Appeal No. UKEAT/0074/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2009

Before
HIS HONOUR JUDGE HAND QC
MR D NORMAN
MR S YEBOAH

W BREWIN & CO LTD	APPELLANT

MR J MARVIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MICHAEL CUMMINS
(Solicitor)
Messrs Freeth Cartwright LLP Solicitors
One Colton Square 
Leicester LE1 1QH	
For the Respondent	MR A OHRINGER
(of Counsel)
Instructed by: 
Messrs Taylor & Emmet LLP Solicitors 
20 Arundel Gate
Sheffield S1 2PP	

SUMMARY
REDUNDANCY:  Fairness
The Employment Tribunal had found lack of warning, lack of consultation, unfair application of selection criteria, unfair criteria and lack of consultation as in absentia employment.  Some of the findings were redolent of ‘substitution’ but overall these were findings of fact supporting the conclusion and the appeal was dismissed.  

HIS HONOUR JUDGE HAND QC
Introduction
1.	This is an appeal from the judgment of an Employment Tribunal comprising Employment Judge Ahmed and two lay members sitting at Leicester on 3 and 24 November 2008.  The written judgment sent out to the parties on 31 December 2008 held that the Appellant had unfairly dismissed the Respondent.  There had been two issues in the case and the Respondent lost on the other issue as to his dismissal having been on account of his trade union activities and there is no appeal against that finding.  

2.	The issue before this Employment Appeal Tribunal today is whether the Employment Tribunal’s criticism of the process adopted by the Appellant is well founded or amounts to the Employment Tribunal seeking to substitute its own view for that of the employer.  On behalf of the Appellant employer, Mr Cummins has appeared and advanced the latter submission.  Mr Ohringer, who appears on behalf of the Respondent, submits that this decision by the Employment Tribunal is really all a matter of fact which Mr Cummins is attempting to dress up as an issue of law.  

The Factual Background
3.	We take the factual background from paragraphs 1-13 of the judgment of the Employment Tribunal supplemented by some references to paragraphs 22, 27 and 32 and some references to the material that has been placed before us, namely the Tribunal bundle and the witness statements that were before the Employment Tribunal.  The Respondent, Mr Jeffery Marvin, worked for the Appellant for just short of 32 years, latterly as a quality assurance examiner, although he had undertaken a variety of different roles on a whole range of machinery during the history of his employment.  

4.	After a move to a new factory in 2006, he had been late for work on a number of occasions.  He attributed this to transport difficulties.  Over the last few years, possibly beginning at the start of the decade, regrettably there had been a persistent and gradual decline in the business of the Respondent, which is a knitting company employing about 82 people.  At paragraph 5 of the judgment, the Tribunal noted the following:

“In early 2008, in the face of falling orders the respondent decided to make two Examiners redundant.”  

There were, in fact, three quality assurance examiners so that the decision meant two out of the three would have to lose their employment by reason of redundancy unless volunteers could be found.  The three examiners were told this on 20 March and volunteers were indeed called for but none were forthcoming so selection for compulsory redundancy was necessary.  

5.	An existing set of selection criteria were used.  The Appellant maintained in this Tribunal and at the Employment Tribunal that the selection criteria had been agreed with the trade union in 2002 and used ever since.  Three managers carried out the assessments under the criteria using a scoring system and the scores were then averaged.  Each assessor assessed all three candidates so, as we understand it, there would have been nine assessment forms and these were averaged to produce the three average scores.  In the result, Mr Bill Marriott scored 200 points, Mr Kenneth Taylor scored 167 points and the Respondent scored 154 points.  So the Respondent was 13 points adrift of Mr Taylor and both he and Mr Taylor were 23 and 46 points respectively below Mr Marriott.  Consequently both Mr Taylor and the Respondent were selected for compulsory redundancy.  

6.	That procedure had been completed by 26 March 2008 when the Respondent was invited to a meeting with management.  This took place on 1 April 2008 and at it the Respondent was given a copy of his assessment.  He was then asked to come to a further meeting.  This took place on 4 April 2008.  At that meeting he was told that he would be dismissed with effect from 27 June 2008 and would not be required to work out his notice.  He would receive a redundancy payment and what was described as a payment in lieu of notice.  This must have been, as a matter of law, an advance payment of wages due during the notice period, as opposed to a payment in lieu.  He was then escorted off the premises.  It had been five days from the announcement on 20 March to the assessment on 25 and 26 March, and from then a further ten days elapsed before the dismissal: so the whole process had been completed in 15 days.    

7.	There was an internal appeal in which the Respondent complained about his selection and also raised the position of Mr Taylor.  At page 45 of the bundle is a letter which is erroneously dated 18 May 2008.  It should be dated 18 April 2008.  It is written by the Respondent to Mr Brewin, one of the managers of the Appellant company, and at paragraph 4 of a series of numbered paragraphs, the following appears: 

“Ken Taylor is still employed at the company.”  

That assertion appears to have been discussed during the course of the appeal hearing which took place on 30 April although the scope of the discussion may have been somewhat limited, judging by the note which appears at page 47 of the bundle under the heading “Item 1 and 4”.  It was submitted that the reduction from three examiners to one examiner had not been warranted because Mr Taylor was still employed and this illustrated that two examiners had been needed all along.

8.	That is as much as one can glean from the note of the discussion on appeal.  Whether it went further than that during the discussion or whether it was being addressed differently in the letter that was sent to the Respondent, Mr Marvin, is difficult to decide.  The letter is dated 16 May 2008 and on the second page of it at page 51 of the bundle under a sub-paragraph number 4, the following appears: 

“In your appeal letter you stated that ‘Ken Taylor is still employed by the Company’ and you expanded on this point during your appeal hearing.  

I have looked into the point you have raised concerning Mr Ken Taylor and although I cannot comment on his individual marks, I can confirm that Mr Taylor did score more points than you and that he was also made redundant.  For the benefit of the Company, Mr Ken Taylor was asked to work his week’s notice because some very urgent samples were needed at very short notice and there was a temporary shortage of mechanical cover on the LT machines.  Mr Ken Taylor has the knowledge and experience of being able to make samples and being able to mechanic LT machines and he was happy to carry on working his notice.  

Due to circumstances out of the Company’s control during the weekend of 5th/6th April 2008, an employee had a major health problem, which has meant a long lay off from work and this meant that the Company had to re-structure, at short notice, and this led to the Company asking Mr Ken Taylor to continue to work.  Mr Ken Taylor accepted this and is continuing to work on an interim temporary basis.  Mr Ken Taylor was chosen in preference to you because:
(1) He had more experience and knowledge than you in being able to produce samples and being able to mechanic LT machines, 
(2) He scored more highly than you on the agreed redundancy selection criteria.” 

9.	Mr Taylor, it seems, had been working for the Appellant for six months and may have been planning to retire in the not too distant future.  In paragraph 22, which appears in a separate context as to whether there was a genuine redundancy situation (the issue upon which the Respondent lost), there is some mention of Mr Taylor.  The first sentence of paragraph 22 reads as follows: 

“We heard evidence that Mr Ken Taylor was retained despite having initially been selected for redundancy following an apparent and unexpected increase in orders.”  

Then the fourth sentence returns to that topic by saying:  

“The sudden unexpected increase in orders is an issue that goes to whether or not the claimant could have been offered alternative employment.”  

10.	The matter is also adverted to by the Employment Tribunal at paragraph 30 of the judgment.  There references are made to Mr Brewin’s statement and to that of Mr Chris Taylor, the Works Director, as presented to the Employment Tribunal.  Paragraph 30 of Mr Chris Taylor’s witness statement appears at page 102 of the bundle and it reads as follows: 

“Mr Marvin raised during the Appeal the fact that the other redundant examiner, Mr Ken Taylor, was allowed to continue to work.  (See page 54), the circumstances behind this were entirely unexpected.  Several unexpected things had happened.  The level of samples required from the double cylinder plant had increased during the notice period and in such circumstances the Head Mechanic would normally help out.  However, the Head Mechanic was temporarily incapacitated due to having a hip replacement.  Mr Ken Taylor had extensive experience as a double cylinder mechanic with other sock companies and was able to step in and help us out.” 

11.	That is all that the Employment Tribunal referred to but because the witness statement has been included in the bundle before us and because it was plainly before the Employment Tribunal, we think it pertinent also to quote paragraph 31 which reads: 

“Also, a knitter, subsequent to the redundancy exercise and during the notice period had suffered a heart attack causing the necessary re-deployment of some knitting plant personnel which resulted in a situation where the intentions of the Company to deploy a mechanic to carry out essential plating checks on the Double Cylinder Plant, usually carried out by an examiner, was not possible.  This was because following the knitter’s heart attack that mechanic had to be redeployed as a knitter/mechanic.  Mr Ken Taylor’s notice was extended to help cover this situation.  Mr Ken Taylor also received a higher number of points under the selection criteria than the Claimant.  The Claimant would have been unable to step into the breach and perform the duties of a sample mechanic, as he simply did not have the relevant mechanical experience.  Mr Ken Taylor’s retention came about purely because of the unexpected needs of the Company, the situation regarding the Head Mechanic’s hip replacement and the need to redeploy knitting plant personnel because of a knitter’s heart attack.”  

The other statement referred to at paragraph 30 is that of Mr Brewin and the passage referred to is at paragraph 14(iv) which appears at page 108.  That reads as follows: 

“'Ken Taylor is still employed by the Company' and I found that Mr Ken Taylor did score more marks than Mr Marvin had and that Mr Ken Taylor was also made redundant.  However, for the benefit of the Company Mr Ken Taylor was asked to work his notice because some very urgent samples were needed at very short notice and there was a temporary shortage of mechanical cover on the LT machines.  Mr Ken Taylor has the knowledge and experience of being able to mechanic LT machines and was happy to carry on working his notice.  Due to circumstances out of the Company’s control during the weekend of 5th/6th April 2008, an employee had a major heart attack which meant a long lay off from work.  This meant that the Company had to re-structure at short notice and this led to the Company asking Mr Ken Taylor to continue to work.  Mr Ken Taylor accepted this and is continuing to work on an interim temporary basis.  Mr Ken Taylor was chosen in preference to Mr Marvin because he had more experience and knowledge in being able to produce samples and mechanic LT machines and because Mr Ken Taylor scored more highly on the agreed redundancy selection criteria that was used.”  

12.	Thus, there was a considerable amount of material presented to the Employment Tribunal about these events that had arisen after the redundancy had been confirmed and the Respondent had left the premises but during the course of his employment, which was not to terminate until 27 June 2008.  

The Employment Tribunal’s Judgment
13.	The Employment Tribunal starts its conclusions at paragraph 21.  Paragraphs 21-25, as we have pointed out above, dealt with the other issue as to the genuineness of the redundancy.  At paragraph 27 the Tribunal embark upon an analysis of this case in the light of the Williams v Compair Maxam Ltd [1982] ICR 156 or [1982] IRLR 83 guidelines but before doing so, they refer at paragraph 26 to the selection criteria that had been adopted.  Paragraph 26 reads as follows:  

“Much of our deliberations concentrated on this particular issue.  The respondents accept that the criteria are largely subjective.  The first four criteria (attendance, time keeping, disciplinary and service) appear on the face of it to be objective.  It is however realistically accepted that criteria 5, 6 and 7 (productivity, attributes and teamwork) are entirely subjective.  The marks obtainable on subjective criteria are a maximum of 110, whilst the marks available on objective criteria are 90.  Therefore, an employee who does badly on subjective criteria is much more likely to be at risk of selection.”  

In fact, there is a slight mathematical error at paragraph 26 for which the Tribunal are entitled to be forgiven.  The objective criteria add up to 100 not to 90 but one of the forms produced to the Tribunal had the confusing figures 210 and 200 as the total figures, so it is entirely understandable that the Tribunal made this slight mathematical error.  

14.	As we have just indicated, from paragraph 27 onwards, the Tribunal was concerning itself with the so-called guidelines set out in the case of Williams v Compair Maxam Ltd.  The Tribunal had carefully set those guidelines out at paragraph 17, and in paragraph 27 it proceeded to examine the facts of this case in the light of those individual guidelines.  It concluded at paragraph 27.1 that the employer, the Appellant in this case, had not given as much warning as was possible.  In fact, it was not clear to the Tribunal when the Respondent first appreciated that there was a need for redundancies.  That is set out in parenthesis in the second sentence, paragraph 27.1.  The Tribunal had, as we have already noted, said at paragraph 5 of the judgment that the decision to make two examiners redundant in the face of falling orders had occurred in early 2008.  That is the most precise date that one can distil from the material available.  

15.	At paragraph 27.2 the Employment Tribunal came to the conclusion that there had been no consultation with the union.  The wording of paragraph 27.2 is somewhat difficult to penetrate.  In the third sentence the Employment Tribunal say: 

“There has been at best only partial compliance and at worst no compliance at all with this ‘requirement’.”  

What that may mean is that there was a finding by the Tribunal that there had been no agreement with the union and no consultation with the union.  The partial compliance may be a reference to the fact that although there was evidence that in 2002 the union had agreed these criteria and they had been used since, that agreement is not consultation as envisaged by the second of the guidelines.  A further alternative meaning of partial compliance may be that whilst the selection criteria had been agreed, the purpose of consultation with the union is not confined to agreement of selection criteria, it may include whether or not there is some other more fundamental way in which the redundancy situation can be addressed or even avoided other than by making compulsory redundancies.  

16.	At paragraph 27.3 the Employment Tribunal addressed the characteristics of the selection criteria and at paragraph 27.4 the first sentence records this: 

“The respondents concede that the criteria are largely subjective.”  

The Tribunal go on, in paragraph 27.4 to identify what they regard as “rather odd results” in respect of Mr Marvin under the Respondent’s scoring when compared to Mr Taylor.  Of course the Tribunal did not have the actual scores of Mr Marriott or Mr Taylor and so, given that state of evidence, it was reduced to looking at what it knew and drawing inferences as to how the conclusions could come about from the known marks awarded to Mr Marvin.  This is dealt with at paragraph 27.5 of the Tribunal’s judgment and the whole matter is summarised at paragraph 27.7 by a reiteration of the fact that the criteria were largely subjective and accordingly there was a breach of the third of the guidelines set out by Mr Justice Browne-Wilkinson.

17.	Paragraph 27.7 also deals with the fourth guideline and indicates that the Tribunal took the view the employer had not fairly made the selection in this case.  One of the reasons given is that it seems strange Mr Taylor scored more than Mr Marvin when as an employee of only six months’ service he would score nothing for length of service whereas Mr Marvin was bound to score maximum marks of 30 for length of service.  

18.	Having dealt with the four criteria, the Tribunal move on at paragraph 28 to deal with material that seems more at home in the context of the issue as to the genuineness of the redundancy.  It may be that this is to be viewed as part of an analysis as to the fairness of selection but the possibility remains that this paragraph has simply wandered in to a part of the Employment Tribunal’s judgment where it does not comfortably fit.  It ends however, with a reference to Mr Taylor’s additional skills as a mechanic which it says will be dealt with below.  Paragraph 29 is likewise a reiteration of material dealt with already by the Employment Tribunal.  It nevertheless seems to fit much better into the context of a discussion as to the fairness of the application of the criteria.  It is a paragraph to which Mr Cummins pays particular attention and we will return to it when dealing with his submissions.  

19.	Paragraphs 30, 31 and 32 deal with the fifth guideline in the Williams v Compair Maxam Ltd case, that is to say, seeking to offer alternative employment.  What the Tribunal find at paragraph 31 is that Mr Marvin was able to work on every machine and that he had no opportunity to make representations on his suitability to continue working with the company.  The Tribunal took on board the fact that when the events of 5/6 April occurred, in one sense Mr Marvin had ceased to work for the company.  They expressed the matter in this way: 

“Even if the selection for redundancy had been made at that stage, the fact that suitable alternative employment arose obliged the respondent to consider the claimant for suitable alternative employment.  This they failed to do.”  

The Tribunal then deal with the issue as to whether or not Mr Marvin was disqualified by lack of experience and lack of qualifications and lack of skill from being a contender for the position that Mr Taylor was asked to and did fulfil.  The Tribunal found that Mr Marvin contested the assertion that he was not able to do work on the double cylinder machine and noted that when he had asserted that ability, the matter had not been “rebutted in cross-examination”.  

20.	The Tribunal then dealt with the other factor that had been advanced both by Mr Brewin and Mr Taylor in their witness statements, and by Mr Brewin in his letter after the appeal, namely that it was the Respondent who had been selected for redundancy and not Mr Taylor, who had scored more highly.  The Tribunal say this at paragraph 32: 

“The fact that Mr Taylor scored more highly on the selection criteria was not a reason to exclude the claimant from consideration of alternative employment.  Even less was it a reason not to consult the claimant or his union about filling the new role that had become available and give him an opportunity to ‘compete’ for it.  In our view the respondent in failing to carry out the assessment properly acted unreasonably.”  

21.	At paragraphs 33 and 34 the Tribunal summarise the findings that they have made in paragraphs 26-32.  Paragraph 33 deals specifically with the alternative employment matter, and concludes that the Appellant: 

“… did not genuinely seek to consider, whether instead of dismissing Mr Marvin by reason of redundancy, they could have offered him suitable alternative employment.”  

Paragraph 34 simply summarises their finding that there had been breaches of the Williams v Compair Maxam Ltd guidelines with the result that they have reached a conclusion that the dismissal was unfair.  

Submissions
22.	Mr Cummins submits that we must look at this matter overall and, if we do, from that perspective, we should conclude that the employer has behaved fairly.  It is his submission that a formalistic approach based on the Williams v Compair Maxam Limited guidelines such as that indulged in by the Employment Tribunal produces an artificial view of this case.  This is a case, he submits, where the employer has behaved in a perfectly sensible and reasonable fashion.  If the Employment Appeal Tribunal had stepped back and looked at it more broadly it would have concluded that the dismissal was fair.  Instead, what they have done is allowed themselves to be drawn into what Lord Justice Mummery has called recently in another case, London Ambulance Service NHS Trust v Small [2009] EWCA Civ; [2009] IRLR 563 in another context, “the substitution mindset”, and so what they have done, in that frame of mind, is to start re-marking the Respondent instead of confining themselves to section 98(4) of the Employment Rights Act 1996 and the question as to whether the dismissal of the Respondent by reason of redundancy was fair in the sense that the Appellant had acted reasonably in treating it as a sufficient reason for dismissal.  

23.	Although he did not put it in these terms, in a sense paragraph 29 of the judgment is the fulcrum of his submissions.  He submits that when one looks at paragraph 29 it is an example, and the prime example, of the employer focusing on the length of service of Mr Marvin and criticising the employer by what the Employment Tribunal itself regarded as important and not by asking itself whether the employer had acted reasonably in coming to the conclusion that it did.  Similarly, when in paragraph 29, the Employment Tribunal considers the leadership criterion and describes the Appellant’s conclusion as being “surprising”, this is because the Employment Tribunal has abandoned objectivity and is expressing its own view.  The Employment Tribunal then go on to refer to the time keeping criterion as being “even more troublesome”.  This is because, from the Employment Tribunal’s perspective, Mr Marvin was never disciplined and never told that being late would form a critical part of a selection criteria that might count against him in a redundancy situation but this ignores the fact that he was late.
Moreover, the conclusion by the Employment Tribunal that the employer’s approach to service was unfair because Mr Marvin had worked for a lot longer than Mr Taylor, who had six months’ service, is a very particular and monocular viewpoint.

24.	Mr Cummins submits that in paragraph 27.1, whilst it was impossible to say when the employer first came to the conclusion that redundancies may be necessary, nevertheless, looking at the matter in the round, sufficient warning had been given to the employee.  

25.	So far as paragraph 27.2 was concerned, there had been an agreement with the union in 2002 and that was really all that was necessary.  Paragraph 27.3 through to 27.6, Mr Cummins dealt with on the basis that if one looked at the material there was no real substance in the Tribunal’s criticism as to the criteria being subjective not objective.  Some matters were subjective but when looked at dispassionately most of these were objective criteria.  He wrestled with the difficulty that was presented to him by the first sentence of paragraph 27.4, which appears to be supported by paragraph 26, namely that there was a concession to the effect that the criteria were largely subjective; and he did so by asking us to look at the way the criteria were set out.  So far as paragraph 27.7 is concerned, and the finding that the selection had not been fairly made, Mr Cummins reminded us that this was a seven point set of criteria looked at by three people and that that was a safeguard by the usual standards of this area of industry that might be regarded as a scrupulously fair and well designed system of assessment.  

26.	So far as alternative employment was concerned, in paragraphs 30-32, Mr Cummins pointed to the fact that this matter had all been raised on appeal and in any event Mr Taylor had outscored the Respondent.  This was, he submitted, a situation where the employer had addressed the issue of alternative employment.  What the employer has to do is to seek to decide whether the employer can offer alternative employment.  That had plainly been done in the circumstances.

27.	On behalf of the Respondent, Mr Ohringer suggested that we should adopt a holistic approach based on the Williams v Compair Maxam Limited guidelines.  In essence this may not have differed much from the general approach suggested by Mr Cummins.  By adopting that approach and looking at the matter overall, but nevertheless bearing in mind the guidelines, he submitted that the issue was, so far as paragraph 27.1 is concerned, whether as much warning as possible had been given, and the finding of the Employment Tribunal was that the potential redundancy should have been disclosed at an earlier stage although the Employment Tribunal could not say how much earlier.  That was a finding that could not be attacked.  It was a finding that there was not enough warning and that was a finding of fact.  

28.	So far as paragraph 27.2 was concerned, he suggested that we should adopt the kind of approach that had been adopted in Mugford v The Midland Bank [1997] ICR 399 by a division of this Tribunal presided over by HHJ Peter Clark.  In the course of giving the judgment of the Employment Tribunal, Judge Clark looked at a number of authorities and at page 404 (just below (h)) the following appears: 

“As to whether a reasonable employer would or would not consult with an individual employee is, it seems to us, essentially a question of fact for the industrial jury, properly directing itself.”

He returns to that at page 406 just above (g) where he says that in summary the position is: 

“(1) Where no consultation about redundancy has taken 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.”

29.	So, submits Mr Ohringer, when one looks at 27.2, and it does contain, he accepts, certain difficulty of comprehension as to the sentence that relates to full and partial compliance, nevertheless, it is clear that what the Tribunal have found is that there was no consultation with the trade union, and alternatively no consultation with the trade union about all matters which should be discussed in relation to an impending or proposed redundancy.  That, he submits, relying on the passage that we have quoted above in Mugford v The Midland Bank, must be a matter of fact for the Tribunal and accordingly no error of law arises in this context.

30.	So far as the selection criteria which fall to be considered under the third of the guidelines proposed by Mr Justice Browne-Wilkinson in Williams v Compair Maxam Ltd is concerned, Mr Ohringer submits that the matter can go no further than the first sentence of paragraph 27.4.  Here there has been a concession by the Appellant employer at the Employment Tribunal and in any event it is quite clear that paragraph 26 constitutes a finding by the Employment Tribunal as to subjectivity.  There may be a mathematical error but that does not destroy the point being made by the Tribunal and what the Tribunal have found as a matter of fact is that these were more subjective than objective criteria and accordingly that aspect of the Tribunal’s judgment cannot be attacked.  

31.	Paragraph 27.7, perhaps as fleshed out by paragraphs 28 and 29, are equally, in the submission of Mr Ohringer, really questions of fact for the Tribunal to consider.  It is certainly the case that the analysis has been hampered by the absence of comparative score sheets but what is really being done here by the Appellant is to seek to reargue these matters.  It may be, submits Mr Ohringer, that paragraph 28 is a paragraph relating to the fairness of the selection criteria but in any event the Tribunal were entitled to reach the conclusion that these criteria were not fairly applied and may not have been fair in themselves.

32.	Finally, so far as alternative employment is concerned, namely the fifth of Browne-Wilkinson J’s guidelines, the matter can be simply disposed of by considering a short passage in the judgment of this Tribunal in the case of Ralph Martindale & Co. Ltd v Harris UKEAT/0166/07/MAA, where at paragraph 17 the following appears: 

“We consider it was open to the Tribunal to take the view that on the overall issue of fairness they were entitled to consider, in the precise circumstances of this case, the recruitment procedure between what were effectively two candidates, in their decision as to the fairness of the decision to dismiss.”  

33.	So the simple point made by Mr Ohringer is that Mr Marvin, the Respondent to this appeal, did not have any real opportunity to put himself forward for the role.  It is true that it was raised in the context of the appeal but it is impossible to know exactly how it was raised, and in any event it is not good enough to simply respond at the appeal stage.  The duty incumbent on an employer, in terms of acting reasonably when an opportunity occurs, is to reconsider and to offer the employee the opportunity to put himself forward for the role.  It is not, submits Mr Ohringer, confined only to the need for the employer to consider it.  What there should be is a fair and reasonable process and simply to have a unilateral decision taken even on apparently rational grounds is not good enough.  That does not address what Mr Ohringer described as the “fair process point”.  Mr Ohringer ended his submissions by saying that if any of the criticisms made by the Employment Tribunal survived in this Tribunal then the appeal must be dismissed because this Tribunal could not interfere with what were essentially surviving matters of fact and findings of fact.  

Conclusions
34.	Mr Cummins, on behalf of the Appellant, has made some telling points.  It is difficult to escape the perspective that paragraph 29 represents a criticism of the criteria and the application of the criteria that depends not so much on the reasonableness of the employer but the point of view of the Employment Tribunal.  But it seems to us that when we do what Mr Cummins submits we should do, that is to say look at the matter overall, we cannot see very many instances of the Tribunal looking at matters in an over critical way.

35.	We reject Mr Cummins’ submission that subjectivity goes through the whole of the analysis conducted by the Employment Tribunal.  We take the view that the Tribunal were entitled to reach the conclusion that the consultation process had not started as soon as possible.  It is true that the Tribunal have not actually found when the employer reached the conclusion but they have come close to it at paragraph 5 by saying that it was in early 2008, and even if it was only a few days or a few weeks before 20 March that this thought started to crystallise, it was at that stage that the employer should have started to discuss with the trade union and with the employees that there were impending redundancies.  

36.	We also accept that the criteria, even though they had been agreed with the union in 2002, were not the subject of consultation in 2008, nor was the redundancy exercise itself.  That is what we conclude the Employment Tribunal have found and that was a question of fact for them to decide.  Thirdly, we have concluded that Mr Cummins was in a hopeless position so far as the subjectivity of the criteria were concerned.  He could not demonstrate that the conclusion reached by the Tribunal in the first sentence at paragraph 27.4 was not based on evidential considerations.  Indeed, on the contrary, paragraph 26 suggests that there was an evidential basis for it and in any event also suggests that as well as a concession there was a finding as to subjectivity which must be a finding of fact in the context of the case.  Accordingly, we cannot see, valiantly though he strove, that Mr Cummins ever had any prospect of escaping from that particular finding and/or concession.  

37.	The most fertile ground for Mr Cummins lay in his submissions that there had been an overzealous criticism by the Tribunal of some of the ways in which the selection criteria had been operated.  The criteria may well not have been fair and may not have been fairly applied but the instance given at paragraph 28 seems to us to go too far.  Even then all this has to be considered against the factual matrix that the Tribunal simply did not know about the position so far as the other two employees were concerned.  The Tribunal had not had the marks disclosed to it, and in those circumstances it is perhaps quite understandable that the Tribunal speculated to an extent and it may be that at some points that speculation was a little too far away from the firm platform of primary factual evidence.  It may be that paragraph 29 represents an example of that but we do not think that the conclusion at paragraph 29, which is supported not only by what is set out at paragraph 29 but what is set out at paragraphs 27.3 -27.7, is unsound.  

38.	In any event, we entirely accept Mr Ohringer’s submission in relation to alternative employment.  It seems to us that it was not reasonable of the employer to simply assume, without consulting Mr Marvin, that Mr Taylor had the better case.  So far as the score on the redundancy selection exercise was concerned, it seems to us that was, as the Tribunal found it to be, an entirely irrelevant consideration.  When these new events occurred it was incumbent upon the employer acting reasonably to embark upon a fair process and not make assumptions about Mr Taylor without giving Mr Marvin an adequate opportunity to state his pretensions for doing the job.  In those circumstances we think the Tribunal was entirely right to conclude that there had been a failure to adopt a proper process in relation to the suitable alternative employment, notwithstanding the fact that they had reached a conclusion about it on apparently rational grounds.  The defect here was that they did not in that process include the Respondent at all.  

39.	Accordingly, it seems to us that while some of the findings of the Tribunal go too far on balance the Tribunal were entitled to find as a matter of fact that there had been inadequate warning, a failure of consultation, an adoption of subjective criteria (the application of which at least raised some questions) and a failure of proper process in relation to an opportunity of alternative employment which arose almost the moment the Respondent left the premises.  For all those reasons, looking at the matter in the round, as we have been enjoined to do by both parties, it seems to us that the Employment Tribunal reached a sound conclusion based on facts that they had correctly found.  Despite Mr Cummins’ valiant efforts there is no error of law in this decision and accordingly we will dismiss the appeal.