Vincent v M J Gallagher Contractors Ltd. [2003] EWCA Civ 640

[2003] EWCA Civ 640
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of Justice
Strand
London WC2
Tuesday, 15th April 2003
B e f o r e :
LORD JUSTICE PILL
LORD JUSTICE SCOTT BAKER
and
MR JUSTICE WILSON
Between
SUSAN VINCENTAppellant-v-
Between
M J GALLAGHER CONTRACTORS LIMITEDRespondent
Computer Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel: 020 7404 1400 Fax: 020 7831 8838(Official Shorthand Writers to the Court)
Mr K Sonaike (instructed by Messrs Irwin Mitchell, Birmingham) appeared for Appellant. for The Respondent did not appear and was not represented.
J U D G M E N T(As Approved by the Court)Date 2003-04-15

©Crown Copyright

[1]This is an appeal against a decision of the Employment Appeal Tribunal (His Honour Judge Serota QC presiding) at a preliminary hearing on 8th August 2002. The appellant, Mrs Vincent, appealed against a decision of an Employment Tribunal disclosed to the parties on 27th February 2002. She had been employed as an office manager by the respondents, M J Gallagher Contractors Limited. They met difficult times and resolved to make some of their staff redundant. A process was followed, as a result of which the appellant was chosen as one of those to be made redundant. She claimed unfair dismissal and that claim was rejected by the Employment Tribunal.[2]The appeal against the decision of the Employment Tribunal was on six grounds: ground 1 - consultation over restructuring of accounts department; ground 2 - consultation over selection criteria; ground 3 - subjectivity of selection criteria; ground 4 - unfair application of selection criteria; ground 5 - alternative employment; and ground 6, which is not pursued, was headed “Appeal”.[3]There is a procedure at the Employment Appeal Tribunal whereby there is a preliminary hearing with only the appellant present. At that hearing the Employment Appeal Tribunal will either dismiss the appeal without accepting the need to hear the respondents or they will resolve that the matter should proceed to a full hearing, at which of course the respondents will have the opportunity to be represented. What the Employment Appeal Tribunal did in this case was to allow the appeal to proceed on grounds 1 and 5, but to dismiss the appeal on grounds 2, 3 and 4. They stated at paragraph 4:
“In relation to other grounds of appeal relating to consultation over selection criteria we do not consider there is anything in the second ground of appeal, nor in the third ground of appeal, nor in the fourth ground of appeal. The fairness of the selection criteria and their application was adequately, in our opinion, dealt with in the findings of fact made by the Employment Tribunal and it seems to us that there is no arguable case to go forward.”
[4]Essentially the case made in grounds 2, 3 and 4 is that there were criteria by which redundancy was to be decided, but those criteria were not followed. The criteria were set out in a letter of 30th March 2001, which is quoted at paragraph 10 of the decision of the Employment Tribunal. The following matters would be taken into consideration:
“Assessment of the employee's reliability, conduct record, need for the individual if their job is no longer required due to reorganisation. Length of service would normally be taken into account, if a deciding factor were needed between any for whom the assessment has produced no clear distinction.”
[5]However, a procedure having been followed and the appellant having complained about it, the Employment Tribunal note at paragraph 14 of their Extended Reasons that:
“By a letter dated 19 April 2001 it was explained to the Applicant that the purpose of the consultation meetings was to explore what flexibility staff could offer within the restructuring process. She had not offered any flexibility in her work approach ...”
Arguably that is a different approach to decision making.[6]I granted permission to appeal on a consideration of the papers. It appears to me that grounds 2, 3 and 4, as already summarised, are arguable and on that basis I would allow this appeal. That is not to give any indication as to what the eventual result should be.[7]It is unfortunate in this case, in my view, that costs and court time have had to be taken up in this way. That is no criticism at all of Mr Sonaike or those who have appeared for the appellant at any stage. I can see no alternative to the course they have taken, which was to appeal to this court against the decision of the Employment Appeal Tribunal not to permit the appeal to that tribunal to proceed on grounds 2, 3 and 4. The most this court can do is to remit the matter to the Employment Appeal Tribunal on the basis that the appeal to them is to proceed on grounds 1 to 5 inclusive.[8]The preliminary hearing procedure has its value and, what is more, there will be cases where it is appropriate, by way of analysis of the grounds of appeal, to permit the appeal to the Employment Appeal Tribunal to proceed on one ground but not to permit it to proceed on another ground. In my judgment, however, this was not one of those cases. The criticism was in relation to the consultation procedure and in my view it was not correct, nor was the reason given for it a persuasive one, to allow the appeal to proceed on certain grounds but to refuse to allow it to proceed on other grounds. That has led to the costs and inconvenience of the matter having to proceed to what, in form at any rate, is a full appeal to this court.[9]The respondents were contacted and indicated that they had no part to play in this appeal. In a letter dated 13th January 2003 written on their behalf by Peninsula Business Services Ltd, Advocacy and Litigation Department, they stated:
“Our position is that we rely on the grounds set out in the Decision of the Employment Appeal Tribunal of 8 August 2002 and the Decision of the Employment Tribunal promulgated on 27 February 2002. On that basis we will not be instructing counsel to appear in the appeal hearing.”
That is an understandable position to take. They could, had they seen fit, have gone one stage further and said that they had no objection to the appeal being allowed; but I do not want to be critical of them. On that basis we will not be instructing counsel to appear in the appeal hearing.”[10]I would, however, urge Employment Appeal Tribunals, when considering appeals to them at a preliminary hearing, particularly in a case where the entire compass of the case is a narrow one, to be cautious before adopting an approach whereby they permit the appeal to proceed on one ground but do not permit it to proceed on another. This is a case within a comparatively narrow compass. (That is not to say that it may not be a difficult case to resolve.) For that reason, and because the entire attack is upon the consultation procedure, to which all five grounds of appeal relate, in my judgment it would have been appropriate for them, having resolved to permit the appeal to proceed on grounds 1 and 5, also to have permitted it to proceed on grounds 2, 3 and 4.[11]For those reasons I would allow this appeal and remit the case to the Employment Appeal Tribunal for it to consider the appeal to it.

LORD JUSTICE SCOTT BAKER:

[12]I agree. MR

JUSTICE WILSON:

[13]I also agree.

Order

appeal allowed with costs and remitted to the EAT.