Wardle Storeys Plc v Parry [1991] UKEAT 566_91_0211

EAT

Wardle Storeys Plc v Parry

[1991] UKEAT 566_91_0211 · 1991-11-02

MR JUSTICE WOOD (PRESIDENT): This is an appeal by Wardle Storeys plc from a decision of an Industrial Tribunal sitting at Manchester on the 22nd August 1991 under the Chairmanship of Mr Bellis.

The Applicant was a Mrs Pamela Parry. She was alleging that she had been unfairly dismissed in the course of a redundancy exercise.

The Tribunal found that she was unfairly dismissed but awarded her no compensation. Applying the principles of Polkey v. A E Dayton & Co. Ltd

[1988] ICR 142

, they decided that even if a procedural failure, which they found to have taken place, had been correctly carried out, nevertheless she would inevitably have been dismissed.

The Respondents found that they were in difficulties in late 1990 and the early part of 1991, as a result of which a number of their employees were going to have to be made redundant. There is no issue that a redundancy exercise needed to be carried out.

The relationship between the management and the relevant trade union seems to have been a good one and the management, in the light of the decision which was going to have to be made, consulted the trade union. That was entirely appropriate and a sound industrial practice, indeed, required by law. They did so on the basis that the shop stewards would not disclose names of those who might be within the bracket for a dismissal on the grounds of redundancy, and discussed those individuals, and presumably the jobs that they were doing, with the shop stewards.

Eventually a list was agreed between the trade union and management. On that list was the Applicant, Mrs Pamela Parry. The management called Mrs Parry in to see them and it was clearly contended before the Tribunal that this was the consultation with the individual. The Tribunal took a contrary view. They deal with that interview at paragraph 6 of the decision, they say this:

"The applicant was eventually seen. The purpose of this meeting was to tell her that she had been made redundant. The respondents tried to call this a consultation meeting but it was of course nothing of the kind. It was to be a meeting to convey the information of redundancy. The applicant had got wind of her selection and so the meeting with Mr Parker was a brief but stormy one."

The Applicant had a right of appeal. That appeal was heard by Mr Parker and Mr McDonald. The Tribunal err in saying that Mr McDonald had been involved in the earlier selection process, but Mr Parker clearly had. We do not think that makes any difference in the light of the view taken by the Industrial Tribunal.

They deal with their criticisms in paragraph 8, and say:

"It is unusual to find unfair a dismissal that has followed an agreed procedure. In this case, however, we fell justified in saying that it was clearly unfair for the respondents to be privy to a state of affairs that deprived the applicant of any right of consultation apart from what consultation there was at the whim of the shop stewards. It was clearly also unfair for the Appeal Hearing to be conducted by Mr Parker and Mr McDonald. We are satisfied, however, that the respondents applied their minds properly to the applicant's selection applying the agreed criteria which appeared to us to be fair. It is equally a fact that the shop stewards were given the reasons for the applicant's selection and did not disagree with it. It is also a fact that the regional officer of the union expressed no dissent with the applicant's selection. It seems to us likely that had the applicant been properly consulted then she might well have accepted her redundancy. As it is, she quite naturally feels a very strong sense of grievance by merely being notified of her selection for redundancy."

They go on to deal with the Section 57 aspects later.

The nub of this case is a failure to deal with the individual and consult the individual. Paragraph 6, to which we have already referred, was merely informing her of the decision already reached. This is, if the Company wanted to hear us say it, a fundamental error in the application of their practices to the law. The law protects the individual so that whereas it is entirely correct for the employer to discuss with the trade union the problem of redundancy and the identity of those who may be within the bracket of selection, and possibly even agreed some names, nevertheless, the decision whether or not to dismiss for redundancy is the responsibility of management. They cannot shirk that decision merely by discussions with the trade union. It is the individual who is losing his or her employment and it is with the individual that management is required to consult. Therefore, although it is likely that the Applicant would have been dismissed in due course - even after consultation - it is the right of the individual to be told of the risk of dismissal for redundancy and to be asked whether he or she has any comment to make or any suggestions to make in order to see whether either that she need not be included, or, to discuss alternative employment. It is that criticism which has been levelled at this Company in its procedures.

It is, of course, dependent upon the circumstances of each case as to what is reasonable consultation and indeed, as has been observed in some earlier authorities and decisions of this Tribunal, there may be those most extreme cases where it is quite impossible to consult and where the employer in the terms of the speeches in the House of Lords in Polkey would reasonably consider that it was utterly useless and utterly hopeless to consult. But, generally speaking, the tendency and the leaning should be towards individual consultation as a matter of sound industrial practice.

In this preliminary hearing we are looking to see whether there is an error of law in the decision of the Industrial Tribunal. We are quite unable to observe any error of law but it has been a useful hearing because the Industrial Members sitting with me have been able to put forward and support the views, which I hope are accurately expressed, in this short judgment.

For the reasons which we have given we are quite unable to say there is any error of law or any perversity in the finding of fact. This appeal must be dismissed at this juncture.