Palmers Ltd v Scovell [1997] UKEAT 461_97_1011

EAT
Palmers Ltd v Scovell
[1997] UKEAT 461_97_1011 · 1997-11-10

JUDGE B HARGROVE QC :

This is a preliminary hearing concerning an appeal by the employers from a decision which was communicated on 18 February 1997.The bare facts are that Mrs Scovell was one of four secretaries. There was a financial crisis in the company and it was decided to make staff redundant. Mrs Scovell had shorter service than the other three secretaries in the pool and she was selected.The Tribunal reached the conclusion that the dismissal was unfair. It is sought to overturn that on a number of grounds and we have had the benefit of a very helpful and thorough argument and skeleton argument from Mr Moore. Putting it in its shortest terms and, as Mr Moore has put it, this is a case where perversity is the argument. One gets the situation in focus if we look at paragraphs 7 and 8 of the Reasons:
"7. We now turn to that part of the applicant's claim which has some substance, namely that she was neither warned nor consulted. Mr Garvey said that none of the 50 or 60 employees who were made redundant were warned or consulted because to have done so would have unsettled the business and that they needed to make cuts quickly. He said the decision was made on 24 May 1996 and all those affected were notified ten days later on 3 June 1996. He said that the alternatives of (a) seeking volunteers, (b) part time working, and (c) inviting salary reductions were not considered. He conceded that the need to dismiss the applicant might have been averted if a suitable volunteer had been sought and found or if job sharing had been negotiated but qualified that by saying that job sharing was a theoretical but not a practical proposition and that seeking volunteers would have extended the period of time involved and he did not think that there would have been any volunteers for redundancy.
8. Having regard to the fact that the respondents did not utilise the ten days between 24 May 1996 and 3 June 1996(a) to seek from amongst the four secretaries a volunteer for redundancy(b) to investigate the possibility/practicability of job sharing, and(c) to invite the four secretaries to work for what the three, who were retained, were paid it cannot, having regard to equity and the substantial merits of the case, be said that they acted reasonably in treating redundancy as their reason for dismissing the applicant from which it follows that we have to find that the dismissal was unfair."The grounds of appeal put forward are these:
"(i) its failure to find that the Respondent would have been dismissed for redundancy even if there had been a process of consultation was perverse because the evidence of Mr Garvey, the Operations Director of the Appellant, was plainly that the Applicant's dismissal for redundancy was inevitable; and
(ii) it failed to find that at the time when the Appellant decided to dismiss the Respondent the Appellant could reasonably have considered that a process of consultation would have been futile and could therefore have reasonably decided not to consult the Respondent before dismissing her for redundancy."The difficulty that Mr Moore has found himself in and, it is an understandable one, he points out that he has not got the Chairman's Notes at the moment and therefore, he is reliant upon his own note (and I for one accept them as being reliable) and what he says is this:That Mr Garvey drew a distinction between real options and theoretical options and he said:
"(i) nothing the Respondent could have said to the Appellant would have saved her [Mrs Scovell's] job;
(ii) job sharing was not a practical option.

(iii) he did not think there would have been any volunteers for redundancy

(iv) voluntary redundancies were therefore not a real option

(v) consultation would have been futile;(vi) consultation would not have saved the Respondent's job;

(vii) consultation would not have made any difference."

The problem in our view is that before the Tribunal there was this evidence, that various matters were not followed and indeed, part-time working and inviting salary reductions were not considered. That was evidence upon which the Tribunal could find that, in all the circumstances, the dismissal was unfair. The Tribunal doubtless had in mind the need that the employer's duty of consultation is an important one, and it requires a great deal to convince a Tribunal that an employer who does not consult has acted fairly.It follows that there were therefore, although Mr Garvey's evidence was to the contrary, matters from which the Tribunal could draw the implications which they did. Once upon reaching that situation there cannot be a case of perversity.We have looked in detail at all the arguments put forward by Mr Moore, but we regret to say that we have come to the conclusion that this is an appeal which has no basis in law and is bound to fail. It is therefore dismissed.