Appeal No. UKEAT/0407/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 March 2011
                                                                              Judgment handed down on 21 April 2011

Before
HIS HONOUR JUDGE McMULLEN QC
MR D EVANS CBE
MR T STANWORTH

PENINSULA BUSINESS SERVICES LTD 	APPELLANT

(1) MR I G REES	
(2) MR J McLACHLAN
(3) MR F JAFFIER

	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J SAMSON
(of Counsel)
Instructed by:
Steeles Law Solicitors
3 The Norwich Business Park
Whiting Road
Norwich
Norfolk
NR4 6DJ	
For the Respondents	MR I G REES
(The Respondent  in Person)
MR J McLACHLAN
(The Respondent  in Person)
MR F JAFFIER
(The Respondent  in Person)	

SUMMARY
UNFAIR DISMISSAL

Reasonableness of dismissal

S.98A(2) Employment Rights Act 1996

The new Employment Tribunal on remission from the EAT correctly found the Claimants were unfairly dismissed for redundancy.  It correctly construed s 98A(2) as not applicable where the Respondent failed to complete Step 2 of the SDDP: Davies applied.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about unfair dismissal in the context of a reduction in a workforce.  The judgment represents the views of all three members drawn by statute for their diverse specialist experience to consider these matters.

Introduction
2.	It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Parkin meeting in Manchester over 14 days, registered with Reasons on 11 May 2010.  We will refer to the parties as Peninsula, the Respondent, and Mr Rees, Mr McLachlan and Mr Jaffier as the Claimants.  The Respondent was represented by Mr John Samson of counsel.  The Claimants represented themselves before us, Mr Rees producing a detailed skeleton argument, which the others adopted.  Mr Jaffier did not attend and was not represented at the Employment Tribunal.  The Claimants between them made a number of claims but in common were claims of ordinary and automatic unfair dismissal, and those remain issues live on appeal, for the Employment Tribunal decided in their favour while dismissing a claim of race discrimination by Mr Jaffier and of health and safety dismissal by Mr McLachlan.  There is no cross appeal.  The Respondent appeals.  Directions sending this to a full hearing were given in chambers by HHJ Serota QC.

The legislation
3.	The relevant provisions of the legislation are not in dispute. The Employment Rights Act 1996 is as follows:
Section 98
“(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 sub-section (2) or some other substantial reason …. 
(2) A reason falls within the sub-section if it ...
(c) is that the employee was redundant. .. 
(4) …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 unreasonably 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.
Section 98A: 
(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. 
(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure. 
Section 139:· 
(1) For the purposes of this Act, an employee who was dismissed shall be taken to be dismissed by reason of redundancy if a dismissal is wholly or mainly attributable to: 
(a) the fact that his employer had ceased or intends to cease: 
(i) to carry on the business for the purposes of which the employee was employed by him, or 
(ii) to carry on that business in the place where the employee was so employed, or 
(b) the fact that the requirements of that business; 
 (i) for employees to carry out work of a particular kind, or 
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.
It was common ground that the statutory dispute resolution procedures under Section 29 of the Employment Act 2002 applied to these dismissals. Accordingly, at Schedule 2, Part 1, Dismissal and Disciplinary Procedures, (“SDDP”) Chapter 1, the Standard Procedure is set out: 
Step 1: statement of grounds for action and invitation to meeting 
(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 
(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. 
Step 3: appeal 
(1) If the employee does wish to appeal, he must inform the employer. 
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. 
(3) The employee must take all reasonable steps to attend the meeting. 
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect. 
(5) After the appeal meeting, the employer must inform the employee of his final decision.”

The issues
4.	The issues so far as they are now live on appeal taken from the argument are:
Ground 1: Erroneous finding that the claimants were automatically unfairly dismissed: (s98A(1) ERA 1996) in that the Tribunal: 
(a) set too high a standard for the information required at Step 2, SDDP; 
(b) failed to find overall completion of the SDDP. 
Ground 2: Erroneous finding that the claimants were unfairly dismissed  (s98(4) ERA 1996): in that the Tribunal: 
(a) was wrong to find that the appeals did not cure any earlier defect(s) 
(b) failed to consider the reasonableness of the process overall 
(c) made a perverse decision given its own findings of fact 
(d) has failed to provide a sufficiently reasoned decision
Ground 3: Erroneous finding that the claimants would not have been dismissed in any event had a fair procedure been followed: (s98A (2) ERA 1996; ‘Polkey-reversal’): in that the Tribunal: 
(a) applied the wrong test on dismissal in any event 
(b) failed to take account of relevant evidence 
(c) made a perverse decision given its own findings of fact 
(d) has failed to provide a sufficiently reasoned decision.”

5.	At one stage, it was contended that the redundancy promoted by the Respondent was a sham but, on appeal, the nub of the case is that redundancies were carried out following unfair procedures and the statutory dismissal procedure was not followed, making the dismissals automatically unfair.  They were also unfair in the ordinary sense.

6.	From the outset, the issues had been acute given the nature of the parties.  These were experts in employment relations, and the finding against the case of any of them would be very damaging.  To some extent, the same was true of the Employment Tribunal, for this case had been the subject of a 100-page judgment by a differently constituted Employment Tribunal, which was set aside on the ground of apparent bias by the EAT: UKEAT/033/08 (Slade J and members). Neither the second Employment Tribunal nor we read the first Tribunal judgment.  The Claimants say, with some force, that the second Tribunal was highly conscious of its role and provided an exemplary judgment in 48 pages, which did credit to the fact that the four parties are experts in employment relations, and that the second Tribunal was fielding a remission.  We are now five years down the line, and the Claimants crave finality.

The facts
7.	The Employment Tribunal introduced the parties in the following way:

“9.1 The respondent is a well known provider of employment law consultancy, advice and advocacy. It is run by a Board comprising the Managing Director, Mr Peter Done (who is also a shareholder); Director of Consulting, Mr Anthony Sutcliffe, and Finance Director, Mr Keith Hayward. Mr Sutcliffe has an Assistant Director, Mr Kieron Hill, who is not at Board level. 
9.2 Mr Sutcliffe was responsible for the respondent's consultancy functions comprising four areas or departments: Advice Service, Advocacy (also known as Advocacy and Litigation), Personnel Services and Health and Safety. Each department had its own separate manager. In the Advocacy Department, Ms Michelle Johnson, Advocacy Service Manager, and Ms Ellen Singer, Advocacy Preparation Service Manager, both reported to the overall manager, Mrs Julie English. Another experienced and long-serving manager, who was also a former manager of the department, Mr Martyn West, was Mrs English's Deputy Manager. 
9.3 Mr Sutcliffe had himself managed the Advocacy Department for many years, several years earlier, and he had extensive experience of presenting claims at the Tribunal as an advocate. Mr Kieron Hill, too, had managed the department on an interim basis between 2003 and 2004 before Mrs English was appointed. 
9.4 The respondent is a substantial organisation, based in Manchester. The Advocacy Department itself employed some 57 employees of whom about 31 were advocates including trainee advocates; about 17 of these were home-based rather than based in Manchester, with some based in Scotland and Northern Ireland. 
9.5 The respondent employed some 500 employees and had the fullest possible resources and administrative support systems. 
9.6 The respondent had some 18,000 client employers under three or five year contracts. Other than where clients came because they already had Tribunal proceedings against them, the respondent provided an insurance indemnity scheme whereby if the client employer followed its advice and guidance in respect of employees, the respondent's associated insurer would indemnify the client against any award sustained as a result of an Employment Tribunal claim. Accordingly, both to advise and guide the client employer but also to protect its own insurer's funds, the respondent provided to client employers detailed written guidance to be followed in respect of many employment areas and in particular in respect of compulsory redundancy situations. 
9.7 That advice included its own documents….”

8.	The Tribunal identified a series of documents which the clients of the Respondent should follow in any redundancy situation.  Each of the Claimants had been employed from 2000 or 2001. Mr Rees is a solicitor.  At one stage, he was the manager of the advocacy department.  Mr McLachlan was an advocate, and Mr Jaffier was an officer in the litigation department.  The employment of Mr Rees and Mr Jaffier ended on 29 March and 11 April 2006, respectively.  Mr McLachlan never left the Respondent but started in a new position with continuity of employment preserved on 8 March 2006.

9.	A problem for the Respondent began shortly before 1 October 2004 when the central office of Employment Tribunals no longer maintained the public register of claims.  This register was a fertile source of work, and the Respondent vigorously advocated its retention and the reversal of the Government’s decision.  By 29 November 2005, there were clear proposals for making redundant a number of staff.  By 9 December 2005, a draft redundancy matrix had been prepared, and on 12 December 2005 Mrs English circulated final selection criteria to, among others, the Claimants.  These contained 12 criteria with a band of scores of 1 to 5 (see paragraph 9.44 of the Reasons).  Scores were given to each of the advocates.  There were meetings.  On 30 January 2006, Mrs English wrote to the Claimants and others selected for compulsory redundancy confirming their selection and giving notice of termination with effect from 28 February 2006.  On 31 January 2006, an anonymised list of names set out the scores. 

10.	Appeals were conducted by Mr Hill, who had authority to change and even to reconsider the need for redundancies.  By the time of the appeals, Mr Hill had the record of the work of the Claimants, their 12-page individual score sheets, and score sheets prepared by Ms Johnson and Ms Singer in respect of criterion 5, which had not been marked by Mrs English.  Mr Hill considered he was holding a rehearing.  On 28 February 2006 (paragraph 9.92 says 28 January), Mr Hill heard Mr McLachlan’s appeal, on 8 March 2006, Mr Jaffier’s appeal. On 14 March 2006 Mr Hill wrote to Mr Rees, who had lodged a grievance, and rejected it.  All the appeals were rejected.  One aspect concerned Mr Hill: Mrs English had not notified individual scores to individual advocates at her first consultation meetings with them.  The reason this was not a flaw, according to Mr Hill, was that the individual scores and comparative scores of others had been provided before the appeal of each.

11.	At the start of its nine pages of conclusions following its findings of fact, the Tribunal decided that this was a classic redundancy, and that is not disputed now.  Mr Sutcliffe had a genuine belief that the department in which the Claimants were employed was overstaffed having regard to the workload as at the time the notices of termination took effect.  

12.	It next went on to consider whether there had been a breach of the three-step statutory disciplinary and dismissal procedure under the Employment Act 2002.  We have to say that both sides must have had their hearts in their mouths when they read this for, in turn, the judgment approves and disapproves various steps set against the statutory standard.  The outcome was that the Respondent was in breach of step 2.  This follows what is, in our judgment, a careful and balanced assessment of the facts, indicating by the Tribunal an open mind to the situation, giving credit to the Respondent where due.  The Tribunal upheld the Respondent’s contention that it satisfied steps 1 and 3, and there is no appeal against that.  Step 2, it will be recalled, is a meeting before which information has to be given.  The Tribunal outlined the meetings which had taken place, and then, since it has been the subject of detailed examination in our hearing, we will reproduce what the Tribunal said:

“15. At the first consultation meeting, whilst there was discussion to a greater or lesser extent with each claimant about the criteria and the context in which Mrs English would mark that claimant on most criteria, there was no clear announcement by her of what score she was allocating. For criteria 5 and 12 she could not yet do so, since Ms Johnson and Ms Singer were marking criterion 5 and the full documentary information to score criterion 12 was not yet available. In any event, she gave no elaboration upon the way in which the bands were applied (even on obviously objective criteria such as length of service). There was no sharing by Mrs English of her scores with the individual advocate at that stage. Applying Alexander v Bridgen, as further explained by Davies v Farnborough College, the Tribunal concluded that there was non-compliance by the respondent with paragraph 2(2) under Step 2 of the standard procedure. Whether the initial consultation meeting is taken as standing alone or the subsequent meeting of 25 or 26 January or phone call of 25 January (for each claimant respectively) is included in the "meeting", this respondent did not sufficiently inform the employee what the basis was for including that employee within the selection for redundancy and did not afford that employee a reasonable opportunity to consider his response to that information. In short, in the particular circumstances of this case, where no clarification as to how the scores were allocated in the range 1 to 5 for each criterion, and where there necessarily could be no discussion whatsoever about some criteria (at least numbers 5 and 12 for each claimant), the absence of information provided to the claimants meant that they did not have a reasonable opportunity to consider their responses. Notwithstanding that Mr McLachlan successfully questioned (and indeed had uprated) his sickness absence score as a result of the meeting of 26 January 2006, there was no opportunity for each claimant (and indeed all the advocates scored) to challenge the great majority scores allocated by Mrs English until they saw their own particular assessment and thus had the opportunity to correct errors and make representations about particular aspects, within this Step 2 stage (see paragraph 47 of Alexander v Brigden). That detail was not provided to these claimants until the 12-page document was sent with Mrs English's letter of 30 January. Accordingly, whilst subparagraphs (1) and (4) of paragraph 2 under Step 2 were satisfied, and subparagraph (3) was for the employee to comply with, the Tribunal concluded that there was a failure to comply with subparagraph (2)(a) and (b) by the respondent, which meant that the standard procedure was not properly completed.”

[The references are to Alexander v Brigden Enterprises Limited [2006] IRLR 422 at pars 33-47 and Davies v Farnborough College of Technology [2008] IRLR 14.]

13.	The Tribunal upheld the Respondent in respect of its contention that it met paragraph 2(1) and 2(4) under the step 2 procedure but not in relation to paragraphs 2(a) and 2(b).  Its reasons were in summary:
(1) No announcement of the scores she was allocating.
(2)  No elaboration of the way the bands were applied.
(3)  Insufficient information as to the basis for including the employee.
(4)  No reasonable opportunity to consider his response to that.
(5)  No discussion about some of the criteria.
(6)  No opportunity to challenge the majority of the scores and correct errors within step 2.

14.	The Tribunal then went on to consider ordinary unfair dismissal under section 98(4), and held that there was no deliberate manipulation by Mrs English, and she applied a careful and methodical approach to the scoring notwithstanding the subjectivity with which some of the criteria were constructed.  The Tribunal found as follows:

“18. However, the Tribunal found a number of weaknesses in the overall process, in particular on Mrs English's part. Firstly there was no overall documented sequential process or guidelines being followed both initially and on appeal. Having declared a redundancy exercise likely to result in 4 redundancies, the respondent changed mid-process when Mr Sutcliffe directed 8 redundancies were to be made. There was no collective consultation, only a general announcement followed by "individual consultation" which was actually no more than a scoring meeting. There was no real opportunity for the claimants, even acknowledging they were employment law professionals (some of their peers taking the opportunity to query the criteria), to challenge the appropriateness or relevance of the criteria or to suggest alternatives to redundancy, even accepting the respondent had already sought to cut down to a bare minimum its use of outside agents and did ultimately afford the opportunity of applying for alternative advice line positions. The individual consultation afforded no real opportunity for individuals to change either the content or application of the criteria themselves or their specific scores prior to Mrs English's announcement of the outcome (save in the very limited example of Mr McLachlan's sickness absence). The change from 4 to 8 redundancies was unfortunate, not least for Mr Rees who as a result of informal discussions was clearly of the view when he entered his individual consultation that only one compulsory redundancy was likely to be needed. 
19. Despite her protestations, the process adopted by Mrs English was somewhat secretive and certainly not fully transparent. Only when she sent the 12-page scores documents out was the full process, including how she applied scores to the various criteria, clear; there was nothing preventing her providing the additional guidance alongside the 12 criteria on 12 December 2005 or at least well ahead of individual meetings. Whilst the Tribunal did not conclude that she had acted in bad faith, it did conclude that, given the several years of hindsight and bolstering of position (which affected both sides and not solely the respondent), Mrs English gave in evidence at the Hearing a version that she had been more open about scores with advocates than was actually the case at the time. Even at the appeal stage, she had not wanted individual comparative scores to be known, whereas Mr Hill did. The respondent only gave consideration to alternative employment fairly late in the process with Mrs English contacting other managers on 30 January when the redundancy situation had been known of for nearly two months.”

15.	In our judgment, that indicates appropriate fact-finding by the Employment Tribunal.  The use of the words “actually”, “real”, “overall”, “fully”, “general” all indicate an assessment of the facts.  The finding as to what is secretive and not transparent and the impact of the change in policy resulting in eight, not four, redundancies were matters of appreciation for the Tribunal just as much as was its acquittal of the Respondent of charges of manipulation.  

16.	The Tribunal then moved on to considering the criteria.  It did so analytically and then holistically.  Some of the criteria were objective, some subjective, some arbitrary, and it came to this conclusion:

“20. Overall, consideration of the criteria means the balance within the matrix was slightly more subjective than objective. While that in itself does not make the dismissal or redundancy selection unfair, it reinforces the Tribunal's view that the lack of meaningful opportunity for employees to respond about the selection criteria, at a time when they could have an impact, was significant; this is particularly so when Mrs English alone was scoring 11 of the 12 criteria.”

17.	Again demonstrating what we have held to be a cautious and balanced approach to the findings, the Tribunal said this:

“21. The Tribunal did find some considerable strengths of this redundancy process, firstly the fact that Mrs English had live discussions with individual advocates at the time of or immediately prior to scoring them on most criteria. Whilst not going so far as the respondent's Counsel, who described this as "innovative", the Tribunal was impressed by this step and would have been still more impressed had Mrs English fed back the results of her scores before reaching her final selection. At the initial selection stage, another considerable strength was criterion 5 and the careful discussion between Ms Johnson and Ms Singer over how that was to be marked, with the random selection of case management files ensuring objectivity before that mark was scored. A further strength was the appeal stage by Mr Hill. Not only was he mandated with authority to change individual selections if appropriate, it was within his authority to overturn the decision to make redundancies or the number of redundancies made (although he did not do so). His appeal stage, whilst probably not technically the rehearing he asserted, was a detailed and careful review of what had gone before by Mrs English although it did not mirror it in all respects. Moreover, in Mr Jaffier's case alone, there was the highly sophisticated analysis given by Mr Huss to Mrs English's criteria and scoring. 
22. On balance, having regard to the lack of transparency by Mrs English and lack of opportunity for the claimants meaningfully to challenge not just the overall criteria but particularly the individual application of those criteria in their own cases, for instance having regard to the bands within which the criteria were scored and the various comments made by Mrs English on their score sheets which informed her scoring process, the respondent did not act fairly in all the circumstances in treating redundancy as a sufficient reason to dismiss. In addition to "automatic" unfair dismissal, the respondent unfairly dismissed the claimants in the "ordinary" sense.”

In short, the Tribunal found four strengths but, nevertheless, came to the overall conclusion that the procedure was flawed.

18.	As it was bound to do, the Tribunal went on to consider whether what it had detected was cured by the appeal process.  Again, the Tribunal approached this part of its decision-making by setting out the strengths and weaknesses as it found them to be in the Respondent’s approach.  It gave its overall conclusion as follows:

“22. When the tribunal stood back and considered the process as a whole, the defects as to consultation were not put right or smoothed out by the appeal process.”

19.	It rejected the Claimants’ claim that the Respondent had erred in failing to consider alternative employment but did make two criticisms:

“23. A further aspect of the Tribunal's finding on "ordinary" unfairness is that Mr Sutcliffe's decision to increase the number of redundancies from 4 to 8, made without reasoned discussion with Mrs English, meant no additional opportunity for the advocates to discuss the number of redundancies and, for instance, propose alternative ways of working or for management to seek still further volunteers for redundancy. Mr Sutcliffe's memos of 10 and 11 January showed a distinct change of approach by him in asserting that advocates were deliberately not resolving cases i.e, that they were working more slowly in the knowledge of the reduced workload; this approach was never discussed with the advocates generally or individually nor was it referred to by Mrs English nor indeed by Mr Hill when dealing with the appeals. Since Mr Sutcliffe’s motivation was more efficiency-gaining than cost-saving, the immediate increase, without no transparency or clarity to employees as to what lay behind it and no notice to them of it until they had been selected for redundancy, was unreasonable. Finally, while the Tribunal did not accept Mr Rees's initial argument that the standard against which the respondent's actions should be measured must be that of a highly professional employment law advisor i.e. higher than any employer not providing such services, it did not find that the respondent acted reasonably when wholly ignoring its own guidance documents prepared for clients dealing with redundancy situations. No reasonable employer having ready access to what might be termed "best practice" guidance available within its own organisation, would disregard that guidance entirely without considering which parts of it might provide assistance in dealing with its own redundancy situation.”

20.	Having decided the dismissals were automatically unfair for the failure to complete step 2, it was, as the Tribunal noted, unnecessary for it to consider section 98A(2), which does not apply where there has been such a breach of statute.  Nevertheless, on appeal we are grateful to it for considering this matter within the context of ordinary unfair dismissal, and for that it was necessary for it to determine the principle in Polkey v AE Dayton Services Limited [1988] ICR 142HL.  As to which, it said this:

“24. Having regard to issue 3.7 which relates to the "Polkey-reversal" provision under Section 98A(2), this was not strictly necessary for the Tribunal's decision making in the light of its finding of automatic unfair dismissal under Section 98A(1). However as an alternative to its finding of automatic unfair dismissal, the Tribunal was not satisfied on the balance of probabilities by the respondent that it would have dismissed each claimant at the same time in any event had it followed a fair procedure and not failed adequately to consult the claimants prior to their redundancy dismissals. Having regard to the lack of consultation and lack of transparency of process by Mrs English and the unexplained increase from a likely 4 to 8 redundancies, the Tribunal was not satisfied that the respondent would necessarily have dismissed each of the claimants (including Mr Jaffier) at that time in any event. The Tribunal again reminded itself of the nature of meaningful consultation, i.e. at a formative stage before anything is set in stone by the employer and considered the respondent’s failure of consultation in this regard very significant.”

Submissions and discussion
21.	We have been considerably assisted by the organised structure of Mr Samson’s skeleton argument and oral submissions and the succinct and focused oral responses of the three Claimants together with the written argument of Mr Rees.  We propose to take the arguments and our conclusions on each aspect in turn.

Breach of Step 2
22.	It is contended that the Tribunal set too high a standard for the information required at step 2.  This is principally a criticism of the Tribunal for failing to follow the account of step 2 given in Alexander (above).  The starting point must, of course, be the statutory provision itself, and this begins with paragraph 1(1), which requires the employer to set out in writing the circumstances which led it to contemplate dismissal of the employee.  That then requires a meeting but, before the meeting, material must be provided.  This includes information as to the basis for the view taken by the employer.  Plainly, this is more comprehensive than the information in writing given under step 1.  But, under step 2(2)(b), a reasonable opportunity must be given to the employee to consider his response to that information.  The use of the word “reasonable” involves consideration of the individual’s circumstances, pre-eminently a matter of fact for the Tribunal.  The correct approach to assessing these circumstances was set out in Alexander at paragraph 43 to 45 where Elias P said this:

“43. More usually, however, a matrix approach is adopted to selection, as in this case. Various factors are identified and the relevant pool of employees is assessed under each of them. When that system is adopted, the basis of the selection-the reason why this particular employee has been selected-rests upon that assessment. We think that it is clearly necessary that the employer, in order to comply with step 2, should in advance of the meeting notify the employee of the selection criteria. Without that information, it is impossible for the employee to give any sensible response to the proposed decision at all. 
44. A more difficult question is what more information, if any, needs to be provided. Mr Barnett says none; Mr Toms says further details of how the criteria are applied, and also the assessments of each of the workers in the relevant pool. 
45. In our judgment neither of these submissions is correct. We see the force of Mr Barnett's submission that, once given the selection criteria, the employee is in a position at least to address some arguments to the employer as to the justification for selecting him. But we-and in particular two very experienced lay members-are of the view that this is not enough to enable the informed response which essential procedural safeguards should allow. In our judgment in order to comply with the statutory provisions an employer should provide to the employee not only the basic selection criteria which have been used, but also the employee's own assessment. That will give the employee an opportunity to make representations not only about whether the criteria are justified and appropriate but also, more importantly, whether the marking given to him in respect of any particular criterion is arguably unjust, and why. It may be that he can correct some obvious factual error, such as being attributed with a disciplinary record he does not have, or what appears to be a rogue mark on one of the criterion, apparently wholly out of line with his work performance. His response will be difficult to formulate, and very much in a vacuum, without this information. 
46. However, the question here is not what should be provided to prevent a particular dismissal being considered unfair under general unfair dismissal law, but rather what information is so basic that failure to provide it ought to be deemed to be automatically unfair as falling foul of the minimum procedural standards which any employer ought to comply with in a redundancy dismissal.”

23.	Although issues such as reasonableness of an opportunity and the basis of information involve the finding of facts by an Employment Tribunal, the EAT in Alexander noted that, essentially, this is a matter of statutory construction, for Elias P said this:

“49. In doing that we are engaged in an exercise of statutory construction, seeking to give a sensible meaning to language which unfortunately Parliament has left elusively vague. We are having to decide what kind of information falls within the concept of "the basis ... for including in the statement ... the grounds" for contemplating dismissal. In our view it cannot be right that on such a basic question different tribunals throughout the country can reach wholly inconsistent conclusions and all be right. Employers and employees are surely entitled to expect the law to provide some certainty and predictability on a matter of this kind, and to identify at least in general terms what type of information ought to be provided to comply with the terms of the statute.”

24.	In our judgment, the Tribunal did not misunderstand the test.  It specifically cited Alexander and also Davies (above) where Burton J and Members in the EAT said this:

“10. It is important that, because of the automatic consequences to an employer and in favour of the employee of a breach of the procedure, tribunals should be slow to put glosses on a procedure so that what might simply be unfair or unreasonable conduct can be constituted or castigated as breach of procedure leading to automatic unfair dismissal, as opposed to ordinary unfair dismissal. But not only do we conclude that, if not bound, we are certainly strongly influenced, by such a recent and persuasive reserved judgment by the President and two experienced lay members of the Employment Appeal Tribunal, but we agree with it. It is quite plain that when in the standard procedure at para. 2(2)(a) and (b) it requires that the employer must inform the employee 'what the basis was' and that the employee must have a 'reasonable opportunity to consider his response', that must be interpreted as indicating that sufficient information must be given both so that it may be understood, and so that the employee may have the reasonable opportunity to challenge its accuracy or completeness.” 

25.	The second submission under this part of Mr Samson’s case is that the appeal process cured the breach found of step 2.  This is difficult to make in the light of the authorities.  In Davies itself, this was the central point, for the Employment Tribunal had held that a defect in the statutory procedure could be cured on appeal, as to which the EAT said this:

“19. If there was a breach of the statutory procedure, such that there would be automatic unfair dismissal, then that could not be cured by the appeal. If all they meant to say was that there had been an ordinary unfair dismissal, then of course it is trite law that unfairness or unreasonableness in the course of the procedure can be and ordinarily is cured by the giving of a fair and independent appeal. But if the tribunal had concluded that there was a breach of statutory procedure, then their statement that there was an unfortunate failure by the respondent which was cured at the appeal hearing would have needed to have been reworded or reconsidered. That is now what we have to address.”
…
“24. We have indicated already that the statutory defect could not be cured.”

26.	The issue was whether there was a defect in failing to provide the marks.  The EAT held that the breach did not necessarily involve the need to disclose the marks but certainly involved the need to disclose very much more than was disclosed, or to have disclosed it earlier, and certainly to give an opportunity for discussion (see paragraph 20).  It is common ground, for the purposes of ordinary unfair dismissal under section 98(4), as opposed to statutory automatic unfair dismissal under section 98A, that the whole of the procedure surrounding the dismissal including the appeal must be taken into account in considering what is reasonable:  see Taylor v OCS Group Limited [2006] ICR 1602 CA.  

27.	If this is a matter of statutory construction, as Mr Samson contends, we see no other interpretation of section 98A than that given in Davies.  Section 98A(2) is not available to turn an unfair dismissal into a fair dismissal if there has been a breach of the statutory procedure.  It only applies in cases of ordinary unfair dismissal where there has been a breach of the procedure other than one of the statutory steps.  What section 98A(2) did was to take the Polkey principle one step further.  Fairness required that an employee be not compensated for a breach of procedure.  If it was a fair procedure, the employee would or might have been dismissed anyway.  A percentage chance is affixed to that.  The amendment by the 2002 Act was to retain the principle but to change the conclusion from one of unfair to fair dismissal, reversing Polkey.  Under Polkey, employees get a finding of unfair dismissal, perhaps a hollow victory if it is 100 per cent, whereas under section 98A(2) they get no compensation and no finding in their favour.  

28.	The principle in Taylor v OCS is that one must look at the whole of the dismissal process to see whether it was fair, and that includes what occurred at an appeal.  So, defects earlier can be corrected.  We see the importance of that principle, and, guided by the industrial experience of the members here, we see force in the argument that it ought to apply to defects in the statutory procedure.  Once an employer has breached, let us say, step 1, why should it not try to rectify it by a step 2 meeting or a step 3 appeal if it will be forever condemned for its earlier breach?  An employer who does make an elementary mistake in step 1 or step 2 ought to be able to do good for the employee if, standing back from the end of a step 3 appeal, the whole procedure has been fair.  But that construction is not available under the clear words of section 98A(2) and as applied in Davies and Alexander.

29.	We note that in Wilmot v Selvarajan [2008] ICR 136, the Court of Appeal dealt with the general requirements, which do not come into play until there has been non-compliance with one of the steps.  That, however, is different from non-compliance with one of the three statutory steps, and applies only to such matters as the reasonableness of delays.

30.	In our judgment, the passage we have cited indicates the Tribunal’s thinking that the standard of a reasonable employer was not met even on internal appeal, not simply for the want of earlier disclosure of the scoring and the reason Mrs English gave the particular score she did but also for the additional reasons, which have not been challenged in reply by Mr Samson, of the lack of transparency and the decision to increase from four to eight the number of redundancies.  We consider Mr Samson’s attack on Davies cannot be sustained, and Davies, which itself followed Alexander, represents the law.  We reject the contention that it was wrongly decided and that we should not follow it.  It is, in our judgment, correct.

Ordinary unfair dismissal
31.	The first proposition advanced by Mr Samson is that the Tribunal was wrong to find that the overall process did not cure such defects as, on this footing, it had found.  To some extent, we have dealt with this above.  Not only a careful reading of the Employment Tribunal’s reasoning but even a superficial overview reaches the same conclusion.  Considerable effort was given by the Respondent to conducting a fair procedure, which overall failed to meet the standards of a reasonable employer in the Employment Tribunal’s judgment.  We do not accept Mr Samson’s submission that the only proper inference to be drawn from these findings is that the appeals were comprehensive and thorough and cured all defects hitherto found by the Tribunal to exist in the process.  These are the reasons we have identified from the Tribunal’s finding above.

32.	The same goes for the criticism that the Tribunal failed to consider the reasonableness of the process overall.  First, it said it did.  Secondly, this ground of appeal includes submissions such as the Tribunal “placed too much emphasis”, and failed to have “any proper regard” to certain matters.  Those, by definition, involve matters of factual assessment and appreciation by the Employment Tribunal, and are not susceptible to appeal.  There is no reason the Tribunal should not be taken to mean what it says (see Bowater [2011] IRLR 331 CA.

33.	Finally under this head, Mr Samson makes the customary two complaints, that is that the decision was perverse and/or wrongly and inadequately reasoned.  As he knows, the standard for a perversity appeal to succeed is very high (see Yeboah v Crofton [2002] IRLR 634 CA), and the arguments here do not meet the overwhelming case required to supplant the findings by the Employment Tribunal.  Since we have rejected the specific arguments, nothing more is gained by adding a perversity argument to them.  As to the contention that the Tribunal did not give sufficient reason, we accept that a Tribunal’s duty is to give reasons (see Meek v Birmingham City Council [1987] IRLR 250 per Bingham LJ and English v Emery Reimbold and Strick Limited [2002] I WLR 2409 per Lord Phillips MR at paragraph 28).  The cottage industry for barristers identified by Sedley LJ in the latter case continues to thrive.  It is absurd to criticise this Tribunal on this ground, it having spent 48 pages conforming to all statutory requirements under rule 30, and doing so with exemplary care, meeting the standard in Greenwood v NWF UKEAT/0409/09.

Dismissal in any event
34.	It is contended on behalf of the Respondent that the Claimants would have been dismissed in any event had a fair procedure been followed.  Mr Samson has difficulty accepting that section 98A(2) does not apply when a breach in the statutory procedures has been found.  Given that that is the finding of the Employment Tribunal and that we uphold it, it is strictly unnecessary for us to deal with this aspect.  However, in deference to his argument and lest we be wrong on the above, we will address the issue albeit briefly.  It is contended the Tribunal applied the wrong test of dismissal.  This is absurd.  The Tribunal addressed itself specifically on the statute and in its own summary of it.  First, it cites as an issue:

“Would the Respondent have decided to dismiss each of the Claimants if the procedure had been followed: section 98A(2).”  

It next gives itself a direction:

“It is for the employer to show on the balance of probabilities that, whatever inadequacies in procedure (in the wider sense of procedure), the result would have been the same such as the employee would have been dismissed in any event at the same time.”  

The first flowering of this in its conclusions in paragraph 24 mirrors those two correct directions:

“The Tribunal was not satisfied on the balance of probabilities by the Respondent that it would have dismissed each Claimant at the same time in any event ...” 

Mr Samson relies upon the introduction in the second expression by the Tribunal in paragraph 24 of the word “necessarily”, i.e:

“The Tribunal was not satisfied that the Respondent would necessarily have dismissed each of the Claimants ... at that time in any event.”  

Looked at in the context of the three previous directions, that word, in the judgment looked at as a whole, does not invalidate its findings.  See Jones v Mid-Glamorgan County Council [1997] ICR 815, Fuller v Brent [2011] EWCA Civ 267.  The Tribunal has made a clear finding that the Respondent has not proved on the balance of probability that it would have dismissed, and so the reversal of Polkey provided by section 98A(2), in respect of ordinary but not automatic unfair dismissal, does not apply.  That means the dismissal was unfair, and matters as to the percentage chance above 51 per cent is properly left to a remedy hearing. 

35.	The same criticisms as to perversity and inadequacy of reasons are made under this head, and for the reasons we have given above they, too, are dismissed.

36.	Notwithstanding the above, we have been told that there were no direct arguments made in respect of Polkey.  This is because Polkey is an exercise to do with remedy, and the remedy hearing has not been conducted yet.  The finding in paragraph 24 of the Reasons is to do with, as the Tribunal described it, Polkey-reversal, i.e. making the case one of fair rather than unfair dismissal, and is not to do with the sliding scale applicable when there has been a finding of unfair dismissal.  The paragraph is directed solely to the Respondent’s contention that it was not liable for unfair dismissal because it would have dismissed the Claimants in any event.  This is strictly within section 98A(2) and is to do with liability and not remedy.  It depicts the case as one of fair dismissal.  The Tribunal has answered that point in paragraph 24, and has set up a remedy hearing at which, of course, arguments on Polkey will be available.  They are available whether the dismissal was unfair on ordinary or automatic grounds.

37.	We accept the submission of all Claimants before us that the unfairness in this case was that they did not know their score at a time when they could respond properly to it.  They did not know the outcome of the inquiries they made until after the appeal.  They could not argue the scores unless they knew how Mrs English had assessed them.  Mr Rees asked the simple question, “Redundancy is personal: why me?”  In order to answer that, he had to know what the score was and what the scoring process was.  During the course of the interview, which was said to be the step 2 meeting, scores were made but the Claimants were not told what they were.  Indeed, at the meeting with Mrs English, she did not score the Claimants under criterion 5, nor was that issue discussed with the Claimants.  The scores were not exigible until the Claimants were told they were selected for redundancy.  Again, as Mr Rees graphically puts it, “We were out of the door”.  He relies upon Alexander to say that he would have to be shown the score in order to discuss it articulately, and thus step 2 was not completed.

Conclusion
38.	The appeal against the finding of unfair dismissal in each of the three cases is dismissed.