Gill & Anor v Airedale & Warfedale College [1996] UKEAT 1318_95_2011

EAT
Gill & Anor v Airedale & Warfedale College
[1996] UKEAT 1318_95_2011 · 1996-11-20

JUDGE HULL QC :

This is an appeal to us by Mr Barry Gill and Mr Warren Clive Murphy from a decision of the Industrial Tribunal sitting at Leeds under chairmanship of Mr Morris with two industrial members on 11th September 1995, the decision was given on 30th October 1995. The Industrial Tribunal dismissed the complaints of both gentlemen who complained of unfair selection for redundancy and sought reinstatement.In the case of Mr Gill, Mr Gill is registered disabled and he complained that there had been no or no sufficient consideration given to the fact that he was registered disabled and was therefore entitled not to be dismissed without reasonable cause under section 9 of the 1944 Act.The appeal has been put before us in detail with great patience by Mr Kibling. We would like to say that we are grateful to both Counsel for the thoroughness and detail of their skeleton arguments.The appellants' argument says that there are the following grounds. First of all that the Industrial Tribunal misunderstood or misapplied the legal principles in Buchanan v Tilcon Ltd [1983] IRLR 417 , and failed properly to take into account the concerns stated at paragraph 15(a) of their decision or to address the appropriate considerations when determining the fairness of the selection criteria, and the manner in which it was implemented. So the first ground of appeal on behalf of both appellants, is that the selection criteria were not fairly determined.Secondly, in the case of Mr Gill only, there is the complaint relating to his status as a registered disabled employee.Then the third complaint, which applies to both appellants, is that the Industrial Tribunal erred in law in finding that there had been exhaustive and ample consultation, and in particular failed to appreciate what is sufficient and adequate consultation.Then there is a ground which relates to Mr Gill only; that the Industrial Tribunal erred in law in failing to address in its decision the determination by the appeal panel of the respondents, that the dismissal of Mr Gill should be deferred; as is pointed out that is not dealt with in the decision expressly.The fifth ground, again relating to Mr Gill only, again relates to his position as a disabled person.There is no need to go into the history. I shall be referring in a moment to the decision of the Industrial Tribunal.Mr Murphy had been employed for no less than 24 years, or thereabouts, when he was dismissed. He had joined the respondents, who are the Airedale and Wharfedale College at Leeds, on 6th September 1971.Mr Gill's employment began on 23rd September 1985, so he was of just under 10 years standing. Mr Gill who was the more senior of the two in position, had become Environment and Safety Manager; he had formally been Chief Technician. Mr Murphy was a general technician in maintenance work, and he had become, so to speak as a subsidiary occupation, the Audio Vision Technician.The occasion of their dismissal arose in a way which is described by the Industrial Tribunal. The college found that it was going to incur a deficit in the order of £500,000, a very substantial sum in 1994. It is required by law to balance its books, taking one year with another, if a deficit occurs in one year, then it must be recovered in the next. It was the steps which had to be taken to recover from the situation shown by this deficit that led to the redundancy. I do not need to say anything more about that for the moment, because the Industrial Tribunal found as a fact, which is not challenged, that it was indeed by reason of reorganisation or redundancy, it does not matter which for the present purposes, it was in good faith, there is no doubt about it, it was necessary to dispense with the services of some employees and that was the reason why these two appellants were dismissed.Before going to the decision itself, I should say that the response of the respondents to the appeal is essentially this: that on each and every point which the appellants raise, the tribunal made findings of fact based, on evidence, which rebutted the contentions which are now sought to be raised. In other words, that those matters were raised before the tribunal, considered by the tribunal and rejected by the tribunal, and they are all on a proper analysis questions of fact, and not questions of law at all.It was, as I say, the unanimous decision of the Industrial Tribunal, after setting out the facts which I have already referred to, the deficit which had appeared and which had to be corrected. They say that the respondents sought voluntary early retirement, or redundancy. They were able to obtain some redundancies in that way. After further efforts, they obtained two further voluntary redundancies, and then they go on in paragraph 3:
"Voluntary measures, however, did not produce the result sought in two areas, those of Estates Management - which was the area to which both applicants belonged - and Science and Humanities. In the end a reduction took place in the establishment of the science and humanities faculty and a reduction took place in the Estates Management establishment from 11 to 8. In the latter, the reduction was eventually effected by three compulsory redundancies, two of which were the redundancies of the two applicants. We are satisfied on the evidence before us that the reason for the dismissal in each case was as alleged in the two Notices of Appearance.
4. We then have to consider whether in treating redundancy as a sufficient reason for dismissal the respondents were in all the circumstances, having regard to equity and the substantial merits of the case, acting reasonably, the test contained in Section 57(3) of the Employment Protection (Consolidation) Act 1978."Pausing there, that was an entirely correct direction to themselves. We have had the advantage of having cited to us, as is indeed normal in appeals to our tribunal, a number of important cases decided by authoritative courts, courts to whose decision we are bound to defer, in which they have set out what, on the facts of the cases before them and perhaps in other similar cases, would be reasonable actions by an employer as a matter of law. Those include of course, in matters such as redundancy: consultation of the workforce, a fair system of selecting those who are to be made redundant, proper notice, matters of that sort, attempts to avoid redundancy if possible. All those steps are looked for in many cases, and in general. But the statutory requirement is the one which the tribunal read out, and it is to that which they must always return when they consider the facts of any particular case. They go on:
"5. The college recognises two trade unions, UNISON and NAHTFE. There is an obligation on employers who are proposing to make redundancies to consult the recognised trade unions. This was done, exhaustively. A meeting took place on 14 December 1994 with both unions and between 11 January and 25 April 1995 12 more meetings took place, some of them of great length. Neither of the applicants belonged to either of the unions. The total consultation process began in December when there was a meeting of the staff addressed by Mr Pratt [ he was the Chief Executive ] who outlined the situation and the need to reduce the number of employees."
Pausing there, that was not consultation with the unions, but with the staff and its accepted that the applicants were entitled to be present at that meeting, and I think were present, and from that moment had notice of what was going on. It is also accepted realistically, as I think it must be, that we should infer that while these negotiations with the trade unions were going on, both these gentlemen were alive to the fact that the negotiations were in progress and would have had every opportunity to ask colleagues who were in the trade unions, if they needed to, what progress was being made and what matters were being discussed. The tribunal continue:"He [ Mr Pratt ] indicated that he would do his best to avoid compulsory redundancies. We have before us a document entitled "Policy on Managing Changes in Staffing Levels". This was apparently agreed with the unions early in 1994 but is not a signed document. Provision is made for steps to be taken to avoid or minimise possible redundancy, putting into effect statutory redundancy consultation and giving formal notice to employees. Annexed to the document is a statement of procedures and time scales for managing reduction in staffing levels. The numerous meetings with the trade unions appear to have led to agreement about the manner in which the reorganisation and redundancies should be effected, that agreement being reached by the respondents accepting a number of amendments proposed by the union which, in their view and with the concurrence of the respondents, would bring about a fair result.6. At the request of the unions a second invitation was given to employees to offer themselves for voluntary redundancy and this led to the two additional volunteers coming forward as already mentioned. The position in the Estates Management faculty was not, however, as a result of that, satisfactory. There had to be more reductions. It was arranged that the employees in those faculties should complete a staff questionnaire detailing their current post, qualifications, previous professional experience and recent training courses attended. Their current job description should be attached where available. The job description and employee specifications for the remaining posts would be available. The completed questionnaire should be signed by the employee's current faculty director to validate its factual accuracy. In so doing the respondents would be complying with paragraph 1.1 of the procedures to which we have referred. The procedure goes on to make arrangements for stage 1 which provides that where an employee's current post and duties reasonably match the job description of a post on the revised staffing establishment and where this does not apply to any other employee then that employee shall be assimilated to that post.7. It appears that one post in the Estate Management faculty was, as part of the reorganisation, transferred to another faculty altogether and one of the employees in the Estates faculty moved over to that other faculty. However, then had to be applied stage 2 which provides that those employees who have not been assimilated would be matched against those posts on the revised establishment which were unfilled. Decisions on who to assimilate to a particular post were made by comparing the qualifications and previous experience of the other unassimilated employees against the employee specifications. This would be undertaken by the chief executive in consultation with the appropriate faculty director and the human resources manager. As detailed in the Articles of Government, those who were under threat of redundancy had the right to make representations to the chief executive. The unions asked to be allowed to observe the selection process. That was agreed and, we understand, did in fact take place in the Estates faculty. The two posts of Maintenance Manager and Electrical Technician were assimilated.8. Mr Gill held the position of Environment and Safety Manager, a position he had held for two years having previously been for some 9 years Chief Technician. Mr Murphy held the position of Technician (General) Maintenance and, as a part-time further appointment, Audio Vision Technician. The reorganisation of the Estate Management faculty involved the merging of the Health and Safety management responsibilities with the duties of faculty director.

[ They gave some details about that, and then they say :]

9. Ms McNally [ she was the Human Resources Manager for the College ] made an appointment to see each of the applicants separately on 26 April. She saw Mr Murphy on that date. She made notes of the points which arose in the conversation and we have her notes at page 98 of the bundle of documents. It is clear that Mr Murphy raised a number of issues which had a bearing on the selection process as it might affect himself. He was advised to raise the college issues and any grievances he had about them with Mr Pratt; and any issues regarding the operational effects of the reduced levels of staffing should be raised with his line manager.10. Although an appointment was made for Ms McNally to see Mr Gill, he did not attend as arranged. A meeting, however, took place with him on the same lines as that with Mr Murphy on 28 April. ... Ms McNally explained the purpose of the Employee Information Form which was to collect objective information about experience, qualifications and training ..."They then refer to the fact Mr Gill had not done what had been asked, which was to put down essentially his qualifications, his experience, his special training and so forth on one form; so that that could be matched in the assimilation stage to see whether his qualifications appeared to make him most fitted for one of the posts which were essentially new posts, posts with a new job description which had been created replacing the eleven with the eight. Mr Gill was unwilling to put his three forms which he had filled in into one. They also recorded at this point that Mr Gill is a registered disabled employee.The tribunal go on:
"11. Although it is clear that both men were aware of their right to make an appointment to see Mr Pratt, neither of them did. Mr Gill, however, had a fleeting conversation with Mr Pratt early one morning on a casual basis. [ In which he mentioned his disabled status ].
12. When the agreed redundancy procedures had been fully complied with and management had decided that the proper course in resolving their problems in the Estate Management faculty was to terminate the employment of the two applicants, a letter was written to each of them dated 10 May confirming notice of redundancy with effect from 31 May 1995, ..."There was a right to appeal, and the tribunal says in paragraph 13:

"13. Both men did in fact appeal. ... The appeals were heard separately."

Time allowed about an hour, but they could go on longer if necessary. They deal with the appeal. They say that:
"The appeal of Mr Gill was supported by a letter which is before us addressed to Ms McNally, with a copy to Mr Pratt, dated 18 May 1995. This deals with many points which have been put before us today relative to Mr Gill [ amongst others the question of his being a disabled person ]. ... The appeal panel in each case considered all that was said and in the end came to the conclusion that there was no ground for changing the decision to make either of the two applicants redundant. The appeal panel did not exist to go through all the evidence in order to decide themselves whether redundancy was appropriate or not in either case. Their function was to satisfy themselves that the decision reached had been based upon the reasonable interpretation of the evidence before management and that the procedures agreed in order to ensure fairness had been properly complied with. ..."
Pausing there, the lady who was the chairman of the appeal panel was Mrs Young, who was a member of the governing body of the College, and there being little if any written evidence of what passed before the appeal body and of the reasons for their decision, she gave evidence to the Industrial Tribunal, and the Chairman's notes of evidence having been called for, her evidence is with our papers. Then the tribunal go on:
"14. The two applicants before us have put up spirited cases in seeking to show that the decision of the respondents led in each case to an unfair dismissal. It would be improper for us to decide the case in the manner which would appeal to us if our view was at variance with that of the respondents. The question for us is whether the respondents acted reasonably in all the circumstances. We have been directed to a number of cases, in particular Buchanan v Tilcon Limited [1983] IRLR 417."
Pausing there, the way in which they put it is entirely correct. It is not for the Industrial Tribunal to say whether they would have acted in the same way that the employers did, but whether the employers had acted reasonably in all the circumstances which of course involves considering a range of possible actions by an employer which fall within that broad category. The tribunal go on:
"Following the guidance of the Court of Session in that case we are satisfied that the procedures followed by the respondents accorded with the agreement reached with the trade unions and allowed for ample consultation with all the employees, including the two applicants, who were affected by the respondent's decision before it was made. We are satisfied that, having regard to the procedures agreed, the method of selection was fair in general terms and that it was applied reasonably in the case of each of the applicants."
Then they said:
"15. We offer a number of comments:- (a) First, we accept that the respondents were anxious to deal with the matter on an objective basis in each case. We are nevertheless surprised to find that the basis of selection within the Estate Management faculty made no reference to age, length of service, loyalty and disciplinary record. We are at a loss to understand why these matters should have been omitted since, in each case, they are matters of record and, as such, essentially objective."
Pausing there, that was of course disclosing the views which the Industrial Tribunal took, and they quite rightly said that they were offering them only as comments and not making them part of their decision. They then go on:
"(b) The two applicants have complained about a failure by the respondents properly to consult with them about their position in the proposed redundancy exercise. We do not accept those complaints. The evidence shows us quite clearly that there were ample opportunities offered for the two applicants to raise with Ms McNally and/or Mr Pratt any points that they wished to do. It is unfortunate that so many of the points which Mr Gill, in particular, raised in his letter of appeal should not have been raised at an earlier stage. It is, in our view, purely by way of comment unlikely, however, that even had they been raised earlier there would have been a different result. [ That of course, if it had been part of their decision, would not have been a legitimate part of their decision, because it was ignoring the Polkey decision, but it is clear that they are not making it part of their decision. It is purely by way of comment. ] We take the view that the respondents were entirely open in making available information to the two applicants which might enable them to pursue the possibility of having continuing employment with the respondents in some other position. It was an error on the part of each of them if he did not press for a position which he thought was suitable for him instead of letting the opportunity go by default, supposing that he would be exempt from redundancy when the investigations and decision were finally made."
So that is their decision on the points apart from the disablement point. Then they go on to consider the question of disablement. First of all they say:
"(c) Finally, to deal with the question which affected Mr Gill concerning the continuing employment of persons registered as disabled, there is evidence before us showing that in December 1994 there was a total staff of 775 at the college. Of those, disabled and registered there were two: disabled but not registered, four. Those who were known not to be disabled numbered 704 which left 65 about whom it was not known whether they suffered disability or not. Accordingly, it was quite impossible to consider whether in fact the college was employing up to 3% of its total complement of those who where disabled."
That, as they say, is offered by way of comment and not decision, but in paragraph 16 it is clear, as is conceded, that they are returning to matters which are essential to their decision. They say:
"16. Our attention has been drawn to the cases of Seymour v British Airways Board ... and Hobson v GEC Telecommunications Ltd ... In the former case Mr Justice Waterhouse pointed out that a person who is disabled and registered as such is entitled to special consideration by his employer; but where the issue is whether a person should be made redundant the decision must be made by the standard of reasonableness in accordance with the statutory provisions."
Pausing there, the decision must be reasonable, both of course under the Employment Protection (Consolidation) Act 1978 and under the statute relating to the disabled. They go on:
"The latter case was also one relating to redundancy when the Industrial Tribunal held that the dismissal was not unfair because the employers had shown that they had reasonable cause to dismiss the applicant for redundancy, a reason unconnected with his disability. The Employment Appeal Tribunal allowed the appeal because the Industrial Tribunal had failed to direct itself in accordance with the requirements of Section 9(5) of the Disabled Persons (Employment) Act 1944 which amounted to an error of law. The Section provided that the employers of a registered disabled person could not dismiss him without reasonable cause if the number of disabled persons employed was less than the employer's quota. The evidence before us indicates that the respondents in this case did take account of the fact that Mr Gill was a registered disabled employee. In coming to the decision to make him redundant, the appeal panel had regard to the disability and registered disabled status of Mr Gill. They did not conclude that there had been any unfairness to Mr Gill in the selection process. We are satisfied that the factor was duly taken into account and that Mr Gill was not unfairly treated in that regard."
And so they dismissed the application.Well now I must turn to look at what Mr Kibling has said to us, in a way which as I say we are extremely grateful for. Dealing first of all with the selection point, he says, after referring to Buchanan , at paragraph 4.1:
"The Respondents operated no selection criteria and there was no evidence before the Industrial Tribunal that any criteria had been agreed between the Respondent and the Trade Unions. The Respondents operated a ring fence and assimilation procedure. The determination as to the appointment under the assimilation procedure was by the Respondent without any adherence to designated considerations."
Now, that seems to us to be wrong. It appears to us that there were selection criteria here. After all the very hard bargaining with the trade unions, it was agreed in fact that the criteria should be those very favourable to the employer, which relate to the ability and experience and qualifications of an employee for the new jobs which were being created out of the old jobs, so to speak. And those were indeed properly applied, as the tribunal find. And to say that those are not selection criteria because they are not such matters as 'last in first out', seniority, age, conduct or time-keeping or matters of that sort, is not correct. They are a species of selection criteria, and one would say, because the very next paragraph refers to Williams v Compair Maxam Limited , that that and other cases which are referred to, particularly the older cases, are dealing with a method of making people redundant, which has often been held to be very fair, in which such objective criteria as length of service, and age, and so on, are made the criteria, but they are not the only fair way of dealing with a redundancy situation, and that of course is shown by other cases particularly later cases. We reject the suggestion that there were no selection criteria whatever here.We also reject the submission that those selection criteria were arrived at unfairly or not with proper fairness, because they were the result of the consultation with the trade unions and the applicants were not members of a trade union. We agree with Ms Eady that that criticism is not made out. It is quite clear that the tribunal regarded such matters as the negotiations having taken place for the benefit of these two applicants, although they were not members of either of the trade unions. As we have said, it is perfectly obvious that they were aware of what was going on, and just as in pay negotiations a non-union employee may take advantage of something which is won by a trade union, so here the employees were entitled to take advantage, if it was considered an advantage, of the criteria which had been decided upon.Then there is the reference to the failure to give special consideration to Mr Gill as being the second ground, and also I think the fifth ground. In our belief, that contention is simply concluded against the applicant, Mr Gill, by the findings which I have just read in the last part of the tribunal's decision.Then Mr Kibling goes on to deal with the contention that the Industrial Tribunal erred in law in finding that there had been exhaustive and ample consultation with the appellants, in that it failed to appreciate what is sufficient and adequate consultation, the duty individually to consult non-unionised employees, or alternatively, the decision that there had been exhaustive and ample consultation was perverse.We are not satisfied with this contention. It appears to us that there was consultation with the whole of the staff in December, and that it was made plain to all the staff, including these applicants, that they could at any time have access to the Chief Executive or of course to the Human Resources Manager, Ms McNally. It is quite clear from the way in which the Industrial Tribunal deal with the matter that they did not in fact ask for such opportunities; they were not refused them, there was nothing of that sort. They simply did not think it right to take them up. They were consulted at the outset, and then there were the interviews with Ms McNally in April. It appears to us again, that it cannot be said, as Mr Kibling urges, that those could not be called consultation, they could be called consultation, and indeed, when Mr Gill was asked by Ms McNally to put matters in better order for consideration of his representations to the employers, Mr Gill failed to do that.Then there was the question of the dismissal by Mr Pratt of the suggestion by the appeal panel that Mr Gill's dismissal should be deferred. There are a number of matters which could be mentioned there. The fact is that the mere deferment of the dismissal was apparently urged so that he could tidy up arrears of work or some outstanding matters. Secondly, merely deferring a dismissal would not of itself turn something, one would have thought, unfair into something which was fair. Thirdly, Mr Pratt gave a reason for it, and the reason appears to us, given the findings of the Industrial Tribunal, to be an entirely rational one, namely that it would be inconsistent with the arrangements which had been reached with great toil, and indeed, much giving way on each side with the trade unions in the course of these long negotiations. Probably the principal point which underlies the submissions which were made to us is that these men were not members of either trade union and, accordingly, there was a duty to consult with them separately. It appears to us that that was considered thoroughly by the Industrial Tribunal, and that they held that there was in fact sufficient consultation.There is, in our view, no principle of law which prevents a non-union member saying, if he does choose to say so, "I am content with the stance which the trade unions are taking, and the negotiations which they are conducting on behalf of my colleagues who are members of their union, I myself prefer to do nothing at the moment." If he does take that view, or says "I will limit myself to making, perhaps, certain submissions when the negotiations are at an end" - which after all was the stage at which the selection and choice of those who were to be made redundant was taking place - well then again, there was no reason why he should not do that.However that may be, there is, it seems to us, no principle that in all cases the employers must give quite separate consideration to everything that is put forward by individual employees and give it the same weight as the representative negotiations. They may or may not do so. But if there were a duty in law to do that it would be make representative negotiations almost meaningless. An individual member of a union might say "Well I disagree with what was being said on my behalf, I desire to be consulted and I desire to put forward a quite different scheme." There might be a number of members of a trade union who would do that. And of course, there might equally be a number of people who would seek to come forward after the negotiations were over, and say "This does not apply to me, I am not a member of the union, and I insist on having quite separate criteria applied to me. I want to persuade the employers of that." One could understand in those circumstances the employers saying "We have already reached an agreement with the union in which each side has made a number of concessions, and if we give way to individual negotiators negotiating on their own behalf, that will make agreement overall virtually impossible because of the unfairness involved to those who are not parties to the agreement."In those circumstances, it seems to us that the tribunal correctly reminded themselves of the need to see whether the employers had acted reasonably in all the circumstances. There can be no final and set rules as we have indicated about that, important as the guidance from the leading cases is. Having considered it on the facts, this tribunal did decide that all that had been done did amount to reasonable behaviour by the employers in treating the redundancy as a reason for dismissing these employees and had acted fairly throughout.We therefore accept the submissions made to us by Ms Eady that, in essence, the contentions which are made here by these appellants are contentions of fact which are closed against them by the express findings of fact of the tribunal. We have no choice but to dismiss the appeals.