Appeal No. UKEAT/0482/08/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 February 2009
Judgment handed down on 7 April 2009

Before
HIS HONOUR JUDGE RICHARDSON
MR M CLANCY
MR D G SMITH

MR T JONES	APPELLANT

NORTHUMBERLAND COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS JOANNA HEAL
(of Counsel)
appearing pro bono	
For the Respondent	MR PHILIP KRAMER
(of Counsel)
Instructed by:
Northumberland County Council Legal Services
County Hall
Morpeth
Northumberland NE61 2EF	

SUMMARY
UNFAIR DISMISSAL:  Procedural fairness/automatically unfair dismissal
PRACTICE AND PROCEDURE:  Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal – redundancy – automatic unfair dismissal – whether Appellant raising a new point of law not raised below – Jones v Governing Body of Burdett Coutts School (1998) IRLR 521 applied – Venneri v Autodex (2007) UKEAT/0436/07 distinguished.

HIS HONOUR JUDGE RICHARDSON
1.	This is an appeal by Mr Trevor Jones against a judgment of the Employment Tribunal sitting in Newcastle dated 31 December 2007.  Mr Jones had presented a claim that he was unfairly dismissed by the Northumberland County Council (“the Council”).  The Tribunal held that the reason for his dismissal was redundancy and his dismissal was fair.  

2.	The appeal is brought on three grounds: firstly, that the Tribunal failed to deal with the issue of automatic unfair dismissal pursuant to section 98A(1) of the Employment Rights Act 1996; secondly, that the Tribunal failed to determine the criteria upon which Mr Jones was selected for redundancy and to consider whether those criteria were reasonable; thirdly, that the Tribunal failed to consider whether the consultation process was fair, and ought to have found that it was unfair.

The background facts

3.	Mr Jones was employed by the Council as principal of the Northumberland Virtual CPD College within its Children’s Services Directorate.  The college was described as “Virtual” because there were no college premises as such; its remit was continuous professional development across the Council’s schools.  His employment began on 1 September 2005.  He reported to the Head of School and Family Support within the Directorate.  That post was taken up by Mr Robin Casson in January 2006.

4.	Within the same Directorate there was also a unit known as the Thinking for Learning Unit.  The Director of this Unit was Mr Peers.

5.	In July 2006 a financial review took place across the whole of Children’s Services with a view to making savings of some £738,000.  The review identified 12 posts, including that of Mr Jones and Mr Peer, which were at risk of redundancy.  Their posts were at risk because the review proposed in effect to merge the Virtual CPD College with the Thinking for Learning Unit.  The proposal involved replacing their two posts with one and ring fencing them as applicants for that post.

6.	Beginning in October 2006 a period of consultation took place with the union and with individuals.  The union response did not challenge the review in principle but suggested consideration of voluntary redundancy or early retirement as an alternative to compulsory redundancies.  Mr Jones wrote a detailed and full response dated 3 November 2006.  Mr Casson responded to him on 28 November 2006.

7.	In the result, the Council decided to proceed with the proposal.  The new post was to be entitled Head of School Workforce Development.  Mr Jones and Mr Peers both applied.  They were interviewed.  The interview was founded on a series of pre-set questions which were based on the job description and person specification of the new post, which had been supplied to the candidates in advance.  It took place on 14 December 2006.  The interview panel consisted of Mr Casson and two others.  Each candidate was asked the same questions in the same order.  Scoring was done at the end of the exercise.  Mr Peers scored substantially the higher.  He was appointed.

8.	On 15 December 2006 Mr Casson wrote to Mr Jones.  He said –

“Further to your unsuccessful application for the post of Head of School Workforce Development I regret to advise you that it is proposed that you be selected for redundancy unless suitable alternative employment becomes available.  In this regard your Contact Officer, Hugh Cadwallader will be in touch with you early next week.
You are aware of the background to your selection for redundancy from the meetings you attended on 10 & 11 October 2006.
It is proposed that your redundancy should take effect from 2 April 2007, unless suitable alternative employment is secured.  However, before a final decision is made on this you have a right to attend a formal meeting to make any representations you may have regarding your proposed selection.  Therefore a meeting has been arranged for Tuesday 2 January 2007 at 11.00 am in my office at County Hall.
The meeting will give you the opportunity to discuss the circumstances surrounding your selection for redundancy and give you the opportunity either directly or through your representative, to suggest alternatives to the proposed course of action.
If you choose not to exercise this right, please let me know as soon as possible.
If you do wish to attend the meeting, you have the right to be represented or accompanied by a trade union official or a work colleague.  If you have any problems in this regard, please contact the Director of Personnel & Administration at County Hall, Morpeth, Northumberland NE61 2EF.
Please confirm whether or not you intend to attend the meeting and let me know the identity of your representative.  You should be aware that if fail [sic] to attend the meeting without notice a decision will be made in your absence.”

9.	Mr Jones responded on 19 December 2006.  He asked for the meeting to be put back.  He asked for written feedback from the interview and for reasons for the decision made.  He asked for details of the meeting and of two other posts which were to be filled.  Mr Casson answered on 21 December.  On the question of written feedback, he said it was not the policy of the Council to provide written feedback, but he enclosed copies of the questions and notes from his answers at the interview together with the overall score he had been given.

10.	On 9 January the meeting took place.  Mr Jones attended with his union representative.  On 10 January Mr Casson wrote to him informing him that he was to be dismissed by reason of redundancy unless suitable alternative employment became available during his notice period, which was 3 months.  He was notified of his right to appeal.  An appeal took place on 5 April 2007.  It was dismissed.

The Tribunal proceedings

11.	At the Tribunal hearing, which took place on 28-30 November, Mr Jones was represented by Mr Glover, a solicitor employed by his union.  In the light of the grounds of appeal it is necessary to outline the arguments which were put forward by Mr Jones at the hearing.  These submissions were summarised by the Tribunal.  We have also seen the written submissions presented to the Tribunal by Mr Glover and by Mr Kramer, who appeared for the Council at the hearing and at this appeal.  The printed text of the submissions made to the Tribunal is identical to the printed text in our bundle, except for one immaterial paragraph in Mr Kramer’s submissions.

12.	Mr Glover argued on behalf of Mr Jones that he was not redundant at all on the grounds that in reality what was retained was the function of the College and what was lost was the function of the Thinking for Learning Unit.  If, contrary to that submission, his post was redundant, he was unfairly selected for redundancy because of bias from his line manager Mr Casson and another member of management.  He relied on a series of events which had occurred during 2006 as indicative of bias and hostility on the part of Mr Casson.  Those events had led him to state a grievance on 10 October.  He alleged that a re-grading of Mr Peers which had taken place in July 2006 should be regarded sceptically, for its effect was to put him close enough in grade to Mr Jones to compete for the newly created post.  He alleged that the interviewers had not been well disposed to him at best and at worst had been hostile.  He challenged the composition of the interviewing panel and the interview process itself, for which he said there should have been a pre-existing template or set of model answers against which to score.  He challenged the fairness of the appeal hearing.

13.	The way in which Mr Glover dealt with the question of automatic unfair dismissal was linked with his argument that Mr Jones was not redundant.  He submitted that if Mr Jones was not redundant, then there was non-compliance with the Statutory Disciplinary and Dismissal Procedure, and that the dismissal was automatically unfair (ie that section 98A(1) applied).  He did not make any submission to the Tribunal to the effect that even if Mr Jones was redundant the dismissal was in any event automatically unfair for non-compliance with the Statutory Disciplinary and Dismissal Procedure.

14.	Mr Kramer’s submissions on the issue of section 98A(1) were straightforward and predicated on the basis that the reason for dismissal was redundancy.  He pointed out that Mr Jones’ ET1 did not allege any failure to follow the statutory procedure.  He submitted that there was a step one letter, a step two meeting and a step three appeal.  He submitted that by the stage of the step two meeting Mr Jones had been informed of the basis on which the Council relied in contemplating his dismissal, and had had a reasonable opportunity to consider his response.

The Tribunal’s reasons

15.	At the beginning of its reasons the Tribunal identified what it regarded as the issues: these were the familiar issues raised by section 98 of the Employment Rights Act 1996.  No mention was made of section 98A.  In its review of the applicable law the Tribunal concentrated on the principles relating to redundancy, but it also made express reference to the dictum of Lord Bridge in Polkey v AE Dayton Services [1987] IRLR 503 at paragraph 28, to the effect that –

“...the employer will not normally act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation”

16.	The Tribunal in its reasons dealt faithfully and fully with the arguments put forward on Mr Jones’ behalf, which we have already summarised.  The reasons run to 22 pages and are closely typed.  It is not necessary to give more than a brief summary of them.

17.	On the question of Mr Casson’s alleged bias, the Tribunal reviewed in considerable detail what had passed between Mr Casson and Mr Jones during 2006.  It found no evidence that he was biased.  It preferred the evidence of Mr Casson where there was a conflict between them.  It found that Mr Casson had given Mr Jones reasonable instructions in a reasonable way, and dealt with a grievance by him in a reasonable way. 

18.	On the question of reason for dismissal, the Tribunal found that the Council’s reason for dismissal was redundancy, accepting that there was a genuine merger of two posts.  It accepted that it was reasonable to treat Mr Peers and Mr Jones as pooled for the purpose of redundancy, to ring fence the new job and to place them both within the fence.  It considered whether the selection process for the new job was fair.  It found that the interview was conducted fairly and that proper assessments were made based on the answers given by both candidates.  It found that the appeal was conducted fairly.   For these reasons the claim for unfair dismissal failed.

The Law

19.	Within the Employment Rights Act 1996 the following provisions provided the framework within which the Tribunal had to consider the question whether a dismissal was unfair.
““98   General

	(1)		In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
		(a)	the reason (or, if more than one, the principal reason) for the dismissal, and
		(b)	that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal ‘of an. employee holding the position which the employee held.

	(2)		A reason falls within this subsection if it—
…
		(b)	is that the employee was redundant,

	(4)		…..where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— 
		(a)	depends on whether in the ‘circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonab1y in treating it as a sufficient reason for dismissing the employee, and 
		(b)	shall be determined in accordance with equity and the substantial merits of the case.

 98A Procedural fairness

	(1)		An employee who is dismissed shall be regarded for the purposes of. this Part as unfairly dismissed; if—

		(a)	one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
		(b)	the procedure has not been completed, and
		(c) 	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. 

	(3)		For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act.”

20.	It is also relevant to note the terms of steps one and two of the Standard Dismissal and Disciplinary Procedure set out in Schedule 2 to the Employment Act 2002.

“SCHEDULE 2

STATUTORY DISPUTE RESOLUTION PROCEDURES
Section 29

PART 1
DISMISSAL AND DISCIPLINARY PROCEDURES

CHAPTER 1
STANDARD PROCEDURE

Step 1 statement of grounds for action and invitation to meeting
1 —(1)		The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee. 
	(2)		The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting
2.—(1)		The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
	(2)		The meeting must not take place unless—
		(a)			the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
		(b)			the employee has had a reasonable opportunity to consider his response to that information.
	(3)		The employee must take all reasonable steps to attend the meeting
	(4)		After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.”

21.	In this case it is not in dispute that the Standard Disciplinary and Dismissal Procedure (“the SDDP”) was applicable: see reg 3(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.  Reg 12(1) of those Regulations provides –

“12    Failure to comply with the statutory procedures
	(1)	 If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure.”

Automatic unfair dismissal

22.	On the ground of appeal relating to automatic unfair dismissal, Miss Heal submitted that it was the duty of the Tribunal to deal with the issues raised by section 98A(1) of the 1996 Act: see Venneri v Autodex Ltd (2007) UKEAT/0436/07.  Mr Jones may not have expressly raised any argument in reliance on that provision, but he did not concede it.  The Tribunal failed to identify a document complying with the requirements of step one or a meeting complying with step two.  If there was a step two meeting the Tribunal failed to consider whether prior to the meeting there was compliance with paragraph 2(2) of the SDDP.  The Tribunal therefore failed altogether to consider an essential issue.

23.	On the question of the SDDP, Miss Heal accepted that there was a letter capable of satisfying step one, a meeting capable of satisfying step two, and an appeal capable of satisfying step three.  She submitted, however, that the Council was in breach of the SDDP because, prior to the meeting on 9 January, it had not informed Mr Jones what the basis was for the decision that he was to be made redundant: see paragraph 2(1) of the SDDP.  She referred to and relied on Alexander v Bridgen Enterprises [2006] IRLR 422 at paragraphs 41 – 46.  She submitted that the Council should have given Mr Jones not only the questions, answers and his overall mark but also individual marks for individual questions.

24.	In reply on this question, Mr Kramer submits that Venneri v Autodex is to be distinguished.  He contrasted the position in this case with the position in Venneri.  Here both parties addressed the Tribunal on the section 98A (1) question.  The case for Mr Jones was put in a particular way.  The case is now put in a quite different way, not mentioned below at all.  The Appeal Tribunal should apply the principles set out in Jones v Governing Body of Burdett Coutts School (1998) IRLR 521.  There was no reason why, in these circumstances, the Tribunal should have dealt specifically with section 98A(1). Given the way in which the case was put by Mr Jones’ representative, the issue simply fell away once the Tribunal had decided that the true reason for dismissal was redundancy.  

25.	Two questions arise.  Firstly, is Mr Jones seeking to raise a new point on appeal?  Secondly, if he is, should he be permitted to do so?

26.	There is, to our mind, no doubt that Miss Heal on Mr Jones’ behalf is seeking in substance to raise a point of law which was never raised below.  Our reasoning is as follows.

27.	The argument which Mr Glover put forward below relating to the SDDP was intimately linked to his argument about the reason for dismissal.  He was arguing that the true reason was not redundancy.  If that argument was correct, and the true reason were not redundancy, then the Council would not have complied with the requirement, at step one, to set out what it was that led the Council to contemplate dismissing him.

28.	This to our mind establishes why the Tribunal did not deal with the issue in their written reasons.  The Tribunal, as we have already observed, dealt carefully in their reasons with the submissions which were made to them.  But once the Tribunal found that the true reason for dismissal was redundancy, the argument put forward by Mr Jones for automatic unfair dismissal simply fell away.

29.	The argument which Miss Heal has put forward on this appeal is quite different.  It relates specifically to the information given by the Council to Mr Jones before the step two meeting.  It is argued that the information about voting at the interview was not given in sufficient detail to meet the requirements of step 2 of the SDDP.  This argument was never put in any way at the Tribunal below.   It does not appear in submissions to the Tribunal.   We have no doubt that the Tribunal would have addressed it if it had been put.

30.	We turn then to the question whether Mr Jones should be permitted to take this new point.

31.	We observe first of all that if this new point were to be taken it would require remission to the Tribunal.  This, indeed, is the result Miss Heal seeks to achieve (with a hearing before a fresh Tribunal).  The point which Miss Heal seeks to take is not the kind of hard-edged point of law which the Appeal Tribunal could decide of its own motion.  It would have to be evaluated by a Tribunal in its factual setting.  In the light of Alexander v Bridgen Enterprises it is arguable but by no means certain to succeed.

32.	In determining this question each side argues for the primacy of a different, well-known principle.  We will examine them in turn.

33.	The first principle is that the Employment Appeal Tribunal, in common with other appellate courts, will not generally permit a party to argue a new point on appeal which was not taken below or which was conceded below.

34.	In Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 Robert Walker LJ said –

“19.	There is a good deal of authority, much of which Miss Morgan cited in this court, to the effect that the Employment Appeal Tribunal does not and should not normally allow an appellant to raise a point of law not raised (or raised but conceded) before the industrial tribunal, and indeed that leave to do so should be given only in exceptional circumstances.  Apart from two cases which were not employment cases (Thomas v Marconi’s Wireless Telegraph [1965] 1 WLR 850 and Wilson v Liverpool Corporation [1971] 1 WLR 302), counsel between them referred to GKN (Cumbran) v Lloyd [1972] ICR 214, Kumchyk v Derby City Council [1978] ICR 1116, House v Emerson Electric Industrial Controls [1980] ICR 795, Secretary of State for Employment v Newcastle upon Tyne City Council [1980] ICR 407, McLeod v Hellyer Brothers [1987] IRLR 232 (a decision of this court) and Barber v Thames Television [1991] IRLR 236.

20.	These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal.  In Kumchyk the Employment Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason.”

Later he said:

“29.	However, the search for justice requires some difficult reconciliations of conflicting principles, and there is a strong public interest in finality in litigation.  The rule or practice embodied in the authorities mentioned earlier in this judgment is not regarded as a matter of technicality, but of justice to a respondent who may be plunged into yet more litigation:  see for instance Sir John Donaldson in GKN (Cwmbran) at p.219 and Arnold J in Kumchyk at p.1123.  Sometimes the rule does result in a case being decided on a basis of law that is not merely arguably, but demonstrably, wrong by the time it reaches the appellate court:  Wilson v Liverpool Corporation is itself a striking example.”

35.	The second principle is that the Employment Appeal Tribunal will expect a Tribunal to address and deal with certain core issues and certain core statutory provisions in employment law unless the parties have agreed otherwise or there is an informed concession on the question.

36.	There are, for example, some principles of employment law which are so well established that a Tribunal may be expected to consider them as a matter of course: see the well-known discussion in Langston v Cranfield University (1998) IRLR 172 at paragraphs 20-21, 26-34 (HHJudge Peter Clark).  In that case he said, in respect of a claim of unfair dismissal by reason of redundancy –

“Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in the claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.”

37.	Likewise there are some statutory provisions which a Tribunal may be expected to consider as a matter of course.  In Venneri v Autodex Ltd (supra) the Appeal Tribunal said –

“34.	In our judgment s98A(1) of the Employment Rights Act 1996 is part of the essential fabric of unfair dismissal law as presently enacted by Parliament.  Whether there is an applicable procedure, whether there has been “non-completion” of that procedure, and whether that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements, are matters which the Tribunal should have in mind in every unfair dismissal case.  It is not necessary for a claimant to raise s98A(1) explicitly; the Tribunal should have the matter in mind as an issue.

  35.	Now that the statutory procedures under the 2002 Act are becoming well known, it is to be hoped that in most cases an employer will have complied with them.  Often, particularly where a claimant is represented, a few moments of discussion at the beginning of a case will establish that it is conceded that the relevant procedure has been complied with by the employer.  But in the absence of an informed concession on the question, the Tribunal should regard s98A(1) as an issue and deal with it in its reasons.”

38.	This remains the position while section 98A(1) retains its present place in the statutory framework of unfair dismissal law.   Section 98A as a whole will be repealed by section 1 of the Employment Act 2008.  However, that provision is not yet in force.  So section 98A will have to be considered by Tribunals for a little while longer.  It remains good practice for a Tribunal to consider and give reasons upon the issue in every case unless there is an informed concession.

39.	Does it then follow that, because the Tribunal did not deal with section 98A(1) in its reasons, the Appeal Tribunal must allow the appeal and remit the case so that Mr Jones can take a point which is quite different to the point which he took below and which, we are satisfied, the Tribunal would have addressed if he had taken it?

40.	To our mind it does not follow that in every case where the Tribunal fails to give reasons in respect of section 98A(1) an appellant will be entitled to raise a specific legal argument which was not raised before and to call for the appeal remitted for the purpose of resolving it. 

41.	This case, unlike Venneri and Langston, is not in truth a case where the Tribunal failed to consider an established principle of employment law or a core statutory provision.  We are satisfied from the care with which the Tribunal has dealt with other arguments put forward on behalf of Mr Jones and from our review of the submissions of the parties that the Tribunal had section 98A(1) in mind but did not address it because on the specific argument put forward by Mr Jones it did not arise once the Tribunal had found the true reason for the dismissal to be redundancy.

42.	It is important to bear in mind that there was on the face of it every reason for the Tribunal to suppose that there was compliance with the SDDP.  The letter dated 15 December sufficiently complied with step one.  The meeting on 9 January was the meeting for the purposes of step two.  There was an appeal for the purposes of step three.  Prior to step two, the Council had given a considerable amount of information to Mr Jones.  The argument of Miss Heal really amounts to saying that the Tribunal ought to have detected for themselves and ruled on an argument - never put at the hearing – about the sufficiency of one type of information given to Mr Jones.  

43.	In our judgment, applying the principles we have identified, this is not an appropriate case in which to allow the new argument to be deployed.  It would, as we have said, require remission and a further hearing. There is no exceptional reason for permitting it.  

Selection for redundancy

44.	On the ground of appeal relating to selection criteria, Miss Heal submits that matters such as selection, consultation and alternative employment are always matters a Tribunal should have in mind: see Langston v Cranfield University (1998) IRLR 172 at paragraphs 26-37.  There is well known guidance from the Appeal Tribunal in Williams v Campair Maxam (1982) ICR 156.  The Tribunal did not apply this guidance.  The Tribunal made no finding about what selection criteria were used, and in particular reached no conclusions about the substantial element of subjectivity which was inherent in the interviewing process.  There was no safeguard to prevent the selection being used to dismiss an employee who is for some reason disliked.  There was no evidence based scoring.

45.	In reply on this issue, Mr Kramer says that the Tribunal identified why Mr Jones was selected for redundancy.  His post and Mr Jones’ post were being merged in consequence of the merger of the units which they managed.  There was one job for which two people were interviewed.  There was nothing inherently unreasonable about using performance at interview as a means of deciding between two qualified candidates for a particular job; this was the normal means of doing so.  The Tribunal expressly stated that the selection criteria were fair.  No more reasons were required; the Tribunal dealt expressly and fully with the points put forward on behalf of Mr Jones at the hearing and it is not to be expected that reasons will deal at length with points which were not at the heart of the case.

46.	To our mind the Tribunal has addressed this question properly.  Its conclusions, which are found in paragraphs 22-24 of the reasons, building on earlier findings of fact, naturally focus upon the issues which were contested during the hearing.  We think the Tribunal made proper findings as to the selection criteria.  The Tribunal, after a careful review of the evidence, found that the pooling of Mr Jones and Mr Peers and their ring fencing for the job was reasonable.  The Tribunal considered in detail whether the selection process for the new job was fair: paragraph 24 of its reasons.  It found that proper assessments were made based on the answers given by both candidates.  The questions themselves were, as one would expect, based on the job description and person specification; they raised for consideration in the interview process issues which are pertinent to the job.  The Tribunal plainly had in mind the criticism that the process contained a degree of subjectivity.  The Tribunal considered carefully the lack of model answers, but did not find that this made the process unfair; it pointed out that it is impossible, if two people are being interviewed for the same job, completely to remove any subjectivity from the process.  In our judgment the Tribunal has correctly applied the test in section 98(4) of the Employment Rights Act 1996.  We do not think the Tribunal’s reasons betray any error of law.

Consultation

47.	On the ground of appeal relating to consultation, Miss Heal refers to Mugford v Midland Bank plc (1997) IRLR 208 at paragraph 27 for the principles applicable to consultation.  She submits that the consultation in this case was too late; it should have taken place before the proposal document was produced.  The response to consultation by Mr Casson was terse and, she submits, demonstrated that the issue was closed.  She submits that it was part of Mr Jones’ case that the consultation was not genuine.  The Tribunal ought to have considered this point expressly and decided whether the consultation was reasonable having regard to the Mugford principles.

48.	In reply on this issue, Mr Kramer submits that this is a new argument; there was no allegation below that the consultation process was unfair.  Therefore the Appeal Tribunal should again apply the principles set out in Jones v Governing Body of Burdett Coutts School.  In any event, the Tribunal’s findings are sufficient to establish that there was adequate consultation.  The Tribunal found that Mr Jones said he should be pooled with Mr Peers for whichever post they wished to consider in the new structure.

49.	The Tribunal set out detailed findings about the process of consultation.  We have already summarised them.  It is true that in its conclusions it does not return to those findings and expressly state that reasonable consultation took place.  The conclusions mention “the consultation process” only in passing while dealing with the pooling of Mr Jones and Mr Peers.  This, we think, is because of the way the issues were put at the Tribunal.  It is plain from the Tribunal’s summary of the submissions, and from the written submissions filed on Mr Jones’ behalf, that his representative made no complaint of the consultation process as such; the complaint which would impact upon the consultation process is the complaint of bias, which was considered and rejected.  This, we have no doubt, is why it was not mentioned in the Tribunal’s concluding section.  The Tribunal had, however, not ignored the question of consultation.  It had made findings about the consultation in paragraph 7 during its narrative findings of fact.  There was consultation both with Mr Jones as an individual and with the union.  The consultation enabled both of them to respond.  The Council considered the responses.  As regards the union’s response, the Tribunal record that there was no challenge at the Tribunal to the Council’s view that use of voluntary redundancy or early retirement would not achieve operational objectives.  

50.	In this case we have no doubt that the Tribunal applied section 98(4);  it posed the correct question for itself at the outset of its reasons.  It had consultation in mind, as is plain from its narrative findings and from its reference to the dictum of Lord Bridge in Polkey v Dayton Services.  The Tribunal made adequate findings as to the consultation process and dealt with the respect in which it was alleged to be unfair. In the circumstances of this case we do not think its failure to deal more fully in its conclusions with the issue of consultation can properly be characterised as an error of law.

Conclusion

51.	For these reasons the appeal will be dismissed.

52.	We record that we heard argument from both sides on the question whether, if the appeal were to be remitted, it should be to the same or to a different Tribunal.  We were addressed about the guidance set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 46.  If we had thought the appeal should be allowed we would have remitted it to the same Tribunal, considering as we do that the Tribunal dealt fully and professionally with the main issues which were argued before it and that it would have been both fair and proportionate to remit to the same Tribunal.