Isaac v Badgerline Ltd [1996] UKEAT 658_95_1605

EAT
Isaac v Badgerline Ltd
[1996] UKEAT 658_95_1605 · 1996-05-16

JUDGE B HARGROVE QC:

By reasons given on 11 May the Industrial Tribunal held that the Respondent was dismissed for reasons of redundancy and that the dismissal was fair.The Appellant was the Respondents' Agency Manager from 1985 until his dismissal on 7 January 1995. It seems that two posts, one of them had been occupied by the Appellant, were to be merged. The Company selected a Mr Kennington who occupied the other post for the merged position. The employers made an objective assessment of the two men and decided upon Mr Kennington.The Tribunal recited, in coming to its conclusions, Section 57(1) of the Employment Protection (Consolidation) Act 1978 , and further referred to Section 57(2)(c) and Section 57(3), then dealt with Section 81, and in particular, Section 81(2)(b). The Tribunal held, on the basis that the Appellant's job had ceased to exist or diminished or was expected to do so, that the Appellant had been fairly dismissed on the basis of redundancy, and rejected his claim that he was unfairly dismissed.The first matter we will deal with is the allegation of bias or appearance of bias. The facts, which are said to support the allegation, are contained in Mr Isaac's affidavit of 8 November 1995. It is in these terms:
" ... I make this affidavit in support of the allegation of the appearance of bias as contained in my amended Notice of Appeal. This affidavit is derived from my own knowledge and is true.
When the Tribunal convened for the hearing, Mr W A Ellis, a tribunal member exchanged personal greetings and had a brief conversation with the Respondent's legal representative, Mr G Jones, indicating that they were known to each other. I simply noted the incident at this stage.Following the lunch recess the Tribunal Chairman, Mr A Gregg, drew my attention to the incident and apologised on behalf of the Tribunal and Mr Ellis saying that the situation had arisen from Mr Ellis and Mr Jones having been closely associated in a long running case which was continuing.In the circumstances, this personal factor gives rise to an appearance of bias and throws a reasonable doubt on the Tribunal's capacity to be fully impartial."Mr Jones's affidavit sets out the circumstances and the crux of the matter contained in paragraph 6 of his affidavit, that he knew Mr Ellis because there had been a long-running case involving Rolls-Royce. He says:
"6. The circumstances which explain the remark of Mr Ellis are that I was instructed on behalf of Rolls-Royce plc in respect of a long list of redundancy cases. Mr Ellis was one of the members of the Tribunal assigned to hear those cases."
He then deals with the various appearances he had before Mr Ellis. He deals also with the matter which occurred after the lunch adjournment in paragraph 11.
"11. The Applicant made no comment in relation to what Mr Ellis said, but after the luncheon adjournment the Chairman said words to the effect that before they started he wanted to explain Mr Ellis' words in the morning. He went on to say that Mr Ellis had been involved in a long running and ongoing case in which I had been involved. He added that he had been asked by Mr Ellis to explain that. I do not recall whether the Appellant made any comment. He certainly made no adverse comment."
After the affidavits had been sworn by the Appellant, as is customary, the Chairman was asked for his reaction and the relevant part of his letter to this Tribunal, and upon which Miss Gower relies, runs as follows:
"As soon as the Tribunal reconvened I explained the situation to Mr Isaac. In all probability I also asked him to accept that there would be no prejudice at all with regard to his case and I believe that he did accept that since, had he not done so, I would have suggested that a new Tribunal should be constituted."
Miss Gower says that there you have a person who is present, the Chairman, and that indicates that an objective view would be that there is a chance or appearance of bias and accordingly that that is sufficient to sustain the claim made.The question in these cases always is whether the objective bystander would regard that passage as indicative of bias. In our view, such a passage between Mr Ellis and Mr Jones does not come anywhere near a case of bias, or appearance of bias. The Chairman was alert to deal with the position and a full explanation was given at the time. His view that he would have suggested another Tribunal, if the Appellant had not accepted his explanation, was obviously an approach of extreme caution. While a proper distance must always be kept between the Tribunal advocates there is nothing improper in a Tribunal member behaving in a civil fashion towards an advocate.The remainder of the grounds of appeal have come some distance from the original grounds and we have allowed an amendment today. The first ground is that the Tribunal should have considered the question of redundancy first. There is nothing in that point. The order in which a Tribunal sets out the guiding statutory provisions is a matter for the Industrial Tribunal, and in this particular case it has no significance at all to the manner in which the Tribunal reached its conclusions.Secondly, it is said that there were inadequate findings of fact. Two errors are suggested. The first is the adequacy of consideration to the question of consultation and the second is a failure to deal with the questions of alternative employment. Miss Gower points out that both these matters were raised in the IT1. In relation to alternative employment, having read the documents it seems plain that this was, as Mr Jeans put it, a non-issue.There was only one job which was available. That was one which was already occupied by another employee and could only have been obtained by "bumping". There was the combined post and there is no doubt that he was considered for that, and he had urged upon the employers he wished to be considered for any other post. There is no indication that there was another post which was available and which was denied him.Our attention has been drawn by Mr Jeans to the well known case of UCATT v Brain [1981] ICR 542 and also to Vardell & Others v Kearney & Trecker Marwin Ltd [1983] ICR 683. There is a relevant passage at page 693, where Eveleigh LJ says:
"It seems to me that the arguments put forward on behalf of the employees in effect require, not a statement of reasons, but an analysis of the facts and arguments on both sides, with reasons for rejecting the arguments of the employees and reasons for accepting the facts relied upon in support of the tribunal's conclusion. This is not necessary. The tribunal said they found as a fact that clause 4 was observed. It is admitted that there was evidence to support this finding and indeed the whole conclusion. There is no right of appeal on a question of fact, so of what use, generally speaking, is it to have a detailed recitation of the evidence? A conclusion of fact with which this court or the appeal tribunal might disagree, provided it is justifiable on the evidence, gives rise to no ground of appeal. I therefore see no obligation upon the tribunal to state the facts in detail. They may choose to do so: it is a matter for them. As an example, and an example only, of the alleged omissions, that is to say, the omissions which the employees say ought not to have occurred in the decision of the tribunal, it is only necessary to take one from the argument as set out very helpfully for this court in the skeleton argument of counsel on their behalf:
`Before reaching ... their conclusions, the industrial tribunal should have stated primary facts found by them:(i) method and process of selection for [redundancy];(ii) nature and details of consultations by Kemp;(iii) identities of `appropriate persons' consulted by Kemp;(iv) the views put to him;(v) on what facts industrial tribunals concluded selection carried out `with great care' (since this was disputed);(vi) why and on what facts selection accorded with section 6 (clause 4) of the agreement (since this was disputed) ...(vii) on what facts industrial tribunal concluded that the employers conscientiously fairly and honestly made selection ...(viii) what were the grounds which were reasonable? Why were they reasonable?(ix) What were the reasons which were reasonable? Why were they reasonable?'For myself, I could not state too strongly that there is no obligation upon the tribunal to follow that pattern set out in the argument on behalf of the employees."It is a point to be borne in mind that there is some similarity between the complaints made in the Vardell case and the complaints made before us.When one has regard therefore to that approach the aspect, which is urged upon us by Mr Jeans that the question of alternative employment is clearly a non-issue and we can see no ground for criticising the Tribunal because that matter is not dealt with.It has also been alleged that the Tribunal has misdirected itself in that it failed to consider the fairness of the decision and failing to consider that procedurally in relation to questions of warning and consultation. In relation to alternative employment, the views I have already expressed in relation to that on the initial point apply equally here.Miss Gower refers to Rowell v Hubbard Group Services Ltd [1995] IRLR 195, on the issue of consultation and says that what the Tribunal should have done was to consider whether the warning and consultation, if any, came within the passage set out at page 197 of that case at paragraph 15. That is in these terms:
"15 We were also referred by Mr Kolvin to the decision of the Divisional Court in R v British Coal Corporation and Secretary of State for Trade and Industry ex-parte Price and others [1994] IRLR 72. In particular, Mr Kolvin drew our attention to the passage at p.75, paragraphs 24 and 25, Glidewell LJ judgment with which Hidden J agreed.
`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;(c) adequate time in 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."We have also had the benefit of seeing the passage of the unreported case of Poat v Holiday Inn Worldwide [1995] where the passage reads:
"In considering redundancies every tribunal will have to consider the question of consultation."
We do not take that to mean that there has to be detailed finding of the Tribunal on consultation, merely that the Tribunal will consider it.Mr Jeans argues that, in relation to the question of warnings the notes made on the Appellant on 8 December, included in the bundle, indicate that a warning was in fact given. We consider that to be correct, but turning to the question of consultation we remind ourselves that we are at a disadvantage. We do not have the notes of evidence and Mr Jeans says, if there is either an allegation that there was not sufficient findings of fact, or that matters of fact were not taken into account in relation to fairness, so producing a misdirection, then it is incumbent upon the Appellant to obtain the notes of evidence so that the true picture can be placed before us.We confess that this has been a matter which has troubled us considerably. However, even upon the documents before us, it seems that some consultation took place. Although not every matter set forth in the IT1 automatically becomes an issue, the IT1 clearly indicates that there was a claim of insufficient consultation. Matters of consultation appear from the documentation and the combination of those two are sufficient to indicate that, in our view, a question was raised as to whether there was adequate consultation. The reasons contained no mention of consultation. We feel that as part of the matters which the Appellant was entitled to know in relation to his failure to succeed was, whether there was or was not adequate consultation and whether that resulted in a reasonable approach to his dismissal.We shall therefore remit this matter to the same Industrial Tribunal for amplification of the question "whether or not there was adequate consultation and whether, in the light of that finding, their decision remains the same".We emphasise that in remitting the matter we are not indicating, one way or the other, our view of the other merits of the decision.For the sake of completeness the question of perversity has been raised. We have not got the notes (as I have already indicated) and in our view, on the basis of Piggott v Jackson [1992] ICR 85, that is fatal to that aspect of the appeal.