Przytocki v Trafalgar House Group Services [1993] UKEAT 384_91_2012

EAT
Przytocki v Trafalgar House Group Services
[1993] UKEAT 384_91_2012 · 1993-12-20

JUDGE HARGROVE QC :

The Appellant claims that he was unfairly dismissed because his selection for redundancy did not follow the Respondents' procedures. He was a building site manager and by January 1991 the Respondents had decided to "build out" the site, that is to leave the internal finishing uncompleted and consequently the provision of a individual site manager at that site (Hunters Ridge) could not longer be justified. In all there were some 22 sites, but those which came into principal consideration were 6 sites, one of them being Hunters Ridge.The employers maintained that their approach was that the least satisfactory of the site managers should be made redundant. They came to the conclusion that the Appellant was the least satisfactory and they did so after a Mr Pendlebury and a Mr Greenaway had visited the site on a number of occasions. They formed the view that the standard of the site was very poor and Mr Pendlebury described the work as "abysmal". It was fair to say that the site had always been a problem site and that the Appellant reported to a Mr Level who, in 1989 and 1990 had completed appraisal reports on the Applicant which spoke highly of him. These reports do not seem to have been considered by management in reaching their conclusions. Mr Coker, the regional managing director of Ideal Homes Ltd, had formed the suspicion about the Appellant's honesty shortly after his appointment. He mentioned this matter to Mr Pendlebury and this resulted in an entry being made on the termination advice and report by Mr Pendlebury that:"There is a question mark against Henry's honesty".The Appellant had no knowledge of this doubt in the mind of his employers. He only had it drawn to his attention after he had asked for his appraisal forms and other documentation to be disclosed and it is obvious that he did so in the confident belief that such documents would reveal that his performance and behaviour had been satisfactory. The Tribunal dealt with this in the following manner:"3.(vii) When submitting the terminal report, having selected the applicant, Mr Pendlebury made the comment on the form that "there is a question mark against Henry's honesty". This appears in the section of the report which was to be used as a basis of a reply for any reference to the company from a future prospective employer. Mr Coker had first formed a suspicion about the applicant's honesty soon after his appointment in 1988. When Mr Pendlebury became the managing director in October 1990 Mr Coker passed on to him his suspicions. Much of the hearing was concerned with trying to establish what part was played in the decision to dismiss by this doubt as to the honesty of the applicant. (The Tribunal comments that in the absence of an advocate representing the applicant it took on itself to probe this issue with the respondents' witnesses.) It was established by all concerned that these were mere suspicions properly referred to as a `question hanging over', and that there was no substantial evidence. The Tribunal wishes to place on record that it considers it to be unfair and wrong for an employer to cast doubts on the honesty of a former employee when giving references unless it has some firm base for so doing and that it should not cast such doubts merely on grounds of suspicion. The Tribunal makes this comment in the hope and expectation that the respondents will see their way either to expunging that comment from its records or else to scrupulously refrain from using it in any references it gives to or for the applicant.(viii) The respondents had a procedure for providing lists of vacancies in the other companies in its group and that these would then be consulted with a view to finding alternative employment for a person being made redundant. This procedure was not followed in this case. Mr Coker gave evidence which was accepted that it would be some extent "a sham" because there really were no appropriate jobs to offer. But furthermore he considered that it would not be appropriate to offer alternative employment to someone about whom he had suspicions as to their integrity. The important point to note is that there was no consultation with the applicant on this matter. In evidence he indicated that he would have been prepared to move his home and to have taken a reduced salary".4. In stating its conclusions the Tribunal wishes to emphasise that it has not been concerned to establish whether there were good grounds for the suspicions concerning the applicant's honesty. His honesty and integrity have not been an issue for the Tribunal. In reaching a conclusion which is adverse to him on this claim no inference should be drawn on that issue as to his character. The first conclusion of the Tribunal is that redundancy was the genuine reason for the dismissal and that a redundancy situation did exist. The main issue was whether it had been reasonable in all the circumstances to dismiss on grounds of redundancy."The Tribunal pose itself the questions of whether it was reasonable to select the Applicant as being a person to be made redundant and secondly whether it was reasonable to make no offer of alternative employment. The Tribunal continues at paragraphs 6 and 7:
"The selection was on the basis of performance ie the results seen on the site. The Tribunal considers that this did meet the requirements of the criteria. It was an operational requirement to select the least good of the six site managers. This was not in its view an appropriate matter for consultation since it would involve invidious comparisons being made with fellow site managers. Furthermore the Tribunal considers that it was reasonable for Mr Pendlebury to pay some regard to the doubts expressed by his superior, who had known the applicant since he first came to work for the company. The Tribunal is satisfied that this doubt as to the honesty of the applicant was not an overriding consideration and it accepts Mr Pendlebury's evidence on this aspect.
The Tribunal is more concerned at the lack of consultation with regard to alternative employment. It accepts that the recession and cutbacks meant that there were no obvious suitable alternatives to offer. But Mr Coker had formed this view of the applicant and considered it would not be appropriate to re-locate him. So whatever alternatives might have been found to be acceptable were not considered. Suspicion without any tangible evidence played its part in depriving the applicant of whatever opportunities consultation might have provided. The question therefore is whether that fatally flawed the decision to dismiss without looking for alternative employment. With so many people losing their jobs (250 a few months before) the Tribunal considers that it is not unreasonable for the employer here to think twice before making efforts to retain the services of an employee in a position of responsibility about whom there had been these doubts for some time, which doubts were in no way lessened by the continuing thefts on his site. It concludes therefore that it was within the range of reasonable responses to dismiss without consultation about the faint possibility of alternative employment."The Appellant points out that there was a lack of consultation in this case and that there were a number of matters which, had he been consulted, the Appellant would have raised.There is no doubt that the Tribunal in this case asked itself the right questions and was satisfied that there was a genuine redundancy situation. It posed the correct question in relation to reasonableness. From the passages set out above, it is quite clear the Tribunal had the question of consultation fully in mind. It decided that the selection of the Appellant was reasonable. While an employer, who does not consult runs the considerable risk that the decision he makes is unreasonable, there is no legal duty to consult; see Hollister v NFU [1979] ICR 542. Moreover, the Tribunal agreed with the view of the employer that the absence of consultation did not make the position unreasonable because the relative merits of the various site managers was a matter upon which the Appellant could make no useful contribution. In our view there was in relation to this no error of law; the Tribunal clearly had the matter of consultation fully in mind. They examined it and they reached a conclusion for which there was adequate evidence. They formed the view that the lack of consultation was reasonable and that a reasonable employer would have dismissed without consulting. This is a matter which is entirely within the ambit of the Industrial Tribunal and there being no error of law or perversity, that aspect of the appeal failed.It is further argued the Tribunal's approach towards the suspicions of the Appellant's dishonesty was flawed and that had a proper approach been adopted the Tribunal could not have found that the dismissal was fair. This perversity argument revolves around the manner in which the Tribunal dealt with the evidence of Mr Pendlebury, that the doubts regarding dishonesty was not an overriding consideration. The argument placed before us has been that if it was not an overriding consideration, it must have been a consideration and because there were other sites which it has been submitted were as bad if not worse, the question of dishonesty must have been decisive. We regret to say that that is not the way in which we read the Tribunal's decision. The expression "overriding consideration" occurs in the evidence of Mr Pendlebury and we are satisfied that it was used to express a minor rather than a major matter. There is no doubt that the basis here for the selection, as found by the Tribunal, was that the site being managed by the Appellant was the least good of the six. It was implicit, that the selection was based upon performance and that various sites were considered. While there is some conflict in the evidence of Mr Pendlebury where he referred to the Hunters Ridge site as being not the worst site but in cross-examination said that the work was abysmal but there was considerable evidence elsewhere which supported the view that the selection had been made upon the basis of poor performance by the Appellant at the Hunters Ridge site.A further matter is raised in that length of service was not properly taken into account by management and that the Tribunal ought to have found there had been a deviation from the criteria. In our view there was ample evidence to support the Tribunal's finding and indeed the evidence of Mr Pendlebury was that he had to consider the length of service but he considered there was not much difference between the length of service of the various site managers.Finally, he said that the Tribunal were wrong to find that it was reasonable of the employers not to consider alternative employment, that the Respondents' usual procedure had not been followed without good reason and that the Tribunal having decided that the doubts about the Appellant's honesty should not influence the giving of a reference, it was illogical that the Tribunal took such matters into account in finding that lack of consultation on alternative employment was reasonable.It is clear that the fundamental reason for not consulting the Appellant in relation to alternative employment was that there were no jobs available. It is plain that the Tribunal implicitly found that Mr Coker had considered the question of alternative employment and had made a conscious decision about it. The Tribunal found that that did not render the dismissal unfair and it was a decision the Tribunal was entitled to make upon the facts. The comments of the Tribunal in relation to the question of the doubts about the Appellant's honesty not influencing future reference, representing as it does an attempt to be helpful to the Appellant, was, strictly speaking, outside the ambit of the Tribunal's jurisdiction. That the Tribunal found that taking that aspect into consideration by the employer in relation to alternative employment does not make the Tribunal's finding that the employer was acting reasonably, a perverse decision.There has been no error of fact or law in this case by the Tribunal and this appeal is dismissed.