THE HONOURABLE LADY SMITH
Introduction
1.
This is an employer’s appeal from a Judgment of an Employment Tribunal
sitting at Glasgow, Employment Judge Hugh Murphy, registered on 3 March
2010, finding that the Claimant, who was employed as a retail development
executive, was unfairly dismissed. They awarded compensation of £15,051.
2.
The appeal hearing began on 23 September 2010 but was not completed that day and required to be adjourned. It was continued on the next
suitable date, 13 October 2011.
3.
We will continue, for convenience, to refer to parties as Claimant and Respondent.
4.
The Respondent was represented by Mr T Cordrey of counsel
before the Tribunal and before us. The Claimant represented herself before the
Tribunal and was represented by Mr Forsyth, advocate, before us.
Background
5.
The Respondent operates the national lottery. They were successful in
renewing their contract to do so in 2009 but it was subject to a requirement
that they reduce their costs. That led to a business reorganisation and a
decision that the role of retail development executive and retail business
executive could be combined into one sales force of fewer employees. The
retained employees in the new sales force would carry out a new role - that of
retail sales executives. There required, accordingly, to be redundancies; of a
total of 158 employees, 58 required to be made redundant.
6.
This was, on any view, a substantial redundancy exercise. The Respondent
prepared for it on the basis that they would require to assess up to
158 candidates for the new retail sales executives roles. Each candidate
would be assessed by a retail business manager. Those managers were trained in
the assessment process and, further, consistency interviewers were appointed to
attend all interviews with a view to maintaining consistency of approach.
7.
The Claimant was warned that her role was at risk of redundancy (by
letter dated 12 March 2009) and advised that the Respondent would be
consulting with employee representatives. The Respondent then embarked on a
series of redundancy consultations with those representatives including
consultation on criteria and pools, duly fulfilling their statutory
responsibilities in that regard.
8.
The Claimant was, by letter of 19 March 2009, again advised that
her role was at risk of redundancy. She was also told that it was proposed
that the period of consultation would end on 9 June 2009.
9.
The Claimant attended what was referred to as a “First Formal
Consultation Meeting” with Bradley Edwards, one of the retail business
managers appointed as an assessor for the redundancy exercise, on 3 April
2009. She was advised that her role continued to be at risk of redundancy,
that she was to be included in a closed selection pool, and that the Respondent
proposed, subject to consultation with the Staff Forum, to use a selection
process. She was advised of the criteria that would be used. The advice
tendered at the meeting was confirmed in a letter dated 9 April 2009.
10.
The Claimant completed an online questionnaire that was part of the
assessment procedure, on 14 April 2009.
11.
On or about 20 April 2009, Bradley Edwards telephoned an
employee called David Scott, who lived and worked in Cumbria, and advised him that he need not attend the assessment process. That was because he was
the only candidate for the territory in which he worked (Cumbria). He told David Scott that he should not discuss the fact that he had been excluded
from the assessment process with anyone but it, nonetheless, came to the
attention of the Claimant (who lived and worked in Ayrshire and had not applied
to work in Cumbria) and appears to have been what prompted her presentation of
the present claim (see: ET1 paragraph 5.2).
12.
The Claimant was interviewed at a criteria based interview on
22 April 2009. There were seven applicants for the post for which
the Claimant was a candidate. Candidates were scored by reference to past
performance and numerical and verbal reasoning tests, as well as the interview
assessment; the interview assessment formed only 30% of the overall score. The
Claimant’s scores were such that she ranked 6th out of those 7.
Whilst some of the group were successful in securing other posts, there were
3 candidates who scored higher than the Claimant who were also made
redundant.
13.
The Claimant attended a second meeting with Bradley Edwards on
8 May 2009. She was advised that she had not been successful in securing
the post for which she had applied and that she was to be made redundant. She
was shown her scores; the scores were broken down under four different
headings, namely performance ratings, criteria based interview, numerical
reasoning test and verbal reasoning test. The weightings for each head were
shown to be 50% to performance ratings, 30% to criteria based interview, 10% to
numerical reasoning test and 10% to verbal reasoning test. The Claimant scored
47.8% out of a possible total of 100%. Her interview score was 11 out of a
total possible score of 28. She was given the opportunity to comment on her
scores. She was advised that she could, if she wished, have another
consultation meeting.
14.
The highest interview score achieved by a candidate was 24 out of a
total possible score of 28. It was awarded to the candidate who, in the event,
had the highest overall score of 64.7%. There was thus, on any view, a very
wide gulf between the Claimants’ score and that of the successful candidate.
15.
By letter dated 19 May 2009, what had passed at the meeting on 8 May 2009 was confirmed to her. In particular, it was confirmed to the Claimant
that she had not been successful in securing one of the available roles and
that she continued to be at risk of redundancy and that her ‘likely leave date’
was 12 June 2009.
16.
The Claimant met with Bradley Edwards again on 22 May. She
said she did not accept that the scores attributed to her fairly reflected her
abilities. She gave no specification of actually seeking to challenge her
scores or which of her scores she was referring to. She asked to see a copy of
her interview notes. The written record of the meeting, which was signed by
the Claimant and Bradley Edwards, stated, in the box for “Comments”:
“Shirley would like to see a copy of interviews (sic) notes – BE to ask
Liz:?”. Although the Tribunal found that the Respondent agreed to provide her
with the notes prior to the next meeting (at paragraph 50 of their written
Reasons), it was agreed between parties that that was not the evidence. The
evidence before them was that, at the meeting, the Claimant was told that she
was not allowed to see the notes but, later, they reluctantly gave her a copy
of them. The Claimant received the notes on a date that, on the Tribunal’s
findings, was not before 1 June 2009 but was prior to 5 June.
17.
On a date a few days prior to 5 June, the Respondent’s head of HR
and head of retail sales decided to dismiss the Claimant as she had been
unsuccessful in her application for any of the new posts. Bradley Edwards
was, accordingly, instructed to terminate the Claimant’s contract of employment
at the meeting that was due to take place on 5 June.
18.
At the meeting on 5 June, the Claimant was accompanied by her union
representative. She was told that her employment would be terminated on 12 June 2009, by reason of redundancy. The Claimant did not raise any challenges.
In particular, she did not raise any challenge to her scores or to anything
contained in the interview notes with which she had been provided and had, by
then, had time to consider. The decision to dismiss was confirmed to the Claimant
by letter following the meeting. The letter also advised her that she had the
right to appeal, in writing, and the Claimant did so.
19.
The Respondent’s appeal procedure included a ‘sift’ system. Appeals
required to be submitted in first instance, in writing. They were then
submitted to an appeal panel and if it considered that the employee had a
legitimate appeal, he/she would be asked to attend an appeal hearing.
20.
The Claimant appealed using an appeal form provided by the Respondent.
As her grounds of appeal, she stated:
“Inconsistencies within the selection process which led to
redundancy.
Dates on items of correspondence.
Outplacement contact DBM timings.
Unfairly selected.”
21.
The Claimant did not challenge her scores or the way in which the
redundancy criteria had been applied to her in that note of appeal. Nor did
she appeal on any basis which related to her interview notes.
22.
The Respondent requested the Claimant to provide additional information
regarding her stated grounds of appeal and she replied by letter dated
16 June 2009 which included:
“Inconsistencies with (sic) the selection process:-
(1) Not all employees were treated equal as some employees
received a phone call from a number of management informing then that they did
not have to go through the process and that they did not remain at risk of
redundancy.
(2) The criteria based interview was not carried out by the same
interviewers for everyone that remained at risk which resulted in the lack of
continuity within the results.
(3) Dates on the severance package would indicate that it was
run prior to the results of the interview being available.
(4) At the second consultation despite being told I remained at
risk of redundancy I was encouraged to make contact with DBM and not informed
that alternative funding was available if DBM was not used.
(5) Not all of the employees that indicated their interest in
redundancy was contacted which would indicate that the selection for redundancy
was pre-determined.
This process was there for (sic) not dealt with fair play and
integrity in mind.”
23.
Thus, again, the Claimant did not challenge her scores or the way in
which the redundancy criteria had been applied to her. Nor, again, did she
appeal on any basis that related to her interview notes.
24.
The Respondent replied by letter of 30 June 2009.
25.
First, it was explained that all the retail sales team were put at risk
of redundancy and it was only where the geographic isolation of a particular
individual made it unlikely that anyone else would apply to voluntarily locate
to their region that those persons were not put through a selection process –
i.e. cases where there was no current ‘competitor’ for that post.
26.
Secondly, all the interviewers (who worked in pairs) had received
competency based training, all candidates were measured against the same
criteria and, furthermore, there was daily calibration of results to ensure
that there were no discrepancies as between assessments; it was not feasible,
given the tight timescale and the number of interviews that required to take
place, to have all candidates interviewed by the same panel.
27.
Thirdly, whilst draft severance statements were prepared in advance so
as to assist in consultation with those at risk of redundancy, selection
outcomes were not pre-determined. The Claimant was told at her second
consultation meeting that the severance statement was a draft document.
28.
Fourthly, the Respondent pointed out, put shortly, that all staff had
been advised of the availability of alternative funding to assist with
outplacement by means of a company wide email sent by the Staff Forum on
11 May.
29.
Thus, it was not considered that the Claimant had a legitimate appeal
and she was not invited to an appeal hearing.
30.
Finally, the Claimant was advised that there was no policy decision
regarding voluntary redundancy; what had happened was that if an employee had
of their own volition expressed an interest in being made redundant or in
relocating on a self financing basis, that was taken note of. If an employee
was willing to be made redundant then they were not - unsurprisingly - put
through the selection process.
The Claimant’s Claim
31.
The Claimant’s complaint in her form ET1, can be summarised as follows:
(a) during the redundancy selection process, 19 employees were contacted
by management and told that they were excluded from the process, which showed
that the process was unfair; and (b) that during the 90 day consultation
period, employees were asked to express any interest in voluntary redundancy
and not all who did so were given offers of being made redundant.
32.
The Claimant’s case was set down for a hearing to take place on
14 January 2010. By letter dated 3 December the Respondent
wrote to the Claimant advising her that their understanding of her claim was
that she was unfairly dismissed for the above two reasons. They then stated:
“If there are other matters you intend to argue which you have
not yet given us notice of, you will need to do so with sufficient time for us
to prepare for them (and you may need to seek the Tribunal’s permission to
raise them). Neither party is meant to spring new issues on the other at the
hearing.”
33.
The Claimant did not respond to that letter.
34.
In the course of evidence being led, it became apparent that the Claimant
sought to complain about and challenge the scoring that had been attributed to
her in the assessment process. The Respondent’s counsel, Mr Cordrey,
objected on the ground of lack of fair notice and his objection was upheld.
The Claimant was not allowed to amend to include any such complaint as part of
her claim. At paragraph 68, the Tribunal said:
“With some hesitation we took the view that it was not in the
interests of justice to permit the application to amend. As Mr Cordrey
pointed out, expenses in this case are already high; the inevitable consequence
of any successful application to amend would have been the adjournment of the
proceedings with consequential lengthy delay and considerable additional
expense, and we refused the application to amend.”
35.
The Tribunal, accordingly, determined that any complaint about the
assessment that was made of her by the Respondent during the redundancy process
was not and could not form any part of her claim.
Relevant Law
36.
Section 98 of the Employment Rights Act 1996 provides that
it is for the employer to show the reason for a dismissal (s.98(1)) and that
redundancy is a potentially fair reason (s.98(2)(c)). Whether or not dismissal
for that reason is fair or unfair depends on the answer to the issue identified
in section 98(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 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.”
37.
Accordingly, once a potentially fair reason for dismissal is
established, the question of whether or not the employer acted reasonably in
deciding to dismiss lies at the heart of every case where a claim for unfair
dismissal is pursued including cases of dismissal on grounds of redundancy.
38.
It is self evident that the primary task for an Employment Tribunal is
to apply the statutory test. As was observed by Lady Justice Smith in Taylor v OCS [2006] IRLR 613, at paragraph 43:
“…the ET must focus on the statutory test and …in considering
whether the dismissal was fair, they must look at the substance of what
happened throughout .”
39.
A flaw at one stage of a dismissal process for any of the potentially
fair reasons, including redundancy, does not of itself mean that the dismissal
is unfair. Accordingly, tribunals should guard against minute scrutiny of
individual parts of the process lest it diverts them from the task set by the
statute. As Lady Justice Smith explained further, at paragraphs 47 and
48:
“47. ……(the ET) should consider the fairness of the whole of the
disciplinary process. If they find that an early stage of the process was
defective and unfair in some way, they will want to examine any subsequent
proceeding with particular care……their purpose in so doing will be …to
determine whether, due to the fairness or unfairness of the procedures adopted,
the thoroughness or lack of it of the process and the open mindedness (or not)
of the decision – maker, the overall process was fair, notwithstanding any
deficiencies at the early stage.
48. In saying this, it may appear that we are suggesting that
ET’s should consider procedural fairness separately from other issues arising.
We are not; indeed it is trite law that s.98(4) requires the ET to approach
their task broadly as an industrial jury.”
40.
In Mugford v Midland Bank plc [1997] IRLR 208, HHJ Peter
Clark, sitting in this Tribunal, considered the significance to considerations
of overall fairness of a criticism of the consultation process involved in a
redundancy situation (where there had been no individual consultation with the
claimant). We agree with his observations at paragraph 41:
“It will be a question of fact and degree for the industrial
tribunal to consider whether consultation with the individual and his/her union
was so inadequate as to render the dismissal unfair. A lack of consultation in
any particular respect will not automatically lead to that result. The overall
picture must be viewed by the tribunal up to the date of termination to
ascertain whether the employer has or has not acted reasonably in dismissing
the employee on grounds of redundancy.”
41.
In similar vein, various observations have been made in the authorities
regarding redundancy dismissals which show that, in assessing the
reasonableness of a decision to dismiss for redundancy, it will rarely be
appropriate for an Employment Tribunal to embark on a detailed scrutiny of the
system used for scoring or the application of the system in a particular case.
We would refer to our discussion in First Scottish Searching Services Ltd
v McDine and Middleton UKEATS/0051/10/BI regarding a
number of authorities including Buchanan v Tilcon Ltd [1983] IRLR
417, a decision of the First Division in which the opinion was delivered by
the Lord President (Lord Emslie) (referred to in both Eaton Ltd v King
in 1995 and British Aerospace plc v Green) and where a clear
limitation is expressed as to what was to be expected so far as scrutiny of
employers acting in a redundancy situation was concerned:
“ …In this situation where no other complaints were made by the
appellant all that the respondents had to do was to prove that their method of
selection was fair in general terms and that it had been applied reasonably in
the case of the appellant by the senior official responsible for taking the
decision. As was pointed out by Phillips J in Cox v Wildt Mellor Bromley
Ltd [1978][1978] IRLR 157 it is quite sufficient for an employer in a case
such as this to call witnesses of reasonable seniority to explain the
circumstances in which the dismissal of an employee came about and it was not
necessary to dot every “i” and to cross every “t” or to anticipate every
possible complaint which might be made.” (at p. 418)
42.
We also repeat our reliance on British Aerospace plc v Green,
where Waite LJ, at paragraph 3, said:
“Employment law recognises, pragmatically, that an over-minute
investigation of the selection process by the tribunal members may run the risk
of defeating the purpose which the tribunals were called into being to discharge
– namely a swift, informal disposal of disputes arising from redundancy in the
workplace. So in general the employer who sets up a system of selection which
can reasonably be described as fair and applies it without any overt sign of
conduct which mars its fairness will have done all that the law requires of
him.”
43.
The same theme was taken up by this Tribunal in John Brown
Engineering Ltd v Brown and others. At paragraph 8,
Lord Johnston said:
“….in each case what is required is a fair process, where an
opportunity to contest the selection of each individual is available to the
individual employee….it also has to be reasserted that it is no part of the
industrial tribunal’s role in the context of redundancy to examine the marking
process as a matter of criteria under a microscope; nor to determine whether,
intrinsically, it was properly operated. At the end of the day the only issue
is whether or not the employers treated their employees in a fair and even
handed manner.”
44.
The judgment of the Court of Appeal in Bascetta v Santander [2010] EWCA Civ 351 makes it clear that the principles articulated
in the earlier cases, referred to above, still hold good. The passages that we
have referred to in both British Aerospace plc v Green and
Eaton Ltd v King are referred to with approval.
45.
We were also referred, in the course of the appeal, to a decision of
this Tribunal relating to a redundancy dismissal where certain very specific
enquiries made by an employee about his being selected for redundancy were not
answered and the dismissal was found to be unfair. That is, the facts
contrasted quite markedly with those of the present case: Pinewood Repro
Ltd v Page [2011] ICR 508. The following observations of HHJ Ansell at
paragraph 46 are relevant to the circumstances of the present case and we agree
with them:
“It may well be that it is too broad a principle for the
tribunal to set out as they did that it is necessary for an employee to provide
an explanation of why an individual has received the scores that he has. ...It
is, in our view, for a tribunal to decide whether an employee has been given a
fair and proper opportunity to fully understand the matters about which he is
being consulted and to express his views on those subjects.”
46.
As HHJ Ansell also observes, the employee may need to be provided with
sufficient information to enable him to challenge his scores but whether or not
that is required will turn very much on the facts and circumstances of the
individual case. In Pinewood, the employee had made clear and
specific enquiries of his employer in respect of material matters which could
easily have been but were not answered; it is not surprising that the
tribunal’s finding of unfair dismissal was upheld. Equally, however, as was
observed HHJ J Hull QC, sitting in this Tribunal, in the case of Boal and
Langley v Gullick Dobson Ltd EAT/515/92, at p.7, there is no rule
that an employer is generally obliged to furnish the employee with all the
material gathered in the redundancy process:
“…..this suggestion …….is that the consultation with the
employee involves furnishing the employee with all the material, virtually, on
which the employer has acted…Is that something which could possibly be
commended to an employer? Something which he should do? We all, however
reluctantly, say it is conceivable that there might be circumstances and it
would be for an Industrial Tribunal to say so, in which in some very limited
class of case it would be thought desirable or even, perhaps, necessary, to
take the employee into the confidence of the employer, to that extent. But to
say that in general such an operation is necessary seems to us to be wholly
misconceived.”
47.
The matter of making a Polkey deduction also arose:
Polkey v A E Dayton Services Ltd [1988] AC 344. The principle is
well known and we do not propose to rehearse it at length here. Shortly put,
where the employee might, absent whatever is the procedural unfairness in
question, have been dismissed in any event, compensation falls to be reduced to
reflect that. As was explained by Elias P, as he then was, in Software
2000 Ltd v Andrews [2007] IRLR 568 the question of
whether any sensible prediction can be made is a matter for the tribunal of
first instance but, warning employment tribunals against taking too narrow a
view of their role, he said:
“…in reaching that decision the tribunal must direct itself
properly. It must recognise that it should have regard to any material and
reliable evidence which might assist it in fixing just compensation, even if
there are limits to the extent to which it can confidently predict what might
have been; and it must appreciate that a degree of uncertainty is an inevitable
feature of the exercise. The mere fact that an element of speculation is
involved is not a reason for refusing to have regard to the evidence.”
48.
He also observed that whilst it was for an employer who contended that,
had fair procedures been followed, the employee would still have been
dismissed, to adduce any evidence on which he wishes to rely, employment
tribunals require to have regard to all the evidence including any evidence
from the employee himself. We agree and would add that it is a good example of
circumstances where, once the evidence in a case is all out, onus rarely has a
significant role to play.
49.
We turn to issues of fair notice. It is trite that a tribunal only has
jurisdiction to determine complaints that are before it: Bradford
Hospitals NHS Trust v Al-Shabib [2003] IRLR 4. Whilst that case
involved an attempt by a claimant to found on a quite separate statutory claim
of which no notice had been given, it is not only in those circumstances that
the principles of fair notice are relevant. It may arise in respect of a
particular aspect of the complaint in the ET1 on which the form is silent. It
is a fundamental principle that a respondent have fair notice of the case
against him so as to enable him to consider his response, including considering
whether to respond in writing and how best to decide on his line of evidence
and submissions . Thus, if a new reason why, according to the claimant, the
dismissal was unfair, unforeshadowed in the ET1, arrives in the course of the
hearing, a respondent may well be able to legitimately complain that the
claimant ought not to be allowed to pursue it. Hence the concerns we expressed
in First Scottish Searching at paragraph 47.
The Tribunal’s Judgment and Reasons
Finding of Unfair Dismissal
50.
The Tribunal found that the Claimant’s dismissal was procedurally
unfair. That was because the Respondent had, they said, decided to dismiss her
prior to providing her with her interview notes. Given their finding in fact
that she received the interview notes by 1 June and the decision to
dismiss was taken on a date between then and 5 June, that cannot be right.
We can only think that their criticism was levelled at the decision to dismiss
being taken prior to the meeting of 5 June, which seems to be their
approach elsewhere in the judgment. They explain their reasoning at paragraph
99:
“We ... concluded that the respondents had initially given the
claimant sufficient information by providing her with information concerning
the selection criteria and her ratings, but that, once she made it clear that
she was not satisfied concerning the application of the criteria to her, and
requested more information, it was incumbent on the respondents to give her
that information prior to taking the decision to dismiss which the respondents
did not do, and the dismissal is accordingly unfair.”
51.
That conclusion was drawn against a background of the Tribunal’s
findings about what passed at the meeting on 22 May. Although they
accepted that an employer need not provide an employee who he proposes to
dismiss as redundant with the full basis of the assessment carried out, they found:
“87……if the employee gives reasonable notice that he wishes to
challenge the application to him of the assessment criteria, the employee
concerned must be given a reasonable opportunity do so. See Brown above. We
are satisfied that the claimant, by requesting details of the basis of her
scores, gave reasonable notice to the respondents that she did not acquiesce in
the manner in which the criteria had been applied to her, and reserved her
right to challenge it, and the respondents, by taking the decision to dismiss
the claimant before the final consultation meeting, effectively deprived the
claimant of the opportunity to challenge her assessment.”
Amendment/the Respondent’s Objection
52.
We have already referred to this matter and the Tribunal’s determination,
at paragraph 68, of the issue that arose.
Polkey
53.
An issue having, by the time of submissions, having arisen as to whether
or not there was procedural unfairness relating to the provision of the Claimant’s
interview notes, Mr Cordrey had invited the Tribunal, if they found the
dismissal to be unfair, to make a Polkey deduction from
compensation. The Tribunal declined to do so and give their reasons at
paragraph s 113 – 115:
“113. The Tribunal considered carefully what material they had
before then that would entitle them to reduce the award to the claimant. It is
certainly true that we were advised that there were three candidates ahead of
the claimant so that (we were urged to accept) the chances of the claimant
remaining in employment were slender.
114. At first sight, this argument is attractive, but there is
the difficulty that, as a result of the respondents’ successful objection to
the leading of evidence concerning the fairness of the assessment, no evidence
relating to this crucial issue was laid before us. We have no idea whether the
claimant would have been able to point to an error of approach on the part of
the respondents’ which vitiated the entire exercise, and if we were to accept
the respondents’ argument we would, in effect be finding in favour of the
respondents as a result of their mere assertion that everything was in order in
connection with the precise point in issue, and when they had the opportunity
to lead evidence relating the crucial issue, but did not.
115. We ultimately concluded that we could not reach any
rational conclusion concerning the claimant’s prospects of remaining in
employment, had the respondents acted fairly, and that for us to make any
finding in this connection would involve us in setting sale (sic) on a sea of
speculation, and, accordingly, we make deduction.”
54.
The Tribunal make no attempt to reconcile their approach to the
respondent’s Polkey submission with their having earlier excluded
from the Claimant’s case any issue regarding the Respondent’s assessment of
her.
The Appeal
55.
The Tribunal expressed concern that the Claimant could only appeal in
writing although they did not go so far as to say that that rendered the appeal
procedure unfair. At paragraph 100 they said:
“100……..the respondents required the claimant to set out her
position in detail and in writing as a condition of being permitted to proceed
with an oral appeal hearing. Although the matter did not play any significant
part in the decision in this case, all the members of the tribunal, but
particularly the very experienced lay members were concerned about the attitude
of the respondents in this connection. Bearing in mind the respondents’
assessment of the claimant’s verbal reasoning ability, all members of the
tribunal were concerned that an insistence that an employee set out in writing
the grounds of his appeal had the potential to deny the right to an appeal in
practical terms.”
56.
The Tribunal heard no evidence regarding the effect, if any, that the
level of the Claimant’s verbal reasoning ability would have had on her ability
to communicate the points she sought to make on appeal and whether she would be
better able to do so orally or in writing or vice versa.
Remedy
57.
The Tribunal awarded the Claimant £15,051 comprising (a) a statutory redundancy
award of £3,990; (b) an award in respect of past loss of earnings and loss of
pension contributions of £9,237, and (c) an award in respect of future loss of
earnings of £12,931. They deemed her employment to have terminated on
13 August 2009, based their calculations of the redundancy payment they
awarded on a gross weekly maximum of £380, and took no account of payments that
the Respondent had already made to the Claimant totalling £7,663.97 (£1,795.96
for loss of benefits and allowances, £4141.00 for loss of bonus and transition
initiative, and £1727 as pay in lieu of notice).
The Appeal
58.
Mr Cordrey had six grounds of appeal which were supported by a
well structured skeleton argument and clear oral submissions.
59.
First, he submitted that the Tribunal had erred in law by failing to
assess the fairness of the redundancy process as a whole. Lack of consultation
in any particular respect will not necessary lead to a finding of unfairness: Mugford
v Midland Bank and the fairness of a redundancy procedure
requires to be viewed as a whole: Taylor v OCS Group Ltd.
The Tribunal had failed to consider the whole process including the Claimant’s
appeal. She had the interview notes prior to the meeting of 5 June and
raised no challenge relating to them at that meeting, in her first written
appeal or in her letter clarifying her appeal. She had ample opportunity to
raise any issue that she wished to raise relating to them.
60.
Secondly, in a submission which was, essentially, related to the first
ground of appeal, Mr Cordrey submitted that the Tribunal were not
entitled, on the facts found, to conclude that the Claimant had put the Respondent
on notice that she was challenging her overall assessment or her interview
assessment. They had, in all the circumstances, erred in finding that the Respondent
was obliged to provide them to the Claimant. The Claimant had gone no further
than requesting her interview notes; that was what the Tribunal had found. She
had not explained why she wanted to see them or indicated that she was
challenging anything to do with them. In these circumstances, the law did not
require the Respondent to provide the notes to the Claimant. He referred, in
support of these submissions, to Boal and Langley v Gullick Dobson Ltd,
John Brown Engineering Ltd v Brown and British
Aerospace v Green. Further, in respect that the Tribunal approached
matters on the basis that the Respondent had undertaken to provide the Claimant
with her interview notes before they decided to dismiss her, there was no
evidential basis for them to do so. No indication had ever been given to the Claimant
that the decision to dismiss would be postponed until meeting of 5 June,
which was what appeared to be the Tribunal’s approach. It was wrong for a Tribunal
to find a redundancy dismissal unfair based on an entirely unquantified risk to
the fairness of the procedure: First Scottish Searching Services Ltd v
McDine. That, however, was what the Tribunal here had done, accepting
as they did that they had no idea whether or not the Claimant would have been
able to point to an error of approach (paragraph 114).
61.
Thirdly, Mr Cordrey submitted that the Tribunal had erred in law in
failing to make a Polkey deduction. It was an
irresistible inference from the facts found that if the Claimant had had the
interview notes sooner, it would not have made any difference. Once she had
them, she had several opportunities to raise any challenge she wished to raise
based on them but did not do so. It was perverse for the Tribunal to say that
they had no idea whether or not she would have been able to point to any
error. Further, she came 6th out of a pool of 7 employees and
unfairness would have had to be demonstrated that would have lifted her
interview score substantially – from 11/28 to 27/28, if it was to have had the
effect of outstripping the score of the successful candidate. The only
possible conclusion was that the Claimant would have been dismissed in any
event and a Polkey reduction should have been made: Software
2000 Ltd v Andrews. It was also evident from Mr Cordrey’s
submissions that there was a sense of grievance on the part of the Respondent
in respect that the Tribunal had, as they saw it, criticised them for not
leading evidence about an issue which had been ruled out when the Claimant’s
amendment was refused and the Tribunal had accepted that if it had become part
of the case, there would have had have been an adjournment for them to organise
further witnesses.
62.
Fourthly, Mr Cordrey submitted that the Tribunal had erred in
deciding the case on an issue which was not pled or raised prior to the
conclusion of evidence. Natural justice required adequate notice: Bradford
Hospitals NHS Trust v Al Shabib.
63.
Fifthly, Mr Cordrey submitted that the Tribunal reached a perverse
conclusion regarding the meeting on 5 June. They implied that the Claimant
had been misled into thinking that she would have a chance to challenge her
interview assessment during that meeting but the facts did not bear that out;
the Respondent had not agreed at the meeting on 22 May, to provide her
with the interview notes at all. Nor had they ever agreed to provide them
prior to the next meeting. We refer to this matter in the ‘Background’ section
above – parties were agreed that the evidence was not as the Tribunal
represents it to have been. The Claimant had, further, repeatedly been told
that the meeting was to confirm her likely leaving date of 12 June due to
redundancy.
64.
Sixthly, there were errors in the calculation of compensation. The Claimant
was entitled to a basic award, not a redundancy payment. The relevant maximum
weekly figure on which to calculate that award was £350 not £380. The Tribunal
had, further, failed to give any indication of taking account of the ex
gratia payments to which we have referred. They were obliged to give
credit for all post dismissal payments: Ruston v Harcos
Timber and Building Supplies Ltd [1993] ICR 230.
65.
For the Claimant, Mr Forsyth accepted that at no time during the
redundancy process had the Claimant raised a challenge to her scoring but it
could, he submitted, be implied that when she requested to see her interview
notes, she was doing so because she sought an opportunity to respond and that
she understood that the context of the meeting of 5 June would be that it
was for her to challenge her scores. The Respondent should have regarded the
consultation period as ongoing and refrained from deciding to dismiss her in
the meantime. He referred to Alexander v Bridgen Enterprises Ltd
[2006] IRLR 422, at paragraphs 45 – 47 as authority for the proposition
that an employee who is at risk of redundancy is entitled to see their own
assessment. We did not, however, understand him to suggest that the Claimant
had not seen her assessment – she had seen her various scores, as we have
explained.
66.
As for the appeal, whilst recognising that the Claimant had not raised
any issue regarding her scores or the interview notes in her appeal,
Mr Forsyth submitted, without reference to authority, that non utilisation
of an opportunity to appeal does not render an unfair dismissal fair. Further,
there was, he submitted, a problem with the appeal in this case because it was
restricted to writing. He relied on the Tribunal’s observations at
paragraph 100 (quoted above) in support of that submission. It could, he
said, be implied that the Tribunal were saying that the whole manner of the
appeal was unfair because it was limited to writing. Regarding Polkey,
Mr Forsyth submitted that the Tribunal was entitled to reach the view that
they could not embark on a “sea of speculation”.
67.
Regarding the argument that the Tribunal had decided the case on an
issue not pled, Mr Forsyth sought to distinguish between the amendment
that the Claimant was not allowed to make and the reason for the Tribunal’s
decision which was, he said, different. He referred to the Bradford
Hospitals case as being special on its facts and referred also to Langston
v Cranfield University [1998] IRLR 172, for a passage where HHJ
Peter Clark referred to it being a generally accepted although new points will
not generally be allowed on appeal that will not be the case if the principle
is so well established that a tribunal may be expected to consider it as a
matter of course. It was not, however, clear how he thought that that met the
argument against him.
68.
Regarding the Tribunal’s approach to what the Claimant could expect at
the meeting on 5 June, he submitted that it was not perverse. The fact
that she had disagreed was enough.
69.
As to the Tribunal’s calculations, Mr Forsyth accepted that they
had erred in awarding a redundancy payment; it should have been a basic award
based on £350 per week. As for the ex gratia payments, whilst he
submitted that they might not have been deductible, depending on the view the Tribunal
took of appropriate compensation, in the end of the day, he appeared to accept
that there was a problem in that the Tribunal had taken no account of or made
reference to them at all.
Discussion and Decision
70.
We are satisfied that this appeal is well founded on all grounds.
71.
We would observe that the case of John Brown Engineering
Ltd v Brown and others [1997] IRLR 90, contrary to what the Tribunal
suggest, is not authority for the proposition that if an employee intimates a
broad unspecific challenge to the application to him of redundancy assessment
criteria, then he must be afforded the opportunity to see his interview notes
(or any other documents) prior to any decision to dismiss. The decision in Brown
related to its particular circumstances which were that the employees had
been given no information at all about their individual assessments, not even
their individual scores. That was, plainly, not the position here. Nor,
indeed, was it the case that the Claimant raised any challenge to the
application to her of the assessment criteria or to her scores. The
circumstances were that she knew her total score, what scores she had been
awarded under each heading and the respective weightings afforded to each of
those heads. She at no time put the Respondent on notice that she sought to
challenge her scores. She did not, on the Tribunal’s own findings, ask for
details of the basis of her scores. She only asked to see her interview
notes. That is, she asked, without any specification of the reason why, to see
the notes taken at the interview when she was assessed against a list of
previously agreed criteria; an assessment which, as above noted, formed only
30% of her overall scores. She knew that she had scored 11 out of 28 at
interview. She did not, at any time, assert that any of her scores, including
her interview score, should have been higher. There was no reason for the Respondent
to think that she was, by asking to see her interview notes, raising any such
challenge.
72.
In short, the Claimant knew her overall score and its individual
components, did not challenge the overall score or any part of it and the Tribunal
had no basis for saying that the Claimant had, by asking to see the notes taken
at interview, somehow communicated to the Respondent that she reserved the
right to challenge her scores; it was not an inference which could arise from
the facts found by them. They erred in drawing that inference and it was a
fatal error as it formed the basis for their conclusion that her dismissal was
unfair.
73.
We would also observe that the Tribunal were wrong to suggest as, at
paragraph 99 they seem to do, that whenever an employee who is at risk of
redundancy makes any request for information, an ensuing dismissal will be
unfair if that request has not been acceded to. Whilst an employer who has
received a specific request for specific relevant information would be well
advised to provide it, that is far from saying that he requires to do so in
respect of every unspecific request for documentation unaccompanied by reasoned
justification. In any event, the Claimant here did not ask for ‘information’
of the sort that might be expected in a redundancy exercise e.g. “why did I
score only ‘x’ for my performance rating when I was told that I was an
outstanding performer at my last appraisal?” Or , as was the issue which arose
in the case of Pinewood Repro Ltd v Page [2011] ICR 508: “why did
I receive a low score for flexibility when I have always been as willing as the
next person to tackle any task that was asked of me?”. She asked to see a
document which, of its nature, was bound to contain a wide range of
information. Her request was plainly, at best, a fishing exercise and, given
that once she had the notes she raised no complaint at all by reference to them,
it can only be concluded that she did not catch so much as a minnow.
74.
We are, put shortly, satisfied that the Respondent was under no duty to
provide the Claimant with a copy of her interview notes. It reflects well on
them that they did so but it remained the position throughout that they were
not put on notice that she had any complaint or challenge which she wished to
raise under reference to them.
75.
Turning to the Tribunal’s approach to the meeting of 5 June, we are
satisfied that given that the Respondent did not, at the meeting on
22 May, agree to provide the Claimant with her interview notes - matters
went no further than Mr Edwards noting the request and that he would need
to “ask Liz” about that – the Claimant cannot have left it thinking that they
had agreed to postpone consideration of whether or not to dismiss her or that
the purpose of the meeting of 5 June would be for her to raise objections
to her assessment under reference to those notes. There was no basis in the
evidence for the Tribunal approaching matters on the basis that the Respondent
had agreed with the Claimant that, in her case, the consultation period was
extended. There was no basis for them to infer that the Claimant had given
notice that she did not acquiesce in their assessment of her and reserved her
right to challenge it. In any event, whether or not an employee acquiesces in
an employer’s redundancy assessment is beside the point; an employer cannot
reasonably be expected to respond absent a specific challenge.
76.
Moreover, we are satisfied that the Tribunal failed to stand back and
ask whether, overall, there was a fair redundancy process, as they required to
do: see our ‘Relevant Law” section, above. They failed to take account of the
opportunity that the Claimant had and used, to appeal; she could have raised
any challenge, including in relation to her interview notes, in her appeal.
The fact that, at first instance, the appeal required to be in writing did not
bar her from doing so; she never suggested that it did and she was evidently
well able to articulate, in writing, a series of complaints, particularly in
her supplementary appeal letter of 16 June 2009. There was no basis in the evidence for the Tribunal to have any concern that if she had, at that
time, any complaint to make about her scores or her interview notes, she was
somehow unable to make them. Further, we do not understand why it would
supposedly be easier for someone who does not have a high level of verbal
reasoning skills to engage in an oral hearing, an occasion which would be bound
to be stressful in a way that preparing a written appeal document in the
privacy of one’s own home would not.
77.
It is clear that the Claimant had ample opportunity to raise any query,
complaint or challenge she had about her scores or her interview notes in a
process which, overall, was thorough and careful. There was no basis on which
it could be concluded that the decision to dismiss the Claimant was not fair.
78.
Turning to the ground of appeal that the case was decided on an issue
not pled, we accept that the Tribunal did not entertain any case to the effect
that the Claimant’s scores were too low or, having excluded such a case, find
that they were. However, the basis on which they found that the dismissal was
unfair was very closely allied to that complaint, a complaint which the Claimant
sought but was not allowed to pursue. Further, the basis on which they
determined the case formed no part of the Claimant’s complaint as set out in
her form ET1. That being the position, the Tribunal had no business doing so.
79.
Moving to Polkey, we can fully understand why the Respondent
felt aggrieved. They had been successful in preventing the Claimant’s
challenge to her assessment scores becoming belatedly part of the case, did not
anticipate it or anything relating to it being a relevant issue, still less the
determining issue and were then criticised for not having addressed the matter
in evidence. We agree that the Tribunal’s approach in paragraph 114 seems
unfair. Further and perhaps more importantly, the Tribunal took no account of
evidence that was material and relevant to the Polkey issue
namely that once the Claimant had the interview notes she made no complaint
about them or anything relating to them despite having chances to do so at the
meeting on 5 June, in her initial appeal document, in her supplementary
appeal document, in her form ET1 or in response to the Respondent’s letter to
her dated 3 December 2009. Far from it being open to the Tribunal to
conclude that they had no idea whether the Claimant would have been able to
point to an error of approach by the Respondent, it is plain that, not having
done so on any of these occasions, the only conclusion which could properly be
drawn was that she could not do so. In those circumstances, there would have
to have been a Polkey deduction of 100%.
80.
We do not, in the circumstances, require to deal in detail with the
calculation of the Claimant’s basic award and compensation. We are, as we have
said, satisfied that the challenges to it were well founded.
Disposal
81.
In these circumstances, we will pronounce an order upholding the appeal
and substituting for the judgment of the Employment Tribunal a finding that the
Claimant was fairly dismissed.
