Williams v Oxford Health Authority [1994] UKEAT 687_92_0107

EAT
Williams v Oxford Health Authority
[1994] UKEAT 687_92_0107 · 1994-07-01
MR JUSTICE MORISON : This is an appeal against the unanimous decision of an Industrial Tribunal held at Reading which found that the Applicant, Mr Williams, had not been unfairly dismissed by his former employers the Oxford Health Authority whom we shall call "the employers". That decision was entered in the register on 13 August 1992.The essence of the decision may be summarised in this way. The employee joined the authority as a carpenter/joiner/sealing fixer in 1976. He became a shop steward; then convener for the union which was recognised for bargaining purposes. He was then elected to the Regional Council of his union in 1979. So far as his employment was concerned he was promoted to the position of supervisor in 1988 which was, within the employers' structure, a junior management position and he agreed to cease to act as convener and shop steward and his right to paid time off lapsed. Subsequently he was elected by the membership of his union to the National Council and a dispute arose between him and his employers as to whether he was being given reasonable time off in accordance with the statutory requirements.In the summer of 1991, the employers were appraised of the findings of an Audit Commission which suggested that line management should be streamlined. The employers took the view that it would be consistent with the report that two supervisors posts of which the employee held one should be merged; thus the Industrial Tribunal held (paragraph 9)
"As a result of the reorganisation there was a reduction in the number of employees required to do the relevant work. There was a redundancy situation."
Mr Cleary was the other supervisor. He was an experienced electrician who knew the lay-out of all the electrical cables within the hospital. The employers selected the employee for redundancy electing to retain Mr Cleary. That was a decision which the Industrial Tribunal described as one to which the employers were entitled to come, but further that it seemed to them that Mr Cleary was "the obvious and sensible choice" for the person to retain (paragraph 10).The employers reached that decision without prior consultation with the employee and the Industrial Tribunal concluded that they were satisfied that a reasonable employer in the position of the employers could form the view that there was no need to consult the employee on that matter.When the employee was told of the news he did not mention the position of Mr Cooper, who apparently would have been willing to accept redundancy. However the Industrial Tribunal found that not only did the employers not know of Mr Cooper's wishes, which arguably they might have done if there had been prior consultation, but even if they had, in reality Mr Cooper was only prepared to take redundancy if a sufficient financial package or incentive had been given to him which was beyond that which the employers would have been prepared to pay (paragraph 16).The employee's union suggested a "bumping" redundancy but this was rejected by the employers. The Industrial Tribunal rejected a suggestion that the employee had been selected because of the long running dispute as to the amount of time off he was entitled to for trade union activities or that his dismissal was connected therewith (paragraphs 19-21). The Industrial Tribunal then directed itself as to whether the dismissal was fair within the meaning of section 57(3) of the Act. They confessed to being troubled by the lack of consultation and examined the arguments about widening the pool from which the selection for redundancy was to be made and having recited the arguments at paragraph 23 of their decision, they concluded in paragraphs 24 through to 27 in terms which we will incorporate into our judgment (but will not read out now):
"24 Taking into account all the provisions of Section 57 and the authorities quoted to us, we are satisfied that a reasonable employer in the position of the authority does not have to go outside the immediate pool of employees (two in this case) to select for redundancy. The applicant is urging upon us the proposition that no reasonable employer would not go outside the immediate pool when selecting for redundancy.
25 We reject that submission. A reasonable employer in this case could, and probably would, have chosen Mr Williams. Normally lack of consultation will render a dismissal unfair. In this case we are satisfied that there was nothing to consult about. We are satisfied that the respondent authority could reasonably have concluded, in the light of circumstances known to them at the time, that consultation with Mr Williams prior to choosing him for redundancy would be quite pointless.26 It is, however, regrettable that the employers cancelled the meeting with the union officials on the question of time off at a time when they had most likely decided their new management structure, knew that Mr Williams was going to be made redundant but had not finally taken the decision to implement the dismissal. It would, perhaps, have been more sensible if the respondent authority had taken Mr Williams into their confidence, or, at the very least, explained to his union that a meeting at that stage would be inappropriate because of the restructuring. As it was, Mr Williams quite understandably formed the view that he was being victimised.27 We therefore find that the applicant was fairly selected for redundancy and that lack of consultation prior to the dismissal does not in the circumstances of this case, render the dismissal unfair. We have already found that the applicant's trade union activities played no part at all in the decision to dismiss."By Notice of Appeal dated 22 September 1992 Mr Williams whom if we may we shall call "the employee" throughout, contended that the Industrial Tribunal erred in law essentially on five grounds. First of all that the Industrial Tribunal failed to ask itself whether the employers had asked themselves whether it was fair to dismiss without prior consultation as opposed to examining whether they thought a reasonable employer could arrive at that view. Secondly the decision that the dismissal was not unfair despite the lack of consultation was effectively perverse. Thirdly the Industrial Tribunal failed to take account of the fact that the employer could be required to take on alternative duties under his contract when considering the pool. Fourthly it was perverse for the Tribunal to hold that a reasonable employer does not have to go outside the pool and finally it was perverse for the Industrial Tribunal to be prepared to accept as reasonable a pool limited to two people.This case has been conspicuously well argued on both sides and we are grateful for the submissions made to us. The matters raised in the Notice of Appeal have been refined and the arguments presented to us on behalf of the employee may be summarised in this way. Firstly the employers had failed to consider widening the pool of people from which a selection for redundancy was to be made so as to include the possibility of a "bumping" redundancy and that by failing to do so the Industrial Tribunal should have concluded that the dismissal was unfair and reliance was placed on the decision of Thomas and Betts v Harding [1980] IRLR 255. Secondly the employers failed to consult in circumstances which render the dismissals unfair. The Industrial Tribunal never asked itself the question, so it was submitted, whether the employer had decided not to consult and to apply their judgment to that decision saying whether it was or was not reasonable. Unless that question was answered by the employer it was not sufficient for the Industrial Tribunal to substitute its own judgment by saying that any reasonable employer could have decided to dispense with consultation. We were referred to the well-known decision of Polkey vAE Dayton Services Ltd [1988] ICR 142 , and to what might appear to be a conflict of approach between what the Lord Chancellor said in his speech in that case which commanded the approval of the rest of their Lordships and what Lord Bridge said in his speech. We were also referred to two cases decided in this Tribunal namely Duffy v Yeomans [1993] IRLR 368 and Robertson v Magnet (Retail Division) Ltd [1993] IRLR 512 and were informed that the former had gone to the Court of Appeal where judgment is awaited. Thirdly the Industrial Tribunal fell into error in concluding that a reasonable employers could have concluded the consultation with the employee would have been quite pointless as the Employment Appeal Tribunal has said in Heron v Citylink - Nottingham [1993] IRLR 372, there may be circumstances unknown to the employer which the employee knows about which might cause the employer to change his mind.For the employers it was argued that first the case of Betts did not establish the principle contended for; secondly the Industrial Tribunal used the language of the Lord Chancellor's speech in Polkey in paragraph 25 of its decision and therefore had correctly directed themselves; thirdly the Heron case did not establish any principle but merely emphasises the importance of consultation; fourthly on the facts this case is distinguishable from those where the employee is simply presented with a fait accompli. Here the employees were shown at a mass meeting on 11 October, a diagram showing the removal of one of the two supervisory posts held by the employee and Mr Cleary thus there was warning of the impending redundancy. Having decided to fuse the two positions it became a question of which one was to be kept on and that was a decision which they were entitled to take without consultation. Having made that decision the employers then talked with the employee on 4 November 1991. He, the employee, indicated he would be coming back with proposals. The letter of dismissal was sent on 11 November and there was a full meeting which took place at which various options were discussed with the employee on 24 November. So it was argued this was not a case of no consultation at all.We have not done full justice to all the arguments but we think that that is a sufficient summary of them to enable us to reach our conclusions. We are of the view firstly that Betts does not support the proposition that every fair employer will consider widening the pool to include within it those not immediately affected so as to constitute "bumping" redundancies. It leaves the matter entirely open as a pure question of fact to be decided in every case. All that Betts decides is that on the facts of that case the Industrial Tribunal were not perverse in concluding that the employer should have taken into account a "bumping" redundancy situation. It is with respect logically fallacious to turn that decision into one of more general import.As to consultation the importance of this in every redundancy case cannot be over emphasised. At the end of the day however, the Industrial Tribunal has got to apply its mind to the language of section 57(3). It will seldom be the case that an employer could fairly dismiss where there has been no proper consultation, or in other words it will only be in exceptional circumstances that a lack of prior consultation will lead to a finding of fair dismissal but it is never sensible for the law to say never, because experience shows that the range of different facts is endless. We do not consider that Polkey requires the employer to have applied his mind expressly to the question of consultation.As we read the decision here, what happened was that the employer thought that consultation as to which of the two candidates should stay and which should go was so obvious in its answer that they either thought that any consultation on that point would have been pointless or, because it was so obvious, the idea of consultation never occurred to them at all. There is no difference in essence between the two states of affairs. The end result in each case is the same; namely that consultation does not occur.If the proposition is that in the former example the dismissal would be fair but, in the latter, unfair then the law would be an ass. It would mean that the more obvious it was that consultation was futile the more likely it would be that the decision to dismiss would be unfair. It would mean a ritual applying of minds to a situation where the answer was obvious.It may be that the correct way of looking at the matter in this case is that the employer implicitly considered and then rejected the need for consultation or that they decided not to consider the need for consultation at all. We can see no conflict between the speeches of the Lord Chancellor or Lord Bridge. We are encouraged to take that view because that is the view of the Court of Appeal in Hooper v British Railways Board [1988] IRLR 517. We note also that Lord Coulsfield in Robertson v Magnet [1993] IRLR 255 saw no distinction and was not prepared to subscribe to the very submission made to us this morning that for the exception to ply there had to be a decision made by the employer not to have consultation. As he said, the exception will only normally be available where that is so. In other words each case will depend on its own facts. What Industrial Tribunals must be on guard against is an unfair employer who seeks to justify his unfairness ex post facto by saying in the Industrial Tribunal that consultation was neither appropriate nor unnecessary, when as an employer, consulting was not something he would do as a matter of course in any event.Here it seems to us that with the benefit of full argument the Industrial Tribunal gave a decision which cannot be faulted. We think this was a model decision of its kind and is none the worse for the fact that no authority is referred to in it. What has happened here we think is that the emphasis of the case altered between the time when it was before the Industrial Tribunal and today. As the Industrial Tribunal noted, it would have been better in this case had there been more consultation because the employee's genuine sense of grievance would have been reduced if not eliminated, but having listened to all the arguments we think that it is, to use the words of Brown LJ, in the Betts case a valiant attempt to dress up as a question of law what is in the end essentially a question of fact.Accordingly we think that the Industrial Tribunal were entitled to reach the decision which they did and we think that this appeal should be dismissed. That said we would like again to pay tribute to the arguments which we have been presented.