Appeal No. UKEAT/0192/08/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 September 2008
	          Judgment handed down on 14 November 2008

Before
HIS HONOUR JUDGE ANSELL
PROFESSOR S R CORBY
MR G LEWIS

E-ZEC MEDICAL TRANSPORT SERVICE LTD	APPELLANT

MS S A GREGORY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR E McFARLANE
(Representative)
Natwest Mentor Services Litigation Dept
2nd Floor Sapphire West
550, Streetbrook Road
Solihull
West Midlands B91 1QY	
For the Respondent	MS N SIVANANDAN
(of Counsel)
on behalf of
Bar Pro Bono Unit

SUMMARY
Redundancy:  Fairness

Subjective marking system without prior consultation led to a correct finding of unfair redundancy.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal from a unanimous judgment of a London South Tribunal chaired by Employment Judge Ms Amin, who following a hearing in August 2007 determined that the Claimant Ms Gregory had been unfairly dismissed.  They dismissed her claims for direct sex discrimination and as regards a claim for indirect disability discrimination this was stayed pending a decision from the European Court of Justice in Colman v Attridge.  That decision has now been received and therefore application can now be made back to the Tribunal.

2.	The Tribunal’s decision related to an unfair redundancy in relation to Ms Gregory’s work as an administrator/ambulance driver.  The Tribunal found that following a downturn in business a redundancy situation existed but criticised the employers as regards lack of consultation, the subjective criteria to be marked as part of the selection process, the manner in which that marking was carried out and the failure of an appeal process to rectify those defects.  The Tribunal also determined not to make any Polkey contribution.

3.	On appeal to this Tribunal the case was sifted by HHJ Peter Clark, who ordered that there should be a preliminary hearing.  That hearing took place on 17 June before Mr Justice Underhill and members, who permitted the appeal to go forward to a full hearing with the caveat that an issue raised as to the curative effect of s98A(2) of the Employment Rights Act 1996 had not been argued before the Tribunal.

4.	Before us the appeal focussed on three main areas.  Firstly, that the Tribunal in criticising the fairness of the procedure had ended up by substituting their own view as to fairness rather than considering whether the employer’s actions did or did not fall outside the band of reasonable responses; secondly, that the Tribunal were in error within the decision in seeking to place the burden of proving fairness on the employers, whereas it is mutual; and, thirdly, failing to make any Polkey deduction.

5.	At the hearing below Ms Gregory was unrepresented.  At a very late stage prior to the hearing before us Ms Gregory was able to obtain the assistance of Ms Sivanandan through the Bar Pro Bono Unit.  Ms Sivanandan prepared a helpful skeleton argument and at the beginning of the case sought leave to amend the answer by cross-appealing.  The cross-appeal related to certain findings made by the Tribunal in relation to whether or not a true redundancy situation existed and also an appeal against the Tribunal’s dismissal of the direct sex discrimination claim.  We refused leave to file the answer out of time and gave reasons, which appear in a separate judgment.

6.	The background facts are that Ms Gregory from 24 January 2005 worked as an administrator and ambulance driver until her dismissal on 12 January 2007 on the grounds of redundancy.  E-Zec operated a private ambulance service and an important part of their business was the transportation of injured and sick holidaymakers who had been repatriated back to the UK.  They had three branches at Croydon, Stafford and Portsmouth with a total number of employees of 147. 

7.	Ms Gregory has a profoundly disabled daughter, and in 2006 it was agreed that her working hours should be reduced from 40 to 30.  At this time she was working predominantly at Mayday Hospital in the transport office and on the road and carrying out some repatriation work at weekends and at nights.  In October 2006, because of increasing problems with her daughter, the employer agreed to her request to work only term time, although she maintained that her reduction in hours caused resentment between her and two of the directors of the company and that the decision to dismiss her arose not through a true redundancy situation but because she had had to go onto reduced hours.

8.	During 2006 E-Zec faced a downturn in the repatriation work caused certainly in part by holiday insurers keeping injured holidaymakers in overseas hospitals for treatment until they were fit to return home.  The employer had no alternative but to consider redundancies and decided to restructure the Redhill site where Ms Gregory worked and in particular the control room.  At the end of the day there was a necessity to make redundant four employees out of a pool of fourteen.

9.	The selection process was to be supervised by Mr West, the senior HR manager, who would carry out the non work-related marking by checking personnel files for information.  Other criteria were to be marked by Mr Paul Dean, the regional manager, who was Ms Gregory’s line manager, on the basis that he had worked with all the staff and knew their strengths and weaknesses.  It was also agreed that Mr Quaife would act as an appeals officer.  

10.	A group announcement was made on 27 November 2006 and Ms Gregory was given an independent letter explaining the reasons for the proposed redundancies.  Volunteers were first sought and one person volunteered.  Mr West had a meeting with the staff.  The Tribunal record that one of the key questions asked was the nature of the selection criteria.  There was a second meeting held with the staff on 21 December 2006.  Although the Respondents claimed that Ms Gregory was present in fact she was on annual leave at the time and had not been informed or invited to the meeting.  At some stage Ms Gregory was informed that there were two possible vacancies at Mayday Hospital; but it was made clear that they were full-time vacancies and that she would find it difficult if not impossible to apply for them.  Two of the candidates who were in the pool of fourteen applied for and were successful in obtaining these jobs.  As regards the criteria for selection for redundancy Mr West chose nine.  He was going to mark the issues relating to service, absence, sickness days, sickness occasions and discipline, being matters that were generally verifiable by reference to personnel files.  Mr Dean marked the issues relating to performance, commitment and attitudes, skill base and team working.  The scoring matrix was shown to the Tribunal and there were definitions for the criteria, with a score of 5 at the top down to 1 at its lowest.  The Tribunal record at paragraph 35 that the trade union was not consulted about the criteria until after it had been applied nor was the process ever explained to staff, who were merely told that the criteria would be used.  In paragraph 36, a paragraph which we found rather confusing, the Tribunal dealt with the actual scoring.  It was agreed between the parties that Ms Gregory was one of three who scored 26, this being the second lowest score, the lowest score being 20.  The next highest score was that of a male who scored 27.  The three who scored 26 together with the person who scored 20 were made redundant.  The Tribunal concluded in paragraphs 36 that “We found the guidelines and in particular the definitions for the criteria to be wholly subjective and incapable of objective measurement.”  The process then adopted was set out by the Tribunal in paragraphs 37 and 38 as follows:

“37.	Mr West told us that he satisfied himself that Mr Dean had carried out the process correctly by speaking to Mr Dean.  There were not dates given of this conversation or any notes.  Mr West also asked Mr Dean if he would have done things differently and Mr Dean had replied in the negative.  On this basis the Respondent were satisfied that the scoring was carried out fairly and objectively.  Mr West accepted that Mr Dean did not use any records or objective evidence in arriving at his scores but that he relied entirely on his personal judgment as a line manager and took a “rounded” view.  When pressed in cross examination Mr West accepted that “he could not explain Paul Dean’s scoring” and neither could he “question his scores as HR Manager”.  Mr West was asked how he ensured that there was no bias in the scoring and his response was “that he made sure of this because he explained to [Mr Dean] that he was not allowed to take his personal feelings but had to be based on knowledge”.  On this basis Mr West was satisfied that Mr Dean was “happy” to carry out the process.  Mr West was unable to explain why the Claimant’s absence card (p.184) was blank or why the Claimant’s sickness absence card was blank (p163-4) and yet she had been scored on this taking absence records for 2005-2006.

38.	The process for marking adopted by the Respondent was that Mr West sat down with Mr Dean and went through each criterion and the definitions to ensure that he understood exactly what he needed to do.  Mr Dean was asked to carry out all the scoring in one day and not to consult anyone during the marking process.  Mr Dean did not give evidence to the Tribunal.”

11.	Early in the decision the Tribunal had noted that the employers accepted that no appraisals had ever been carried out for staff as there was “no such system”.  

12.	Mr Dean’s scoring was carried out on 30 November 2006 and then the process was handed over to Mr West for him to complete the process.  Ms Gregory returned to work on 8 January 2007 and the following day she was informed of the scores that she had received.  Although the meeting was described as a “consultation meeting” the Tribunal did not agree and found that it was a meeting to impart the scores Ms Gregory had been given.  She was shown her scores and a copy of the guidelines but not allowed to view the whole matrix.  She did her best to challenge the scores and asked pertinent questions as to how the criteria were applied.  At the end of the meeting she was handed a letter saying that she was at risk of redundancy and advised a further meeting would take place on 12 January, again described as a “consultation meeting”.  In fact on 12 January she was handed a letter informing her of dismissal due to redundancy; the Tribunal noted that Mr West had already prepared a letter terminating the contract notwithstanding that the meeting had been described as a “consultation meeting”.  

13.	On 15 January Ms Gregory appealed against her dismissal on the grounds that the scoring was tainted by sexual and disability discrimination, that the matrix was not objective and its application was subjective leading to her low scores.  She repeated the assertion that she had been made redundant because she had requested term time working 8 weeks prior to being dismissed.  

14.	Mr Quaife heard the appeal.  He had familiarised himself with all the documentation before the appeal hearing and having considered the documents and the scoring did not form the view that there was any bias in the scoring although at no stage did he speak to Mr Dean to establish how the scoring was done nor whether there were any notes from Mr Dean supporting his scoring; however he expressed the view that Mr Dean and Mr West had acted fairly and transparently.  The appeal was dismissed and the Claimant was notified by letter dated 16 March 2007.  

15.	The Tribunal’s conclusions as to fairness were set out in paragraphs 55-59 as follows:

“55.	As regards consultation, although the Respondent gave notice of impending redundancies in November 2006, it failed to consult with the trade union on the selection criteria until after they had been agreed.  Consultation in this case was not done at a time when the proposals were still at a formative stage.  No adequate time was given to the Claimant to consider and respond to the proposal for redundancy.  The purpose of consolation [sic] with the Claimant is for the Respondent to find out whether the needs of the business can be met in some other way other than by dismissal, and if not, what other steps the Respondent can take to ameliorate the redundancy.  In particular, what alternative employment might be available?  Good industrial practice requires that, bar special circumstances, a fair employer will consult with the employee before dismissing.  We are satisfied that there was inadequate consultation in this case.  Alternative employment, and in particular the May Day vacancies were not discussed with the Claimant and the Claimant was not given a reasonable opportunity to express her views on those vacancies before the decision to dismiss her was taken.

56.	We are satisfied that the Respondent gave due consideration to the pool for selection and had applied their minds to the problem and acted from genuine motives.

57.	We accept that the Respondent has a great deal of flexibility in defining the selection criteria.  We have asked ourselves whether the Respondent’s choice of the criteria selected here fell within a range of reasonable responses available to a reasonable employer in all the circumstances.  We are satisfied that they did.  However, we are not entirely satisfied that the criteria selected were generally objective.  We conclude that key aspects of the criteria marked were left to the individual choice and personal judgment of Mr Dean.  A substantial proportion of the criteria were not capable of specific measurement by reference to records of attendance, efficiency, etc.  In addition, the criteria guidelines were not applied in such a way as to make the dismissal a reason able one.  We conclude that the scoring applied to the Claimant was not applied in a reasonable fair and objective manner.  There was no evidence put to us to demonstrate how Mr Dean scored apart from Mr West confirming that he was “comfortable” with the scoring.  The decision to allow Mr Dean to use his personal judgment (without any supporting evidence to justify his scoring) when applying the criteria was not a process that fell within the band of reasonable decisions available to a reasonable employer in a redundancy situation and was therefore unfair. The absence of evidence before us as to how the scoring had been arrived at made it impossible to for us to decide that the selection criteria had been fairly applied and accordingly the Claimant had been unfairly selected.

58.	Whilst we recognise that the Respondent does not have to prove the accuracy of the marks awarded to the Claimant the Respondent does have to prove that the method of selection was fair in general terms and that it was reasonably applied to the Claimant.  This does not mean that the Claimant is entitled to disclosure of marks of other employees.  Neither is it necessary for the Respondent to produce evidence relating to all the assessments made.  In this case there was no consultation with the trade union.  We are mindful that it is not our task to subject the marking system to microscopic analysis or to check that the system had been properly operated.  Our task is to assess whether the Claimant had been treated fairly by the employers.  The manner in which the Claimant was given her scores and the time given for her to challenge the score was unreasonable.

59.	The Claimant was given a right to appeal and although she was not entirely co‑operative it was clear that the Respondent did not rectify the unfairness in the criteria application.  Mr Quaife did not seek any clarification of how the scores were arrived at and approached the appeal with a close mind.  He relied on Mr West’s judgment that Mr Dean would not have acted unfairly.  He carried out no independent assessment of how the scoring was arrived at in order to justify the marks awarded to the Claimant.”

Fairness of Dismissal
16.	Although Mr Dean’s alleged subjective marking was very much at the heart of this appeal neither party in their written submissions filed prior to the hearing before us had dealt in depth with this particular issue nor referred us to the cases on the subject.  At the commencement of the hearing Judge Ansell handed to the parties an extract from Harvey section D1 paragraphs  1666‑1703 together with copies of three authorities Eaton Ltd v King [1995] IRLR 75, British Aerospace v Green [1995] IRLR 433 and John Brown Engineering Ltd v Brown [1997] IRLR 90.  

17.	The guidelines as to the standards which Tribunals should use in determining whether dismissal for redundancy is fair were set out in the well known authority of Williams v Compair Maxam Ltd [1982] IRLR 83 where Mr Justice Browne-Wilkinson (P) giving the judgment of the court set out five principles:

“1.	The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who m ay be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2.	The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible.  In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant.  When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3.	Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4.	The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider the representations the union may make as to such selection.

5.	The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.”

18.	In Eaton Ltd v King the four employees concerned were dismissed on the grounds of redundancy.  Their selection had been based on the operational needs of the business and involved assessment of the individual employees on the basis of the following criteria, namely commitment, flexibility, trainability, quality of performance, use of initiative, length of service with the company, qualifications, specific skills, efficiency, attendance record and disciplinary record.  The unions had conveyed no objection to that method of selection.  The assessment of each employee had been made by the appropriate departmental supervisor and reviewed by the manager of plant and the manufacturing manager.  A selection had been made from the lowest scoring employees.  

19.	When the employees were informed they reacted angrily and insisted on seeing their marks.  The company agreed but refused to disclose the marks of others in their sections.  They complained that they had been unfairly selected for redundancy.  The manager of the plant was the only person involved in the selection process to give evidence before the Tribunal.  From his evidence it emerged there was an error in the marking of one of the employees under the heading “Qualifications” and that in some other areas the employees should perhaps have been marked higher.  However, since he himself had not carried out the assessments he was unable to say with any degree of certainty why particular marks had been awarded.  The EAT in Edinburgh overturning the Tribunal’s decision that the dismissals were unfair said this at paragraphs 10 and 11 of their decision:

“10.	The principal issue in this appeal is whether the Industrial Tribunal have correctly understood and applied the law as laid down in Buchanan v Tilcon Ltd, supra.  That was a case in which the evidence led before an Industrial Tribunal was that of an area contracts manager of the employers, Mr Grogan, who had had to make the decision about the redundancy of individuals, and the personnel manager, who described the general basis of the selection.  The Industrial Tribunal accepted that Mr Grogan’s decision had been fairly taken on the basis of information available to him, but they thought that that was not sufficient to discharge the onus of proof which, at that time, lay upon the employers under s.57(3).  They held that it was necessary for the employers to prove the accuracy of the information upon which Mr Grogan had acted.  The Employment Appeal Tribunal held, on appeal, that the Industrial Tribunal had placed much too high a requirement upon the employers, and that decision was affirmed by the First Division.  The Lord President said, in a well-known passage;

“We are not persuaded that the attack upon the decision of the Employment Appeal Tribunal is well-founded.  The only issue before the Industrial Tribunal was whether Mr Grogan had acted reasonably in selecting the appellant for dismissal on the ground of redundancy.  The reason for the dismissal of the appellant was redundancy.  As was pointed out in the opinion of the court in Atkinson v George Lindsay & Co [1980] IRLR 196, where a dismissal for that reason, survives (as the dismissal of the appellant does) the tests prescribed in what is now s.59 of the Employment Protection (Consolidation) Act 1978, it will in most cases be extremely difficult for any Tribunal to hold that in dismissing a particular individual his employers acted unreasonably within the meaning of s.57(3).  This was readily accepted by counsel for the appellant who recognised also that s.57(3) which applies to dismissal by reason of redundancy does not readily lend itself to that situation.  In the event, the appellant, apart from throwing out the suggestion that he might have been victimised because of dislike, merely expressed his concern that others with even less seniority than he and employed in the same work (labouring) had been kept on.  In this situation where no other complaints were made by the appellant, all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision.  As was pointed out by Phillips J in Cox v Wildt Mellor Bromley Ltd [1978] IRLR 157, it is quite sufficient for an employer in a case such as this to call witnesses of reasonable seniority to explain the circumstances in which the dismissal of the employee came about, and it was not necessary to dot every “i” and to cross every “t” or to anticipate every possible complaint which might be made.  In our opinion, agreeing with the Employment Appeal Tribunal, it is quite unrealistic and unreasonable for an Industrial Tribunal – which is prepared to accept that the senior official who made the selection reached his decision fairly upon the basis of company information, the reliability of which he had no reason to question – to demand of the employer for the purposes of s.57(3) that he should set up the accuracy of that information by direct evidence of other witnesses speaking, perhaps, to records for which they had some responsibility.  The Industrial Tribunal, in our opinion, set for the respondents in this case a standard which was much too high.  In so doing they misdirected themselves and we have no doubt that the Employment Appeal Tribunal was entitled to go on to hold that the only reasonable conclusion which was open upon the evidence led before the Industrial Tribunal was that the respondents had discharged the onus which rested upon them in terms of s.57(3) of the Act.

11.	In considering the Industrial Tribunal decision in this case, it is important to bear in mind that the starting point is a finding that the employers were not in breach of s.59.  This, therefore, is a situation to which the observations of the Lord President are directly relevant.  Secondly, the employers explained their selection process, which depended upon assessment of each employee by persons who had direct knowledge of his work, namely the supervisors.  There seems to us to be no material difference between the position of a senior manager who relies on such reports and that of one who relies on information in company records.  In both cases, the senior manager is relying on the proper performance of the work done by those appointed to do it and, in the absence of some reason to think that the work has not been properly done, there is no reason why he should not so rely.  The evidence given by Mr Hunter, as reflected in the quotations from the Industrial Tribunal’s findings given above, shows no more than that, as might be expected, he was not able to speak to the details of individual assessments.  In the present case, the method of assessment, and the headings under which the assessment was to be carried out, were intimated to the relevant union, which did not object to them.  There is nothing whatever in the findings to indicate that the assessment process was not carried out honestly and reasonably.  There may be some cases in which some inference can be drawn from the markings or findings that there was something unfair about the individual application of the methods of selection, but this is not such a case.  Accordingly, it seems to us that in reaching the view that the selection was unfair, because they had not heard evidence from those who actually made the individual assessments to explain why the respondents lost marks, the Industrial Tribunal fall into precisely the error which was identified in Buchanan v Tilcon Ltd.  In fact, it appears to us that what the employers did in this case was to set up a good system of selection, reasonably administered.  It may very well have been possible to argue about the individual markings of individual employees, but that is a comment which applies as much to the marking of those who were not selected for redundancy as to that of those who were.  If the view taken by the Industrial Tribunal were carried to its logical conclusion, there could be no alternative but to require the employer, in every such case, to produce all the evidence bearing upon all the assessments out of which the redundancy decision arose.  That seems to us to go far further than is proper.  Of course, every redundancy situation is one of distress for employees who are affected; and every redundancy situation is one in which hard decisions have to be made.  It is, however, essential to remember that what is required of the employer is that he should act reasonably.” 

20.	This decision was approved by the Court of Appeal in British Aerospace v Green where Waite LJ said this at paragraph 25:

“I would endorse the observations of the Employment Appeal Tribunal in Eaton Ltd v King & Others [1995] IRLR 75 that it is sufficient for the employer to show that he had set up a good system of selection, that it was fairly administered and that ordinarily there was no need for the employer to justify all the assessments on which the selection for redundancy was based.”

21.	Before us Mr McFarlane on behalf of the Appellant sought to derive considerable support from the Eaton case.  He argued that the employers had consulted adequately with the staff given them as much warning as possible.  He further argued that the criteria were as objective as possible and although Mr Dean was using his personal knowledge in relation to the areas he was being asked to mark, he was able to do so fairly from his own personal knowledge of all the staff with the assistance of the definitions for each level that had been set out by Mr West.  The evidence was that the system had been applied to all the potential candidates in a similar way and there was no evidence that Mr Dean had any particular bias against Ms Gregory.  He argued that the evidence that Mr West gave before the Tribunal should be sufficient in setting out the basis of how the scoring was carried out and his satisfaction that it was carried out fairly and objectively, and that therefore there was nothing in the Tribunal’s findings to indicate that the assessment was not carried out honestly and reasonably.

22.	Similarly he argued that as regards the appeal process it was not necessary for Mr Quaife to go into the details of the individual scoring but only to satisfy himself that overall there was fairness and that there was no bias in the scoring.

23.	Ms Sivanandan sought to distinguish the facts of the instant case from Eaton and pointed to the totally subjective system surrounding Mr Dean, totally unverified by any company documents and indeed unsupported by any notes that Mr Dean made in relation to his scoring.  She submitted that it was his low scoring of Ms Gregory in the areas of performance and commitment that made the difference in her case.

24.	She argued that there was a complete absence of any attempt to agree the criteria or the method to be adopted with either the union or the employees concerned who were effectively presented with a pre-determined plan worked out primarily by Mr West.  She argued that had the union been involved they would no doubt have examined closely the proposed subjective areas of scoring to be carried out by Mr Dean to suggest possible ways that they could be verified by reference either to company documents or alternatively in consultation with other managers.  She argued that in particular it should not be left one person to judge areas such as performance and commitment completely devoid of any verification by objective means.  She argued that in Eaton not only were the criteria shown to the union but it raised no objection to the method of selection, but the scoring carried out by the departmental supervisors was viewed by the plant manager and the manufacturing manager, whereas Mr West as HR manager was in no position to have any knowledge as regards the staff involved nor at any time were there notes made by Mr Dean in relation to the scoring.  She also argued that Mr Quaife’s appeal process did not attempt to cure these defects as he had not spoken to Mr Dean to establish how the scoring was done.

25.	On this aspect of the case we agree with Ms Sivanandan.  Unlike the Eaton case there was no attempt to consult with the unions or the employees as to the method of selection, the criteria to be adopted and the marking process.  We agree with the Tribunal’s views that it was an unfair process that fell outside the band of reasonable decisions for the key criteria to be left to one individual who was not able to support his marking by reference to any company documents such as performance appraisals, who had not spoken to any other manager concerning those marks and who had made no notes or given any indication as to how he had made this individual choice.  The Tribunal were careful in making it clear that their task was not to subject the marking system to microscopic analysis or to check that the system had been properly operated but they did have to satisfy themselves that a fair system was in operation.  In our view were entitled to come to the conclusions that this was not a fair system and that the appeal process did not cure it.  

Fairness
26.	In paragraph 58 of the decision the Tribunal said this:
“the Respondent does have to prove that the method of selection was fair in general terms and that it was reasonably applied to the Claimant.”

27.	Mr McFarlane submitted that the Tribunal have in this phrase erroneously placed a burden upon the employers which does not exist, the issue of fairness being a neutral one to be determined by the Tribunal from the evidence presented to it.  He accepted that there may well be an evidential burden on an employer to show what the system was in order to justify its fairness but he submits that the Tribunal went too far in suggesting that there is a burden of proof upon the employers.  

28.	Whilst the Tribunal’s phraseology in this area is regrettable, looking at the position as a whole, we are quite satisfied that, irrespective of the error concerning the burden of proof, the Tribunal were correct in their conclusions regarding fairness. In particular we would refer to the end of paragraph 58 where the Tribunal set out their task as being to “assess whether the Claimant has been treated fairly by the employers”.  We are satisfied therefore the Tribunal decision and conclusions were correct notwithstanding Paragraph 58.

Polkey
29.	The Tribunal dealt with this area in paragraph 61 as follows:

“61.	There was no evidence before us to demonstrate that even if the Respondent had carried out the selection and consultation properly the claimant would have been dismissed.  As there were alternative vacancies it was difficult for the Tribunal to say with certainty that the Claimant would still have been dismissed.”

30.	Section 98A(2) of the Employment Rights Act 1996 provides that:

“Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 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.”

31.	Although the Tribunal have not specifically referred to this sub-section we take the first three lines of paragraph 61 of their decision as dealing with this issue.  However, Mr McFarlane argued that even if the Tribunal found that the employers did not cross the 50 per cent threshold so that s98A(2) provided that the dismissal was fair, there was still a failure to consider what might have happened had fair procedures been applied by E-Zec.  He submitted on the facts found by the Tribunal there was no reason to conclude there was no risk that the employee would have been dismissed even if a fair procedure had been followed.  He referred us to the guidance given by the President of this court Mr Justice Elias in Software 2000 Ltd v Andrews [2007] IRLR 568 and referred us in particular to the principles in set out in paragraph 54 of that decision:

“54.	The following principles emerge from these cases: 
(1)	In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

(2)	If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future).

(3)	However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

(4)	Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

(5)	An appellate court must be wary about interfering with the Tribunal's assessment that the exercise is too speculative. However, it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role. 

(6)	The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a Tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely. 

(7) Having considered the evidence, the Tribunal may determine

(a) That if fair procedures had been complied with, the employer has satisfied it - the onus being firmly on the employer - that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2).

(b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly.

(c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue case. 
(d) Employment would have continued indefinitely.
However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.

32.	Mr McFarlane argued that the Tribunal were in error by failing to make an assessment as to whether or not there was at least a possibility that Ms Gregory would have been dismissed in any event.  He relied upon the findings in relation to the redundancy situation – her low scoring and lack of any available alternative employment.

33.	Ms Sivanandan submitted that the Tribunal in paragraph 61 by highlighting the possibility of alternative vacancies clearly formed the view that there was so much uncertainty that no clear prediction could be made as to the likelihood of the employee’s dismissal even if a fair procedure had been followed.  We agree with that view.  It is clear that this Tribunal had made clear findings on substantial failures as far as the employers’ procedure was concerned relating to a complete failure of consultation including proper discussion of alternative vacancies together with criticism of Mr Dean’s marking and in our view the Tribunal were entitled to come to a conclusion that there was not even a possibility that dismissal would have occurred.

34.	Therefore for the reasons which we have stated this appeal is dismissed.