Bartholomew & Ors v London Borough Of Haringey [1993] UKEAT 627_90_1901

EAT
Bartholomew & Ors v London Borough Of Haringey
[1993] UKEAT 627_90_1901 · 1992-11-30
MR JUSTICE WOOD (PRESIDENT) During the early months of 1989 the London Borough of Haringey (Haringey) found themselves having to make a substantial number of their employees in the Public Works Service (PWS) redundant. Some 121 were made redundant and dismissed. Sixteen of them brought proceedings before an Industrial Tribunal alleging that their dismissals were unfair. Seven women alleged sex discrimination as well as unfair dismissal. The 9 men alleged unfair dismissal under the Employment Protection (Consolidation) Act 1978.In exceptional circumstances due to illness and other problems of administration, we have been asked to hear this appeal in two halves. We have given judgment on the women's appeal on 21st July 1992. This is our judgment on the appeal of the men. It is necessary to read both judgments in order to obtain a full picture of the situation.In our judgment of 21st July we have dealt with the history of this matter and the problems which were facing Haringey. We propose now to consider the particular unfairness - under S.57(3) - which is suggested by Mr Bronkhurst in his submissions on behalf of the male appellants.

His criticisms may be summarised thus:-

(1)In preparing "Criteria - 3", Mr Moulton and Mr Hyde failed to comply with the instructions of Haringey to construct criteria which would show the "commitment of the members of the workforce.(2)That a criterion of absence due to "sickness/injury", whether looked at in the round or in its constituents part of "certified sickness" and "injury", should not have been included in any event unless, in each or either case, Haringey could establish that the inclusion of either or both was desirable to achieve a management result, and if so, how such inclusion would achieve that result.(3)Even if "Criteria - 3" were held to be not only objective, but also fair and reasonable in all the circumstances, then it behove Haringey to apply each criterion fairly, and it was submitted that it was unreasonable and unfair to include absences due to industrial injury at work.

Procedural failures

(4)Both Mr Sterling and Mr Demetriou should have been excluded from the original trades which formed the pool from which redundancies, voluntary or compulsory, would have to be found. Mr Sterling had originally been employed as a labourer, but had for some three years been working as a driver. Mr Demetriou had originally been employed as a painter but for some few months prior to April 1989 had been working as a light plant/yard-man. They should neither of them have been at risk of redundancy.(5)There had been no sufficient notification to the Trade Unions as required by S.99 of the Employment Protection Act 1975, and that until actually dismissed the appellants had no knowledge of the terms of "Criteria - 3". They were faced with a 'fait acompli', without knowing the basis of selection.(6)The appellants were given no opportunity to make representation before their dismissal. This was purely a mathematical calculation without any regard to personal factors in any particular case.(7)Although in Appendix III of a document of 18th April 1989 the basis of appeals has been described, yet in fact this basis had not been applied and that in fact the only ground on which appeals were ultimately decided was whether or not the mathematical calculations were correct. At preliminary hearings before a number of panels, 38 cases had been identified as being "otherwise unfair", but ultimately there had been a Plenary Panel at which the only ground was mathematical accuracy. Hence only one appeal succeeded.We were reminded by Mr Jeans, for Haringey, that this Industrial Tribunal had listened patiently over some 32 days to some 30 witnesses and had heard submissions from four advocates. Moreover, one of the members of the Industrial Tribunal had particular knowledge of the problems in local authorities in London. It was open to the Industrial Tribunal not only to make primary findings of fact, but also to draw reasonable inferences after seeing and hearing the witnesses. Not every fact is explicitly stated, not every piece of reasoning is set down at length.We bear all these matters in mind.

"Criteria 3" -

At paragraph 144 of its Decision the Industrial Tribunal say:-

"The Tribunal can only conclude that Criteria 3 was reasonable in all the circumstances and applied equally and objectively to all employees. It must be remembered that these were particularly difficult times for the Council and that the PWS was losing large sums of money every day even after voluntary redundancies had been made. In all these circumstances and taking into account the case law the Tribunal finds that Criteria 3 is fair, objective and reasonable."
Without examining the documents and evidence at length, we are quite satisfied that the relevant committees and senior members of Haringey and of the staff of Haringey were at all times aware of the problems behind and the preparations for and of Criteria 3. There was a particular problem facing its construction. A balance had to be achieved between the interests of the women employees and those of the men with much longer experience. There was also the need to maintain a balanced workforce. The perils of a finding of unfair dismissal loomed on one side and of sex discrimination on the other. Too much weight given to "last-in first-out" (LIFO) could decimate the numbers of women and undo all that had been sought to be achieved over the years. "Performance" and "qualification and training" had had to be eliminated from Criteria 3. This left "absence without permission" (AWOP), "Conduct" and LIFO. There was also the criticism that insufficient weight had been given to the latter. The two former Criteria only affected some 40 employees out of 400 and it was thought essential to have further criteria. What should they be?This is an area of industrial practice which lies peculiarly within the lengthy experience of the two lay members sitting with me. They have been able to examine the substantial documentation involved and they stress that the fairness, reasonableness and objectivity of the criteria in Criteria 3 must be judged against the crisis which existed, the short time available, the intransigence of trade unions and their refusal to agree anything, the desired result of a balanced workforce and the retention of a reasonable number of women.The Industrial Tribunal found that the criteria and the weighting to be reasonable in all the circumstances and that is the view of this Tribunal. We agree with them.There is however one particular aspect which merits more detailed examination and that is the criterion of absence due to "sickness/injury". A number of the male applicants had been absent due to industrial injury. It is submitted that it is only reasonable to include such a criterion if an employer can establish that he has a problem due to the absence of either kind, alternatively that such a criterion can never be fair.We do not accept that there has to be a "problem" before any particular criterion is used - "a conduct problem", or "a length of service problem". Moreover, attendance or absence has been accepted as a basic criterion for many years. cf Williams v. Compare Maxim Ltd [1982] ICR 156 , 162E.One can envisage a feeling of unfairness when an employee has suffered a genuine industrial injury, which keeps him away from work for a substantial period - there is one such case before us - but the problems of examining each individual situation can be enormous. Detailed individual investigation will prove burdensome and in many cases, wholly impracticable.Many examples come to mind, is it right to include ordinary illness but exclude injury from an industrial accident? If so, why? Even if there was an accident, could there be difficulty in confirming positively how it happened? Such an investigation would be extremely complex in a mass redundancy. Witnesses may have disappeared before the decision has to be made. Is blame to be attributed to either party to perhaps to neither party and only to a third party? Is an employer to concede negligence and therefore exclude that employee for redundancy? If he did so his insurers might well repudiate on the policy. It is already recognised and is uncontroversial that an employee may be dismissed for incapability even though his incapability arose from an accident.This Industrial Tribunal declined to enter into any such considerations and in our judgment were correct to do so.Whether attendance is chosen as a criterion and the weight to be attached to it are matters for an employer to choose at his discretion, provided he is acting reasonably and fairly. The whole set of criteria must be reviewed. The correct approach is indicated by Browne-Wilkinson J in B L Cars v. Lewis [1983] IRLR 58 at paragraphs 11 and 12 where he says -
"Having done that, the majority appear to attach 'priority' to one of the factors to be taken into account in making the selection, ie length of service. They are saying, as it seems to us, that in order for the employers to select fairly they had to find major shortcomings in an employee's performance if that were to outweigh the factor of length of service. In our view, that is not a legitimate approach to these criteria. The overriding factor was the need to retain a balanced workforce. In making the selection for that purpose, there were to be taking into account (so far as we can see, on an equal basis) length of service, occupation and skill. There is no warrant for the approach of the majority that in making the selection in accordance with those criteria a long-serving employee is to be treated as having some 'priority' by reason of length of service. We therefore think that the majority have approached the decision of the question, 'was the selection of Mr Lewis fair within the meaning of S.57(3) of the 1978 Act? on a mistaken basis.
It also seems to us that it is possible that the majority were not correctly directing themselves as to their function. The passage which we have read indicates that they may have thought that it was the function of the Tribunal to decide whether they (the Tribunal) thought that the correct selection had been made, in the sense of being the selection that they would have made. The correct question they had to ask themselves was whether the selection was one that a reasonable employer, acting reasonably, could have made."Having been taken through substantial passages in the evidence, we are satisfied that there was ample evidence here that attendance was a factor in the problems facing Haringey.In an unreported case in this Tribunal - Palmer v. British Gas Corporation - EAT/310/84 - 29th April 1985 - Waite J emphasised the importance of dealing with each case on its own facts. In that case also the respondent employer was faced with the problem of selecting fair criteria in the absence of any help or co-operation from the trade unions.There is one case in which industrial injury as a basis for absence has been considered. It is Dooley v. Leyland Vehicles Ltd a decision of the Court of Session in Edinburgh given on 17th June 1986 on an appeal from the Employment Appeal Tribunal, which gave its judgment on 28th October 1984. It is unreported. The facts in that case were somewhat different from the present but the method of selection for redundancy being considered was stated as follows:-
"Employees will be selected who have unacceptable patterns of attendance, detailed by the following criteria:-
(1)3 absences or more totalling 10 days or more from 1st July 1983.(2)3 absences or more totalling 15 days or more during the whole of 1983.(3)2 absences totalling 30 days or more during the whole of 1983 where each of these absences totals a minimum of 5 days."The Industrial Tribunal took the view,"that an unacceptable pattern of attendance meant a pattern of attendance which is made unacceptable either because the employee concerned deliberately stayed away from his work or alternatively because, although it might be through no fault of his own, the employee was nevertheless frequently absent on account of sickness. We did not consider that absence on account of industrial injury fell within the definition of unacceptable pattern of attendance. We took the view that, standing the obligations of an employer to provide an employee with reasonably safe plant and systems of work, reasonably safe methods of working, and a reasonably safe working place, it would be quite wrong for an employer to include a period of absence caused by industrial injury as a period of unacceptable attendance, unless the industrial injury was clearly caused solely through fault on the part of the employee".The Employment Appeal Tribunal held that the Industrial Tribunal were not entitled to hold that absence on account of industrial injury did not fall within the definition of unacceptable pattern of attendance. They also took the view that the Tribunal substituted its own view for the view of the employer.

The Court of Session in its judgment say this -

"In our opinion, the Employment Appeal Tribunal were well-founded in reaching their conclusion. The reasoning of the Industrial Tribunal which has been quoted above, appears to depend upon the view which they had of the interpretation to be placed on the method of selection. In particular, the Industrial Tribunal held that absence on account of industrial injury did not fall within the definition of unacceptable pattern of attendance. It is recognised that for the purposes of the method of selection for redundancy, the attendance record of the employee is a reasonable criterion to adopt. ( Gray v. Shetland Norse Preserving Company Limited [1985] IRLR 53). Moreover, as already mentioned, in the present case it was accepted that the method of selection was fair in general terms. That being so, we agree with Mr Dawson that the real question in this case was whether the method of selection had been reasonably applied to the appellant.
The method of selection refers to absence, and is silent as to the reason for or cause of any absence. That that should be so, is quite intelligible. The reason for or cause of any particular absence may not be clear, and, if it is disputed, some enquiry would be necessary to determine what the reason for or cause of the absence was. In the context of selecting for redundancy, such an enquiry would not be practical. Accordingly it is understandable that all that has to be considered is absence and not the cause of the absence nor the reason for it. Whether or not absence is due to fault on the part of the employee is neither here nor there. As is clear from the Industrial Tribunal's decision, what the respondents wished to ensure after the workforce had been reduced, was that they had retained those men who could and would attend work on a regular basis. If an employee was regularly sick (though this was not due to his own fault), he might not be a person who could be relied upon to work regularly. Moreover an individual employee might be absent on a number of occasions for a variety of reasons, some of which were his own fault and some of which were not; from the employers' point of view, however, it would not matter whether the absences were due to the employee's fault or not."The Court of Session also adopted the passage from B L Cars which we have cited above.There are bound to be some anomalies.In directing themselves on the appropriate approach to consideration of Criteria 3 the Tribunal said this at paragraph 131 -
"It is clear that the case law states that a selection from employees to be made redundant is a decision for the employer and the Tribunal should only interfere if that decision is unreasonable and not because they themselves would have chosen differently."
The Tribunal also refer to Dooley and follow the guidance given by the Court of Session. At paragraph 143 the Tribunal says -
"143 The members of the Tribunal could only come to the conclusion and find as a fact on the oral and documentary evidence before them that Mr Moulton and Mr Hyde drew up Criteria Three in a considered fashion. It may not be the criteria that the members of the Tribunal would have chosen. A different employer might have considered a different set of criteria. A different employer might not have included industrial injury absences as a criterion. A different employer might not have included in the criteria a criterion of different spells of absences and different days of sickness absences. A different employer might not have used a one year's timescale for consideration of sickness absences. However, it is not for the Tribunal to impose their own preferences in the place of a reasoned on-the-spot management decision. It was maintained on behalf of the Applicants by their representatives that it was unreasonable to take into account sickness spells as well as days of sickness. However the Tribunal was of the opinion that sickness spells are all part of an employee's sickness record and that it was not unreasonable in the circumstances to insert this into the criteria. The Applicants' representatives, and in particular Mr McMullen, maintained that Criteria Three was unreasonable in that no scope existed for taking into account individual circumstances such as performance. The Tribunal was of the opinion that, as there was no individual performance assessment, regrettable as they may be, it was impossible to include performance as one of the criteria."
We were also referred to Paine & Moore v. Grundy (Teddington) Ltd [1981] IRLR 267 where Mr Justice May at paragraph 7 of the judgment says -
"We are not, saying, as Mr Field also argued, that absences of a particular employee which are due to industrial accidents sustained by those employees in the employment of the relevant employers are necessarily to be treated in any different way from other absences. It must be a question of fact in each particular case how these matters are to be dealt with."
We can find no basis for criticising the way in which this Industrial Tribunal dealt with this matter of Criteria 3 and their decision is certainly not perverse. The test is reasonableness, it is not based on justification.The Tribunal found that it was reasonable for Haringey to treat Mr Demetriou and Mr Sterling as belonging to the trades specified in their contracts of employment. The only other capacity or trade which Mr Demetriou could join was that of labourer and in that capacity he would have been paid less than he was as a painter. It was therefore to his benefit to remain in the category of a painter. Mr Sterling was contracted as a labourer and in fact some labourers undertook driving work. The fact that he drove from time-to-time did not alter his classification as a labourer. Drivers were part of the engineering section and had to hold a HGV licence. Mr Sterling was not part of the engineering section nor did he hold a HGV licence. In the internal appeal he did not allege that he had been wrongly classified.It follows that we find no substance in this point.

Consultation and information with Trade Unions and individuals

At paragraph 173 of its decision the Tribunal say -

"In all the circumstances the Tribunal finds as a fact that there was sufficient warning and consultation of the redundancy situation with the Trade Unions and with individuals."
Mr Bronkhurst submits that this is a perverse finding. This submission has necessitated a careful and detailed examination of a substantial amount of documentation and of some 500 typed pages of the Notes of Evidence. We would like to take this opportunity to thank the learned Chairman for the care with which her notes have been taken and for the labour of dictating from her handwritten notes - parts of which were illegible - so that the evidence could be in typed form. She has our gratitude and admiration. The basis for the ultimate conclusion in paragraph 173 is made in paragraphs 166, 167, 168, 170 and 171. We do not propose to set them out at length, suffice it to say that having examined the Notes of Evidence, having examined the documentation, having analysed the contents of those paragraphs of the decision, there is no basis whatsoever for the suggestion that the finding of the Tribunal at paragraph 173 was perverse. Not only was there ample evidence but the lay members of this Appeal Tribunal share the view of the Industrial Tribunal.It was submitted that the appeals procedure was part of the criteria. The Industrial Tribunal rejected this and in our judgment they were perfectly entitled so to do. They treated the appeals procedure as separate from Criteria 3. The absence of an appeals procedure does not necessarily render the dismissal unfair. This was considered recently by the Court of Appeal in Northern Ireland. Robinson v. Ulster Carpet Mills Ltd [1991] IRLR 349. In dealing with the question of a right of appeal in the employment situation the learned Lord Chief Justice of Northern Ireland dealt with the matter in paragraphs 22, 27 and 28 of his judgment. They read -
"22 Having made the findings which it did in favour of the appellant company I consider that it was not open to the Tribunal to find that the dismissals were unfair because the respondents were not given a right of appeal against dismissal on the ground of redundancy."
...
"27 I further consider that the fact that a right of appeal was afforded to one earlier occasion in respect of a dismissal of one employee for redundancy did not make the dismissals in the present case unfair. I also consider that the fact that the respondents were removed from work without proper notice did not contribute to make their dismissals unfair, because it is not in dispute that the respondents were paid in lieu of notice.
28 My opinion that the Tribunal erred in its decision is strengthened by the statements by counsel to this Court that their researches into the very numerous cases on unfair dismissal have discovered no case where it was held that an appeal procedure was a requisite for a fair dismissal on the ground of redundancy (although I would not exclude the possibility that it would be open to an Industrial Tribunal to hold that, on the special facts of a particular redundancy case, an appeal procedure was requisite)."The appeal process was conducted in two phases. During the first a number of small appeal panels interviewed those who appealed. At the second stage there was a plenary panel and it was decided that it was necessary to stick strictly to Criteria 3. The Industrial Tribunal deal with the matter at paragraphs 187 and 188 as follows -
"187 It would appear to the members of the Tribunal that the appeal panels went outside their brief in recommending certain Applicants for reinstatement and that individual members were swayed by sympathy on hearing the individual Applicant's sorry plight. The Tribunal could understand this sympathy because, indeed, the members of the Tribunal in many instances had the same measure of sympathy.
188 The plenary appeal panel was set up to ensure consistency. This to the members of the Tribunal appeared to be reasonable and necessary. There were so many appeals and there would have been injustices if one panel had allowed certain appeals on grounds of sympathy and employees thus be reinstated and another panel not to have shown the same degree of sympathy. ..."

Finally the Tribunal sums up the matter in paragraph 189 -

"189 The members of the Tribunal found as a fact on the evidence that the Respondents set up a clear appeal process. The individual employees were carefully considered by each appeal panel and on the whole evidence was given that the Applicants were given a sympathetic and attentive hearing. If it had been found that, in application to these employees, Criteria Three was defective the whole process would have to have recommenced. This was, in the financial circumstances, totally unrealistic. The Tribunal, in all the circumstances, finds that the appeal procedure was reasonable even if there had been a contractual right to appeal. When the plenary panel considered in depth one particular employee they could only have allowed that appeal on the grounds of sympathy and not on the grounds that Criteria Three had been incorrectly applied. The Tribunal found as a fact that Criteria Three had been correctly applied. The appeals process was not faulty such as to vitiate an otherwise fair dismissal."
Lastly, the criticism was raised that the individual employees did not know the precise details of Criteria 3 until after the initial assessment had been made. Although Criteria 3 had been considered in various forms since 21st March 1989, it was not generally distributed until it was enclosed with a letter of 19th April 1989 to all staff. In fact the initial assessment had taken place on 18th April and between 20th and 26th April all members of the staff who had been provisionally indicated under Criteria 3 as being the subject of dismissal for redundancy, were given the opportunity of discussing the matter with Mr Andrews or Mr Berwick from management. They were shown what was referred to as a Table C which set out Criteria 3 and the points against each criterion.It is Mr Bronkhurst's case that individual members had no opportunity to raise personal matters or to query the assessment of the points. He maintained that all that took place was that the points were added up and if the addition was incorrect then that was the point that the employee could make. Having examined the Notes of Evidence in some detail we wholly reject this suggestion. It seems to us that the time spent in these interviews could not possibly account for a mere addition of three or four figures. The Tribunal dealt with matter in paragraph 167 where they say -
"167 The employees had the opportunity to discuss the matter with Mr Andrews and Mr Berwick. Their Tables Cs were discussed with them individually. They were given a copy of their absence records. This resulted in certain individuals being taken off the redundancy list where an error had occurred. The Tribunal accepted the evidence of Mr Andrews and Mr Berwick on this point."
There was ample evidence upon which they could reach their conclusion and we wholly reject this submission.For the reasons we have given this appeal will therefore be dismissed.Finally, there is one matter with which we must deal. Before the hearing of the men's appeal application was made by Mr Brown for leave to appeal out of time. His case was that he did not realise that he could appeal to this Tribunal until well after the time-limit had expired. He was represented before the Industrial Tribunal by junior counsel. Mr Brown swore an affidavit in support of his application for leave. That member of the Bar who acted for him did not feel able to disclose the precise advice he had given because of professional privilege which Mr Brown did not waive. He, however, went so far as to say he did not accept the substance of Mr Brown's affidavit. Mr Brown gave evidence before us as did his wife. Having considered all the evidence and the substance of this matter we are not inclined to grant Mr Brown leave to appeal out of time and he therefore is not one of the appellants before us.