Nationwide Anglia Estate Agents v Hooper [1992] UKEAT 360_91_2301

EAT
Nationwide Anglia Estate Agents v Hooper
[1992] UKEAT 360_91_2301 · 1992-01-23
MR JUSTICE WOOD (PRESIDENT): The applicant, Mr Andrew Hooper, who was born on 20th March 1963 was employed by the respondents, Nationwide Anglia Estate Agents, from 5th April 1988 until 31st October 1990. His experience was some five years in Estate Agency when he joined as a senior negotiator. In December 1989 he was promoted to what is called New Homes Area Manager and worked from an office in Winton in Bournemouth.It is perhaps as well to understand the sort of structure that exists in an Estate Agents office. There is first of all, at the bottom of the ladder, the junior negotiator; then there is the senior negotiator who will have some members of staff under his responsibility; then one moves up into management and Mr Hooper was on the bottom rung of management. His particular function, as might be indicated from the description, was that he tried to obtain appointment for the firm where there were new developments and of course the most desirable situation was if they were sole agents, otherwise they might be joint agents for the sale of houses in a new development in the region.In the region involved there were some 25 branches, but the whole Nationwide organisation in the country was divided into areas and an area divided into regions. The area with which we are involved extended southwards from the Cotswolds, west of Cornwall and east to Hampshire. That area in its turn was divided into 3 regions. The regions were conveniently those regions which had been covered by the 3 firms which had been taken over by Nationwide. The name of the firm in Hampshire was Austin & Wyatt, in Cornwall was Cooper & Tanner and in Bristol it was Sandows but as the name of the respondent indicates, the employees were all employees of Nationwide Anglia Estate Agents. We were informed that the number of offices countrywide was something over 400.At the time that Mr Hooper was employed in his managerial capacity he reported to a Mr Atkins; Mrs Keeble also reported to Mr Atkins. Mr Atkins reported to the Managing Director. At the end of August 1990, Mr Hugh Webster was appointed Area Director, Land and New Homes for the whole of this area. It is important not to muddle the phrase "area" with "region". Mr Webster examined the overall situation and as everyone knows the sale of property has been very slow in recent years. The financial situation was unsatisfactory and a reorganisation was therefore planned.Mr Webster was going to take over from Mr Atkins and it was important that a member of staff should be made redundant. It was either to be Mr Hooper or Mrs Keeble. The problems facing Mr Webster were obvious and he considered it of the greatest importance to try and maintain the personnel in the branch because of the confidence that would give to the clients.Mr Webster thought that Mrs Keebles principal attribute would be to provide that continuity to the site sales staff and that she had the important role in keeping client developers. He discussed with her her own views on those matters and it was decided, that Mr Hooper was to be made redundant. It was noted by the Industrial Tribunal that there was no similar discussion with Mr Hooper.It is right to say, and we can eliminate this aspect of the problems before us quite quickly, that there were one or two other alternative employments which were considered by the Tribunal and where others were appointed. The respondents were not criticised for appointing others because there were grounds for thinking them more suitable than Mr Hooper. Mr Hooper would not in any event obtain those posts.Having decided that Mr Hooper was to be made redundant Mr Webster consulted Mr Moody, who was the Regional Sales Director and was also Personnel Manager for the region. It was said that Mr Moody pointed out to Mr Webster that there were no suitable posts for Mr Hooper. This aspect of the case has assumed, and naturally assumed, considerable importance.First of all, Mr Webster was responsible for the area, Mr Moody was only responsible for one of the 3 regions but he also had a role of Personnel Manager for one of those 3 regions. We have been helpfully provided with the notes of evidence by the learned Chairman and it is important to note one or two things in connection with the consideration of alternative employment. In his evidence in chief Mr Webster is recorded as saying:-
"I then considered Mr Hooper's position. In terms of residential sites I asked Mr Moody of Personnel but he said there were no posts suitable. He will give evidence."
It seems to us clear from that that Mr Webster was only looking for posts in terms of residential sites. Later in cross-examination Mr Webster made it clear that he was only looking for a position that was "suitable" for Mr Hooper, that is of course, suitable in the view of Mr Webster; he adds to that when he says this:-
"There was not a position for you. Not a role I foresaw for you in Land and New Homes. That was not to say there was not a post elsewhere."
That seems to us to point to the fact that Mr Webster was somewhat narrow in the search that he was making and that he was not casting his net as widely as he might. Mr Moody gave evidence about this matter and expressed some doubts about the administrative skills of Mr Hooper; his relationship with some residential offices was not as pleasant as it might have been. On the question of alternative employment Mr Moody said:-

"I was not aware of a vacancy at Ringwood. ~Vacancies are published."

As far as we can gather there is no documentary evidence about those publications but it is surprising that the Personnel Manager was not aware of the vacancy at Ringwood. Then in answer to the learned Chairman Mr Moody is recorded as saying:-
"There is no nationwide system of the vacancies. We have had three years of change. Takeover of small companies; yet there is no national job shop."

In answer to a direct question: the note is recorded thus:-

"Could something more have been done?" Answer:
"Yes it could have been done. You take a person for a specific vacancy and don't consider the possibility of filling it from elsewhere."
It is important in our judgement to look at the whole of that picture in the light of the later finding of the Industrial Tribunal.Having decided that Mr Hooper was to be made redundant there were, in fact, two meetings between Mr Hooper and Mr Webster. The first was on 20th October 1990, at Castle Carey in Somerset; there was a general discussion about progress but the issue of redundancy was not raised. Nine days later on 29th October, Mr Webster arranged for Mr Hooper to visit him a second time. On that occasion Mr Hooper was presented with a letter dated that same date telling him that his position in the New Homes Division of Austin & Wyatt was redundant as "his area was to be absorbed between Austin and Wyatt, Southampton, and Cooper and Tanner New Homes." It was said that this in no way reflected on his performance and he was given two weeks' redundancy payment, added to a month's salary in lieu of notice, that was a total of £750 paid gross.The Tribunal drew attention to the fact which we consider was clearly, in their minds, of importance when they said this in para 6(k) of their decision:-
"Mr Webster signed a leavers advice form upon which was noted that his relationships with clients were good but with colleagues were satisfactory/poor and in answer to the printed question "Would you re-employ?" responded "No." He also found that the company policy did not permit him to supply an open reference; one can be supplied only on request from a prospective employer."
Why that is likely to have been of importance to the Industrial Tribunal is that in the notes of evidence on the very last page in cross-examination by a solicitor for the respondents, it is noted by the learned chairman that Mr Hooper had approached a Mr Stonier, who was the District Manager in Bournemouth, and I will read the short passage:-
"As to the offer the District Manager in Bournemouth, Mr Stonier. He approached me several times at the Winton office mentioned management in the town centre office. This was 4 to 6 weeks before redundancy. He even mentioned money. We last spoke after I was made redundant when I said I was ready to have a go. He said he would think about it. I went to see him but he could not offer anything. He took back everything he had said."
That seems to indicate that the leaver advice document, to which we have already referred, must already have been known to others. Those then are the bare facts that are relevant to the decision although there are other facts carefully set out by the learned Chairman in the Reasons.The first issue which the Tribunal had to decide was whether there had been a genuine redundancy and they did so find in paragraph 9. Secondly they turn to the consideration of Section 57(3) of the Employment Protection (Consolidation) Act 1978 and the Tribunal say this in paragraph 11:-
"The Tribunal first noted that the decision as to who to make redundant rested between Mr Hooper and Mrs Keeble. The criteria given to us in evidence were very limited (see paragraph 6(f) above). There was no consideration of other factors such as length of service or personal circumstances of hardship all of which, while not in themselves vital to a decision should form part of the background against which a decision is made. We also noted that while Mr Webster had a discussion with Mrs Keeble to ascertain her views on the way the section should run, he had no such discussion with Mr Hooper."
It is right to note, as Mr McCall pointed out to us, that there is no specific finding that the selection was unfair, likewise, it is abundantly clear that there is criticism and comment upon the way in which that particular phase of decision making had been carried out. The Tribunal made two specific findings upon which they based their decision that this dismissal was unfair. In paragraph 13 they deal with consultation. The paragraph has been analysed carefully by Mr McCall but as we do not accept his submissions on the proper understanding of that paragraph, we should read it in full.
"What the Tribunal does criticise however is first the lack of consultation and secondly management's failure to look over a wider area for alternative employment for Mr Hooper. Dealing with the first point, Mr Webster told us (paragraph 6(i) above) that it is not customary to give prior warning to persons who are liable to be dismissed because of the damage they may do to the respondents. In our view, in every case it is necessary to achieve a balance between fairness to the employee and to the respondents. In our view the only way that fairness to an employee who is not consulted before he is dismissed can be achieved is by a substantial severance payment. Where, as in this case, the reason for the dismissal is a neutral one, ie. redundancy rather than for example, conduct, it cannot be fair to take away someone's livelihood, more or less on the nod, and make it fair or reasonable to do so by the addition of only a couple of weeks' pay."
The reference to "customary" policy of the company referred to what was said by Mr Webster - the passage in the notes of evidence which refers to that matter states:-
"Its not policy to discuss potential redundancy with staff. They could seriously and quickly damage our client bank."
It is a little difficult to understand quite what that sweeping statement means in the context of the particular appointment which Mr Hooper had. One can imagine that he would have needed contact with developers in the relevant area, I use that phrase with a small "a", and no doubt he would have been in competition with other estate agents but it is difficult to see what delicate, confidential information he might have which could have been of use to others other than in the normal way in which competition is to be found in the commercial and industrial scene. However, there it was.The interpretation which Mr McCall puts upon paragraph 13 is this. He submits that the Industrial Tribunal only thought that the lack of consultation was unfair because no substantial payment had been made. It is difficult to see how that logic can be substantiated. If there was unfairness in total lack of consultation it may very well be that any claim to compensation would be wholly overtaken by a substantial payment by way of severance. It seems to us difficult to imagine circumstances, although there might possibly be some, in which the unfairness of the lack of consultation can be remedied by the making of a severance payment.As we read that paragraph the criticism is first of all of lack of consultation and then the comment, which need not have been made but was made, is as to the fairness to an employee. The overall fairness looked at after compensation had all been dealt with might well be affected by a very generous severance payment but that would not affect the unfairness of the dismissal. However, as there is no explanation about the custom of not consulting, it seems to us that a proper reading and an overall reading of that paragraph in the context of the whole decision makes it quite clear that there was criticism of the fact that there was no consultation.This Court over numerous years and indeed the Court of Appeal and the House of Lords have emphasised the importance of consultation - consultation with trades unions; consultation with individuals. Every case must depend upon its own facts, that has been said time and again. In our judgment there must be somewhat exceptional circumstances if no consultation is to take place. One bears in mind examples which have already occurred in some cases such as the financial catastrophy that descends upon you at 24-48 hours notice where it really is a complete crisis. One could also envisage a situation where the question of confidentiality and security in the circumstances was of paramount importance, possibly even with some doubt about leakage which could not be proved, that might be a situation. There may be others but as was stressed in Polkey , lack of consultation can only be explained if consultation itself would be utterly futile and where that could reasonably considered to be the situation by the employer. In this case no situation of that kind exists and in our judgment the Industrial Tribunal were perfectly entitled to be critical of the lack of consultation.The second criticism made was that insufficient exploration of alternative employment had been made. A number of the points that were before the Tribunal have already been referred to. The Tribunal felt that in any event there could have been a search made at higher than than regional level. The implied criticism partly expressed, partly implied was that the search was only within the region; secondly, that it was only for such jobs as Mr Webster thought that Mr Hooper would be suitable for, there was no question of asking Mr Hooper. Thirdly, it was surprising that Mr Moody was unaware of a particular vacancy. Fourthly, it would have been open to the Industrial Tribunal to query the genuineness of the search in the light of the opinion formed of Mr Hooper in that document which is called a "leavers advice" where the comment was that he was not to be re-employed. If that is circulated nationwide, the chances of him obtaining employment elsewhere may be remote. They did not look to see whether there was some opening. Indeed, the evidence indicated that Mr Moody thought that might have been achieved. Here again, despite the able criticisms of Mr McCall, we cannot accept that there was no evidence to support this finding.We turn, therefore, to the question of compensation. This we have found to be a difficult aspect of this case. The notice of appeal submits that there was no evidence upon which the Tribunal could properly make an award, either a basic or a compensatory award. We concentrate on the compensatory award as in fact the basic award is only £22.Because there are no notes of evidence relating to this Mr McCall rightly recognises that he is bound by the findings in the reasons. These cases where the basis of unfairness is procedural have been causing problems throughout the country and we have seen a number of them here. It is possible at the two extremes to say that even if the dismissal had been properly carried out there would have been no chance of the employment continuing and at the other end of the spectrum it might be possible for a Tribunal to say "we think here that if the selection had been carried out properly or, if indeed the search for alternative employment had been carried out properly, we might identify a particular job and therefore it is quite clear that the employment in our view would have continued". Where those two issues are considered as they always should be, it is always helpful if an Industrial Tribunal so states.It is quite apparent to us here that the Tribunal must have gone through that thought process and reached the conclusion that neither was the position in the present case. There is therefore a position somewhere in the middle between those two extremes and where an Industrial Tribunal must do its best to decide what is fair, just and reasonable between the parties. There is nothing specifically stated in this decision on those two extreme positions.The way in which the Tribunal approached it was this, they found that Mr Hooper had taken all reasonable steps to mitigate his loss, they then took the period up to the hearing from the date of dismissal - that was 21 weeks - and they made a calculation on salary and less of use of car over that period. Then they took a further 12 weeks and did a similar calculation making a total award of £6832. How then were they thinking this through - are we able, bearing in mind the evidence, the findings and the overall approach, to understand how the mind of the Industrial Tribunal worked or is this a situation where looked at in this way it ought to be remitted.It is at this juncture that we remind ourselves first of all that we must not sift through a judgment from an Industrial Tribunal, to use a well known expression, with a fine tooth comb nor must we forget that the Tribunal saw and heard the witnesses and were able to form their views about the matter on the spot from the evidence before them.This award is not at the top end of awards nor is it de minimas but in the light of the evidence and the findings, we have, after considerable thought, decided that it is possible to accept that this Tribunal with its experience did look at the overall situation. It seems to us that the view being taken was that alternative employment might very well have been available - no certainty but might have been available - and there were possible reasons here other than the reasons of pure redundancy why there were such difficulties. If there were other reasons then the employer should so state them and rely upon them.Viewed afresh we accept the submissions by Mr Allston that, looked at in the round, it is possible to understand that the Tribunal felt that there was a situation here where there might very well have been other employment or in any event there would have been a prolonged period in which he might have been looking for other work and that the employers had stymied themselves by simply not consulting at all about this matter or listening to any suggestions that Mr Hooper had to make or any consideration of other employment at a lesser salary which he might have been prepared to accept. It is right that we do not know the extent to which the enquiry took place before the Industrial Tribunal because we have no notes of evidence. The appellants must accept, therefore, the findings and the reasonable inferences to be drawn from those findings.Taking all those matters into account and doing the best we can on the reasonable inferences to be drawn in the circumstances, we have taken the view that justice was done in this case and that the decision of the Industrial Tribunal, despite the able submissions of Mr McCall, cannot be critisised. It follows therefore that this appeal must be dismissed.