WILLIAMS AND OTHERS v COMPAIR MAXAM LTD [1982] UKEAT 372_81_2201

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1982] UKEAT 372_81_2201

Case No Appeal No. UKEAT/372/81

Between

WILLIAMS AND OTHERSAPPELLANT

COMPAIR MAXAM LTDRESPONDENT

Before

The Hon. Mr. Justice Browne-Wilkinson (P)

Mr. R. V. Cooper

Mrs. D. Lancaster

Date 22 January 1982

[1]MR. JUSTICE BROWNE-WILKINSON: In this case, a number of employees of Compair Maxam Ltd. ("the Company") were dismissed on the grounds of redundancy on 31st January 1981. Five of those employees complained to the Industrial Tribunal that they had been unfairly dismissed. An industrial tribunal sitting at Truro heard all five applications together and by a majority dismissed them all. Four of the unsuccessful applicants appeal to this Tribunal. The Company had approximately 200 employees. During 1980, the Company found its order book falling off dramatically. As a result during the last quarter ending December 1980, the Company lost £110,000: in the next quarter the loss proved to be £164,000. In October 1980 the Company sought to meet the position by calling for voluntary redundancies and 35 employees volunteered. At the end or" October, the Company apparently announced that it needed to make a further 40 per cent, of the work force redundant, but instead it was agreed that the work force should go on to short time working. In December 1980 a new works manager, Mr. Andrew, was appointed. His instructions from the parent company of the group to which the Company belongs was to put the Company's finances in order. One of the. possibilities he considered was the total closure of the factory. Instead he opted for a complete reorganisation of the Company's business. The first step was to reduce the number of managers to three. Then each of the managers was required to "pick a team" for his department so that staff were retained to keep the Company viable. On 16th January 1981 there was a meeting with the union involved (APEX). The union were told that there had to be 21 redundancies and that the first step was to ask for volunteers. The union agreed to volunteers being sought. At that meeting, the union was not informed how the remaining names for redundancy were to be selected: they expected a further meeting to discuss the mechanics of selection Apparently at that meeting management . said that they would have to draw up a list. In the event there were only seven volunteers. At some stage, and it is not clear to us whether this was before or after 16th January, the departmental managers did draw up lists of those to be retained and those to be made redundant. The basis of those lists was apparently that each manager picked the employees he wanted to make his department viable. All four appellants were in the department to be managed by Mr. Hennessy. Mr. Hennessy in evidence said that he really started again in restaffing his department: he drew up a list of vacancies and from the existing staff filled those vacancies with those employees whom he considered would be best to retain in the interests of the Company in the long run. Although the industrial tribunal in its reasons did not refer to this, in his evidence Mr. Hennessy said that his choice was quite subjective and that he had known all the people since he joined the Company. Length of service was not a factor taken into account. When each department manager had made his list, their lists were apparently considered by a management team consisting of Mr. Andrews (who did not know any of the individuals involved) and the three department managers. All this was done without reference to the union. No changes were made in the selections made by each department manager. The next that APEX heard of the matter was on the afternoon of 28th January 1980. The union were then told that there had been insufficient volunteers and that the others to be made redundant (seven) of whom were APEX members) would be told that same afternoon. The union asked for a list of the names of those to be made redundant but this was refused. The management agreed to postpone the dismissals until the following morning. Those selected for redundancy were dismissed on the morning of 29th January, except for Mr. R. D. Williams who was off sick on that day: he was dismissed the following day. Those dismissed were given their statutory notice, four weeks salary and redundancy payments considerably in excess of their statutory entitlement. The union applied to the Industrial Tribunal for a protective award under Sections 99 and 101 of the Employment Protection Act 1975. That application had not been determined when these cases were before the industrial tribunal. We were informed that subsequently an industrial tribunal had made a protective award under Section 101. The majority of the industrial tribunal, whilst criticising the lack of consultation by the Company with the union, nevertheless held the dismissals to be fair. As we understand their reasons, they took the view that the Company was in a "survival situation" and had to do something drastic. They held that it was reasonable to make the selection for redundancy by selecting those employees whom the managers regarded as being those who would keep the Company viable in the long run. As to lack of warning, they took the view that as the employees had known for some time that there were to be redundancies, in the circumstances no further warning was possible but in any event the extra four weeks salary gave the employees that amount of time to look for alternative employment. The Company did not consider transferring staff to lower paid employment because that was thought to lead to bad industrial relations. The majority did not consider that this failure made any material difference since on the criteria applied, the same persons would in any event have been selected for redundancy. On the appeal, Mr. Morris for the appellants submitted first that there was not sufficient evidence to justify the industrial tribunal's finding that proper criteria for selection for redundancy had been adopted or properly applied. Secondly, he submitted that the employers' failure to consult had not been given proper weight by the majority of the industrial tribunal. Thirdly he submitted that these and other factors showed that the Decision was perverse and therefore wrong in law. Mr. Pardoe, for the Company, in effect submitted that there was no misdirection in law and relied on the well known authorities in the Court of Appeal showing that it is for the industrial tribunal to decide, as a question of fact, whether the dismissal was fair (within the meaning of Section 57(3) of the Employment Protection (Consolidation) Act 1978). He submitted that this appeal tribunal should not and could not properly interfere with that finding of fact. He in effect rested upon the point that we should not intervene: he did not address to us any argument as to the substantive merits of the industrial tribunal's decision. As to Mr. Morris's first submission, he founded himself on the decision of an industrial tribunal in Greig v. Sir Alfred McAlpine & Son (Northern) Ltd. [l979] IRLR 372. In that case, the industrial tribunal held a dismissal for redundancy to be unfair, even though reasonable criteria for selection had been adopted by the employers. They held that the employers had not proved that such criteria had been objectively and fairly applied. Although we will come back to this case in a different context, in our judgment it can no longer be regarded as an authority on the question of burden of proof. The case was decided on Section 57(3) of the 1978 Act which placed on the employer the burden of proving that in the circumstances he acted reasonably in treating redundancy as a sufficient reason for dismissing the employee. As a result of the amendments in the Employment Act 1980, the employer has been relieved of this burden of proof. We consider that there was some evidence on the basis of which the industrial tribunal could make its finding on the point if it otherwise correctly directed itself. Therefore we reject this first argument. We reject also Mr. Morris's second submission that the industrial tribunal attached too little weight to the lack of consultation. It is not the function of this Tribunal to consider the weight of the evidence. The industrial tribunal could only be said to have erred in law if they failed completely to take into account the failure of the Company to consult with the union. Here, the majority of the industrial tribunal criticised the lack of consultation and demonstrably took that factor into account. There is no rule of law that lack of proper consultation necessarily renders the dismissal unfair: Hollister v. The National Farmers' Union

[1979] ICR 542

. There remains the question whether the decision of the industrial tribunal was perverse. This appeal tribunal has jurisdiction to deal only with appeals on a point of law. Some appeals are concerned with obvious points of law, e.g. the construction of statutes. Many more are concerned with cases where the point of law is less obvious, e.g. the industrial tribunal can err in law by finding facts which there is no evidence to support or by failing to find facts as to which there was undisputed evidence. Again many appeals allege that the industrial tribunal misdirected itself in reaching its conclusion by overlooking some supposed principle of law (e.g. that there must always be consultation before dismissal). It is in relation to these types of appeal that the Court of Appeal has repeatedly said that the appellate courts should not be astute to interfere and lay down principles of law: the question whether a dismissal was fair for the purposes of Section 57(3) is a question of fact for the industrial tribunal: see Hollister v. The National Farmers' Union (above), Bailey v. B.P. Oil Kent Refinery Ltd .

[1930] ICR 642

, UCATT v. Brain

[1981] ICR 54

. We are bound by these decisions. Even if we were not, with respect we agree that it is not in the best interests of the system of industrial tribunals if this appeal tribunal seeks to lay down detailed principles of law as to what is fair or unfair, and then find that an industrial tribunal has misdirected itself by failing to observe such legal principles. However, there is one other ground on which an industrial tribunal can be said to have erred in law, namely that its decision is perverse. In the legal sense, a decision is perverse only if no reasonable tribunal of the kind in question properly directing itself in law could have reached that decision. It is not enough that the appellate court would not have reached the same decision. Obviously the cases in which this Tribunal can intervene on the ground of perversity are few, and the approach enjoined by the Court of Appeal to the exercise by this appeal tribunal of its jurisdiction generally must apply with even greater force to appeals on the ground of perversity. But there is a limited number of cases where the conclusion reached by the industrial tribunal is so plainly wrong that the only possible conclusion is that it must have misdirected itself: see for example London Transport Executive v. Clarke

[1981] ICR 355

at 372; Edward v. Bairstow [l956] AC 14. In considering whether the decision of an industrial tribunal is perverse in a legal sense, there is one feature which does not occur in other jurisdictions where there is a right of appeal only on a point of law. The Industrial Tribunal is an industrial jury which brings to its task a knowledge of industrial relations both from the view point of the employer and the employee. Matters of good industrial relations practice are not proved before an industrial tribunal as they would be proved before an ordinary court: the lay members are taken to know them. The lay members of the Industrial Tribunal bring to their task their expertise in a field where conventions and practices are of the greatest importance. Therefore in considering whether the decision of an industrial tribunal is perverse, it is not safe to rely solely on the common sense and knowledge of those who have no experience in the field of industrial relations. A course of conduct which to those who have no practical experience with industrial relations might appear unfair or unreasonable, to those with specialist knowledge and experience might appear both fair and reasonable: and vice versa. For this reason, it seems to us that the correct approach is to consider whether an industrial tribunal, properly directed in law and properly appreciating what is currently regarded as fair industrial practice, could have reached the decision reached by the majority of this tribunal. We have reached the conclusion that it could not. The first question is: how should the industrial tribunal have directed itself in law? It being conceded in this case that the applicants had been dismissed on the grounds of redundancy (and there being no agreed or customary procedure as to redundancy), in law the only question is whether the requirements of Section 57(3) of the 1978 Act (as amended) were satisfied. That subsection (as amended) provides as follows:

"Where the employer has fulfilled the requirements of subsection (1), then, subject to Sections 58 to 62, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 that question shall be determined in accordance with equity and the substantial merits of the case."

For the purposes of the present case there are only two relevant principles of law arising from that subsection. First, that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law. particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the grounds of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy "as a sufficient reason for dismissing the employee," i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal. In law therefore the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. It is accordingly necessary to try to set down in very general terms what a properly instructed industrial tribunal would know to be the principles which, in current industrial practice, a reasonable employer would be expected to adopt. This is not a matter on which the chairman of this appeal tribunal feels that he can contribute much, since it depends on what industrial practices are currently accepted as being normal and proper. The two lay members of this appeal tribunal hold the view that it would be impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances: the fair conduct of dismissals for redundancy must depend on the circumstances of each case. But in their experience, there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles: 1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, _f necessary, find alternative employment in the undertaking or elsewhere. 2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria. 2. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. 4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. 5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment. The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim. That these are the broad principles currently adopted by reasonable employers is supported both by the practice of the industrial tribunals and to an extent by statute. A very large number of appeals on cases of alleged unfair selection for redundancy come before this Appeal Tribunal. In the experience of all of us, without exception hitherto the approach of the industrial tribunals has reflected the canons of good industrial relations set out above. In Greig v. McAlpine (above) an industrial tribunal in Liverpool under a very experienced chairman found the dismissal to be unfair. The headnote accurately represents the industrial tribunal's views as follows:

"The respondents had acted unreasonably in selecting the applicant for redundancy in that they had failed to show that they had an objective system of assessment for deciding that the applicant was not to be amongst those retained. In considering the reasonableness of a redundancy dismissal where a selection has to be made between those who are to be retained and those who are to be dismissed, the most important matter on which., the, employer has to satisfy the Tribunal is that he acted reasonably in respect of the selection of the particular employee. That normally involves two questions, namely whether the employer adopted reasonable criteria for selection, and whether those reasonable criteria were reasonably and fairly applied in respect of the individual. ... If an employer adopts criteria other than last in first out for redundancy selection, however, he must be able to show both that the criteria adopted are reasonable and that he has applied those criteria rationally and objectively and, where large numbers are involved, on a reasonably structured and comparative basis. In a situation involving so many employees, it is not sufficient for a single person who makes the selection to say that he has done so on the basis of his management skill and judgment. When so many employees are involved, and a basis of selection is to be used which is open to the possibility of being influenced by over-subjective assessments, or even sheer prejudice, on the part of the person making the choice, it is important that management be able to show that they took sufficient steps to make their decision as objective and unbiased as possible."

Although, as we have already said, that decision so far as it stresses the burden of proof on the employer cannot directly be applied to cases on Section 57(3) as amended, it does in our view show the principles of good industrial practice which an ordinary industrial tribunal adopts in testing the fairness of a dismissal for redundancy. These principles of good industrial relations practice are •Also reflected in statute. Section 99(1) of the Employment Protection Act 1975 provides as follows:

"An employer proposing to dismiss as redundant an employee of a description in respect of which an independent trade union is recognised by him shall consult representatives of that, trade union about the dismissal in accordance with the following provisions of this Section."

Subsection (3) requires such consultation to begin "at the earliest opportunity" and (where ten or more employees are to be dismissed) at least 60 days before the first of the dismissals takes effect. Subsection (5) provides as follows:

"For the purposes of the consultation required by this Section the employer shall disclose in writing to trade union representatives: - (a) the reason for his proposals; (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant; (c) the total number of employees of any such description employed by the employer at the establishment in question; (d) the proposed method of selecting the employees who may be dismissed; (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect."

Subjection (7) requires the employer to consider representations made by the union and, if he rejects them, to give his reasons for so doing. Subsection (8) recognises that there may be special circumstances which may prevent the full discharge of each of these requirements but in such a case requires the employer to "take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances." If there is a breach of the requirements of Section 99 the union (as it did in this case) can obtain a protective award under Section 101. Breach of Section 99 does not confer any legal rights other than those conferred by Section 101: see Section 99(9). But in our judgment it does show an approach by the legislature to the correct handling of redundancies where there is a recognised union which echoes what we have said is current good practice: i.e. early warning, consultation with the union, a pre-ordained basis of selection for redundancy. Moreover it reflects the view expressed above that departures from any of these principles is only justifiable in special circumstances. Again, the Code of Practice issued under Section 6 of the Employment Protection Act 1975 indicates a similar approach. Paragraph 46 provides as follows:

"If redundancy becomes necessary, management in consultation, as appropriate, with employees or their representatives, should: (i) give as much warning as practicable to the employees concerned ... (ii) consider introducing a scheme for voluntary redundancy, retirement, transfer to other establishments within the undertaking and a phased run-down of employment; (iii) establish which employees are to be made redundant and the order of discharge"

. Paragraph 65 and 68 of the Code provide as follows:

"65- Consultation means jointly examining and discussing problems of concern to both management and employees. It involves seeking mutually acceptable solutions through a genuine exchange of views and information. 68. In setting up the consultative arrangements, management should ensure that: (i) the arrangements provide opportunities for employees to express their views on proposed changes which affect them and encourage discussion, at whatever level is most appropriate, of matters closely associated with the work situation; (ii) employee representatives have all the information they require to enable them to participate effectively in discussions."

As has been pointed out in Hollister v. The National Farmers' Union (above) the Code does not lay down absolute rules of law, departure from which by itself constitutes an error of law. But the Code is an integral and important part of the employment legislation in that it does indicate what is good industrial practice which a reasonable employer will adopt; it is a yardstick by which an industrial tribunal should reach its conclusion as to whether conduct is fair. Section 6(11) of the 1975 Act provides as follows:

"A failure on the part of any person to observe any provision of a Code of Practice shall not of itself render him liable to any proceedings; but in any proceedings before an industrial tribunal ... any Code of Practice issued under this Section shall be admissible in evidence, and if any provision of such a Code appears to the tribunal ... to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."

Therefore there is a statutory requirement to take into account a requirement of the Code if it appears to the tribunal to be relevant. In our judgment it would be impossible in law for the industrial tribunal in this case to have reached the view that those paragraphs of the Code were not relevant to the issue before it. The question we have to decide, therefore, is whether a reasonable industrial tribunal, approaching this case with those principles of good industrial practice in mind and directing itself in accordance with those principles of law, could have reached the decision that the dismissal of these applicants was fair. We reiterate that it is beside the point that we ourselves would have reached 3 different view. We must be satisfied that no reasonable industrial tribunal could have reached this decision. We have reached the conclusion that this is one of the exceptional cases in which the decision of the industrial tribunal is, as a matter of law, perverse. At the outset, we stress that this was a majority decision of the industrial tribunal, the majority consisting of the chairman and one lay member. The reasons for dissent given by the other lay member indicate that in his view the employers had not observed the standards of a reasonable employer: he points out amongst other things that there were no agreed criteria for selection and no proper consideration was given to placing the applicants in other jobs. It gives us considerable support that out of the four persons with experience in industrial relations who have had to consider the case, three of them are, for broadly similar reasons, satisfied that the dismissals were demonstrably unfair. Next we note that at no stage in its reasons does the industrial tribunal either refer to Section 57(3) of the 1978 Act or define the question it has to answer. Obviously the members of the industrial tribunal were well aware of Section 57(3) and it would be wrong to assume any specific misdirection in law just because the industrial tribunal have not dealt with the law in giving their reasons. But those reasons do leave open the possibility of such misdirection, in particular a failure to appreciate that they had to be satisfied that the particular applicants before them were properly dismissed, involving as that does a fair method of selection. In this case, with the possible exception of early warning, none of the principles of good industrial relations practice which we have sought to state was observed. So far as warning is concerned, the majority of the industrial tribunal took the view that the work force were in general aware that further redundancies were in the offing and that the extra four weeks salary offset any unfairness. Although we would not ourselves agree with this view, it is not by itself so manifestly wrong as to be termed perverse. But as to the rest of the procedure, we are unable to see how the decision of the industrial tribunal can be justified. As to the actual selection of these applicants for redundancy, there was no consultation of any kind. Volunteers for redundancy were considered on the 16th January and that was all. No information was given to the union. There was no attempt to agree criteria for selection or the method of applying the criteria: not even a list of those selected was provided before the dismissals were effective. The majority of the industrial tribunal were obviously impressed by the seriousness of the Company's financial position and the urgent need for reorganisation. Although this was undoubtedly a material factor, we can see no evidence which indicates that consultation was not possible at least on the criteria to be adopted from the 16th January onwards at the latest. If there had been consultation on the criteria, a reasonable employer would not have insisted on the criteria in fact adopted. The so-called criteria in this case lack any real objective element: the retention of those "who, in the opinion of the managers concerned, would be able to keep the Company viable". Such a criterion is entirely subjective and, as Mr. Hennessy in his evidence accepted, was applied subjectively. The purpose of having, so far as possible, objective criteria is to ensure that redundancy is not used as a pretext for getting rid of employees who some manager wishes to get rid of for quite other reasons, e.g. for union activities or by reason of personal dislike. The danger of purely subjective selection is illustrated in this very case. It was common ground that the relations between Mr. Hennessy and one of the applicants, Mr. H. Williams, were not good. Mr. Hennessy accepted in evidence that he did not care for Mr. H. Williams and thought him a bit belligerent. They did not "pass the time of day". Except in cases where the criteria can be applied automatically (e.g. last in first out), in any selection for redundancy elements of personal judgment are bound to be required thereby involving the risk of judgment being clouded by personal animosity. Unless some objective criteria are included, it is impossible to demonstrate to an employee like Mr. H. Williams who is not on good terms with the person making the selection that the choice was not determined by personal likes and dislikes alone: we would also have thought it was extremely difficult for an industrial tribunal to be satisfied on the point. The majority of the industrial tribunal expressed surprise at the lack of established criteria for selection, but said that it was "a considerable factor" in their decision that even if criteria had been laid down the same result might have applied. This passage is the one which gives rise to doubt whether the majority did not misdirect itself in law. The industrial tribunal had to be satisfied that the applicants before them had been fairly selected: mere speculation as to whether they would have been selected had consultation taken place and criteria agreed cannot constitute grounds sufficient to "satisfy" the industrial tribunal as required by Section 57(3). Finally, the employers did not consider transferring employees to a different job involving demotion: such transfer was, as the majority found, "dismissed as a possibility" since it was thought to lead to bad industrial relations and dissatisfaction. If there had been any consultation with the union or the employees involved, there might well have emerged some ground for not considering such transfers. But in the absence of such consultation, simply to rule out the possibility seems to us unreasonable. In the result, it appears to us that these dismissals for redundancy were carried out in blatant contravention of the standards of fair treatment generally accepted by fair employers. Was any good reason shown why the employers departed from these standards? As we understand the majority decision, they regard the serious financial position of the Company as the explanation. Certainly this factor might provide an explanation for the employers not having embarked on any prolonged negotiation with the union: we notice, however, that the industrial tribunal who made the protective award were not satisfied that the defences in Section 99(8) of the 1975 Act applied. But in any event we cannot see that the employers gave an explanation why there was not some consultation on or after the 16th January or why the names of those selected for redundancy were never communicated to the union for them to consider and make representations about. For these reasons we consider that the majority decision was, not merely wrong, but so wrong that no industrial tribunal properly directing itself could have reached it. To anyone versed in industrial relations, the decision offends common sense. We must add a word of warning. For the purpose of giving our reasons for reaching our exceptional conclusion that the decision of the industrial tribunal in this case was perverse, we have had to state what in our view are the steps which a reasonable and fair employer at the present time would seek to take in dismissing unionised employees on the ground of redundancy. We stres3 two points. First, these are not immutable principles which will stay unaltered for ever. Practices and attitudes in industry change with time and new norms of acceptable industrial relation? behaviour will emerge. Secondly the factors we have stated are not principles of law, but standards of behaviour. Therefore in future cases before this appeal tribunal there should be no attempt to say that an industrial tribunal which did not have regard to or give effect to one of these factors has misdirected itself in law. Only in cases such as the present where a genuine case for perversity on the grounds that the decision flies in the face of commonly accepted standards of fairness can be made out, are these factors directly relevant. They are relevant only as showing the knowledge of industrial relations which the industrial jury is to be assumed as having brought to bear on the case they had to decide. For the reasons that we have stated, we allow the appeal and substitute a finding that the four appellants were unfairly dismissed. We will remit the case to a differently constituted tribunal to assess the compensation. Leave to appeal to the Court of Appeal; proviso that if appellants wish to make representations thereon, they may do so. P. A. HASWELL, 5 CASTLE HILL VIEW, BARDSEY, LEEDS LS17 9EE. VERBATIM REPORTER AND TAPE TRANSCRIBER MR. JUSTICE BROWNE-WILKINSON: In this case, a number of employees of Compair Maxam Ltd. ("the Company") were dismissed on the grounds of redundancy on 31st January 1981. Five of those employees complained to the Industrial Tribunal that they had been unfairly dismissed. An industrial tribunal sitting at Truro heard all five applications together and by a majority dismissed them all. Four of the unsuccessful applicants appeal to this Tribunal. The Company had approximately 200 employees. During 1980, the Company found its order book falling off dramatically. As a result during the last quarter ending December 1980, the Company lost £110,000: in the next quarter the loss proved to be £164,000. In October 1980 the Company sought to meet the position by calling for voluntary redundancies and 35 employees volunteered. At the end or" October, the Company apparently announced that it needed to make a further 40 per cent, of the work force redundant, but instead it was agreed that the work force should go on to short time working.

[2]In December 1980 a new works manager, Mr. Andrew, was appointed. His instructions from the parent company of the group to which the Company belongs was to put the Company's finances in order. One of the. possibilities he considered was the total closure of the factory. Instead he opted for a complete reorganisation of the Company's business. The first step was to reduce the number of managers to three. Then each of the managers was required to "pick a team" for his department so that staff were retained to keep the Company viable.

[3]On 16th January 1981 there was a meeting with the union involved (APEX). The union were told that there had to be 21 redundancies and that the first step was to ask for volunteers. The union agreed to volunteers being sought. At that meeting, the union was not informed how the remaining names for redundancy were to be selected: they expected a further meeting to discuss the mechanics of selection Apparently at that meeting management . said that they would have to draw up a list. In the event there were only seven volunteers.

[4]At some stage, and it is not clear to us whether this was before or after 16th January, the departmental managers did draw up lists of those to be retained and those to be made redundant. The basis of those lists was apparently that each manager picked the employees he wanted to make his department viable. All four appellants were in the department to be managed by Mr. Hennessy. Mr. Hennessy in evidence said that he really started again in restaffing his department: he drew up a list of vacancies and from the existing staff filled those vacancies with those employees whom he considered would be best to retain in the interests of the Company in the long run. Although the industrial tribunal in its reasons did not refer to this, in his evidence Mr. Hennessy said that his choice was quite subjective and that he had known all the people since he joined the Company. Length of service was not a factor taken into account.

[5]When each department manager had made his list, their lists were apparently considered by a management team consisting of Mr. Andrews (who did not know any of the individuals involved) and the three department managers. All this was done without reference to the union. No changes were made in the selections made by each department manager.

[6]The next that APEX heard of the matter was on the afternoon of 28th January 1980. The union were then told that there had been insufficient volunteers and that the others to be made redundant (seven) of whom were APEX members) would be told that same afternoon.

[7]The union asked for a list of the names of those to be made redundant but this was refused. The management agreed to postpone the dismissals until the following morning. Those selected for redundancy were dismissed on the morning of 29th January, except for Mr. R. D. Williams who was off sick on that day: he was dismissed the following day. Those dismissed were given their statutory notice, four weeks salary and redundancy payments considerably in excess of their statutory entitlement.

[8]The union applied to the Industrial Tribunal for a protective award under Sections 99 and 101 of the Employment Protection Act 1975. That application had not been determined when these cases were before the industrial tribunal. We were informed that subsequently an industrial tribunal had made a protective award under Section 101.

[9]The majority of the industrial tribunal, whilst criticising the lack of consultation by the Company with the union, nevertheless held the dismissals to be fair. As we understand their reasons, they took the view that the Company was in a "survival situation" and had to do something drastic. They held that it was reasonable to make the selection for redundancy by selecting those employees whom the managers regarded as being those who would keep the Company viable in the long run. As to lack of warning, they took the view that as the employees had known for some time that there were to be redundancies, in the circumstances no further warning was possible but in any event the extra four weeks salary gave the employees that amount of time to look for alternative employment. The Company did not consider transferring staff to lower paid employment because that was thought to lead to bad industrial relations. The majority did not consider that this failure made any material difference since on the criteria applied, the same persons would in any event have been selected for redundancy.

[10]On the appeal, Mr. Morris for the appellants submitted first that there was not sufficient evidence to justify the industrial tribunal's finding that proper criteria for selection for redundancy had been adopted or properly applied. Secondly, he submitted that the employers' failure to consult had not been given proper weight by the majority of the industrial tribunal. Thirdly he submitted that these and other factors showed that the Decision was perverse and therefore wrong in law. Mr. Pardoe, for the Company, in effect submitted that there was no misdirection in law and relied on the well known authorities in the Court of Appeal showing that it is for the industrial tribunal to decide, as a question of fact, whether the dismissal was fair (within the meaning of Section 57(3) of the Employment Protection (Consolidation) Act 1978). He submitted that this appeal tribunal should not and could not properly interfere with that finding of fact. He in effect rested upon the point that we should not intervene: he did not address to us any argument as to the substantive merits of the industrial tribunal's decision.

[11]As to Mr. Morris's first submission, he founded himself on the decision of an industrial tribunal in Greig v. Sir Alfred McAlpine & Son (Northern) Ltd. [l979] IRLR 372. In that case, the industrial tribunal held a dismissal for redundancy to be unfair, even though reasonable criteria for selection had been adopted by the employers. They held that the employers had not proved that such criteria had been objectively and fairly applied. Although we will come back to this case in a different context, in our judgment it can no longer be regarded as an authority on the question of burden of proof. The case was decided on Section 57(3) of the 1978 Act which placed on the employer the burden of proving that in the circumstances he acted reasonably in treating redundancy as a sufficient reason for dismissing the employee. As a result of the amendments in the Employment Act 1980, the employer has been relieved of this burden of proof. We consider that there was some evidence on the basis of which the industrial tribunal could make its finding on the point if it otherwise correctly directed itself. Therefore we reject this first argument.

[12]We reject also Mr. Morris's second submission that the industrial tribunal attached too little weight to the lack of consultation. It is not the function of this Tribunal to consider the weight of the evidence. The industrial tribunal could only be said to have erred in law if they failed completely to take into account the failure of the Company to consult with the union. Here, the majority of the industrial tribunal criticised the lack of consultation and demonstrably took that factor into account. There is no rule of law that lack of proper consultation necessarily renders the dismissal unfair: Hollister v. The National Farmers' Union

[1979] ICR 542

[13]There remains the question whether the decision of the industrial tribunal was perverse. This appeal tribunal has jurisdiction to deal only with appeals on a point of law. Some appeals are concerned with obvious points of law, e.g. the construction of statutes. Many more are concerned with cases where the point of law is less obvious, e.g. the industrial tribunal can err in law by finding facts which there is no evidence to support or by failing to find facts as to which there was undisputed evidence. Again many appeals allege that the industrial tribunal misdirected itself in reaching its conclusion by overlooking some supposed principle of law (e.g. that there must always be consultation before dismissal). It is in relation to these types of appeal that the Court of Appeal has repeatedly said that the appellate courts should not be astute to interfere and lay down principles of law: the question whether a dismissal was fair for the purposes of Section 57(3) is a question of fact for the industrial tribunal: see Hollister v. The National Farmers' Union (above), Bailey v. B.P. Oil Kent Refinery Ltd .

[1930] ICR 642

, UCATT v. Brain

[1981] ICR 54

[14]However, there is one other ground on which an industrial tribunal can be said to have erred in law, namely that its decision is perverse. In the legal sense, a decision is perverse only if no reasonable tribunal of the kind in question properly directing itself in law could have reached that decision. It is not enough that the appellate court would not have reached the same decision. Obviously the cases in which this Tribunal can intervene on the ground of perversity are few, and the approach enjoined by the Court of Appeal to the exercise by this appeal tribunal of its jurisdiction generally must apply with even greater force to appeals on the ground of perversity. But there is a limited number of cases where the conclusion reached by the industrial tribunal is so plainly wrong that the only possible conclusion is that it must have misdirected itself: see for example London Transport Executive v. Clarke

[1981] ICR 355

at 372; Edward v. Bairstow [l956] AC 14.

[15]In considering whether the decision of an industrial tribunal is perverse in a legal sense, there is one feature which does not occur in other jurisdictions where there is a right of appeal only on a point of law. The Industrial Tribunal is an industrial jury which brings to its task a knowledge of industrial relations both from the view point of the employer and the employee. Matters of good industrial relations practice are not proved before an industrial tribunal as they would be proved before an ordinary court: the lay members are taken to know them. The lay members of the Industrial Tribunal bring to their task their expertise in a field where conventions and practices are of the greatest importance. Therefore in considering whether the decision of an industrial tribunal is perverse, it is not safe to rely solely on the common sense and knowledge of those who have no experience in the field of industrial relations. A course of conduct which to those who have no practical experience with industrial relations might appear unfair or unreasonable, to those with specialist knowledge and experience might appear both fair and reasonable: and vice versa.

[16]For this reason, it seems to us that the correct approach is to consider whether an industrial tribunal, properly directed in law and properly appreciating what is currently regarded as fair industrial practice, could have reached the decision reached by the majority of this tribunal. We have reached the conclusion that it could not.

[17]The first question is: how should the industrial tribunal have directed itself in law? It being conceded in this case that the applicants had been dismissed on the grounds of redundancy (and there being no agreed or customary procedure as to redundancy), in law the only question is whether the requirements of Section 57(3) of the 1978 Act (as amended) were satisfied. That subsection (as amended) provides as follows:

"Where the employer has fulfilled the requirements of subsection (1), then, subject to Sections 58 to 62, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 that question shall be determined in accordance with equity and the substantial merits of the case."

[18]For the purposes of the present case there are only two relevant principles of law arising from that subsection. First, that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law. particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the grounds of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy "as a sufficient reason for dismissing the employee," i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal.

[19]In law therefore the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. It is accordingly necessary to try to set down in very general terms what a properly instructed industrial tribunal would know to be the principles which, in current industrial practice, a reasonable employer would be expected to adopt. This is not a matter on which the chairman of this appeal tribunal feels that he can contribute much, since it depends on what industrial practices are currently accepted as being normal and proper. The two lay members of this appeal tribunal hold the view that it would be impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances: the fair conduct of dismissals for redundancy must depend on the circumstances of each case. But in their experience, there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles: 1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, _f necessary, find alternative employment in the undertaking or elsewhere. 2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria. 2. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. 4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. 5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

[20]The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim.

[21]That these are the broad principles currently adopted by reasonable employers is supported both by the practice of the industrial tribunals and to an extent by statute. A very large number of appeals on cases of alleged unfair selection for redundancy come before this Appeal Tribunal. In the experience of all of us, without exception hitherto the approach of the industrial tribunals has reflected the canons of good industrial relations set out above. In Greig v. McAlpine (above) an industrial tribunal in Liverpool under a very experienced chairman found the dismissal to be unfair. The headnote accurately represents the industrial tribunal's views as follows:

"The respondents had acted unreasonably in selecting the applicant for redundancy in that they had failed to show that they had an objective system of assessment for deciding that the applicant was not to be amongst those retained. In considering the reasonableness of a redundancy dismissal where a selection has to be made between those who are to be retained and those who are to be dismissed, the most important matter on which., the, employer has to satisfy the Tribunal is that he acted reasonably in respect of the selection of the particular employee. That normally involves two questions, namely whether the employer adopted reasonable criteria for selection, and whether those reasonable criteria were reasonably and fairly applied in respect of the individual. ... If an employer adopts criteria other than last in first out for redundancy selection, however, he must be able to show both that the criteria adopted are reasonable and that he has applied those criteria rationally and objectively and, where large numbers are involved, on a reasonably structured and comparative basis. In a situation involving so many employees, it is not sufficient for a single person who makes the selection to say that he has done so on the basis of his management skill and judgment. When so many employees are involved, and a basis of selection is to be used which is open to the possibility of being influenced by over-subjective assessments, or even sheer prejudice, on the part of the person making the choice, it is important that management be able to show that they took sufficient steps to make their decision as objective and unbiased as possible."

[22]In considering the reasonableness of a redundancy dismissal where a selection has to be made between those who are to be retained and those who are to be dismissed, the most important matter on which., the, employer has to satisfy the Tribunal is that he acted reasonably in respect of the selection of the particular employee. That normally involves two questions, namely whether the employer adopted reasonable criteria for selection, and whether those reasonable criteria were reasonably and fairly applied in respect of the individual.

[23]If an employer adopts criteria other than last in first out for redundancy selection, however, he must be able to show both that the criteria adopted are reasonable and that he has applied those criteria rationally and objectively and, where large numbers are involved, on a reasonably structured and comparative basis. In a situation involving so many employees, it is not sufficient for a single person who makes the selection to say that he has done so on the basis of his management skill and judgment. When so many employees are involved, and a basis of selection is to be used which is open to the possibility of being influenced by over-subjective assessments, or even sheer prejudice, on the part of the person making the choice, it is important that management be able to show that they took sufficient steps to make their decision as objective and unbiased as possible."

[24]Although, as we have already said, that decision so far as it stresses the burden of proof on the employer cannot directly be applied to cases on Section 57(3) as amended, it does in our view show the principles of good industrial practice which an ordinary industrial tribunal adopts in testing the fairness of a dismissal for redundancy.

[25]These principles of good industrial relations practice are• Also reflected in statute. Section 99(1) of the Employment Protection Act 1975 provides as follows:

"An employer proposing to dismiss as redundant an employee of a description in respect of which an independent trade union is recognised by him shall consult representatives of that, trade union about the dismissal in accordance with the following provisions of this Section."

[26]Subsection (3) requires such consultation to begin "at the earliest opportunity" and (where ten or more employees are to be dismissed) at least 60 days before the first of the dismissals takes effect. Subsection (5) provides as follows:

"For the purposes of the consultation required by this Section the employer shall disclose in writing to trade union representatives: - (a) the reason for his proposals; (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant; (c) the total number of employees of any such description employed by the employer at the establishment in question; (d) the proposed method of selecting the employees who may be dismissed; (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect."

[27]Subjection (7) requires the employer to consider representations made by the union and, if he rejects them, to give his reasons for so doing. Subsection (8) recognises that there may be special circumstances which may prevent the full discharge of each of these requirements but in such a case requires the employer to "take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances." If there is a breach of the requirements of Section 99 the union (as it did in this case) can obtain a protective award under Section 101.

[28]Breach of Section 99 does not confer any legal rights other than those conferred by Section 101: see Section 99(9).

[29]But in our judgment it does show an approach by the legislature to the correct handling of redundancies where there is a recognised union which echoes what we have said is current good practice: i.e. early warning, consultation with the union, a pre-ordained basis of selection for redundancy. Moreover it reflects the view expressed above that departures from any of these principles is only justifiable in special circumstances.

[30]Again, the Code of Practice issued under Section 6 of the Employment Protection Act 1975 indicates a similar approach. Paragraph 46 provides as follows: "If redundancy becomes necessary, management in consultation, as appropriate, with employees or their representatives, should:(i) give as much warning as practicable to the employees concerned ...

(ii) consider introducing a scheme for voluntary redundancy, retirement, transfer to other establishments within the undertaking and a phased run-down of employment;

(iii) establish which employees are to be made redundant and the order of discharge".

[31]Paragraph 65 and 68 of the Code provide as follows:

"65- Consultation means jointly examining and discussing problems of concern to both management and employees. It involves seeking mutually acceptable solutions through a genuine exchange of views and information. 68. In setting up the consultative arrangements, management should ensure that: (i) the arrangements provide opportunities for employees to express their views on proposed changes which affect them and encourage discussion, at whatever level is most appropriate, of matters closely associated with the work situation; (ii) employee representatives have all the information they require to enable them to participate effectively in discussions."

[32]As has been pointed out in Hollister v. The National Farmers' Union (above) the Code does not lay down absolute rules of law, departure from which by itself constitutes an error of law. But the Code is an integral and important part of the employment legislation in that it does indicate what is good industrial practice which a reasonable employer will adopt; it is a yardstick by which an industrial tribunal should reach its conclusion as to whether conduct is fair. Section 6(11) of the 1975 Act provides as follows:

"A failure on the part of any person to observe any provision of a Code of Practice shall not of itself render him liable to any proceedings; but in any proceedings before an industrial tribunal ... any Code of Practice issued under this Section shall be admissible in evidence, and if any provision of such a Code appears to the tribunal ... to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."

[33]Therefore there is a statutory requirement to take into account a requirement of the Code if it appears to the tribunal to be relevant. In our judgment it would be impossible in law for the industrial tribunal in this case to have reached the view that those paragraphs of the Code were not relevant to the issue before it.

[34]The question we have to decide, therefore, is whether a reasonable industrial tribunal, approaching this case with those principles of good industrial practice in mind and directing itself in accordance with those principles of law, could have reached the decision that the dismissal of these applicants was fair. We reiterate that it is beside the point that we ourselves would have reached 3 different view. We must be satisfied that no reasonable industrial tribunal could have reached this decision. We have reached the conclusion that this is one of the exceptional cases in which the decision of the industrial tribunal is, as a matter of law, perverse.

[35]At the outset, we stress that this was a majority decision of the industrial tribunal, the majority consisting of the chairman and one lay member. The reasons for dissent given by the other lay member indicate that in his view the employers had not observed the standards of a reasonable employer: he points out amongst other things that there were no agreed criteria for selection and no proper consideration was given to placing the applicants in other jobs. It gives us considerable support that out of the four persons with experience in industrial relations who have had to consider the case, three of them are, for broadly similar reasons, satisfied that the dismissals were demonstrably unfair.

[36]Next we note that at no stage in its reasons does the industrial tribunal either refer to Section 57(3) of the 1978 Act or define the question it has to answer. Obviously the members of the industrial tribunal were well aware of Section 57(3) and it would be wrong to assume any specific misdirection in law just because the industrial tribunal have not dealt with the law in giving their reasons. But those reasons do leave open the possibility of such misdirection, in particular a failure to appreciate that they had to be satisfied that the particular applicants before them were properly dismissed, involving as that does a fair method of selection.

[37]In this case, with the possible exception of early warning, none of the principles of good industrial relations practice which we have sought to state was observed. So far as warning is concerned, the majority of the industrial tribunal took the view that the work force were in general aware that further redundancies were in the offing and that the extra four weeks salary offset any unfairness. Although we would not ourselves agree with this view, it is not by itself so manifestly wrong as to be termed perverse.

[38]But as to the rest of the procedure, we are unable to see how the decision of the industrial tribunal can be justified. As to the actual selection of these applicants for redundancy, there was no consultation of any kind. Volunteers for redundancy were considered on the 16th January and that was all. No information was given to the union. There was no attempt to agree criteria for selection or the method of applying the criteria: not even a list of those selected was provided before the dismissals were effective. The majority of the industrial tribunal were obviously impressed by the seriousness of the Company's financial position and the urgent need for reorganisation. Although this was undoubtedly a material factor, we can see no evidence which indicates that consultation was not possible at least on the criteria to be adopted from the 16th January onwards at the latest.

[39]If there had been consultation on the criteria, a reasonable employer would not have insisted on the criteria in fact adopted. The so-called criteria in this case lack any real objective element: the retention of those "who, in the opinion of the managers concerned, would be able to keep the Company viable". Such a criterion is entirely subjective and, as Mr. Hennessy in his evidence accepted, was applied subjectively. The purpose of having, so far as possible, objective criteria is to ensure that redundancy is not used as a pretext for getting rid of employees who some manager wishes to get rid of for quite other reasons, e.g. for union activities or by reason of personal dislike. The danger of purely subjective selection is illustrated in this very case. It was common ground that the relations between Mr. Hennessy and one of the applicants, Mr. H. Williams, were not good. Mr. Hennessy accepted in evidence that he did not care for Mr. H. Williams and thought him a bit belligerent. They did not "pass the time of day". Except in cases where the criteria can be applied automatically (e.g. last in first out), in any selection for redundancy elements of personal judgment are bound to be required thereby involving the risk of judgment being clouded by personal animosity. Unless some objective criteria are included, it is impossible to demonstrate to an employee like Mr. H. Williams who is not on good terms with the person making the selection that the choice was not determined by personal likes and dislikes alone: we would also have thought it was extremely difficult for an industrial tribunal to be satisfied on the point.

[40]The majority of the industrial tribunal expressed surprise at the lack of established criteria for selection, but said that it was "a considerable factor" in their decision that even if criteria had been laid down the same result might have applied. This passage is the one which gives rise to doubt whether the majority did not misdirect itself in law. The industrial tribunal had to be satisfied that the applicants before them had been fairly selected: mere speculation as to whether they would have been selected had consultation taken place and criteria agreed cannot constitute grounds sufficient to "satisfy" the industrial tribunal as required by Section 57(3).

[41]Finally, the employers did not consider transferring employees to a different job involving demotion: such transfer was, as the majority found, "dismissed as a possibility" since it was thought to lead to bad industrial relations and dissatisfaction. If there had been any consultation with the union or the employees involved, there might well have emerged some ground for not considering such transfers. But in the absence of such consultation, simply to rule out the possibility seems to us unreasonable.

[42]In the result, it appears to us that these dismissals for redundancy were carried out in blatant contravention of the standards of fair treatment generally accepted by fair employers. Was any good reason shown why the employers departed from these standards?

[43]As we understand the majority decision, they regard the serious financial position of the Company as the explanation. Certainly this factor might provide an explanation for the employers not having embarked on any prolonged negotiation with the union: we notice, however, that the industrial tribunal who made the protective award were not satisfied that the defences in Section 99(8) of the 1975 Act applied. But in any event we cannot see that the employers gave an explanation why there was not some consultation on or after the 16th January or why the names of those selected for redundancy were never communicated to the union for them to consider and make representations about.

[44]For these reasons we consider that the majority decision was, not merely wrong, but so wrong that no industrial tribunal properly directing itself could have reached it. To anyone versed in industrial relations, the decision offends common sense.

[45]We must add a word of warning. For the purpose of giving our reasons for reaching our exceptional conclusion that the decision of the industrial tribunal in this case was perverse, we have had to state what in our view are the steps which a reasonable and fair employer at the present time would seek to take in dismissing unionised employees on the ground of redundancy. We stres3 two points. First, these are not immutable principles which will stay unaltered for ever. Practices and attitudes in industry change with time and new norms of acceptable industrial relation? behaviour will emerge. Secondly the factors we have stated are not principles of law, but standards of behaviour. Therefore in future cases before this appeal tribunal there should be no attempt to say that an industrial tribunal which did not have regard to or give effect to one of these factors has misdirected itself in law. Only in cases such as the present where a genuine case for perversity on the grounds that the decision flies in the face of commonly accepted standards of fairness can be made out, are these factors directly relevant. They are relevant only as showing the knowledge of industrial relations which the industrial jury is to be assumed as having brought to bear on the case they had to decide.

[46]For the reasons that we have stated, we allow the appeal and substitute a finding that the four appellants were unfairly dismissed. We will remit the case to a differently constituted tribunal to assess the compensation. Leave to appeal to the Court of Appeal; proviso that if appellants wish to make representations thereon, they may do so. P. A. HASWELL, 5 CASTLE HILL VIEW, BARDSEY, LEEDS LS17 9EE. VERBATIM REPORTER AND TAPE TRANSCRIBER