Armishaw v London Docklands Development Corporation [1996] UKEAT 1246_94_1601

EAT

Armishaw v London Docklands Development Corporation

[1996] UKEAT 1246_94_1601 · 1996-01-16

MRS JUSTICE SMITH : This is an appeal from a decision of an Industrial Tribunal sitting at London North, sent to the parties on 24th November 1994. The Tribunal found that the applicant, the appellant in this appeal, had not been unfairly dismissed and had not been discriminated against on the ground of her sex or by reason of her pregnancy.

The appellant was dismissed from her employment with the respondent with effect from 30th September 1993. She was informed of the decision to dismiss her as redundant on 15th September, following a selection procedure of which she was quite unaware. The Tribunal found that there was a redundancy situation within the respondent's business at the material time and that the appellant was dismissed for that reason. They also found that the selection process was fair. They criticized the respondent for the inadequacy of consultation regarding the redundancy but found the dismissal fair because it was "clear that consultation would have served no useful purpose."

Although the Notice of Appeal as drafted sought to challenge as perverse the finding that there was a genuine redundancy situation, that argument has not been pursued before this Appeal Tribunal. Mr Isham, for the appellant, contends first that Tribunal ought to have found the dismissal to be unfair under section 59(1)(b) of the Employment Protection (Consolidation) Act 1978 (the Act) as having been based upon a selection process which contravened the respondent's customary arrangement for redundancies. Second, he submits that in considering section 57(3) of the Act, the Tribunal's approach to the inadequacy of consultation was wrong in law, in that they failed to heed the decision of the House of Lords in the case of Polkey v. A.E. Dayton Services

[1988] ICR 142

. Alternatively, he submits that their decision that the dismissal was fair was perverse.

For the purpose of examining these submissions, it is necessary to set out the history of the matter in rather more detail than is found in the Tribunal's Reasons. We have been able to do this, even without the Chairman's notes of evidence, because the Tribunal have said that they accepted the evidence of the respondent's witnesses, whose proofs of evidence were before us. Also the history may be quite clearly traced through the respondent's documents.

The appellant had been employed by the respondent, under a series of 2 year contracts, since October 1987. Since 1989 she had worked as a Senior Urban Designer in the City Design Team within the City Design and Planning Department, which was managed by Mr Hennessy. He reported to Mr Sheppard, Director of City Design and Planning. He reported to Mr Squire, the Assistant Chief Executive of the Development Division.

The respondent's operations were due to cease completely in 1998. Since 1991, its level of activity had gradually diminished. Staffing levels had been reduced each year and it was known, in general terms, that further reductions would probably be made in 1993 and in subsequent years. Within the department in which the appellant worked, there had been a compulsory redundancy in 1992.

In February 1993, the respondent's Staffing Review Group considered the extent to which each division should reduce its staff in order to meet the target set for the year of an overall reduction of 18%. Within the Development Division there was to be a reduction from 134 to 117. The Planning Team was to be reduced from 27 to 20 and one job was to go from the Design Team, reducing the numbers from 6 to 5. The document setting out these plans was marked "confidential" and although Mr Squire and Mr Sheppard knew its contents, Mr Hennessy did not. No member of the design team was informed that staff reductions were on the way. It does not appear that any explanation was given to the Tribunal for the need for confidentiality at that stage.

On 1st March 1993, Mr Hennessy undertook a review of the appellant's position for the purpose of deciding whether her contract should be renewed when it expired at the end of June 1993. He considered that the department needed her services for a further two years and recommended renewal. Mr Squire approved and countersigned the recommendation. We note, in passing, that he did so at a time when he knew that the Design Team was to be reduced in size. On 11th March the appellant was informed that her contract was to be renewed for two years.

On 13th April 1993 the appellant went on maternity leave. She knew nothing of the proposal to reduce the size of the Design Team. A member of the team who had been made compulsorily redundant in 1992 was kept on to cover her absence. Her baby was born in May 1993.

In mid-June 1993, Mr Hennessy was told that his department was to be reduced in number by 8. The staff who might be affected were not told. It seems however, that some found out or suspected that there might be redundancies as one member of the Design Team, Mr Wai Lam Tam, applied for voluntary redundancy. On 27th July he was told that his application would be considered and the Tribunal found that it had been accepted before 12th August.

From July, Mr Hennessy had the advice and assistance of Miss Ross-Green, the Senior Personnel Officer, in respect of the legal and practical aspects of the staff reductions in his department. As guidance, they had the respondent's document entitled "Redundancy Management Notes For Guidance". This eight page document begins by explaining that redundancy is a fair reason for dismissal provided that:

"A demonstrably genuine redundancy situation has been identified.

The selection of those staff to be notified of redundancy has been fairly carried out.

That staff have been consulted concerning their selection for redundancy at the earliest practicable stage.

and, if the redundancy is to result in a dismissal:-

No suitable alternative work is available to be offered to an individual so selected."

There then follows a detailed set of instructions as to how staff structure is to be reviewed, requirements are to be assessed, reductions are to be determined and posts are to be identified as redundant.

Section 8 provides guidance as to the criteria to be applied in the selection for redundancy. It provides:

"In selecting individuals to be notified of redundancy the Corporation considers the suitability of employees against the following criteria:

Relevance of skills in relation to the tasks remaining to be undertaken;

Flexibility of skills in relation to tasks remaining to be undertaken;

Level of relevant historical knowledge and anticipated contribution to continuity;

Performance Appraisal data;

Disciplinary Record;

Length of Service;

Proximity to normal retirement date;

Attendance;

Personal factors (e.g. employee flexibility and health).

These criteria are not listed in priority order, but do represent the key criteria normally to be considered by management in a selection for redundancy decisions. Other criteria, provided they are relevant and consistently applied, may be used by management after consultation with ... Personnel.

In considering selection criteria, managers are reminded that:

`Last in First Out' (LIFO) is not a suitable primary basis for selection for redundancy decisions in the Corporation's context."

Although the Notes for Guidance require managers to consult with the Personnel Department, there is no advice about consultation with the people who are to be considered as candidates for redundancy. Section 8 concludes:

"Managers should be prepared and able to discuss with employees why they have been selected for redundancy and how the criteria has (sic) been applied."

Section 9 advises that once a post has been identified as redundant and an individual has been identified for redundancy, consideration must be given to the availability of suitable alternative work. There is no suggestion that the individual selected should play any part in this consideration.

Section 11 entitled "Notifying Redundant Staff" provides:

"Managers, working with Personnel, are responsible for consulting and notifying staff of proposed redundancy.

Personnel will provide an interview format for Managers to follow and will provide the necessary training, advice and support to managers throughout the notification process."

In section 12, twelve aspects of the role of the Personnel Department are set out. The only one which refers to consultation provides:

"Personnel will `conduct any necessary consultation with UNISON.'"

Finally, in Section 13, it is stressed that the Notes for Guidance are intended as a supplement to and not a replacement for professional personnel advice. Managers engaged in staff reduction are reminded that they must " notify the Head of Personnel and Administration immediately and certainly prior to communicating with any staff indirectly or directly affected by the decision."

Nowhere in their Decision do the Tribunal express any view about the complete absence of any provision for or advice about consultation with employees who might be affected by a pending redundancy.

Mr Hennessy and Miss Ross-Green held a series of meetings in July. It emerged that the Planning Team could be reduced by 5.5 posts, without the need for compulsory redundancies. There were to be a voluntary redundancy, two resignations, 1.5 re-deployments to vacancies within the Directorate and one fully funded secondment to the Department of Environment. According to the original plan, Mr Hennessy still had to reduce the Planning Team by 1.5 posts. In addition, it emerged in evidence that Mr Lowman, Head of Personnel, had identified a further placement for a planner within the Department of the Environment, but this possible redeployment was not followed up. In the Design Team, Mr Tam asked for voluntary redundancy, so it would appear that the necessary reduction from 6 to 5 could be achieved without a compulsory redundancy. However, Mr Hennessy decided that, in the respondent's best interests, there ought to be a further reduction in the Design Team. The Tribunal accepted that that decision was taken in good faith. In effect, they accepted that a diminution in the requirements of the business for members of the Design Team was shortly to be expected. Mr Isham, for the appellant, accepted that that decision could not be challenged on appeal. However, we note that Mr Hennessy's decision was taken without any consultation with any of the employees who might be affected by it.

On 12 August there was a meeting at which the selection of the second person to be made redundant from the Design Team was considered by Mr Hennessy. Either on that day or shortly before, a set of seven criteria had been drawn up. These were: relevant educational qualifications; utility/flexibility; level of historical knowledge and anticipated contribution to continuity issues; attitude/commitment; consistency of output; success in working to a deadline; diversity of experience. The Tribunal found that that "the respondent followed the criteria as laid down in (the Notes for Guidance). From this general guideline Mr Hennessy selected criteria which suited the Design Department." It was pointed out to us that the criteria adopted did not in fact follow the Notes for Guidance. In particular, they did not include employees' length of service. But it seems to us that what the Tribunal must have meant was that the criteria chosen followed the spirit of Notes for Guidance and with that we would agree. In our view, the Tribunal was entitled to find as they did.

Mr Hennessy assessed the remaining five members of the Design Team against seven criteria under which it was possible to score a maximum of 30 points. On his first assessment, he gave the appellant and another woman 9 points each. The other three employees, two men and one woman, scored better. Mr Hennessy then reconsidered and reduced the appellant's score to 8. She was last. However, Mr Hennessy and Miss Ross-Green considered that in view of the close result, Mr Sheppard ought to carry out a separate and independent assessment. This was to be done on 17th August. In due course, using the same criteria, Mr Sheppard selected the Appellant.

The Tribunal have not expressly addressed two contentions which we understand were argued before them, as they were before us on this appeal. The first was that the criteria set out in section 8 of the Notes for Guidance amounted to a customary arrangement for redundancy. As the employer had not used the listed criteria, the dismissal was automatically unfair under section 59(1)(b) of the Act. We think the Tribunal must have dismissed this argument as being without merit and we think they were right to do so. We have not been told of any evidence given below that these Notes for Guidance were ever treated as a customary arrangement. On the face of the document they clearly do not amount to such an arrangement. The kind of advice which these Notes seek to provide could not in our view amount to a customary arrangement, which will usually be an arrangement of which the workforce is aware and which employees are entitled to expect should be put into operation.

Mr Isham's second contention under section 59(1)(b) was that when Mr Hennessy assessed the appellant and the other woman each with 9 points, he should have applied "last in first out", in which case the appellant, having the longer service, would not have been selected. He submitted that length of service is one of the criteria required under the customary arrangement and that the Notes for Guidance draw attention to the fact that tribunals have often ruled that, other things being equal, a longer serving employee should be retained. Therefore the respondent's failure to apply LIFO renders the dismissal automatically unfair. Once again, the Tribunal have not referred expressly to this argument but we think they must be taken to have dismissed it as being of no merit. We would agree for the reasons we have given above.

On 13th August the appellant came in to meet Mr Hennessy to discuss her return to work. She also handed in a note informing the Personnel Department that she was ready to return to work and intended to restart on 31st August. During her meeting with Mr Hennessy, she asked if there was any specific news on staffing reductions. He told her that there would have to be reductions in City Design and Planning and that every post in the team was under review. He said it was not possible to say which posts would be affected. The Tribunal did not comment upon the lack of frankness which appears to have been imposed upon Mr Hennessy by the requirements of the Notes for Guidance.

Mr Hennessy then discussed the appellant's proposed return to work with Miss Ross-Green and on 16th August, Miss Ross-Green wrote to the appellant in the following terms:

"Dear Lynne

I spoke with Jeff Hennessy on Friday regarding your intention to return to work on Tuesday 31 August and the operational viability of your returning to work on this date. We are currently engaged in a review of workloads and their allocation within the Design Team. This review is not yet complete and, until it has been completed and recommendations made, any interim reallocation of work made necessary by your return, would be premature.

With this in mind we have decided to take the rare step of deferring your date of return. This deferment does not affect your statutory rights.

Under the terms and conditions of employment, and statutory maternity rights, we are entitled to defer your return to work by up to 28 days. We do not believe that such a long deferment will be necessary, however, and wish you to return to work on 20 September: a deferment of 17 days had you given the full 21 days notice of your intended return to work.

Jeff has informed me of your stated wish to work part time hours. In the circumstances it is not possible to reach a conclusion on the viability of this arrangement and you should therefore plan to return to work on a full time basis. Jeff intends to keep this option of part time working under review.

Please call me if you are at all concerned, or wish to discuss any aspect of this decision."

There is no reference to this letter in the Tribunal's decision. In particular they do not comment upon the appellant's wish to work part time; nor do they comment upon the disturbing lack of frankness the letter reveals. Not only was the appellant not consulted prior to her selection for redundancy, she was actively misled as to the prevailing situation.

The next morning, 17th August, the appellant telephoned Miss Ross-Green to clarify the position regarding her pay during the period of deferment. Miss Ross-Green told her that she was not authorised to make a decision which must await the return from leave of Mr Lowman, Head of Personnel. On that day, Mr Sheppard carried out his assessments of the five members of the Design Team. He gave the appellant 10 points, which was the lowest score. Thus the selection procedure had pointed to the appellant as being the redundant person. The Tribunal found that this selection procedure had been carried out fairly and we consider that, leaving aside questions of consultation, they were clearly entitled so to find.

Endorsement of this decision was then sought of Mr Squire. At a meeting on 19th August, he gave his endorsement and asked Miss Ross-Green to implement the decision. At this stage, Mr Hennessy and Miss Ross-Green considered whether there was any other post within the Directorate for which the appellant was more suitable than its present holder. They concluded that there was not. Miss Ross-Green obtained confirmation that all other Directorates were subject to staff reductions and she concluded there were no other posts for which the appellant might be considered. She and Mr Hennessy considered that the respondent would be unable to offer any other employment to the appellant. They both thought there was no alternative but to make her redundant.

The decision still required endorsement by Mr Lowman who was away on leave. Miss Ross-Green, who was herself due to go on leave, stated in her written statement, which was accepted by the tribunal, that she realised that "she would not be able to communicate the decision to the appellant and carry out a consultation process."

By 31st August the appellant had not heard whether she was to be paid during the period for which her return to work was to be deferred. On 31st August, she came in, ready for work. She was told there was no work for her and was asked to go home. She was not given any assurance about her pay, but Miss Ross-Green promised to clarify the position by the end of the week. On 2nd September, Miss Ross-Green wrote to the appellant saying that she was pleased to confirm that Mr Lowman had agreed "to re-establish (her) on the pay roll with effect from 1st September." She confirmed the earlier arrangement, which was that the appellant was to return to work on 20th September. She promised that the respondent would endeavour to give her earlier news if possible.

Miss Ross-Green then went on leave. She left the necessary information for Mr Lowman, who, she believed, "endorsed the decision to make the appellant redundant" and then, together with Mr Hennessy, "communicated the appellant's redundancy to her and carried out the necessary consultation process." We observe that it was plainly the respondent's intention that consultation should not begin until after the decision to dismiss had been taken and endorsed by senior management.

On 15th September the appellant was called to a meeting with Messrs Lowman and Hennessy. She was told of the decision and given a letter of that date which contained the following passages:

"We have now reviewed the skills and relevant experience of all staff currently within the team and, with regret, I must confirm that you have been selected for redundancy. There are no other suitable vacancies for which you can be considered and, therefore, we have no alternative but to terminate your employment with us.

The likely timing of staff reductions has already been communicated generally. However, the Corporation is only now able to give you a formal notification of your last day of employment, which will be 30 September 1993."

The letter continues with the usual details of the financial consequences of termination. The Tribunal found that at the meeting the appellant was "asked to come up with suggestions regarding alternative employment". She was unable to "come up with" any suggestions apart from consideration of part time employment and consultancy work. She had a further meeting with Mr Lowman on 17th September but, say the Tribunal "nothing was resolved".

We turn now to consider that part of the Tribunal's decision which gives rise to the main ground advanced in this appeal. Having found that the appellant was dismissed by reason of redundancy, the Tribunal turned to consider whether that dismissal was fair according to the provisions of Section 57(3) of the Employment Protection (Consolidation) Act 1978. They considered whether there had been adequate consultation and concluded that they could "criticize the respondent for failure to consult the (appellant) fully regarding being made redundant". That is not a surprising conclusion in view of the course events had taken, as we have set out. Indeed it is only surprising, in our view, that the Tribunal did not express themselves more strongly. This is one of most flagrant cases of a failure to consult which we have encountered.

The need for proper consultation in connection with redundancy has been stressed in many decisions of this Appeal Tribunal. For example in Freud v. Bentalls Ltd

[1982] IRLR 443

, Browne-Wilkinson J said at page 446:

"14 Turning now to considerations 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 re-organisation 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.

15 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 case, to be able to show some special reason why he had not done so."

Later, he cited paragraph 65 of the Code of Practice annexed to the Employment Protection Act 1975 which provides:

"Consultation means jointly examining and discussing problems of concern to both management and employees. It involves seeking mutually acceptable solutions through a genuine exchange of views and information."

Another helpful exposition of the role of consultation is to be found in the judgment of Glidewell LJ in R v. British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and others

[1994] IRLR 72

. At page 75, Glidewell LJ said:

"24. It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant , reported, as far as I know, only at [1988] Crown Office Digest p.19, when he said:

`Fair consultation means:

(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(d) conscientious consideration by an authority of the response to consultation.'

25. Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely."

Set against the background of those citations, it is readily seen that what purported to be consultation in this case was really no such thing. The appellant was told about the need for redundancy only when she had been selected, when the employer had decided that there was no alternative employment for her and that she must go. In short, she was not told until the decision was already "fait accompli". The invitation that she should "come up with suggestions" at the meeting on 15th September was not consultation at all in our view. Nor was the opportunity she was given two days later.

At paragraphs 15 to 16, the Tribunal spelled out their reasoning for finding that the dismissal was fair. They said:

"15 The Tribunal can criticise the Respondent for failure to consult the Applicant fully regarding being made redundant. However, the Tribunal considered Duffy v Yeomans and Partners Limited as reported in `The Times' on 26 July 1994. This decision of the Court of Appeal upheld the decision of the Employment Appeal Tribunal where it was held that the Tribunal had not erred in holding that the employer's failure to consult the appellant employee before dismissing him on grounds of redundancy did not render the dismissal unfair in circumstances in which, on the facts known to the employers at the time when the employee was dismissed, consultation would have served no useful purpose.

16 It is clear that in the instant case, consultation would have served no useful purpose. There were no employment opportunities for the Applicant within the Respondent's undertaking for someone with her particular specialised skills as an urban designer."

Mr Isham submits that the Tribunal has wrongly applied the test set out in Polkey v. A.E. Dayton Services Ltd

[1988] ICR 142

and has misunderstood the ambit of the Court of Appeal's judgment in Duffy v. Yeomans and Partners Ltd , now fully reported at

[1995] ICR 1

The ratio of Polkey's case appears in the speech of Lord Mackay of Clashfern L.C. is to be found at page 153D He said:

"Where there is no issue raised by sections 58 to 62 the subject matter for the tribunal's consideration is the employer's action in treating the reason as a sufficient reason for dismissing the employee. It is that action and that action only that the tribunal is required to characterise as reasonable or unreasonable. That leaves no scope for the tribunal considering whether, if the employer had acted differently, he might have dismissed the employee. It is what the employer did that is to be judged, not what he might have done. On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning.

If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."

Mr Isham submits that in saying, as they did, that "consultation would have served no useful purpose," the Tribunal were answering the question "would consultation have made any difference?" which is the question which the House of Lords has said is irrelevant and must not be asked.

The Tribunal was referred to the then recent decision of the Court of Appeal in Duffy v. Yeomans

[1995] ICR 1

. In that case, the employee had been dismissed without consultation but the Tribunal had found the dismissal to be fair. The Employment Appeal Tribunal declined to interfere. On appeal to the Court of Appeal the question arose as to whether a redundancy dismissal without consultation could be fair only if, on grounds found to have been reasonable, the employer took a deliberate decision at the time of dismissal not to consult the employee or whether it was sufficient for the employer to prove that, in the light of the facts known to him at the time, consultation would have served no useful purpose. At page 7, Balcombe LJ, with whom Saville LJ and Sir Roger Parker agreed, said;

"In my judgment there is no warrant for the proposition that there must be a deliberate decision by the employers that consultation would be useless, with the corollary that, in the absence of evidence that such a decision was made, a finding by an industrial tribunal that a dismissal for redundancy was reasonable is necessarily wrong in law ".

He repeated that the true test is that set out at the end of the passage from the speech of Lord Mackay which we have cited above.

It appears to us from the exposition at paragraph 15 of the reasons that the Tribunal had properly understood the effect of the decision in Duffy . They knew that they were to decide whether the employer had acted reasonably in dismissing the employee without proper consultation and that, in considering whether the employer could reasonably have concluded that consultation would have been futile, they were to judge the employer in the light of the circumstances known to him at the time. Although paragraph 16 is very brief and at first sight could be construed as Mr Isham submits, when it is read in context, we think it is clear that the Tribunal did not ask themselves whether they thought that consultation would have made any difference and accordingly we reject Mr Isham's submission on that point.

However, we consider that in concentrating their attention upon the case of Duffy and the question of the futility of consultation, they lost sight of the main issue for their consideration, which was whether, in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating his reason for dismissing the employee as a sufficient reason. That issue is to be decided in accordance with equity and the substantial merits of the case.

Our first concern is that the Tribunal have not explained the extent to which they considered that consultation fell short of what it should have been. They say only that they can criticize the respondent for not consulting "fully". As we have observed, there was no consultation at all until nearly 4 weeks after the decision to dismiss the appellant had been taken, by which time it had been ratified by senior management. To tell the appellant then and to "ask her to come up with suggestions" is not consultation. This was a very serious failure to consult by an employer with all the resources of a quasi-government body. This failure to consult appears to be the policy of the respondent. The Notes for Guidance, having warned in the preamble that redundancy is only a fair reason for dismissal if staff have been consulted at the earliest practicable stage, conspicuously fail to advise upon a proper programme for consultation. Instead of providing for open consultation, the Notes impose so strict a requirement of secrecy that managers actually misled the appellant as to the true position.

The second matter which concerns us is that no reason appears to have been advanced in justification of the complete lack of consultation. There was no evidence of urgency; indeed events took a leisurely course. Nor was this a case where the employer faced bankruptcy. This was a planned reduction in manpower.

Our third area of concern is that in asking whether, on the facts as known to the employers at the time, consultation would have been futile, the Tribunal appear only to have considered the futility of one aspect of consultation, namely whether there was an alternative job within the organisation. It does not appear that they have considered whether an employer might reasonably have considered that consultation on other issues would have been futile. The Tribunal appear to have adopted as appropriate the very narrow confines of the consultation which the employers purported to carry out, albeit far too late.

Moreover, it seems to us that if a tribunal is to consider whether an employer acted reasonably in dismissing without consultation, and in so doing to look at the issues in the light of the circumstances known to the employer at the time, they should be slow to find that consultation would have been futile, if the employer's failure to consult has resulted in him not having an adequate knowledge of the relevant circumstances. In other words, an employer who fails to consult and therefore does not find out relevant matters, can hardly be heard to argue that consultation would have been futile. By way of example, if an employer does not find out at an early stage that one employee in the department under consideration wishes to work part time, he cannot be heard to say that consultation on the feasibility of job-sharing would have been futile. He simply does not know.

We do consider that the three matters which we have set out above were highly relevant matters for consideration when this Tribunal came to ask itself whether the employers acted reasonably in dismissing the appellant as they did. The Tribunal does not appear to have taken these matters into account. If they have not, as it appears to us they have not, then in our judgment they have erred in law.

If they have given consideration to these three factors, (without saying so) but found the dismissal fair, then we are unanimously of the view that their decision is perverse, that is that it is a decision which no reasonable tribunal, properly directing themselves could have reached. We have reminded ourselves of the very limited circumstances in which this Appeal Tribunal is permitted to reach the conclusion that a tribunal's decision under section 57(3) is perverse. Such decisions are essentially a finding of fact for the tribunal, acting as an industrial jury and this Appeal Tribunal must hesitate long before overturning such a decision. We have nonetheless reached that conclusion. We consider that these employers dismissed the appellant in a way which ignored some of the basic requirements of good industrial practice and did so without any justification. In the circumstances of this case, we cannot see how the employer could reasonably have considered that consultation would have been futile.

For the reasons which we have stated, we allow this appeal. Because it appears to us that the facts of the case are not in dispute and are before us in sufficient detail, we consider it is right to substitute our own conclusion that the appellant was unfairly dismissed. We therefore remit the case to a differently constituted tribunal for consideration of remedies. The extent of any further evidence to be heard by that tribunal will be a matter for them to determine.