Yannedis & Co Ltd v Griggs [1992] UKEAT 177_92_2810

EAT
Yannedis & Co Ltd v Griggs
[1992] UKEAT 177_92_2810 · 1992-10-28

JUDGE J HULL QC: This is the unanimous decision of this Tribunal.

This appeal is brought by the employers, Yannedis & Co Ltd, who are a building company, against a decision of the Industrial Tribunal at London North who heard the application of Mr Griggs on 17 December 1991. Mr Griggs was employed as a driver and he had been so employed for about ten years. He complained that he had been unfairly dismissed. It was conceded on his behalf that there was a redundancy situation, if I can use that loose phrase, and he complained that he had been unfairly selected for redundancy. The facts are set out admirably in the decision of the Tribunal and although we have been referred very shortly to parts of the evidence, it appears to us that the facts stated in the Tribunal's decision are sufficient to enable us to decide this case.The employers were a small company with about 54 employees who were all relatively well known to the management. In August 1991 it had become clear to the employers, who were suffering losses, that there would have to be reductions in staff. The management decided that six members of staff would have to be made redundant including one of the two van drivers.The two van drivers were the applicant, who was then a man of 61 and is now 62, and a Mr Colin Warren who was almost a generation younger, in his early forties. Mr Warren had a young family and the applicant, Mr Griggs, had a grown up family and this was one of the matters which the management considered. They were unused to a redundancy situation and they regarded both drivers as being of equal competence, efficiency and attitude but they did take into consideration the matters of difference which I have mentioned. They then did something which led to the finding of unfair dismissal by the Tribunal. The Tribunal say:
"4 ......... It is common ground that there was no advance warning of any kind, no consultation with the Applicant or for that matter any with any of the other employees. In other words the company did not seek voluntary redundancies, they did not make investigations as to other available employment, they did not take any other steps of that kind. The Applicant was naturally deeply shocked at the surprise news of this redundancy ....."
It was felt by the employers that it would be less hardship to him, as a man with a grown up family nearing retirement age, to suffer compulsory redundancy than it would have been for his younger colleague Mr Warren. It is conceded by Mr Vincent, who has appeared before us today for the employers, that it was a difficult balancing exercise as these were both excellent employees.The Tribunal were pressed with the submission that consultation would have made no difference and they had to decide whether the dismissal was fair or unfair. They referred to The Industrial Relations Code of Practice . Mr Vincent entirely accepts that management should have consulted those concerned as part of the redundancy process and the finding of unfair dismissal which rested on that failure to consult is, therefore, one which he does not seek to disturb. The Tribunal having referred to the Code of Practice say:
"7 ................. Although the failure to consult would not make a dismissal unfair automatically, and each case has to be looked at in its own circumstances, we are satisfied that in this case, it would have reasonable for this company acting as a family company to have taken the employees, in particular the Applicant, a long-serving employee, into their confidence and to have asked them for their views. That might well have led to an offer of voluntary redundancy, either from the Applicant or other members of staff. The Respondents could have looked at the position of the warehouse staff and others to see what other changes could be made, so as to make this as painless as possible for all the staff concerned. Consultation and warning is not a mere paper exercise. The purpose is to allow some involvement by the staff, so that they can have an easy passage out of the employment if that is necessary or if possible to find other ways of mitigating the hardship. Unfortunately this company, which has no previous experience of redundancies, failed to follow a fair procedure. In those circumstances we find that the dismissal was unfair."
Having found that the dismissal was unfair it became their duty to decide what, if any, compensation to award in respect of the unfair dismissal and having dealt with the loss of wages up to the date of the hearing, making proper deductions, they go on to make the major part of their award which is:
"11 Estimated Future Loss of Wages . In this respect, a lump sum has to be awarded which is obviously based on the best estimate which the Tribunal can make of future losses. On the one hand we have the fact that the Applicant is a man of 61 years of age. ....."
They record his unsuccessful attempts to find work and they say that the employment situation is very difficult. They go on to say:
"...... Against that very substantial loss to him, we have to take account of a number of other contingencies. The first and most important, is the chance that he would have been made redundant even had the employers followed a fair procedure. ...."
Mr Vincent says that on the evidence they should have concluded that that was inevitable.
"... What were the prospects of his retaining the job had there been fair warning and consultation in this case? There were two van drivers, they were regarded as of equal competence and the only difference was their age and family responsibilities. It seems to us in all the circumstances, that had there been fair warning and consultation, there was a fifty per cent chance that the other driver would have been selected, either by voluntary redundancy or compulsorily. It is impossible for the Tribunal to say what weighting should be attached to other factors which may have been taken into account, such as length of service and difficulty of finding re-employment. Accordingly we consider it would be just and equitable to reduce any award of compensation for future losses to the extent of fifty per cent, in other words we are saying there is a fifty per cent chance that with proper warning and consultation it would have made no difference."
They awarded the substantial sum of £4,383.60 by taking into account their fifty per cent chance that it would have made no difference and multiplying the net pay by 30 weeks.I do not need to go into details because Mr Vincent puts it quite shortly, he says that bearing in mind the considerations which were put to, and accepted by, the Tribunal, being management's consideration and the other evidence in the case, the Tribunal should have concluded that no amount of consultation would have made any difference. Then he refers to the consideration given to this matter by the Tribunal as resting on purely speculative considerations such as the prospect that a volunteer for redundancy might have come forward or, for example, that somebody might discover that his health made it convenient for him to retire at that point. He says that it is purely speculative.We were referred, very helpfully, to Polkey vAE Dayton Services Ltd [1988] ICR 142 , and as is well known that Judgment is concerned with the important question of whether a decision to dismiss which was otherwise unfair could be rendered fair by the reflection that even if fair methods had been used throughout by the employer the result would have been the same. The House of Lords said that to introduce that latter consideration into it was wholly inadmissible; the question was whether the employers had acted fairly and reasonably in dismissing. In the light of that their Lordships made further observations which they intended to help Courts of first instance in deciding these matters. Lord Bridge of Harwich quoted, at the bottom of page 163, the words of Browne-Wilkinson J in Sillifant v Powell Dyffryn Timber Ltd [1983] IRLR 91. This Judgment had been quoted extensively in the main judgment of Lord Mackay with which all the other Lords agreed. Lord Bridge (adding a little to the Judgment of Lord Mackay but in this respect it seems to us following entirely what Lord Mackay said) and quoting Browne-Wilkinson J, said:
"There is no need for an "all or nothing" decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."
What Mr Vincent is saying to us is that the only conclusion on the evidence in this case is that that reduction should have been 100%, that is to say, that the Industrial Tribunal should have been satisfied on the evidence which they heard that no amount of fairness, no amount of consultation, however well directed, would have made any difference. It appears to us, with great respect, that that proposition is one which it is impossible to sustain on the facts of this case. Once it is admitted that the choice between Mr Griggs and his younger colleague was a difficult one involving all sorts of considerations of humanity and social policy, it becomes quite unsustainable to say that the result of that difficult balancing exercise would necessarily have been the same; particularly if the Tribunal is considering the matter months later, with the benefit of hindsight and having, no doubt, heard much evidence which was or might not have been in front of the employer. The question for the Tribunal is, did the employer act reasonably and if not what would have been the result if he had acted reasonably? In that they had the guidance of what Lord Bridge said when quoting from the Judgement of Browne-Wilkinson J.It appears to us that in those circumstances the Tribunal was bound to do its best to assess the loss suffered by Mr Griggs as a result of the unfairness. They clearly were not satisfied that consultation would have made no difference. In paragraph 11 of their decision they dealt very fairly with the matter and referred to contingencies. Now it may be, as Mr Vincent says, that reference to possible redundancies being made in the warehouse was an entirely fanciful matter which had not been investigated in evidence. The prospect that somebody might come forward for voluntary redundancy appears to us to fall into a different category; there are all sorts of circumstances which even the best employer of a small firm may be unaware of.Finally, the question of which of these two men was to be chosen for redundancy was a matter which the employer had to consider, with a possible result that the other man would have been chosen. We are quite unable to see that the Industrial Tribunal was not entitled to take that view. It had been described to them and is described to us as a difficult balancing exercise and we ask ourselves: why should the Tribunal in those circumstances, following the guidance of Lord Bridge, not have said "it seems to us in all the circumstances that had there been fair warning and consultation there was a 50% chance that the other driver would have been selected". It was a matter for them with the benefit of the industrial experience of the two industrial members and having seen the witnesses (which we have not), it was open to them to reach that finding of fact.The assessment of the loss and the award of compensation is a matter of fact for the Tribunal which sees the witnesses and assesses the evidence. That is exactly what the Tribunal did on this occasion. It is perfectly true that each of us, had we been sitting as the Industrial Tribunal, might have reached a very different conclusion; might have concluded after hearing the evidence called by the employers, which included the evidence of 3 of the most senior management, that there was no realistic prospect that the other man would have been chosen. We might have concluded that the possibility of a volunteer coming forward or a reorganisation taking place was purely fanciful and something which we could ignore. We might have concluded, as Mr Vincent invites us to do, that in fact the consequence of the unfairness was nil in the sense that any amount of fairness would have led to the same conclusion.The mere fact that we would or might have reached a different conclusion from the Tribunal on fact is not something which we are allowed to take into consideration. All we are allowed to do is to consider questions of law. That is stated quite clearly in the Act and the question of law is, was the Industrial Tribunal entitled to reach the conclusion which they did? Having considered that as carefully as we can we are unanimously of the opinion that the decision is one which the Tribunal were entitled to reach and they were entitled to assess the compensation in the way which they did.