William Henry Smith School v Limbert & Anor [1994] UKEAT 475_92_1805

EAT
William Henry Smith School v Limbert & Anor
[1994] UKEAT 475_92_1805 · 1994-05-18
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at Leeds on 5th May 1992. For the full reasons notified to the parties on 20th May 1992 the unanimous decision of the Tribunal was that a claim by Mrs Susan Limbert and another claim by Mrs Lynne Thompson for unfair dismissal should succeed. The claims were made against their former employers, William Henry Smith School, a non-maintained residential special school. Mrs Thompson worked as a teacher at the school from September 1980 until 31st August 1991 when she was dismissed by reason of redundancy. Mrs Limbert was a teacher from the 1st January 1982 to 31st August 1991. She was also dismissed by reason of redundancy.The school was dissatisfied with the decision and appealed by Notice of Appeal dated 30th June 1992. The grounds of appeal were stated in general terms as follows:
"In lodging this appeal the preliminary point must be raised that the decision as promulgated by the Chairman does not accurately reflect what actually occurred at the hearing in respect of which witness gave what evidence.
Notwithstanding this, we contend that the Tribunal has misdirected itself in law in finding that there was a heavy duty on the employer to consult with individual employees when he was actively consulting with their trade union at the specific request of these individuals.Furthermore, no Industrial Tribunal properly directing itself on the facts presented before it, could reasonably have reached this decision."The form of the grounds of appeal was so unsatisfactory that Further and Better Particulars were directed by the Registrar. This resulted in a document which went to the opposite extreme, stating at great length numerous points on the respects in which it was alleged that the decision did not accurately reflect what had occurred at the hearing. Details were given of all the alleged discrepancies between what was stated in the decision and what actually occurred at the hearing.On the hearing of the appeal the case for the school was conducted by Mr Walker, who was only recently instructed. He was not responsible for the argument before the Industrial Tribunal or for the Notice of Appeal and the Further and Better Particulars of it. The position he inherited attracts some sympathy. Making the best he could of the state in which the case had been presented, he prepared a skeleton argument which selects only a few of the discrepancies listed in the particulars of the appeal notice. He concentrated his argument on the only possible point of law on the appeal, namely that relating to the duty of consultation in selection for redundancy. Although he submitted that the appeal and particulars admitted of three arguments,(1) that is the factual inaccuracies point;

(2) the duty to consult point and

(3) the perversity point

he accepted that there was nothing more to say on the perversity point than could properly be said on the question of factual inaccuracies. In this decision we shall concentrate on the main point of his argument on the duty to consult. In order to understand that point it is necessary to go into the factual background of the dismissal of Mrs Thompson and Mrs Limbert.In the Spring of 1990 the school was visited by Her Majesty's Inspectors. A direction was given that the numbers in the school should, by the end of the Summer term 1991, be reduced from 92 to 54. According to the evidence nothing happened about reduction of numbers until February 1991. On the 1st February and on the 8th February 1991 there were meetings between the local officials of three unions or professional associations, concerned with the staff of the school, and the Governors. The Governors explained that the school was under pressure to accept the National Curriculum. There was no discussion at either of these meetings about compulsory redundancies. The main personalities who figured in these meetings were, Mr Airth, the Principal and social administrator at the school, who spoke on behalf of the school, and Mr Allen, who co-ordinated matters on behalf of the three professional associations.On the 26th February and on the 6th March there were meetings of the Governors of the school. A decision was taken to reduce the school budget. There would be redundancies in all departments.Following that meeting a letter was sent out on the 11th March 1991 to members of staff, including Mrs Thompson and Mrs Limbert. The letter stated that the management committee had decided that:

"we must lose four teachers during the summer term 1991."

The letter referred to meetings held with the Professional Association representatives on the 1st and 8th February and to the fact that Mr Allen of the NAS had been invited and agreed to conduct consultations with the school.On the 15th March a letter was sent out to teachers, including Mrs Thompson and Mrs Limbert, referring to departmental meetings attended by Mr Airth during the previous week. The letter stated that:
"The Management Committee have met recently and approved a new budget for 1991/92 which reflects the future projected numbers and fee income.
The revised pupil numbers produces a reduction of income of approximately £500,000. Every cost heading in the budget has been carefully scrutinized and, where possible, savings made. However much we prune accounts we are going to have job losses and adjustments, particularly when 80+% of our turnover is spent on staff salaries and associated costs."A letter was sent on the same day to Mr Allen confirming that the Chairman of the School Management Committee had invited him to join him and his colleagues at a meeting on Tuesday, 19th March. The letter enclosed a set of papers for the AMMA representative, Mr Groarke, who had not been in contact with Mr Airth.The meeting was held on the 19th March to put the representatives of the Professional Associations in the picture. Mr Airth, Mr Allen and Mr Groarke attended the meeting. At the meeting the representatives requested more information of a financial kind.On the 10th April Mr Airth sent a letter to Mr Groarke stating that he enclosed information which the school Management Committee asked him to forward to him following the meeting of the 19th March. The documents included budget proposal documents 1991 and 1992. The figures shown in the documents were stated to allow for the loss of four teachers during the Summer Term of 1991. The letter referred to the next scheduled meeting to be on the 30th April. That meeting was, in fact, postponed.There was, however, an important letter written by Mr Allen to Mr Airth on the 28th April 1991. He thanked Mr Airth for the letter of 10th April and expressed gratitude for supplying information in respect of the budget. He stated that it would be appreciated if Mr Airth could indicate the detailed position as far as a number of relevant factors are concerned. He raised a number of points on the total income of the school over the last two years and current period. He also raised specific items on the budget papers. It is not necessary to go into those details for the purpose of this appeal. The letter concluded with this paragraph:
"Bearing in mind all the circumstances, I should be grateful if you would afford the external union representatives an opportunity to peruse your reply to this letter before taking any further initiatives regarding the employment position of Staff. For this purpose, I should appreciate it if you would kindly contact Mr P Maguire of NUT, Mr F Groarke of AMMA and myself. Please do not approach Staff individually on this matter."
It is important to read that letter, in the light of submissions subsequently made, in the context in which it was sent. At that time the argument between the representative of the school Governors and the representatives of the Professional Associations was as to whether there was a redundancy situation. There had been no discussion at all at the meetings or in correspondence about the criteria for selection for redundancy or the application of any criteria to particular cases.There was further correspondence. In that correspondence points were taken up by Mr Groarke on behalf of the union members. On the 6th May he wrote to Mr Airth saying this:
"Previously I have not written to you to save you answering a number of letters all saying the same thing. However, I now feel that it is vitally important that we receive the answers to the questions we all asked in Mr Allen's letter before the meeting so that we can study them and be fully prepared to represent our members. Obviously we can ask for further details at the meeting."
The meeting took place on the 21st May. At the meeting there were discussions about budgetary figures. The representatives of the Professional Associations argued that there was no redundancy situation. They were left in no doubt that redundancies would occur, but there was no mention at the meeting of criteria for selection for redundancy or about the particular members of staff who might be affected by the application of the criteria.There was a conflict of evidence, as revealed in the Chairman's Notes, as to whether there was discussion at that meeting about questions of early retirement or job sharing. It appears from the Chairman's Notes of the evidence given by Mr Airth that:

"Volunteers and early retirement were mentioned at the meeting."

He denied in cross examination that there had been no mention of these matters.The evidence given by Mr Groarke was in conflict with that. He said that the meeting, having got off to a poor start, involved looking at budget figures. His evidence was that no suggestions were made as to early retirement or job sharing. One of the complaints under the heading of "factual deficiencies" in the Notice of Appeal is that conflict of evidence was not resolved by the Tribunal decision. It does, however, appear to be clear that at the meeting of the 21st May there was no mention or discussion of criteria for selection or names of individual teachers for selection. The evidence given by Mr Groarke was that when the meeting closed he thought the Governors would consider the points put forward and come up with a suggestion. He did not expect that to be the end of the road. It appears that, as far as the Governors are concerned, it was the end of the road because the next day a letter was sent to Mr Groarke stating that after the meeting with Mr Groarke and Mr Allen the members of the Committee, in consultation with the Chairman, decided that they had no alternative but to confirm that some teachers will have to be made redundant. The letter stated the following as the criteria for selecting staff for release from their employment as agreed:
"a) the need to present a broad and balanced curriculum within which we can address the implementation of the National Curriculum.
b) the need to consider the age profile of boys on roll.Committee members also noted that under the criteria there is an excess of primary and craft teachers.Accordingly I have to inform you that the teachers listed below will be served notice of termination of their employment with effect from 31st August, 1991. In addition they will receive redundancy payments in accord with the scales shown in Department of Employment booklet."The four names listed included Mrs Limbert and Mrs Thompson.The Chairman's Notes of Evidence reveal that, according to the evidence given by Mr Airth, he was not involved in the decision to select individual teachers, though he did serve the redundancy notices.Evidence was given by a Governor of the school, Mr Donald Sisson, that he had been a Governor since February 1991 and became aware of the redundancy situation. His evidence was that it was the headmaster who advised on selection. The headmaster was a Mr Crampton. Mr Crampton did not give evidence at the hearing. In fact, no evidence was given on behalf of the school as to why those criteria were settled on for the selection of staff. No explanation has ever been given in writing or in oral evidence to the Tribunal explaining why Mrs Limbert and Mrs Thompson were selected on the application of those criteria. Indeed, evidence was given by both of those teachers at the hearing to the effect that, first, they were not aware of the criteria used and secondly, that they could both present a broad balanced curriculum.The two teachers received their letters of dismissal for redundancy dated 24th May 1991. Mrs Thompson's letter was handed to her by Mr Airth on that day. Mrs Limbert's letter was sent in the post. The letter stated that:
"the School Management Committee had undertaken a review of the 1991/92 budget and its effect on staffing.
Subsequently, consultative meetings have been held with your regional professional representatives and members of the School Management Committee on 19th March, 1991 and 21st May, 1991.Following these meetings the Committee has reaffirmed its decision that they must reduce staffing levels in line with a reduction in the number of pupils.I am now writing to advise you that you have been selected for redundancy and your employment will terminate on 31st August, 1991."Details are given in relation to payments of salary and redundancy pay. The important point to note is that, at the date when that letter was sent out, there had been no consultation by the Governors of the school, through its school Management Committee or their representatives, with either the Professional Associations representatives or the individual teachers about the criteria for selection or how they should be applied to the individual members of staff. In fact, Mr Groarke had, following the meeting on the 21st May, sent a letter to Mr Airth which must have crossed in the post with the letter he sent out to Mr Groarke about selection criteria. Mr Groarke said in his letter:
"It must be reiterated that it was extremely disturbing not to receive the figures asked for in my previous letter, nor the answers to the questions asked therein. This information was essential so that a reasoned and constructive meeting might have been held yesterday between the three Union Officials and yourself plus Managers.
It must be stressed that in my opinion you have not looked at the alternatives which we attempted to put before you yesterday and which are listed in the ACAS booklets on redundancy, and would again repeat my plea that you do so. In this respect might I also respectfully suggest that you and the Managers have not looked seriously at ways of virements between the various headings under expenditure."Following the letters of dismissal for redundancy Mrs Thompson and Mrs Limbert consulted solicitors, Bury & Walkers of Leeds, who wrote a letter to the Chairman of the Governors on the 5th June stating:
"we are not satisfied that the declaration of these redundancies has been handled in a reasonable manner. We consider that there has been a failure to provide the Union Representatives with sufficient financial information on which to base constructive proposals for avoiding redundancies. Further, we consider that the consultation process prior to the announcement of redundancies was wholly inadequate."
The letter ended in a conciliatory tone saying:
"It is, however, not too late for the school to reconsider its position and we hope it will agree to do so. We are not prepared to allow the matter to remain in abeyance indefinitely and therefore serve notice that proceedings will be instituted on Monday, 17th June unless we receive notification prior to that date that the school is prepared to look at its position again."
The reply of the following day from Mr Airth offered no hope for the two teachers in question.They presented applications to the Industrial Tribunal on the 6th November 1991. The complaints made in each case were similar. The point initially taken was that a redundancy situation did not exist at the school. That point was not pursued at the hearing. It was alleged that the procedure for handling the redundancies was fundamentally flawed, in that the school had failed in its statutory duty to consult the recognised trade union of the Applicants; had failed in a statutory duty to disclose in writing information concerning proposals for redundancies; had failed to consider any proposals for voluntary redundancy or early retirement; had failed to consult the relevant union or the individual Applicant when considering the criteria to be used in enforcing redundancies and had failed to apply the selection criteria fairly in the light of the circumstances of the Applicant. Those were the allegations put forward as the basis for a claim for unfair dismissal.The application was resisted by Notice of Appearance dated 5th December 1991. The school simply stated that, following a visit by Her Majesty's Inspectorate, the Managers had been told to reduce numbers by the end of the Summer Term 1991. This created a redundancy situation. The Union AMMA was not recognised either by formal written agreement or inference through a course of dealings between the school and the Union, but nevertheless were consulted as good industrial relations practice.It was never asserted on behalf of the school that there had been any consultation with the individuals about criteria for selection or their application.The various points taken on behalf of Mrs Thompson and Mrs Limbert came down in the end to a complaint about the inadequacy of the consultation procedure.In their decision the Tribunal, having set out the facts, which I have gone into in a little more detail than they did by reference to the documents, stated the core of their decision in paragraph 7. They said:
"This tribunal has to decide firstly whether there was a redundancy situation entitling the respondents to dismiss on the grounds of redundancy. This has been conceded by the applicant. The applicants' accept that there was a redundancy situation. The applicants' complaint is that in accordance with modern industrial relations practice, in accordance with the code of practice, and in accordance with the case of Polkey v. A E Dayton Services Ltd [1987] IRLR 503 the procedure was seriously flawed. First because the dismissal was done without consulting the applicants individually. Also when the union left the meeting on 21 May the union did not know that redundancies were to be announced. They thought that there was to be a further meeting, when more details would be discussed and secondly, that the criteria for selection was confirmed by the governors on the recommendation of the headmaster and the selection made without reference to the union. The union did not know the criteria for selection until they received the letter dated 22 May after the dismissal, and in the way in which the two applicants were told of their dismissal. They were given no opportunity to make representations and as it has been pointed out by Mr Myers it was a very draconian method of dealing with dismissal for redundancy at the end of the working day by giving Mrs Thompson, a letter telling her that she was redundant and by sending a similar letter to Mrs Limbert."
The next paragraph recorded the case for the Respondents that:
"the trade unions were not prepared to discuss the criteria for selection because they were arguing that there was no redundancy situation."
The Tribunal also recorded the submission made on behalf of the school that, in his letter of 28th April to Mr Airth, Mr Allen said:

"please do not approach staff individually on this matter"

The school argued that they were thereby released from the obligation to consult the individual teachers.The Tribunal concluded in paragraph 9 by saying:
"There is a heavy duty on an employer to consult both with a union and with the individuals concerned. If an employer does not recognise the union there is an even greater obligation upon the employer to consult with the individual concerned. . ."
The main argument advanced by Mr Walker was that the Tribunal had misdirected itself in relation to the question of consultation. He submitted that in finding that:
"There was a heavy duty on the employer to consult both with a union and with the individual concerned."
the Tribunal had stated propositions which were not supported by authority. His argument was that the appropriate question which the Tribunal should have asked itself, but did not, was whether the employer had acted reasonably in treating redundancy as a sufficient reason to dismiss the employee. In answering that question the questions which the Tribunal had to consider were :1. whether the employer warned or consulted the employees and/or their representatives; 2. whether the employer adopted a fair system of selection or selection criteria and;3. whether the employer took steps to avoid or minimise redundancy by redeployment.He accepted that in normal circumstances there ought to be consultation with individuals and the Union, but it was not essential that there should be consultation with both the employee and the Union. The Tribunal should have addressed the question whether at the date of dismissal the employer acted reasonably in dismissing because, in the circumstances of the case, consultation with the individual beyond that already undertaken with the unions would have been futile, would not have altered the decision to dismiss and therefore could be dispensed with. He submitted that there was no indication in the decision that there was any consideration of this point. He sought to drive home these general submissions by pointing to a number of factors which the Tribunal ought to have had in mind and considered. From the beginning of February 1991 the employers were in touch with all the Professional Associations' representatives. They corresponded with Mr Allen, who had been appointed to co-ordinate the Union's response. The Union had refused to discuss redundancy, whether criteria or individuals. The Union had, in the letter of 28th February, specifically requested that individuals should not be consulted. Overall there was a time restraint. In order to give 3 month's notice the redundancy notices had to be given by the 31st May 1991. Expedition was required to cause the minimum disturbance to the boys at the school. The point the unions were arguing in April and May 1991, namely whether there was a redundancy situation, was conceded on behalf of the Applicants at the hearing before the Industrial Tribunal. The union's refusal to concede the point earlier led to their failure to enter into a dialogue with the school about redundancy selection. The submission was there was a redundancy situation and there was no evidence before the Tribunal that others were more suitable candidates for redundancy than Mrs Thompson and Mrs Limbert. Mr Walker concluded his submissions by saying:
"It was quite wrong to suggest that the non-recognition of the union by the employer increased the necessity to consult with the employee direct. That shows a total misunderstanding of the circumstances of the case and is irrelevant. The union were invited to be fully involved in the consultation process."
The other points made by Mr Walker are, in our view, too trifling to deserve detailed attention. What he did, with prudence, was to select from the Further and Better Particulars of the grounds of appeal only a few instances of the many given of alleged discrepancies between the evidence given at the hearing and the factual findings in the Tribunal decision. We have considered the individual points. It is true that evidence was given on points not mentioned in the decision. There was, it appears from the Notes of Evidence, some conflict of evidence which was not resolved by the Tribunal as clearly as it could have been. But we are satisfied that none of these discrepancies, omissions or failures by the Tribunal amounts to any significance in an appeal to this Tribunal on a question of law. We emphasise that an appeal to this Tribunal is not an exercise in examining or marking the performance of the industrial tribunal in its decision, or awarding marks for fullness of notes of evidence, or accuracy or felicity of expression, or awarding prizes for the judicious selection of relevant facts. We have to look at decisions in a broad and fair manner, and for one purpose only, to see whether there was a legal flaw in the process of decision making. As has been said by higher courts on a number of occasions, it is not an appropriate way of seeking to engage the jurisdiction of this Tribunal to "nit-pick" sentence by sentence through a decision to undermine its validity. We are satisfied that none of these criticisms of the Tribunal's decision is of any legal significance. Mr Walker accepted that the ground of perversity required no further submissions from him than those on the detailed factual points.We are left with his submissions on consultation. We do not accept those submissions. The legal position on consultation is stated in clear terms in short passages in three decisions. Taking them in the order of the judicial hierarchy Lord Bridge in his speech in Polkey v. A E Dayton Services Ltd [1988] ICR 142 said at page 162 E-F:
"Employers contesting a claim of unfair dismissal will commonly advance as their reason for dismissal one of the reasons specifically recognised as valid by section 57(2)(a), (b) and (c) of the Employment Protection (Consolidation) Act 1978 . These, put shortly are: (a) that the employee could not do his job properly; (b) that he had been guilty of misconduct; (c) that he was redundant. But an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as `procedural', which are necessary in the circumstances of the case to justify that course of action."
He gives examples of incapacity and misconduct. He refers to the case of redundancy.
"the employer will normally not act reasonably unless he warns and consults any employees affected, or their representative adopts a fair basis on which to select for redundancy and take such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial is not permitted to ask in applying the test of reasonableness posed by section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant."
There is a further short passage about the phases of redundancy in the decision given by Wood J in the Employment Appeal Tribunal of Dyke v. Hereford & Worcester County Council [1989] ICR 800, at page 806F, he said this:
"The industrial members of this appeal tribunal also express some concern about the lack of information given in this case. The importance of consultation and of seeking to minimise the trauma of redundancy has been made clear in a number of cases to which we and the industrial tribunal were referred"
He refers to a number of cases including Williams v. Compair Maxam Ltd [1982] ICR 156 and Freud v. Bentalls Ltd [1983] ICR 77 he added:
"The phases of a redundancy would seem to be as follows: first, the consideration of the overall necessity for redundancies; secondly, the issuing of the section 99 notice; thirdly, the selection of individuals whom it is proposed to dismiss for redundancy; fourthly, the actual issue of the dismissal notice, action taken on the decisions earlier reached, and lastly, the period of notice before the employment is terminated. At each of the four stages it is important that consultation should take place either with the trade union and (if the trade union will permit it - which it did not in the present case) with the employees individually or with both, and the importance of such consultation cannot be over-emphasised. Such consultation must necessarily be based upon sufficient information for them to be sensible."
That leads to the last case, Freud v. Bentalls Ltd , another decision of the Employment Appeal Tribunal where the judgment was given by Browne-Wilkinson J. In a helpful passage reported at {1983] ICR 77 at page 82 C-G he said:
"Turning now to consideration of industrial relations practice, consultation (as opposed to unilateral action by the employer) is one of the foundation stones of modern industrial relations practice. The statutory Code of Practice emphasises its importance in every aspect of industrial relations. In the particular sphere of redundancy, good industrial relations practice in the ordinary case requires consultation with the redundant employee so that the employer may find out whether the needs of the business can be met in some way other than by dismissal and, if not, what other steps the employer can take to ameliorate the blow to the employee. In some cases (though not this one) the employee may be able to suggest some reorganisation which will obviate the need for dismissal; in virtually all cases the employer if he consults will find out what steps he can take to find the employee alternative employment either within the company or outside it. For example, in present day conditions when so many people are unemployed many employees facing redundancy by reason of the disappearance of their existing job are prepared to take other jobs of lower status and commanding less pay. Only by consulting the employee can the employer discover whether such an option is open in any given case. Therefore good industrial relations practice requires that, unless there are special circumstances which render such consultation impossible or unnecessary, a fair employer will consult with the employee before dismissing him.
We must emphasise that we are not saying that good industrial relations practice invariably requires such consultation. There may well be circumstances (for example a catastrophic cash flow problem making it essential to take immediate steps to reduce the wages bill) which render consultation impracticable. We are only saying that we would expect a reasonable employer, if he has not consulted the employee prior to dismissal for redundancy in any given, to be able to show some special reason why he had not done so."In the present case we find the submissions made by Mr Duggan on behalf of Mrs Thompson and Mrs Limbert of overwhelming persuasiveness. In our view, the appeal should be dismissed.He submitted that the Tribunal were correct in stating that there was an obligation to consult with individuals as well as with unions and professional associations. He relied upon the cases which we cited Polkey and Freud . He submitted that the tribunal properly considered all the facts and came to a decision which they were entitled to reach on those facts. He pointed out that the Tribunal correctly stated that individual consultation should be carried out in the circumstances of this case, although there had been discussions with the union. The criteria for selection and the persons who were to be selected were never mentioned in the consultation meetings with the union and were never dealt with by individual consultation with those affected. The assertion that discussions with the union were sufficient was illogical, because those matters were never discussed with the union. The only "special reason" advanced by the school for not consulting with the individuals was that in the letter of the 28th April Mr Allen had asked the school not to approach individuals. That, we agree with Mr Duggan, was not a "blanket" instruction not to approach the employees at all on an individual basis or not to consult with them. The argument which the school have mounted on the basis of that last sentence is fallacious, since it involves lifting the passage in the letter out of the context in which it was written. At the time when that letter was written the union representatives were still in the process of seeking to obtain information from the school relevant to the question whether or not there was a redundancy situation. The phase of the redundancy process for considering criteria selection and the application of the criteria had not been reached. As appears from the facts which we have earlier set out it never was reached. The truth is that on the 22nd May the school notified the union representatives of the decision. On the 24th May they notified the two individuals in question without there having been consultation of any kind with either on the all important matter of what were the criteria and how they should be applied to these two teachers.Mrs Thompson and Mrs Limbert may still feel legitimate puzzlement as to why these criteria were selected or as to how, on the application of these criteria, they were selected for redundancy. We have no doubt that the Tribunal adopted the correct approach to the decision of the case. There is no error of law. The appeal is dismissed.DECISION ON COSTS:Earlier this afternoon we gave reasons for dismissing this appeal. An application was made on behalf of the successful Respondents for their costs or a proportion of their costs to be paid by the unsuccessful Appellants.Under the Employment Appeal Tribunal Rules 1993, Rule 34 the Employment Appeal Tribunal has the following powers as to costs.
"(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.
(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid, or may direct that it be assessment by the taxing officer, from whose decision an appeal shall lie to a judge."We have heard submissions from both Mr Duggan, in support of the application, and Mr Walker, in opposition to it. We have arrived at these decisions: first, that the appeal was itself vexatious to the extent that it included the Further and Better Particulars provided at the direction of the Registrar. As already observed in the main judgment the Notice of Appeal was not in proper form in seeking to raise as grounds of appeal matters of such vagueness as to be incomprehensible without particulars. When particulars were provided they were almost totally misconceived. They sought to raise as a ground of appeal insignificant factual discrepancies between the evidence of the hearing and the decision of the Tribunal. Worse there were points raised in the Particulars which were factually incorrect; in particular, a matter as to whether Mrs Limbert gave evidence or not. The inaccuracy of those Particulars was pointed out in correspondence between the solicitors over a year ago. Yet that, along with other matters, was not dropped until Mr Walker rose to argue his appeal this morning.It cannot be emphasised too strongly that the jurisdiction of this Tribunal is only to entertain appeals on errors of law. It is not an opportunity to trawl through a decision in minute detail on factual points to create a ground of appeal which does not exist and is not sustainable.Secondly, there was unreasonableness in the conduct of this appeal. The unreasonable conduct was in raising a point which stood no prospect of success on the facts and established law. That was the point on consultation. There was no dispute between Counsel as to the law on consultation on redundancy with unions and individual employees. It was simply a question of application to the facts. When one looked at the facts of this case the stark fact was that, on crucial aspects of redundancy, namely, the criteria to be applied and the application of them to individual cases, there had been no consultation with either the union or the individuals. Furthermore, when, after receiving the notices of redundancy, the solicitors wrote on behalf of the two teachers asking the school to reconsider its position, they received no reconsideration of the position. A letter was sent in reply to the letter of the 5th June stating that the school had acted in a way which was not unfair or in breach of the law. The position taken by the school was as stated by Mr Airth in that letter, that the Management Committee had done all they felt they could do in the situation. That was not good enough. To pursue the appeal in that frame of mind and to be proved to be wrong from beginning to end on this point entitles this Tribunal to conclude that there was unreasonable conduct. That renders the Appellants at fault and liable to pay the costs.We have considered whether we should only order a proportion of the costs on the basis of Mr Walker's argument that such time as may have been wasted by the Particulars was in the preparation of the appeal, not in the arguing of it today. He argued that the costs of today were necessary in order to deal with the point on consultation. We have already formed the view that the point of consultation never stood any prospect of succeeding either on law or on fact.We therefore order the Appellants to pay costs of the Respondents. The final question is whether they should be assessed by the Taxing Officer or we should assess them now. Mr Duggan, on the instructions of his solicitor, has given us a rough estimate that the Respondents' costs were in the region of £2,500 to £3,000. We have reached the conclusion that the fair and just way of dealing with the costs in this matter will be to assess them at £1,500 and order the Appellants to pay that sum to the Respondents as costs.