Ribble Motor Services Ltd v Ellis [1993] UKEAT 402_91_2901

EAT
Ribble Motor Services Ltd v Ellis
[1993] UKEAT 402_91_2901 · 1993-01-29

JUDGE HICKS QC :

Mr Ellis was employed by Ribble Motor Services Ltd for just over 45 years, and at the beginning of the last three years he had become the engineering services manager at their Preston Depot.In 1989 they were acquired by Stagecoach Holdings Limited and a process of re-organisation followed in various stages. In June 1989 there were, as a result of those steps, a substantial number of redundancies, and Mr Ellis was originally on the list of those proposed to be made redundant, but on that occasion his immediate superior Mr Corser, the engineering director, who had a high regard for his ability, intervened and he was not on that occasion dismissed. He was instead placed in charge of a small unit designed to replace the engineering workshop of the Respondents, and I interpose that throughout this case, quite apart from that reference to Mr Corser's regard for his ability, there never was any suggestion of any criticism of Mr Ellis as an employee either as to competence, performance or in any other respect.In July 1990, after further redundancies, there were yet further changes. The management decided to create the post of operations engineer and to use that post as a training ground for other engineers in the group. Because of that decision they decided that that post was only available to younger people. Those facts are stated in the Tribunal's Reasons without any immediate indication of their relevance to the issues which the Tribunal had to decide, but clearly it was a matter which had been before the Tribunal by way of evidence and indeed is referred to in the Originating Application.On 11 July 1990 Mr Corser saw Mr Ellis and told him that he was to be made redundant and a letter was given to him terminating his employment with effect from 31 August, and part of that interview was the indication that he was not considered suitable for the new post that I have mentioned, that of operations engineer. The Tribunal, having found the facts which I have summarised so far, then go on to say in paragraph 6 of their Reasons:
"The respondent says that the reason for the applicant's dismissal was redundancy or some other substantial reason. We find the reason for the dismissal was redundancy."
and in paragraph 7:
"We accept that there could be no question of unfair selection for redundancy since the only post to disappear in the re-organisation was the applicant's post. However, we were concerned with two aspects of the applicant's dismissal. The first was the lack of consultation"
and they deal in some detail with that aspect of the matter, although they do not draw any sharp distinction in the narrative between what they had identified as two aspects of the Applicant's dismissal. It would seem that they turn to the second aspect in the last two sentences of their Reasons, which read as follows:
"It is significant that although the respondent claimed that the applicant's job had disappeared, the applicant was working very long hours each day and on his last day at work, worked through his lunch-hour and until 6.30pm that day. Having listened to the applicant's evidence about the nature of his work, we have some doubts that his job had disappeared in the way suggested by the respondent."
It was at the centre of Mr Fordham's submissions on behalf of the Appellant employers that there was either confusion or actual inconsistency in those findings or expressions of judgment by the Tribunal. The first and most dramatic perhaps is between the finding in paragraph 6 that the reason for dismissal was redundancy and the last sentence of the reasons:
"Having listened to the applicant's evidence about the nature of his work we have some doubts that his job had disappeared in the way suggested by the respondent."
Miss Moor suggests that they are reconcilable because the last sentence must be understood as expressing doubts by the Tribunal not as to the fact of the disappearance of the job but as to the reason for its disappearance, by reference to the words "in the way suggested by the respondent". The difficulty about that is of course that the words "in the way" are first of all ambiguous. Very commonly such words are simply thrown into ordinary speech without implying any qualification of the main statement - "we have some doubts that his job had disappeared" - but perhaps more tellingly the previous sentence, which seems to give the Tribunal's reasons for those doubts, is wholly concerned with the question whether the job had disappeared at all, not with any other matters, and we find ourselves compelled to the conclusion that there is on the face of it an unexplained difficulty about reconciling the finding on the one hand that the reason for the dismissal was redundancy and on the other hand the expression of doubts as to whether the job had disappeared in the way suggested by the Respondent.For that reason we have come to the conclusion that this appeal should be allowed and the application remitted for a re-hearing or further consideration. I shall come back to the exact nature of the order that should be made in a moment, but first I should mention the other principal attack or group of attacks made by Mr Fordham on the Tribunal's Reasons, which really centre on the contrast between the first sentence of paragraph 7 - the acceptance by the Tribunal that there could be no question of unfair selection for redundancy, since the only post to disappear was the Applicant's post - on the one hand and their criticism of the lack of consultation on the other, and as a second or associated limb on the way in which the Tribunal dealt with the test of procedural fairness. In particular Mr Fordham points to the sentence:"The case of Polkey v West Drayton Services Limited 1988 AER p142 has made it clear that there is a need for employers to warn and consult an employee and we are not satisfied that adherence to a proper procedure would have been useless in this case".Mr Fordham says that that is a misunderstanding of Polkey . I do not think I need elaborate on the various criticisms that can be made of that as a summary of the effect of the Polkey case. It is sufficient to note that on the face of it the words "we are not satisfied that adherence to a proper procedure would have been useless in this case" does bear the appearance of being the substitution of the Tribunal's views about the consequences of fair procedure for the test which looks to the reasonableness of the employer's conduct in consulting or not consulting or whatever other aspect of procedure is being considered.Since we have decided for the reason that I have already indicated that this matter should be remitted, it is not necessary to decide and we do not decide whether that mis-statement would have vitiated the Tribunal's Reasons had it been the only criticism that could be made. It is accepted, rightly, by Miss Moor that it is not an ideal way of putting the position, but she argues (and it is an argument that we do not need for the reasons I have given to resolve) that standing by itself that would not have justified setting aside the Tribunal's decision.In the event, for the reasons that I have given, we do allow the appeal and since clearly this is not a case where we can substitute our own findings for those of the Tribunal, it inevitably follows that the application will have to be remitted. We have not been addressed as to whether that should be to the same tribunal or a different one, and if to the same one whether it should be by way of re-hearing or simply reconsideration on the basis of the evidence that they have already received. It is therefore right that I should invite submissions on that point before we give a ruling on it.[The Tribunal heard submissions on the point].We have considered the submissions on both sides and we have come to the conclusion that the preferable course in this case is to remit the application to the same Tribunal, if it can practicably be reconstituted, for reconsideration on the basis of the evidence that they have already heard but in the light of our decision on the appeal.