Reeve v Agricultural & Food Research Council [1996] UKEAT 547_95_0902

EAT

Reeve v Agricultural & Food Research Council

[1996] UKEAT 547_95_0902 · 1996-02-09

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Reading on 20 February 1995. In Extended Reasons notified to the parties on 10 April, the Tribunal explained why they reached the unanimous decision that Mr N J Reeve was not unfairly selected for redundancy by the Respondent Agricultural and Food Research Council (the Council). His claim for compensation for unfair dismissal failed.

He appealed by Notice of Appeal served on 18 February 1995 on the ground that the Industrial Tribunal failed to give due consideration to two matters:(a) the failure of the Council to consult with him individually and

(b) the failure of the Council to offer him suitable alternative employment or to take into account his skills and experience.

At a preliminary hearing on 12 October 1995, the Appeal Tribunal directed that Mr Reeve's appeal should proceed to a full hearing and that the Chairman's Notes of Evidence should be called for. In November 1995 they were provided.

Mr Reeve argued his appeal in person. Mr Hanson appeared for the Council.

THE BACKGROUND FACTS

The full reasons and relevant documents give an account of the facts which may be summarised as follows:

(1) With effect from 18 May 1987 Mr Reeve was appointed as an "Agricultural worker Grade C" on the farm at Shinfield, Reading, under the supervision of the farm manager or such person as he might nominate. The management reserved the right to transfer him from that work to any other which it considered suitable. A mobility provision in the contract signed by Mr Reeve on 29 June 1987 stated that the grade of his initial appointment was classified as "non-mobile", but he might be

"required to work at some other place than that named in your letter of appointment and in this statement, but within reasonable daily travelling distance where such exists."

(2) The farm at Shinfield formed part of the Shinfield Research Station on dairy cattle operated by the Institute of Grassland and Environmental Research (formerly called the Institute for Grassland and Animal Production) (the Institute), funded in part by the Council. The Council was the employer of Mr Reeve and he worked at the Bernard Weitz Centre (the Centre) which formed part of the research station.

(3) In 1991 the Council decided, as part of a long term restructuring programme, to reorganise its work at the Institute and the Centre. The Council entered into discussions with the University of Reading (the University) with a view to transferring the farms and research work at Shinfield to the University. The University owned the land and buildings in question, which were used by the Institute on the basis that they would revert to the University when the Institute withdrew.

(4) By a letter dated 28 May 1991, Mr Reeve was informed that discussions were taking place between the Council and the University with a view to a possible transfer of the work of the Institute to the University. The Council proceeded on the assumption (based on advice) that the transfer would be subject to the Transfer of Undertakings (Protection of Employment) Regulations 1981 (the 1981 Regulations).

(5) On 6 June 1991 the University was provided with a list of those employed by the Council whose contracts would be transferred to the University in the event of a relevant transfer. The list contained the names of five tractor drivers (including Mr Reeve), one of whom also worked as a stockman (Mr Adlam).

(6) At a meeting on 10 June 1991, the University indicated to the Council that it would not need to employ all those employed prior to the date of the transfer. In a letter dated 25 October 1991 the University indicated that it would be willing to take over that operation with the staff as listed in Appendix A. That included one specialist tractor driver and one tractor driver/stockman. Mr Reeve's name was not included in the list. This meant that there were three tractor drivers, including Mr Reeve, at risk of redundancy in the event of the transfer proceeding.

(7) On 2 December 1991 the Council wrote to Mr Reeve's union representative (Mr Bear of the T.G.W.U.) informing him of the risk of redundancies.

(8) By a letter dated 9 December 1991 Mr Reeve was informed that his post was to be declared redundant with effect from 1 April 1992. He was informed that his case would:

"... be considered by a local redeployment committee and consideration given to his transfer to another post in this or any other institute within reasonable daily travelling distance, should such vacancy arise."

(9) By another letter dated 16 December 1991, Mr Reeve was informed that it had not proved possible to find him alternative employment within the Institute on his limited mobility obligation. His employment with the Council was to be terminated on grounds of redundancy. He was also informed that, if other suitable work became available before the termination date of his employment elsewhere in the Council or within reasonable daily travelling distance of his present place of work, he would be expected to transfer to that work in accordance with his limited mobility obligation and the notice of redundancy would be withdrawn.

(10) With effect from 1 April 1992 Mr Reeve was made redundant. He received statutory and contractual redundancy payments. On 1 April 1992, the Bernard Weitz Centre was transferred to the University.

(11) On 1 May 1992 Mr Reeve presented an Originating Application to the Industrial Tribunal claiming that he had been unfairly dismissed from his job as a tractor driver. He later obtained leave to amend his claim to include unfair selection for redundancy.

(12) On 31 March 1994 an Industrial Tribunal held that there was no relevant transfer of the Bernard Weitz Centre or the Institute by the Council to the University and the 1981 Regulations did not apply. That decision was reached after a sixteen day hearing in the Industrial Tribunal in 1993.

THE COUNCIL'S CASE

In its defence to Mr Reeve's claim the Council relied on certain further matters:-

(i) there was a redundancy situation;

(ii) of the 5 tractor drivers, Mr Reeve had been in the employment of the Council for the shortest period of time;

(iii) the Council had attempted to find suitable alternative work for Mr Reeve, but was unable to do so;

(iv) Mr Reeve was selected for redundancy in accordance with the Agricultural Research Service Redundancy Agreement (the Redundancy Agreement). The following features of that Agreement should be noted:-

(a) (para 3) Both sides agreed to take two main principles into account as matters of priority: first, the need to maintain the efficiency and quality of the work of the Institute and, secondly, the need to minimise hardship for staff. The Institute agreed to consult the representative of the locally recognised trade union and it was agreed that:

"The Institute will also inform and consult the workers involved at an early stage" (b) (para 4) It was agreed that the Institute Management, consulting the locally recognised trade union, would consider various other matters in relation to the proper conduct of the Institute's affairs, including "transfer of staff to other suitable work" and that "volunteers may be discharged in place of others, if this would help to avoid redundancies among those who do not wish to be discharged." (c) (para 5) Management agreed to consider whether there were any suitable vacancies available in the Institute concerned or in another local ARS Institute, "in the hope that redundancies can be avoided". There were certain guidelines for deciding whether employment was suitable, including that the work must be within reasonable daily travelling distance of the employee's house in accordance with the mobility requirement of the staff code. It was expressly agreed that there was nothing in the agreement to prevent an employee facing redundancy from transferring to a job beyond reasonable daily travelling distance or to one which might otherwise be regarded as unreasonable if he and the Institute concerned are willing that he should. (d) (para 7) In deciding which staff should be discharged from the list drawn up for consideration for redundancy, the Institute's management agreed to have regard to, inter alia, "the need to ensure a measure of protection for staff who have given long service in the ARS."

DECISION OF THE INDUSTRIAL TRIBUNAL

The Industrial Tribunal's reasoning, in rejecting Mr Reeve's claim, was briefly as follows:

(1) The reason for Mr Reeve's dismissal was redundancy (Section 57(1) of the 1978 Act)

(2) In selecting Mr Reeve for redundancy the Council acted reasonably in all the circumstances (Section 57(3))

(3) In reaching that conclusion the Tribunal took the following factors into account:

(a) Consultation with the union - "There was a good deal of to-ing and fro-ing between them and the union which we consider fulfilled the obligation of a reasonable employer to consult"

(b) Individual consultation - "The Respondent consulted very little with Mr Reeve himself". He was a "man of wide and deep experience in the agricultural industry: he was, however, appointed as an agricultural worker Grade C subject to the right of management to transfer him from that work to any other which it considered suitable. His job description was as a tractor driver".

(d) Anticipated transfer - The Council anticipated that the 1981 Regulations would apply. The Council's evidence was that they used the procedures they did, as "they considered that the 1981 Regulations applied"

THE SUBMISSIONS OF THE COUNCIL

On behalf of the Council Mr Hanson supported the decision of the Tribunal. He submitted that there was no error on the part of the Industrial Tribunal in the interpretation of Section 57(1) and (3) of the 1978 Act . It could not be said that the result flew in the face of reason or commonly accepted standards of fairness, or that it was not a permissible option on their findings of fact. The position, he submitted, was that:

(1) The Council adopted procedures and principles which a reasonable employer would be expected to adopt.

(2) There was an ongoing process of discussion and consultation with the union.

(3) The Council discharged its obligations under the Redundancy Agreement and acted reasonably in its consultation with Mr Reeve's union representative.

(4) Consultation with the union can suffice as consultation to satisfy the requirements of fairness and reasonableness: Polkey vAE Dayton Services Ltd

[1987] ICR 142

at 162H. Mr Hanson also cited Duffy v Yeomans & Partners Ltd

[1994] IRLR 642

and submitted that whether, in a particular case, failure to consult renders the dismissal unfair, is a question of fact for the Industrial Tribunal to consider in the light of all the circumstances known to the employer at the time of dismissal. Failure to consult Mr Reeve, before dismissing him on the ground of redundancy, did not render the dismissal unfair as, on the facts known to the Council at the time of the dismissal, consultation with him would have served no useful purpose. An employer acting reasonably could have failed to consult Mr Reeve individually in all the circumstances. It was unnecessary for the employer to have taken a deliberate decision not to consult on the basis that the consultation would have been useless. The approach of the Industrial Tribunal should be in the light of the circumstances known to the Council at the time. The question was whether the Council had acted reasonably.

(5) The Council took reasonable steps to find Mr Reeve alternative employment.

CONCLUSION

We have not found this an easy case. Mr Reeve told us of the hardship he has suffered and the effects that it has had on him and his family. Mr Reeve made a number of detailed points in his arguments:

(1) He was wrongly described in the documentation and the decision as a tractor driver. That failed to take account of his skills, abilities and experience and restricted his employment opportunities with the Council and with the University. His post was in fact primarily to supply foraging for experimental rations. That required close liaison with scientific staff, mixing of rations and the feeding of cows and the maintenance of equipment and machinery used. He strongly disputed the finding of the Industrial Tribunal at paragraph 13 that he was "a tractor driver and did not have the skills to make him inter-changeable with the stockman". It was accepted that Mr Reeve was experienced in stock work, but emphasis was placed on the fact that he was categorised as a tractor driver (see paragraph 15).

(2) His post was not redundant. It was filled by Mr Hopson whose post was made redundant and who had made a request for voluntary redundancy.

(3) He had not seen the staff code while he was employed at Shinfield. He was therefore unaware of his right of appeal and of the two main principles which had priority on redundancy. In fact, the "last in first out" principle was applied without the agreement of the staff.

(4) He had not been consulted. His skills and experience to fill the posts were not taken into account.

(5) He had suffered financial hardship, housing problems and family distress in consequence of the decision to make him redundant.

(6) He had made every effort to secure alternative employment within the Council on a nationwide basis. Many vacancies were not brought to his attention.

In our judgment, some of these points go beyond the grounds of appeal. Others are points of fact on which there is no appeal from an Industrial Tribunal to this Tribunal. We have to ask whether there is any error of law in the decision of the Tribunal. We have reached the conclusion that there is. It is on the question of individual consultation. The position in our view is this:

(1) The Industrial Tribunal found that there was "very little consultation" with Mr Reeve. It is difficult to discern from the Notes of Evidence and the other documents, whether any individual consultation took place at all.

(2) In the Redundancy Agreement with the union, the Council agreed to "inform and consult the workers involved at an early stage."

(3) Consultation means genuine consultation, along the lines described by Lord Justice Glidewell in R v British Coal Corporation

[1994] IRLR 72

paragraph 24, and followed in this Tribunal in Rowell v Hubbard Group Services

[1995] IRLR 195

and by the Court of Sessions in George King v Eaton Ltd on 8 December 1995 [

EAT/553/94

]. Consultation should take place at a formative stage. The party to be consulted should be provided with adequate information. He should be given adequate time to respond. There should be consideration of his response. These steps do not constitute a code or formula for consultation. They are valuable guidelines to describe what should take place, but has not taken place in this instance.

(4) As to the reason for not consulting, the only argument put forward by the Council is that they assumed, on advice, that the 1981 Regulations would apply, and they followed procedures on that basis. In our view, that does not mean that Council acted reasonably in departing from the agreed individual consultation provided for in the Redundancy Agreement.

(5) Consultation with the union representative did not suffice or dispense with the need for individual consultation as agreed. As a general rule a reasonable employer will, unless there is a good reason for not doing so, consult individually with the person or persons to be made redundant. In this case the Council did not consult with Mr Reeve as it agreed that it would do in accordance with the terms of the Redundancy Agreement. It does not appear to us that the Tribunal addressed the question whether the assumption that the 1981 Regulations would apply, would have led a reasonable employer to dispense with agreed individual consultation. In our view, it would have not. Individual consultation was part of the agreed procedure and a reasonable employer would not have dispensed with it.

For these reasons we allow the appeal and conclude on the facts found by the Industrial Tribunal that Mr Reeve was unfairly dismissed on account of procedural unfairness. It will be for the Industrial Tribunal to decide at the remedies hearing what were his prospects of being retained in employment if he had in fact been consulted. The Industrial Tribunal will need to consider the Polkey point in the assessment of compensation.