Turner v Arts Educational School [1995] UKEAT 440_93_0603

EAT

Turner v Arts Educational School

[1995] UKEAT 440_93_0603 · 1995-03-06

MR JUSTICE BUCKLEY: The Appellant Mr Turner was employed in the maintenance department by the Respondents. Nothing turns on the precise numbers but the maintenance department seems to have been a team of ten, responsible for the maintenance of the premises generally. Due to financial restrictions, the Respondents saw the need to reduce the maintenance department by two and the finding of the Tribunal was that it was a clear case of redundancy.

Two members of the department were made redundant, one was Mr Turner. The Tribunal sitting at Bedford on 2 April 1993 found that the Respondents acted fairly in selecting Mr Turner for redundancy. The appeal to this Tribunal is on the basis essentially that the finding was perverse in the sense that it was unsupported by the facts which were found and that if the Tribunal had applied the correct legal approach to the facts found they could not reasonably have reached their conclusion.

Mr Kolvin for the Appellant said first of all that the warning the Appellant was given was inadequate, that the selection criteria which the Respondents identified and applied were too nebulous and subjective and that finally consultation was either absent or inadequate. Mr Kolvin whilst making those three separate submissions was disposed to accept that he might have been in difficulty succeeding on the first two if they stood alone but he made the general point which we accept that where a warning is inadequate or selection criteria are nebulous, if that is the case, it places a greater burden on the Respondents to correct the matter with proper consultation.

In reaching a view on this matter it is necessary to have in mind the scheme of theses reasons and of course to read them as a whole as we were urged to by Mr Phillips for the Respondents The scheme is perfectly clear and Mr Phillips did not dissent from this, it is that they set out the background and the findings of fact in the paragraphs up to and including paragraph eight, paragraph nine then proceeds on the basis of those facts found to indicate the case put forward by the Respondents and so forth and then in paragraph ten, the final paragraph, the Tribunal sets out its conclusions. Its noteworthy that amongst those conclusions there is this sentence;

"The Respondents warned the applicant that he was potentially redundant and there was consultation with him prior to the decision being finalised. Mr Turner was given an opportunity to make representations against his selection."

The Tribunal concluded on that basis that the Respondents were reasonable and there was no unfair dismissal. The question of course is whether those conclusions can be supported by the facts found and the relevant paragraph so far as warning and consultation is concerned is paragraph eight. There are no other relevant paragraphs on those two topics, it is therefore perhaps helpful to read paragraph eight, its not very long;

"Once the decision had been taken, [I interpose that is the decision to make Mr Turner redundant] Mr Turner was called to the office where Commander Deller who is the Bursar and Secretary to the Trust, spoke to him. Effectively Commander Deller told Mr Turner that he had been selected to be made redundant unless he could show grounds why he should not be so selected. Commander Deller told us that he bore in mind that Mr Turner might well have been shocked at the news imparted to him and therefore he gave Mr Turner 5 days within which to make any representations against his selection. In the absence of any representations being made, Mr Turner was made redundant and his letter of dismissal dated the 8 April 1992 is to be found at page 1 of R1. The letter was handed to Mr Turner and informed him that his employment would terminate by reason of redundancy on the 2 June 1992."

Now it is apparent from that paragraph that the only warning, the only findings of fact on a warning are that Mr Turner having been told that he had been selected was given five days to make representations. On any view that was an unreasonably short warning if proper warning it can be called. Mr Phillips for the Respondents accepted that it was in fact not a proper warning but he went onto submit that it was remedied by the consultation process.

As to the finding of consultation, again that can only be based on these findings in paragraph eight and the only facts referable to consultation are those found in a sentence beginning "Effectively Commander Deller told Mr Turner that he'd been selected to be made redundant." It is to be noted in particular that there are no findings at all that there was any further discussion. There are no findings that Mr Turner was told that any criteria had been identified or applied, or that Mr Card, the Foreman, was the one who carried out this assessment. Neither the results of the assessment nor the application of the criteria were in any way discussed. In short, there is no finding at all that Mr Turner had any idea of the case against him, that is the reasons why he as opposed to any of the others had been selected for redundancy.

In those circumstances Mr Turner could be forgiven for going away in the five days he was allotted and wondering where he should begin or what factual matters it would be useful or might be productive for him to address. As against that Mr Phillips has urged on us that we should first of all view the reasons as a whole and not be too legalist about it and that certainly we accept. He also makes the point that no union was involved here, this is a relatively small undertaking. That also we accept although it should not be over emphasised. The maintenance department was fairly small but the Respondent, The Arts Educational Schools is not that small and should not be that unfamiliar with the workings of proper and fair and good industrial relations. But so far as it goes we accept those submissions of Mr Phillips.

Finally Mr Phillips urged, and this is more difficult, that Mr Turner must have known when he was told by Commander Deller that he was to be redundant, that he must have known and appreciated that it was because he compared unfavourably with his fellows in the maintenance department and that because of that he was in a position to go away during the five days allotted and make out a case to demonstrate that he compared favourably. That is a submission which we can not accept, no employer is entitled just to say: "you are redundant unless you can persuade us you are not or shouldn't be," and to assume or leave it to the employee to draw his own conclusions as to why and therefore put himself in a position to make effective representations. The very least an employer must do is to identify the reasons for the selection and the criteria that have been applied so that the employee knows to what he has to address his mind.

We have read and re read these reasons because it goes without saying that this Tribunal is not here to second guess the Industrial Tribunal itself. We are not here to dissect the reasons and to find small criticisms that lack substance. However one addresses these reasons, it seems to us that there really is no factual basis for the decision other than Mr Turner being told that he had potentially been selected for redundancy and that he had five days to make a submission. Apart from that there is absolutely nothing to support the conclusion of consultation and if one sees that against the background that it was the first intermation Mr Turner had, the first warning that redundancy was afoot, we really can only conclude that no Tribunal should have reached the conclusion that there was consultation. There really was no actual basis applying the right legal criteria upon which a Tribunal could reasonably have reached that conclusion. It was in short unsupported by any finding of fact.

Mr Phillips in a valid attempt to support it urged upon us or pointed out to us that there are no findings that there hadn't been further discussion and indeed he said one should conclude that clearly there must have been further discussion between Commander Deller and Mr Turner and that in all the circumstances we can put two and two together and reading that with the conclusion of consultation fill in to some extent the lacuna for ourselves. That is something I'm afraid we feel quite unable to do.

It is encumbant upon a Tribunal in giving reasons to set out the facts that they find so that this Tribunal can see whether they do in law provide a sufficient basis for a conclusion. It is not a question of our simply taking a differnt view, that we certainly would not do but we do need to satisfy ourselves that there was a sufficient factual basis so that the conclusion is reasonable and here regrettably we find it is not.

That being so, the appeal must be allowed and it must follow that Mr Turner was unfairly dismissed and subject to submissions from the parties to the contrary it seems to us that this matter must therefore go back to the Tribunal for an assessment of compensation.