Appeal No. UKEAT/0379/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 April 2009
Judgment handed down on 7 December 2009

Before
HIS HONOUR JUDGE SEROTA QC
MR K EDMONDSON JP
MRS D M PALMER

MS C SHORT (APPEAL NO 2)	APPELLANT

P J HAYMAN & CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR SIMON BROWN
(of Counsel)
Instructed by:
Messrs Amanda Capon Solicitors
180E Bridge Road
Sarisbury Green
Southampton 
Hampshire
SO31 7EH	
For the Respondent	MR BARRY HARWOOD
(of Counsel)
Instructed by:
Northgate Arinso Employers Services
Unit 10  Newhalley Business Centre
Newhalley ‘Road
Rawtenstall
Lancashire
BB4 6HL

SUMMARY
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Perversity

The Employment Tribunal failed to include in its written reasons a number of matters including a concise statement of the applicable law, contrary to the requirements of Rule 30(6) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. Nevertheless it was apparent that the relevant law was uncontroversial and that the Employment Tribunal had it in mind when considering the facts and applying them to the law; in the circumstances the decision would be upheld; dicta of   Buxton LJ in Balfour Beatty Power Network Ltd v Wilcox [2007] IRLR 63  paragraph 25 applied.

HIS HONOUR JUDGE SEROTA QC
Introduction
1.	This is an appeal by the Claimant from a decision of the Employment Tribunal at Southampton, Employment Judge Soulsby presiding of 23 January 2008). The Employment Tribunal dismissed claims by the Claimant for (1) unfair dismissal contrary to sections 96 and 105 (redundancy) of the Employment Rights Act 1996 (2) discrimination on the grounds of sex (3) unfair dismissal or less favourable treatment contrary to the Part‑Time Workers Prevention of Less Favourable Treatment (Regulations 2000).

2.	The appeal was initially referred under rule 3(7) of the Employment Appeal Tribunal Rules of Procedure by HHJ Reid QC on 7 April 2008.  However, on 4 September 2008 HHJ Ansell allowed an application under rule 3:10 of the rules of procedure and referred the appeal to a full hearing.  On 10 December 2008, HHJ Judge Birtles ordered an adjournment of the appeal on the Claimant’s application and directed the Employment Judge to produce certain notes of evidence provided that an application for costs on the part of the Respondent be adjourned to the final hearing or subsequently to be dealt with by written submissions.

The factual background

3.	We take the factual background largely from the decision of the Employment Tribunal.

4.	The Respondent carried on business as travel insurers.  The Claimant was employed from 22 August 1997 until 12 October 2006.  Initially she was a Claims Supervisor and subsequently became a Claims Manager.  She took maternity leave in February 2000 and thereafter it was agreed she would work for four days a week and be paid pro rata.  

5.	In April 2001 the Claimant was promoted to Claims Manager, but tendered her resignation in July 2001.  The Respondent had a high opinion of her competence and she was persuaded to withdraw her resignation on the basis that her salary would be increased to £25,000.00 per annum.  This salary, it was found, would have been appropriate for a Claims Manager working five days per week.  The Respondent believed that she would in fact work full-time with one day’s work from home.  The Claimant’s case was that there was no such agreement.  The Employment Tribunal had this to say:

“3.2	… The Tribunal accepts the evidence of the Claimant that in practice, she did from that time on, continue working only four days per week and that she believed that she was not under a duty to work from home on the fifth day.  However, the evidence before the Tribunal shows that the Respondent’s personnel file indicated that she had been given the pay rise on the basis of working a five day week and it is clear that the senior management of the Respondent company believed that she should be working a five day week doing one day’s work from home.  The most likely explanation for this discrepancy is that at the time when the agreement was concluded, the Claimant’s line manager was so keen to retain her services that he clouded the issue and left the Respondent’s management believing she was on a five day contract when in practice she was only working four days per week.  
 3.3	The evidence indicates that the Claimant was probably aware that the Respondent was somewhat confused as to the hours she was supposed to be working and certainly at some stage she seems to have knowingly been receiving (a holiday pay entitlement of a full-time employee”)  

6.	In July 2004 the Claimant commenced a second period of maternity leave and her deputy, a Mr Gowland ran the department in her absence.  On her return, Mr Gowland was appointed as manager of a new sales department.

7.	Between February and June 2005 there was an issue between the parties as to whether or not the Claimant should be working four or five days per week.  The Claimant maintained she should be working for four days per week and the Respondent maintained that she should be working for five days per week.  The Employment Tribunal had found that the Claimant in practice had been working for four days per week although had been paid on the basis of a five day week.  This dispute led to the Claimant taking out a grievance.  The initial decision was that the Claimant was contracted to work for five days including one from home.  She appealed against the decision and her appeal was upheld by the Respondent’s Managing Director, Mr Spears on 5 October 2005.  The Claimant made clear she would only work four days per week.  Relations between the parties had become difficult and negotiations took place with a view to concluding settlement terms for the Claimant to leave the Respondent’s employment.  However, on the 29 September 2005, the Respondent conceded that the Claimant should work four days per week but be paid on the basis she was working five days per week; however, her holiday entitlement was to be based on a four day week.  The Claimant issued a further grievance on the basis that the Respondent should have acknowledged that she was correct all along rather than that the Respondent was making a concession.  

8.	The Respondent had a major contract with Age Concern.  75 per cent of all work dealt with by the Claims Department came from this source.  From the end of 2005 the Respondent knew that there were doubts as to whether its contract with Age Concern would be renewed.  The Respondent retained hopes of retaining the work but on 16 January 2006, the Respondent was informed that it had lost the contract.  It was clear to all concerned that the loss of this contract would lead to a reduction in staffing levels.  Initially, however, there was no talk of redundancies 

9.	Loss of the contract was to be effective from March 2007.  The bulk of claims work was in the Autumn after the peak holiday period.  It was anticipated that the level of claims processed by the Claims Department would fall away sharply from the Autumn of 2006.  The Respondent reviewed its staffing requirements in the Claims Department and concluded that the Department could be run without a Claims Manager.  The Respondent’s Board of Management agreed, therefore, that Mr Horne (the General Manager) would raise with the Claimant the possibility that as her post was to disappear it might be necessary to make her redundant.  Mr Horne met with the Claims Department staff (including the Claimant) on 31 July 2006 to warn them all of possible redundancies and then met staff individually.  He met the Claimant and told her that the Post of Claims Manager was, in the Respondent’s view likely to be done away with and this might result in the Claimant losing her post.  She was given a letter dated 31 July 2006 to confirm the position and notified her that there would be a consultation period.   She was advised of three vacancies identified by the Respondent, should it be necessary to look for a suitable alternative position for the Claimant.  

10.	Paragraphs 3.11 and 3.12 are important as underpinning the basis of the Employment Tribunal’s findings in relation to the ultimate fairness of the Claimant’s dismissal for redundancy.  

“3.11.	The Respondent had reached the conclusion that they did not need a Claims Manager because of the significant decrease in the level of business anticipated in the Department.  Documentary evidence produced to the Tribunal supports the Respondent’s belief in that respect and show that from late summer 2006 on, levels of business fell very significantly.  The Respondent was of the view that the management work undertaken by the Claimant and the more difficult claims she handled personally, could be dealt with by her Manager, Mr Horne, who had previous claims experience, with more routine work undertaken by the more junior Supervisor in the Department, Mr D. Blakey.  The Claimant was on a salary of about £27,000 whereas Mr. Blakey was on a salary of around £17,000.  The Respondent’s evidence is that about 40% of the Claimant’s work was managerial in nature and could not be dealt with by Mr. Blakey, whereas the Claimant’s evidence is that it was only about 10% of her workload.  The evidence showed that in addition to straightforward managerial work, the Claimant was handling the bigger claims and had authority to pay out larger settlements and this was not work that could be undertaken by Mr. Blakey.  So taking that into account a significant proportion of her work did need to be carried at her level, or the more senior level of Mr. Horne. 
“3.12	When deciding they could remove the post of Claims Manager the Respondent did not identify a wider pool for the consideration of redundancy by including other managers in addition to the Claimant.  While at the time they did not expressly address that question, it is clear from the evidence given to the Tribunal that their view was, and remains, that creating such a pool for selection would not be appropriate because all the other managers were running departments of a different nature such as sales or accounts, and there was no diminution in the workload of those departments and the skills required by those managers were different.  In terms of any suitable alternative post for the Claimant the Respondent had notified the Claimant of three possible other posts including the position of Claims Handler/Administrator which would be a more junior post in the Department, normally attracting a salary in the region of £12,000 - £14,000.  The Claimant had responded that she would not consider any such vacancies as suitable for her.  There were two Claims Managers/Handlers based in London and, the loss of the Age Concern contract did not, in any way, affect their work because they handled claims of a totally different nature being indemnity insurance.  The Claimant would not have had any experience in handling such claims.  Both those employees had been with the Respondent Company for very many years. ”

11.	The supervisor in the Claims Department, a Mr. Blakey, was subordinate to the Claimant.  She maintained he should have been considered for redundancy and she could have taken his role.  The Employment Tribunal found that he dealt with more routine work and that his salary was approximately £10,000 per annum less than the Claimant.  It was also said that the Claimant could have been offered the role of Ms. Harckham-Gates who resigned in October 2006.  She was a Claims Handler and her resignation took effect at approximately the same time as the Claimant’s employment ended.  The Employment Tribunal found that a Claims Handler was a much more junior post than the Claimant had, during the consultation process, rejected the possibility of being considered for such posts.  

12.	The Employment Tribunal then went on to consider the question of unfair dismissal.  It rejected the claim.

“4.	Dealing first with the question of the unfair dismissal claims it is clear to the Tribunal from evidence that the reason for termination of employment was redundancy.  The loss of the Age Concern contract was resulting directly in a substantial contraction in the volume of work undertaken by the Claims Department and, this led the Respondent to the decision that the Department no longer needed a Claims Manager.  The Tribunal is also satisfied that the Respondent was justified in identifying the Claimant for potential redundancy without looking for a wider pool.  She was the only Claims Manager handling holiday insurance and all the other managers dealt with different work such as sales or accounts.  There is no evidence that the Claimant would have been suitable for a managerial post in any of those other departments and, in any event, as the work is of a different nature it would not be appropriate to put such managers in a pool to be considered for redundancy.  There was, therefore, a straightforward redundancy situation and nothing unfair about identifying the Claimant’s post as redundant.  They consulted with her and considered whether there were any suitable alternative vacancies, but there were no vacancies that the Claimant was prepared to consider.  In those circumstances there was nothing unfair about the decision of the Respondent to terminate employment by reason of redundancy.  The Tribunal is also satisfied that the procedures carried out by the Respondent were fair.”

13.	The Employment Tribunal then went on to consider the claim for sex discrimination.  The Claimant maintained that the Respondent applied a condition or requirement, being a requirement to work full-time, which a smaller proportion of women than men could comply with because of child care responsibilities.  The Claimant relied upon her dismissal as a discriminatory act.  The Employment Tribunal concluded that for such a claim to have any merit it had to be established from the facts that a reason for the dismissal was that the Claimant worked part-time.  The claim was rejected by the Employment Tribunal.  The Claimant had sought to rely on the evidence as to the dispute that took place in 2005 as to whether she was contracted to work five days per week or four days per week.  The Employment Tribunal, however, concluded:

“5.	However, the evidence is that dispute was resolved at the end of December 2005 when the Respondent conceded the Claimant could work a four day week.  There is no evidence at all to indicate the subsequent dismissal of the Claimant related to that dispute or related to the fact that she was working only four days per week as all of the evidence indicates that the sole reason for termination of employment was redundancy.  Similarly, the claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 fails as the fact that the Claimant was part-time played no part in the decision to dismiss her or impose any other less favourable treatment.  It is clear from the evidence heard by the Tribunal that the Respondent’s decision to terminate the employment would have been the same had the Claimant been a man and, the same had the Claimant worked full-time.  Given the lost of the Age Concern contract there was a good business reason for removing the post of Claims Manager and making a substantial saving on the salary bill. ”

Notice of Appeal and Claimant’s Submissions

14.	In support of the appeal we were taken by Mr Simon Brown, who appeared on behalf of the Claimant, in some detail to the evidence at the hearing. by way of witness statements and also the notes of the Employment Judge as to some of the evidence.  Mr Brown sought to do this because the Employment Tribunal had failed to set out the legal principles it relied upon and to explain how they were applied specifically to the facts. This enabled Mr Brown to say frequently that because a particular fact was not referred to the Employment Tribunal did not have it in mind when it came to its conclusions.  It was submitted that the failure to set out legal principles extended beyond consideration of Section 139 of the Employment Rights Act but also to a consideration of the circumstances in which an Employment Tribunal might draw inferences of discrimination.  It was also said that the Employment Tribunal had failed to make all appropriate findings, including as to whether the Respondent’s Board of Directors had in fact instructed Messrs. Horne and Rutty [Human Resources Director of the Respondent’s parent company] to dismiss the Claimant.  

15.	The first ground of appeal was that the Employment Tribunal had failed to consider and apply Section 139 of the Employment Rights Act in determining whether the Claimant was dismissed for redundancy.  It was said that the Employment Tribunal had failed to consider if the requirements of the business for employees to carry out work of a particular kind had ceased or diminished or were expected to cease or diminish.  Accordingly it was submitted that the Employment Tribunal had not found in terms that the requirement for employees of the Respondent to carry out any work or a particular kind, had been expected to diminish or decrease.  Further, it was said, the Employment Tribunal had not considered attributability, that is to say that the dismissal was attributed to the expected diminution; we will refer shortly to the decision of Murray v Foyle Meats 2001 1 AC 51.  Dismissal of an employee who could have been re-deployed might require an explanation to show some causal connection between the alleged redundancy situation and the dismissal.  The explanation given by the Respondent that the Claimant’s role was unique did not stand up.   

16.	It was submitted that there was no evidence that the Claimant’s tasks would diminish.  It was suggested that the Employment Tribunal had found as a fact that the Claimant’s work had not diminished.  Reference was made to paragraphs 3.11 and 3.12 of the decision.  We say at this point in our judgment that that is not at all how we read the decision and it is quite inappropriate to trawl through the judgement to raise arguments on grammatical niceties when the clear findings of the Employment Tribunal can be seen.  As we shall make clear shortly this ground of appeal fails on the facts.  

17.	The next ground of appeal was that the Employment Tribunal had failed to apply Section 98(4) of the Employment Rights Act.  This of course relates to the overall fairness of the decision to dismiss.  It was asserted that the Employment Tribunal had paid no proper regard to the size and resources of the Respondent; it was said that the Respondent was wrong not to construct a proper pool.  The Employment Tribunal failed to consider the question of whether it was reasonable to select the Claimant for dismissal.  The Employment Tribunal did not deal with other jobs that were on offer and whether reasonable efforts had been made by the Respondent to find an alternative post for the Claimant.  It was said that the findings made by the Employment Tribunal were inconsistent, because her work was later, so it was found by the Employment Tribunal, divided up among others.  The Claimant maintained that she could have done Mr. Blakey’s job and we were invited to consider notes of her cross examination.  The Employment Tribunal was wrong to say there was no evidence that  she was not suitable for other managerial vacancies.  It was asserted that there was no proper consultation because the decision to dismiss her was taken before the consultation.  Mr Brown submitted boldly (and supported by a witness statement from his Solicitor, Ms Amanda Capon who had appeared on behalf of the Claimant at the Employment Tribunal) that Mr Horn and Mr Rutty had both said in evidence that they were “instructed by the Board to get rid of Claire Short”.  It was not the recollection of the Respondent’s Representative and was certainly not borne out by references to their witness statements or the Employment Judge’s notes of evidence.  It was also said in this regard that had there been a proper consultation process she would have been offered another post but the Board had already decided she should be made redundant and the Employment Tribunal ignored this. 

18.	We shall, in due course, reject this ground of appeal on the basis that it is clear from the findings of the Employment Tribunal that all matters were considered.  

19.	The next ground of appeal was that the decision was perverse.  It is said that the Employment Tribunal failed to consider the evidence from the Claimant and her witnesses that the Respondent’s Board of Directors had directed Messrs. Horne and Rutty to dismiss the Claimant.  Further it was wrong to say there was no evidence to indicate that the Claimant’s dismissal related to the former dispute as to whether she was to work four or five days per week.  The Employment Tribunal was wrong to find that it was reasonable for the Claimant to be selected notwithstanding the requirements that her post had not diminished.  This is of course in our opinion manifestly contrary to the findings of the Employment Tribunal.  The Employment Tribunal was wrong, so it was submitted, to find it was unreasonable to create a pool with other Managers as well.  The Claimant’s work did not diminish.  Simply because the tasks were re-allocated to someone else, she could not be said to be redundant.  Regard had to be addressed to the requirements of the business as a whole.  It was submitted that the finding that the Claimant’s post was “unique” and that was the only justification for selecting her was perverse.  The Claimant’s role was not unique.  The Employment Tribunal needed to explain why no other Manager had been considered for redundancy.  

20.	The Employment Tribunal, it was said, was wrong to concentrate on the Claimant’s job description as opposed to the work and skills required by the business.  If it was anticipated that there was a reduction of work of a particular kind as to justify dismissal on the grounds of redundancy, although the tasks required of the employee to be made redundant had not diminished, the Employment Tribunal was required to address the question as to whether the dismissal was mainly attributable to the diminution.  

21.	In this kind of redundancy it was necessary to consider whether the selection process was reasonable and not to be used as an opportunity to get rid of an unwanted employee.  The Employment Tribunal should have considered whether the process was objectively fair and reasonable and whether objectively reasonable criteria had been used.  There was no evidence to support the conclusion that the Claimant was unsuitable for other posts.  

22.	Mr Brown submitted the Employment Tribunal was wrong in law in deciding that the Claimant had been dismissed for reasons of redundancy; in those circumstances it had failed to give adequate consideration of the claims under the Sex Discrimination Act or under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2006.  The Employment Tribunal saw this as a claim for unfair redundancy, an understandable approach, but there was a claim for discrimination which the Employment Tribunal rejected.  The Employment Tribunal had failed to deal with the question of whether the reasons given by the Respondent for selecting the Claimant, were on critical analysis, made out.  The Employment Tribunal had sufficiently explained its reasoning; reference was made to the well-known decision of Anya v University of Oxford [2001] ICR 847 (CA) and the Employment Tribunal had not set out sufficient facts to explain why the Claimant has been selected for redundancy.  

23.	The Employment Tribunal should have found that there was no redundancy situation and that there had been an unfair selection.  The Employment Tribunal had only looked at the direct evidence of discrimination but had failed to consider whether the discrimination might be inferred. 

The Respondent’s submissions

24.	Mr Harwood who appeared on behalf of the Respondent made a general point that it was inappropriate to attempt to re-argue the facts.  The Employment Tribunal had properly addressed the facts.  He accepted that the Employment Tribunal did not adequately set out the law.  However, it was clear from the structure of the decision and the facts found that the Employment Tribunal had the law in mind and correctly applied it.  

25.	In so far as whether there was a redundancy situation and a dismissal for redundancy, the Employment Tribunal had considered there was a good business reason for the Respondent to do away with the position of Claims Manager and that the appropriate statutory tests had been met for finding that the dismissal was in fact for redundancy.  Mr Harwood pointed out that Section 139(b)(I) of the Employment Rights Act requires that the dismissal will be for redundancy if it is wholly or mainly attributable to the fact that the requirements of the business have ceased or diminished; it is not that the dismissed person’s job has become surplus to requirements.

26.	The Employment Tribunal found that the requirement to carry out work of a particular kind had diminished and there was ample evidence to support this from the Respondent’s witnesses and the extensive notes made by the Employment Judge in relation to the evidence of Mr Rutty and Mr Horn.  The Employment Tribunal was entitled to find that the Claimant’s dismissal was wholly or mainly attributable to the diminution of work.  It was obvious that if there was a 75 per cent reduction in claims handling by reason of the loss of the Age Concern contract that would be bound to affect the Claimant.  The Employment Tribunal found that the Claimant had managerial responsibilities for the Claims Department and that 40 per cent of her work related to such claims.  The diminution required by Section 139 related to work of a particular kind rather than the skills of any individual.  There was not only a diminution in work; the Respondent had lost claims handling representing 75 per cent of its claims handling business.  It retained sales and brokerage but this was not what the Claimant had done.  

27.	This was not a case of work remaining but being re-allocated to other employees and it was clear that 75 per cent of the claims handling work had gone.  The Employment Tribunal had evidence before it that the 16,000 claims per annum the Respondent had processed had reduced at the date of the department closing to 3,500 per annum.  The work was seasonable and was expected to climb rapidly after the summer peak as it did, and then decline.  This was accepted by the Employment Tribunal and based on ample evidence including that set out in the witness statements of Messrs. Horne and Rutty.  

28.	As Mr Edmondson, one of the lay members, pointed out during the course of submissions it is standard practice for Senior Managers to take decisions in redundancy situations and to instruct downwards.  This is what had been done in the present case.  

29.	The Employment Tribunal had not failed to apply Section 98(4) of the Employment Rights Act.  The Claimant Claims Manager, was at risk and Section 139(1)(b) suggested that she might be the one selected for dismissal.  The Employment Tribunal clearly had to address the issues of fairness, process and reasonableness as it did.  It is not for the Employment Appeal Tribunal to re-examine the facts but to see if the Employment Tribunal correctly applied the law, or came to a decision that was perverse.  The Employment Tribunal had evidence before it as to the size of the Respondent’s business and its resources and there is no suggestion this was ignored.  The Employment Tribunal was justified in finding that it was appropriate to have a pool comprising the Claimant alone.  The evidence showed that other redundancies were considered in the department, that Mr Horn expected to take the redundancies forward so as to be fair to everybody in accordance with the selection process and redundancy policy.  The Employment Tribunal was satisfied that the Respondent’s selection criteria were sound and that it acted reasonably in coming to the conclusion that a Claims Manager was no longer needed.  The Employment Tribunal considered that reasonable attempts had been made to find alternative work for the Claimant and the notes of the Employment Judge did not support the Claimant’s case that Messrs. Horn and Rutty had been directed to get rid of the Claimant.  There was evidence of consultation and reference was made to the Employment Judge’s notes in this regard.  There was no reason why the consultation could not start after a decision had been made to identify a particular post that might disappear.  It was stressed that the Claimant was not the only person affected by the redundancies.  The Claimant had been offered and had refused three offers of alternative posts.  

30.	The Employment Tribunal had found that other persons had been considered for redundancy and that the Respondent was justified in deciding that the Claimant was the person to lose her post.  It was clear from the decision that both sides had presented evidence and submissions on the question of whether or not the Claimant could work in other departments and this was reflected in the notes taken by the Employment Judge. 

31.	The finding that the Claimant’s post was unique was a question of fact and was clearly supported by the evidence.  The Claimant was the only Manager of the Claims Department.  All other Managers had different skills; Mr Harwood pointed to the evidence which was reflected in paragraph 3.12 and 4 as well as in the Employment Judge’s notes at the cross examination of Messrs. Horn and Rutty.  

32.	The other managers in consideration managed departments that were sales driven and orientated.  The Claimant’s position was unique as she was the only person performing the role of Claims Manager and that role went.  This was a classic redundancy situation.  The Employment Tribunal was also entitled to find that her skills were different to those of other managers.  

33.	The finding that the Claimant was not suitable for other posts was reasonable and not perverse.  Again Mr Harwood drew our attention to the evidence and the notes of the Employment Judge.  The Claimant had sales experience, but this was ten years previous and there had been significant changes since in the regulatory requirements.  Since then, the Respondent’s business was now regulated by the FSA which had particular implications for the direct sale of insurance products; this again is borne out in the notes of the Employment Judge. 

34.	In relation to the question of whether the Employment Tribunal gave consideration to the drawing of inferences, it could be inferred that the Employment Tribunal had the correct principles well in mind.  In relation to whether it might be proper to draw an inference because of the earlier issues as to the Claimant’s part-time working, the Employment Tribunal was entitled to find on the evidence that that issue had been determined and a line drawn under it; this was borne out by the Employment Judge’s notes of the evidence of Mr Rutty and Mr Rutty’s witness statement.

35.	Finally, Mr Harwood submitted that a failure on the part of the Employment Tribunal to set out the law was not a ground in itself for setting aside the award; in this regard he drew our attention to the decision of Chief Constable of Thames Valley Police, v Kellaway EAT [2000] IRLR 170.  

Discussion as to the Law

36.	The real problem in this case is that the Employment Tribunal has simply set out its conclusions on the facts and whether or not the claim has been made out.  It has not clearly set out the relevant principles of law nor has it explained how it applied those principles of law to the facts and how and why a number of allegations made by the Claimant were disposed of, although inferentially it is clear that they were clearly rejected by the Employment Tribunal.  Its failure on the part of the Employment Tribunal has allowed the Claimant to argue what are essentially issues of fact.  It is unfortunate that the decision does not even identify the names of the lay members nor the advocates.  

37.	A number of cases were considered by Morrison J in Chief Constable of Thames Valley Police v Kellaway [2000] IRLR 170 as to the need to set out the relevant law and give reasons.  It considered the well known authority of Meek v The City of Birmingham District Council [1987] IRLR 250.  In that case it was held that a Tribunal decision was not to be: 

“An elaborate formalistic product of refined legal draftsmanship”  but rather “the parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this Court [The Court of Appeal] to see whether any question of law arises…”

38.	In UCAT v Brain [1981] ICR 542 Donaldson LJ had stated that:

“Industrial tribunal’s reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or law…their purpose remains what it has always been, which is to tell the parties in broad terms why they lose, or, as the case may be, win.  I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis.  This, to my mind, is to misuse the purpose which reasons are given”.

39.	In the case of Chief Constable of Thames Valley Police v Kellaway Morrison J had this to say:

“We do not accept the argument that because there was neither mention of the Sex Discrimination Act 1975 nor of the leading sex discrimination authorities, the decision was flawed or the Chairman failed to direct the lay member's minds to the appropriate legal principles. We accept Ms Cox's submissions on this point. What split the members of the tribunal was not the legal principles which the parties were at one about, but rather their appreciation of the credibility of the evidence. In general terms it can be seen that the majority have found the relevant facts; identified the less favourable treatment and drawn the inference. Contrary to Mr Korn's convincing submissions, we were not persuaded by him that the majority have slipped into the trap of making an intuitive hunch without supporting material. On analysis, having regard to the documents, the notes of evidence and the decision, we are satisfied that it was open to a properly directed tribunal to find unlawful discrimination as alleged. This is not so much a case where the conclusion was manifestly perverse, but rather one which could be, and was, subjected to critical analysis, based upon the form of the Decision itself. Whilst we would not condone a tribunal decision which does not set out the relevant legal position and does not make findings of fact on all the principal submissions made, this does not amount to an automatic ground of appeal. It has to be shown that omitting to set out the legal principles or key submissions made has led to a consequent error of law or incorrect finding of fact. We are unable to intervene in the majority's findings, which although lengthy, set out their grounds for finding discrimination in sufficient detail to allow both parties to understand the reasoning behind their finding of discrimination. ”

40.	It is also helpful to have regard to the judgment of Elias J, as he then was, in ASLEF v Brady [2006] IRLR 576 of paragraph 55:

The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.

41.	It is clear, however, that an Employment Tribunal is bound to include in its written reasons a number of matters including a concise statement of the applicable law; we refer of course to Rule 30(6) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 Schedule 1.
30 (6) Written reasons for a judgment shall include the following information-
(a) the issues which the tribunal or chairman has identified as being relevant to the claim;……
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues. 

42.	Buxton LJ considered this Rule in Balfour Beatty Power Network Ltd v Wilcox [2007] IRLR 63 of Paragraph 25 when he said:

"I do not doubt that in future Employment Tribunals will be well advised to recite the terms of rule 30(6) and to indicate serially how their determination fulfilled its requirements, if only to avoid unmeritorious appeals. But the rule is surely intended to be a guide and not a straight jacket. Provided it can be reasonably spelt out in the determination of the Employment Tribunal of what rule 30(6) requirements have been provided by that Tribunal, then no error of law would have been committed."

43.	The law as to what constitutes redundancy, a selection for redundancy and unfair dismissal in a redundancy situation is well-known and would appear to have been well known to the Employment Tribunal even though not spelled out.  There was no suggestion that there was any difference between advocates at the hearing as to any legal principles.  We start by referring to Section 139 of the Employment Rights Act which provides as follows:

139. -(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to- …
(b) the fact that the requirements of that business-  
 (i) for employees to carry out work of a particular kind…
have ceased or diminished or are expected to cease or diminish.

44.	This section was considered by Lord Irvine of Lairg in Murray v Foyle Meats  [2001] AC 51 and 58:
“The key word in the statute is "attributable" and there is no reason in law why the dismissal of an employee should not be attributable to a diminution in the employer's need for employees irrespective of the terms of his contract or the function which he performed. Of course the dismissal of an employee who could perfectly well have been redeployed or who was doing work unaffected by the fall in demand may require some explanation to establish the necessary causal connection. But this is a question of fact, not law.”

45.	There does not appear to be any dispute, that the well- known criterion of the reasonable band of responses is applicable in determining the fairness of all stages of the selection process.  The importance of a fair and proper procedure is also well known and is not controversial.  The selection of a pool is a fact based process.  There is no reason why - especially in the case of a small company where a relatively senior executive is concerned, the pool may not be limited to one person. 

46.	Even in cases where a particular post has been selected for removal an employer needs to consider the possibility of a “bumping” redundancy, as was the case in Murray v Foyle Meats.  It is necessary for the respondent to consider fairly the “bumping” aspect and for the employment tribunal to subject the selection for careful scrutiny as to whether that selection is within the reasonable range of respondents.  

47.	We finally need to remind ourselves of the decision of Yeboah v Crofton [2002] IRLR 634 in which the Court of Appeal considered perversity appeals in the Employment Appeal Tribunal.  Mummery LJ had this to say at paragraph 12:

	“12.  When the principal ground of appeal is, as here, perversity of the decision of the fact-finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the Employment Tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal. Only the Employment Tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an Employment Tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the Employment Tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the Employment Tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the Employment Tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal.”

And at paragraphs 93 to 94:

 “93.  Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34. 
94. Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the Extended Reasons of an Employment Tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal. 
95.  Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions.” 

Conclusions

48.	As a general point, before we consider the specific grounds of appeal it appears to us that although the Employment Tribunal did not identify (as it should have identified, the legal principles and how they were applied to the facts, the Employment Tribunal had in mind the appropriate legal principles and applied them to the facts as found by the Employment Tribunal.  This is apparent from the findings made by the Employment Tribunal and the order in which it made those findings.  So far as we can tell there is nothing to suggest that the Employment Tribunal either misunderstood or misapplied the law.  

49.	As we have already said, it was not suggested to us that there was any difference between the advocates as to the relevant law before the Employment Tribunal.  Accordingly, the Employment Tribunal applied principles that would have been well known and not controversial.  

50.	We remind ourselves that we are here to determine issues of law and not issues of fact and that an extremely high burden is placed on an appellant in a “perversity” appeal. 

51.	We are generally satisfied that the Respondent’s submissions on the facts are correct and that there was ample evidence before the Employment Tribunal to support all its findings.  

Was there a redundancy situation?

52.	As we have said, the law is clear as set out in Section 139 of the Employment Rights Act.  The loss of 75 per cent of the Respondent’s Claims Handling work clearly entitled the Employment Tribunal to find that there was a redundancy situation and that the claimant’s dismissal was wholly or mainly attributable to the diminution of the requirement to service the Age Concern Claims Handling.  The Employment Tribunal was entitled to conclude that the Respondent no longer needed a Claims Manager, this was the finding of the Employment Tribunal at paragraph 3:11.  We broadly accept the Respondent’s submissions on the facts.  We refer by way of example to the witness statements of Messrs. Horn and Rutty (witness statement paragraphs 14 and 16, pages 113 – 114) and the extensive notes of the Employment Judge in respect of the evidence of Mr Horn and Mr Rutty; see Employment Judge’s notes pages 1 – 3.

Fairness of Selection Process

53.	Again, on the facts we broadly accept the Respondent’s submissions.  The Claimant, as Claims Manager of the Claims Department was clearly at risk of redundancy, so the Employment Tribunal clearly had to address issues of fairness, process and reasonableness as it did.  It is not for the Employment Appeal Tribunal to re-examine the facts; it is our function to see if the Employment Tribunal correctly applied the law and whether its decision was perverse. During the course of submissions Mr Edmondson pointed that it was not initially a question of the Claimant being made redundant but of her post becoming redundant and she was offered other posts.  The Claimant accepted that there was a redundancy situation but not one that applied to her post as Claims Manager.  However, the evidence clearly showed that she was the only Manager of the Claims Department much of whose work was likely to and did disappear.  

54.	In so far as constructing a pool is concerned, the Employment Tribunal was entitled on the facts to conclude that the Claimant’s post was unique.  There is no reason why in appropriate circumstances the Respondent cannot construct a pool of one.  On the facts found by the Employment Tribunal there was ample justification of this.  The Respondent was a relatively small concern; the Claimant was the manager of a department which suffered a catastrophic decline in work and it was commercially sensible to do away with the post of Claims Manager.  The Respondent did, however, consider the case of a “bumping” redundancy (see paragraph 3:12) the Employment Tribunal found that the Respondent considered the possibility that in order to retain her job the Claimant might have accepted a lower or less well paid position.  The Employment Judge’s notes at pages 2 and 3 in the cross examination of Messrs. Horn and Rutty show that the Respondent considered others for redundancy, that Mr Horn was expected to take redundancies forward so as to be fair to all in accordance with a selection process and redundancy policy.  The Employment Tribunal was entitled to accept the Respondent’s reason for not “bumping” another employee, and clearly looked at the matter with care; see paragraph 3:13. The Employment Tribunal at paragraph 4 was accordingly entitled to conclude that there was overall fairness.  

Perversity

55.	Again, we accept the Respondent’s submission on the facts.  It is impossible to argue that no reasonable Employment Tribunal could have concluded on the evidence that the Claimant’s post was unique.  It is equally impossible to argue that the evidence showed that the consultation was in effect a sham because Messrs. Horn and Rutty had been instructed to make the Claimant redundant.  Mrs Capon’s witness statement was not backed up by her contemporaneous notes and is contrary to the notes of the Employment Judge.  See the Employment Judge’s notes of the evidence of Mr Horn, by way of example, at pages 1 – 2.  

56.	Equally, there was ample evidence to support the Employment Tribunal’s findings as to why the Claimant was selected for losing her employment as opposed to others.  We prefer again the evidence in cross examination of Mr Horn at page 2 of the Employment Judge’s notes.  The other managerial posts were sales driven and sales orientated; see Mr Horn’s witness statement paragraph 19, Mr Hayman’s witness statement paragraph 4 and Mr Rutty’s witness statement paragraph 22.  The Employment Tribunal was entitled to conclude on the evidence that the Claimant’s experience in sales was 10 years old before significant changes in regulatory requirements and the introduction of regulation by the FSA; see again by way of example Employment Judge’s notes page 2.  

57.	The Employment Tribunal was entitled to accept the Respondent’s evidence in relation to consultation in consideration of alternative vacancies. 

Discrimination

58.	From the facts found by the Employment Tribunal there were no circumstances that gave rise to the need to consider whether inferences might be drawn for the purposes of establishing discrimination.  The Employment Tribunal, in any event, found expressly that there was no discrimination on the facts.  In relation to part-time working, the Employment Tribunal was entitled to conclude that the dispute as to the Claimant’s part-time work had been concluded and resolved and a line had been drawn under it.  Similarly, there was nothing from which it might be inferred that her dismissal had anything to do with her gender.  These findings were made on evidence properly available to the Employment Tribunal and it is not for us to re-visit that evidence.  

59.	In these circumstances, the appeal must fail. 

60.	We would, however, in conclusion express our great concern that the Employment Tribunal failed to comply with Rule 30(6) and its failure to do so has given rise to what would otherwise have been an unnecessary appeal.