held on 15 May between management and business studies staff how important this individual skills audit was on the issue of which staff should be appointed to posts.  That was because it was proposed that selection of those staff who would fill the four posts and those staff who would, in consequence, be supernumerary and would have to be dealt with otherwise was to be on the basis of matching skills to requirements of the post.  If only one member of staff matched the skills and qualifications requirements of a post, that person would be appointed.  If there were more than one person with appropriate knowledge and skills there would be limited competition between those candidates.  There seems to have been little or no dispute about this.

11.	The seriousness with which management took that exercise is reflected in the fact that they agreed to extensions of time to permit staff to submit their responses to the individual staff skills audit.  It is right to say that, although there were meetings with the business studies staff, and there was an element of individual input, the business staff said, individually and collectively, that they wished to respond to the management proposals in a collective way and were content to rely on the efforts of their union in so doing.

12.	On 22 June 1998 there was a further consultation meeting between the management and the union.  There had been an intermediate meeting on 22 May which dealt with matters of organisation of the skills audit.  By 22 June the skills audit had been completed and the information contained in it had been summarised and was circulated. 

13.	In the course of the meeting of 22 June the management team reported that they intended to present their proposals to the acting principal on 24 June with a view to her reporting on the policy and proposed process to the employment policy committee on 29 June and to the corporation on 16 July.  They also reported that she would be speaking to individual members of the business studies staff before making her decision.

14.	The union asked that the acting principal report back to them before 16 July.  The management team expressed concern that the issue should be resolved by 31 July as the conditions of service of some staff might be affected after that date.  The union requested a further consultation meeting concerning the outcome of the acting principal’s decision.  The management team commented that they intended to report the decision directly to the branch officers and to invite each member of the business studies section to a meeting with their representative to discuss the implications of her decision for them personally.

15.	Following upon that consultation meeting there was a series of meetings at which the individual members of staff along with their trade union representative were given the opportunity by the acting principal to say whatever they wanted to say about management’s proposals to address the over staffing situation in the business studies section.

16.	The Employment Tribunal note in paragraph 18 of their decision that each of the Applicants was highly educated and intelligent and appreciated the significance of the individual discussion that took place namely that there was a potential threat to each of their posts by way of redundancy.  The meeting of Lesley Holmes with the acting principal took place on 3 July and that of Mr Murray took place on 6 July.  In each case a full note was taken and was available to the Employment Tribunal.  It is right to say that in the course of these meetings neither Mrs Holmes nor Mr Murray said anything to suggest that they wished to supplement the information they had already been asked to provide by way of the skills audit and had nothing to say about any specific skills or experience that they might bring to bear on any of the four posts of which some details had already been given to their union and to them at the meeting with the business studies staff.

17.	Following upon those individual meetings the acting principal pondered over the weekend of 11 and 12 July.  She took with her all the information that she had accumulated during the course of the previous weeks and, according to the Employment Tribunal’s findings of fact, considered that by reason of the nature of the criterion for selection for redundancy the precise make up of these posts would have a very strong bearing on who would be offered, or who would be competing for, those posts and, in consequence, who might be a candidate for redundancy failing any question of redeployment.

18.	Mrs Blakemore took those decisions which were communicated to the union on 13 July at what was billed as a consultation meeting.  The minute of that meeting records that she had taken her decision having considered the information submitted by the union and the business studies staff and having spoken to individual members of staff.  She had made a series of decisions which included her decision on the structure of the business section.  They were that the business section would require four full time posts; being lecturers in accounts, business and management and finance and economics.

19.	In the course of that lengthy meeting on 13 July there was discussion as to how these decisions would be implemented and there was specific and particular discussion about the match for the four full time posts concerning the existing members of the business studies staff.  Mr Murray did not, by his skills, match any of the four posts and therefore he did not appear in the list of those staff with a potential claim to the respective posts.  As far as Lesley Holmes was concerned she did appear on that list as a person with a potential claim to a post of lecture in business and management.  There was, however, another person Mr Evans, who also appeared in that list as a member of staff with a potential claim.  He also was a potential claimant for the lecturer in accounts as well as another lecturer Mr Nassoori .  It is apparent from a document which was used in the course of a flip chart demonstration at that meeting that of the two potential candidates for the business and management lectureship, Mr Evans was, by quite a margin, the candidate whose skills most closely matched the requirements of the post according to the information which management presented to the union at that stage.  He could do 70 per cent plus of the work whereas Mrs Holmes could only do 30 per cent.

20.	On 15 July Mr Evans was appointed to the post of lecturer in business and management which effectively meant that Mrs Holmes would either have to be redeployed or be dismissed by reason of redundancy and it was against that background that a meeting took place between Mrs Holmes and senior management, excluding not the acting principal, on Friday 17 July.

21.	The Employment Tribunal found as a fact that Mrs Blakemore having taken her decision as to the structure over the 11 and 12 July the dye was effectively cast and that nothing thereafter changed.  The logic of her decision and the information that the Respondent had garnered from the individual skills audit and the individual interviews was such that when Mr Evans accepted the position of lecturer in business and management on 15 July, inevitably Mr Murray and Mrs Holmes became candidates either for redeployment or for redundancy and, in the event, they were both dismissed by reason of redundancy.

22.	The Applicants complained, in so far as it is relevant for our purposes, that there was a failure to consult in advance of the decisions being taken which determined their fate.  The Tribunal reminded themselves of the principal case of Williams v Compair Maxam Ltd which sets out in broad terms the duty of an employer to warn and consult with his employees before making them redundant and to seek alternative employment for them within his organisation, if that is possible, in accordance with well known principles.

23.	They also reminded themselves that whether or not the Respondents have struck the right balance between union consultation and individual consultation as a question of fact for the Tribunal to address according to the circumstances of the individual case before it.  No criticism is made of those statements of principle.

24.	In paragraph 30 of their decision they say as follows:

“We have asked ourselves whether in this case the balance that has been struck is such that the respondents discharged their obligations or not.  The respondents say they have; the applicants say they have not.  There is evidence that the applicants had indicated to the employers that they wished the union to negotiate on their behalf and put forward their representations.  We do not think that that would necessarily absolve an employer from the obligation to carry out individual consultation.  In particular, as to the detail of an individual’s skills and experience, the individual is clearly likely to be far better placed than the union to explain exactly what his particular strengths and weaknesses may be.  We have given this careful consideration, and have come to the conclusion that on this occasion, this employer carried out adequate consultation with the applicants.  We are satisfied that the respondents had made known to the union representatives the restructuring that they proposed to carry out, the way they proposed to carry it out and the end result that they intended to achieve.  We are satisfied that by discussing on an individual basis with each of the applicants as they did, that they discharged the requirement of individual consultation and for those reasons we would find that the dismissals of Mr Greenwood-Wilson (who is not an Appellant) and Ms Holmes were fair (we would add it is plain that by a slip they failed to refer to Mr Murray as plainly their reasoning applied to him as well).”

25.	We are invited to overturn this conclusion on the basis that this decision is perverse.  We have been reminded by Mr Tayler of the limitations on our ability to carry out such an exercise.  He has referred us to the case of Piggott Bros & Co v Jackson [1991] IRLR 309 and in particular to the passage at paragraph 17 in the decision of the Court of Appeal: 
“What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self- misdirection in law by the Industrial Tribunal.  If it cannot do this it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as ‘perverse’”

And in support of this the Master of the Rolls in the next paragraph reminded himself of a previous judgment of the Court of Appeal in the Retarded Children’s Aid Society v Day in which the then Master of the Rolls Denning said as follows:

“I would add this.  The decision is entrusted in the ordinary way by Parliament to the Tribunal.  I do not think it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning.  Looking at it broadly and fairly, as long as they directed themselves properly and fairly on the facts and they have not gone wrong in law, it seems to me that the appeal tribunal should not interfere with their decision even though they would themselves have come to a different decision.”

And reading further on in the further Court of Appeal decision in Kent County Council v Gilham Griffiths LJ as he then was had said:

“Now whether or not an employer has behaved reasonably in dismissing an employee is a question of fact, and it is a question upon which different people, looking at the same set of circumstances , may reasonably come to different conclusions.  It is therefore endemic in a system where there is no appeal on fact that from time to time different Industrial Tribunals will give different answers to broadly similar situations, and neither decision can be challenged.  It is therefore important that this court should resist the temptation to seek to overturn a factual decision with which it may not agree by searching for some shadowy point of law on which to hang its hat for the purpose of bringing uniformity to the differing decisions.  If it were to take this course, it would have the very undesirable effect of encouraging innumerable appeals which raised no point of law, but depended upon comparative findings of fact.”

26.	It is right to say that this particular Tribunal in expressing its decision in paragraph 30 did have in mind the basic rules of law concerning the obligations of an employer to consult in our potential redundancy situation as well as the question of the balance between consultation with the union and individual consultation.  From the passage to which we have referred in paragraph 30 of that decision it is apparent that they had in mind the guidance given by this Tribunal in the case of Mugford v Midland Bank Plc [1997] ICR 399 and in particular the summarised position as set out at page 406 G namely:

“	(1)	Where no consultation about redundancy is taking place with either the trade union or the employee the dismissal will normally be unfair, unless the industrial tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.

	(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.”
 
27.	Having considered this case most anxiously, and in the light of all the arguments which have been addressed to us, we are unable to characterise the decision of the particular Employment Tribunal as perverse in the way that has been described by the Court of Appeal in these various cases.  This Tribunal did direct themselves accurately as to the nature and extent of the obligation to consult and, in particular, the balance between individual consultation and consultation with trade unions.  In particular they made clear in their decision that they did have regard, amongst other things, to the discussions on an individual basis with each of the Applicants.  It has been said on behalf of the Appellants by Mr Lewis that those individual consultations could not have been adequate because nothing was said in the course of them about the individuals particular skills profile and whether it matched or did not match what at that stage were the anticipated positions that were to be available in the structure.

28.	This contention has to be seen against the background of the totality of the consultations which had been going on.  The union, the staff within the department and, through each of these conduits, the individuals had a very good idea of the types of posts which would be contained within the structure.  Each of them had the opportunity, and no doubt had taken the opportunity in the light of that information to inform the employer of their skills profile in the most attractive manner bearing in mind the importance of the exercise for the purposes of selection for redundancy of which management had reminded them all at the meeting to which we have referred.

29.	The fact that in that meeting on 3 and 6 July they chose not to supplement that information was a matter of rebon.  In our judgment it cannot be said that this Tribunal, in concluding that those individual consultations in conjunction with the lengthy consultations conducted with the trade union were sufficient to satisfy the requirements of fairness, gave a decision which was either unsupported by any evidence or contained a clear misdirection in law or that it was not a permissible option for them to decide in that way.  

30.	Therefore we are unpersuaded that this decision was perverse.  That does not necessarily mean that this Tribunal, its individual members or collectively, would necessarily have reached the same decision.  We are concerned that in the course of the meeting with the trade union on 22 June it appears that there was a promise given of individual interviews with those affected both prior to the decisions taken as to the structure within the department and also after those decisions had been taken with a view to assessing the impact of those decisions on individuals.  It is our view that an employer observing the highest of standards would have taken the opportunity after the structure was determined by Mrs Blakemore on the weekend of 11 and 12 July and before final decisions were made to offer jobs to individuals to have made good their apparent promise to speak to individuals with the view to discussing the implications of that job structure for them.  The fact is that they did not do so.  Having said that this is an area of disquiet for the members of this Tribunal it falls a long way short of our concluding that the Employment Tribunal, which is charged with Parliament with the duty of making findings of fact and drawing conclusions from them, has taken a decision which can be characterised as perverse and therefore for the reasons we have already indicated these appeals must fail.