Mitra v Neville Russell (A Firm) [1997] UKEAT 31_97_2907

EAT
Mitra v Neville Russell (A Firm)
[1997] UKEAT 31_97_2907 · 1997-07-29
MR JUSTICE KIRKWOOD : This is an appeal by Mr Mitra from a decision of an Industrial Tribunal sitting at Stratford on 18th November 1996 that he was not unfairly dismissed. The tribunal gave its extended reasons on 28th November 1996.The case arises in this way. Mr Mitra was employed by Neville Russell, a firm of chartered accountants, from 17th September 1984 until 30th April 1996. He was a Tax Senior grade 1. Mr Mitra's date of birth is 27th October 1941, so that he was 54½ when his employment ended.Neville Russell dealt with personal taxation in two groups of employees. Mr Mitra was one of the four seniors in Group B. The Industrial Tribunal was satisfied and found that Neville Russell had suffered a diminution of work in the field of personal taxation. The Industrial Tribunal also found that Neville Russell had good reason to believe that there would be a further diminution in that work. That was because Neville Russell specialised in dealing with the taxation affairs of members of Lloyds. The diminution in work and expected further diminution in work resulted from adverse developments in relation to Lloyds underwriting.Consequently, each of group A and group B had to suffer a redundancy of one senior post. In group A the problem was solved by the transfer of a senior to another section, but the problem remained in group B and had to be resolved. In that regard the Industrial Tribunal found:
"3 ... In Group B the Applicant was one of four people employed as seniors and Mr Andrew, the divisional partner in charge of the tax division, considered various matters when making a selection for redundancy. Although the Applicant was by some years the longest serving member of the department, there had been certain criticism of his work in the past although not leading to formal disciplinary action, had caused the partners to express concern. Because of these matters it was the opinion of Mr Andrew that applying all the selection criteria over the board, it was the Applicant who should be selected for redundancy.
4 We examined carefully the evidence which was given to us. We were satisfied that in carrying out the exercise in relation to selection Mr Andrew had acted within the band of reasonable responses open to the reasonable employer when dealing with the question of selection. It was not possible for the Tribunal to say that the method of selection was wrong simply because there might have been other ways of doing it. ..."In his Originating Application, Box 10, Mr Mitra had made a number of points. First, that he had been assured his job was safe. Secondly, he had never been short of work. Thirdly, the personal hardship of redundancy for himself at 54 and his family. Fourthly, his belief that he was discriminated against because of his age. Fifthly, his belief that there was no good reason for his redundancy.The tribunal dealt with the diminution of work point. As regards the age point, the tribunal found:
"4 ... We are also satisfied that Mr Andrew did not seek to select the Applicant on account of his age as the Applicant complained. The application of the factors considered by Mr Andrew to the four people in the pool for selection caused Mr Andrew properly to select the Applicant for redundancy. ..."
Mr Mitra has not attended the hearing of this appeal. We have considered his Notice of Appeal in which he says first of all:
"What sort of employment is it that does not allow redundant employees to know the selection criteria used by employers and to challenge them?
Does the law not allow the Industrial Tribunals to make impartial decisions? Why are they pro-employer and anti-employee? The Tribunal No.5 at Stratford did not consider my position sympathetically. For example, it did not question the amount of my redundancy payment or the possibility of any early pension. I am now negotiating the pension with the Trustees of The Neville Russell Retirement Benefits Scheme."I should say at that stage, that the amount of redundancy payment was not a matter in issue before the Industrial Tribunal.We have also considered a letter that Mr Mitra sent to the Registrar of the Employment Appeal Tribunal on 2nd January 1997, in which he said:
"The Tribunal did not question the Neville Russell partners why they did not discuss the selection criteria with me before making me redundant. This was a legal requirement which the Tribunal did not impress on Neville Russell. Instead, the Tribunal supported the back-door procedure that was adopted in my case.
The Tribunal did not touch on the redundancy payment made to me by Neville Russell to see if it was adequate within the law. This was another legal requirement that was ignored by the Tribunal."There was a directions hearing in the appeal on 18th March 1997. It is not clear to me whether in fact there was a preliminary hearing, but it was treated as such. Mr Mitra did not attend. He was however given leave to amend the Notice of Appeal to include as a ground that the Industrial Tribunal made insufficient findings of fact as to enable the parties to know the factual basis of the decision. On 24th March 1997 Mr Mitra wrote to the Registrar a letter that amounts to an amendment in accordance with that order.Finally, on 15th April 1997, Mr Mitra wrote to the Registrar a letter which we have taken to be his skeleton argument in this case. He said:
"1. The IT was simply non-committed to the method of redundancy selection and did not examine the selection criteria employed by the respondent. Mr Andrew of the respondent and Mrs Furley his partner, hid the selection criteria from me at the time of selecting me for redundancy, but the IT did not question them the reason for it. The legal requirement for discussing the selection criteria with redundant employees was not impressed on the respondent by the IT. I therefore demand an unqualified apology from Mr Andrew and Mrs Furley for not meeting that requirement.. They were not ignorant of the law. They thought I was ignorant of it and tried to get away with their clandestine practice of redundancy selection in my case.
2. Had the selection criteria been discussed with me before the redundancy selection, I would have vehemently challenged them and moved heaven and earth in my rebuttal of them. That was probably the single most important reason for hiding the selection criteria from me. One of my colleagues, Mr Nick Bustin, used to take sick leave almost every week and caused a substantial loss of the respondent's fee income, but he was not selected for redundancy presumably because Mrs Furley had a soft spot for him.3. My redundancy payment of £15000 was inadequate, but the IT did not touch on this subject. I expected a further £15000 in view of my age at which I could be at odds with prospects of employment. I feel that the IT failed in its duty to me as the appellant."There are really two points raised by Mr Mitra's written grounds and submissions. The first is that the tribunal failed to take into account that Mr Mitra did not know, so he says, the selection criteria. Well that point was plainly the mind of the Industrial Tribunal because it said in paragraph 1 of its extended reasons:
"1 ... the Applicant challenges that there was redundancy and also that the Respondents adopted a fair procedure for selecting him."
The second matter that is raised by Mr Mitra goes to the question of insufficiency of reasons.As to the first, the Industrial Tribunal had the evidence of Mr Andrew. It found that Mr Andrew considered various matters when making a selection for redundancy. It found that Mr Andrew had acted within the band of reasonable responses open to the reasonable employer when dealing with questions of selection. It would have been better if the Industrial Tribunal had set out in its extended reasons what that selection process was and how far it was applied. The extended reasons might flatteringly be described as succinct. Put more robustly, they are undoubtedly sparse. Had they fully and clearly set out the material matters, then in all probability the expense of this full hearing would have been avoided.As it is, the Employment Appeal Tribunal has to discern what lies behind the bald primary reasons found. In this particular instance, it is in fact possible to do so legitimately, because the tribunal plainly accepted the evidence of Mr Andrew.The Notes of Evidence have been made available and contain this:
"Steven Andrews sworn. Reads a statement which is attached to these notes. Page R19 is the selection assessment form and page R18 is the notes of a meeting. ... The Applicant said that his selection was on the grounds of age. I told him these were not the grounds. ...
[ In cross-examination: ] All the questions which you asked were met. I did use the selection criteria but it would have been unkind to say that your performance was weaker than others in the group. ... I told you that the reasons for selection was not age. ... You did not ask for the criteria for selection. I did not want to hurt you.Re-examined. [ Mr Andrew's said ] The Applicant did not ask specifically what the criteria were."Mrs Furley then gave evidence. Her evidence was followed by that of Mr Mitra who was also sworn. He said:
"My evidence is contained in box 10 of the form IT1. I had plenty of work. The reason for my dismissal was age and a fear of loss of clients. The criteria were not disclosed. I would have disputed these if they had been put to me. As to complaints in the past I thought I had rectified the complaint which had been made. Would have understood the matter better if it had been explained. Had I know of the criteria I would have challenged them.
Cross examined. I still say that the real criteria was age. I did accept some of the criticisms. There is no reason to doubt the selection forms. I saw no point in appealing."The tribunal also had before it the form IT3 put in by Neville Russell in response to the claim and it had the full written statement of evidence to which reference is made in the Notes. Those documents put the selection criteria and the consultation process clearly before the Industrial Tribunal. The Industrial Tribunal also had the selection criteria as applied not only to Mr Mitra but to the other three seniors in the pool.There is no absolute obligation on the employer to disclose to the employee details of its selection criteria. It is, however, unwise not to do so, because such failure may well be influential in an Industrial Tribunal's decision as to fairness. That was not in fact the case here. The tribunal had the issue before it in Mr Mitra's Originating Application and oral evidence, to which I have referred. The tribunal found that the employer had acted reasonably.The extended reasons I have described both as succinct and sparse. They are scarcely a model of the extended reasons that should flow from the Chairman of an Industrial Tribunal. In our judgment, however, they do just cover the main points of the reasons for dismissal and fairness. There was a finding of redundancy; a finding that this was not a selection on account of age; and that the selection criteria were reasonable and properly applied.Accordingly, whilst having considerable sympathy with Mr Mitra in the plight that befell him, he had not persuaded us of a material error of law in the decision of the Industrial Tribunal. Accordingly this appeal is dismissed.