Marche v John Lewis Plc [1997] UKEAT 670_96_0907

EAT

Marche v John Lewis Plc

[1997] UKEAT 670_96_0907 · 1997-07-09

JUDGE J HULL QC:

This is an appeal to us by Mrs Valerie Diana Marche. She was employed by the well-known firm, John Lewis Plc, near but not exactly at their Oxford Street store, as senior contracts assistant in the contract furnishing department. She was first employed in September 1979 and so far as we know gave entire satisfaction to her employers, not in the sense that she was the most brilliant member of the staff, or anything of that sort, but she was promoted in 1989; and then there came a time when reorganization was required. The department in which she was employed was in a building near to the main store and it started to make a loss. Clearly, the employers were not required to submit to losses and they, therefore, had to decide what to do about this loss and it was decided, as a management decision, without consulting employees so far as we know, that the correct course to take was to move the department into the main store and to reduce the number of staff.

We have been shown a management document which was prepared in February 1993 and it set out this solution. It was dealing with the question of the effect on the partners, as they are known, the members of staff concerned. It said that there was a potential for redundancy and the writer of the letter requested authority to discuss this with the partners. There was a likelihood, in the view of the writer, of just one redundancy. When we turn over the pages it is clear that the writer of the letter was considering the matter in detail. It was from the managing director of the store of John Lewis Plc. He says:

"I have determined who should stay, ... and who should be re-deployed"

and he sets out how he has reached that decision, which is not, as a management decision, criticised and then he goes on to discuss the question of displaced partners, as he calls them, those who will be displaced by this reorganization. There are 10 partners who will be displaced and need to be assessed against the criteria. Under there is Mrs Marche's name, senior contracts assistant, and he writes - this is a management assessment:

"She is not as strong a performer as others in the team."

Then he goes on to possible alternative work for those displaced. Over the page he says:

" Miss V Marche, Senior Contracts Assistant With her previous experience on the selling floor I think she could adapt to a number of opportunities in selling or administration. I think we should be able to accommodate her within a position such as Brides' Book within three months."

It was not envisaged by the writer, therefore, that this lady, Mrs Marche, was going to be the one who was going to be redundant as a result of this exercise. That was what was said as a management matter in February.

On 29 June 1993 Mrs Marche was informed that she had been selected for redeployment and it is set out in the decision of the Industrial Tribunal, to which I will come in a moment, that there were three possible openings for redeployment which became available and were discussed with her. There were discussions, both with the managers of those departments to which it was thought she might be redeployed and with others, too. There was consultation on a generous scale. One of the jobs that was offered was unsuitable, as it turned out, because Mrs Marche could not combine it with her duties as a parent, the hours were unsuitable. It meant working on Saturdays and late on Thursdays, three days a month and going home a few minutes later; but those few minutes, apparently, might make all the difference. It was accepted eventually that none of these jobs were suitable for her and it was then that she asked to be made redundant. At first the employers did not accept that but then they said "very well" and made her redundant on terms which are by no means, it seems to us, ungenerous.

Then she presented to the Industrial Tribunal her complaint, saying that she had been unfairly dismissed. She also complained that there had been racial discrimination against her and sexual discrimination against her. The sexual discrimination complaint was not persisted in. The Industrial Tribunal had to deal with the other matters and I must now refer to their decision because, of course, it is against that decision that she now appeals to us.

The Tribunal sat for no less than five days to consider the complaints which were made, so it is quite clear that they engaged in a very thorough enquiry. They sat under the chairmanship of Mrs Don at London (North). Their decision was that Mrs Marche had not been unfairly dismissed and had not been racially discriminated against and they go into the facts in some detail. They say that one of her complaints with regard to racial discrimination - she being a lady of Barbadian ethnic origin - was that she had not been given a pay rise. They go into that. They go into the suggestion she made that jobs which had been offered to her would not have been offered to a white person and they look at people who, if they are not comparators, at any rate, are other people dealt with in various ways by the Respondents. They say that:

"The Respondent maintained that Mrs Marche's dismissal by reason of redundancy was fair. The contracts department where she was employed was in a separate location from that of the main department store"

and they set out the decision about the move. They set out that redundancies would have to be made. They made a mistake, I think, to say "redundancies". To judge by the document we have read, it was envisaged that only one redundancy would probably be necessary. They say that:

"In the event, Mrs Marche was the only employee to be made redundant. Other employees who were selected for redundancy were found suitable alternative employment. One employee who was selected but who suffered from a serious illness was retained in employment for compassionate reasons."

Then they go into the question of the other jobs which were offered to Mrs Marche and they say that she was informed on 29 June about the proposed reorganization. It was not said then that she was to be made redundant. They say at the top of our page 8:

"We considered whether, in dismissing Mrs Marche by reason of redundancy pursuant to section 57(2)(c) of the Act, Mrs Marche was treated reasonably pursuant to section 57(3) of the Act."

That, of course, was the Act of 1978 and the criterion at that time.

"It was maintained on her behalf that she was not consulted regarding the decision to make her redundant. She was informed on 29 June 1993 by Ms Allan, staff officer, that she had been selected for redeployment. From then on, she was consulted and counselled by various members of the John Lewis partnership. She had many interviews with senior managers and with personnel [officers] and counsellors. She was given the opportunity of suggesting alternative ways of saving money so as to avoid making her redundant. The Respondent took many months over this exercise and three offers of alternative employment were made to her."

and they go on to find that, as was conceded, they turned out not to be suitable.

"13. We cannot find, as a fact on the oral and documentary evidence, that in these circumstances Mrs Marche was unfairly selected for redundancy."

They found that she was not racially discriminated against in any way.

Now what is said and this really is all that is said on her behalf now is that the appeal is against the finding that there had been adequate consultation. What is said by Mr Daly on behalf of Mrs Marche is that she was not consulted before she was told on 29 June 1993 about the proposed reorganization and that she was to be redeployed. All that was a fait accompli and Mr Daly showed us the document, we are grateful to him for doing so, of 18 February 1993 in which the management plan was formulated and set down by the Managing Director and Mr Daly has referred us to various authorities. All those are authorities for the general proposition that fairness and reasonableness require that before a person is made redundant they are to be consulted, to have an opportunity of asking questions, seeking if possible to persuade the employer that he is making a mistake, saying anything they wish to, seeking whether they can be redeployed within the organization. Those cases are quite different from the present. Mrs Marche was not informed on 29 June that she was to be redundant. On the contrary, it was the hope of her employers that she would not be made redundant. What she was informed of was that, as the employers were entitled to do under her contract of employment, she was to be redeployed because of a reorganization which management had determined on.

We are not aware of any authority which says that management are obliged, before they formulate plans to organize or reorganize their business, to consult all the employees concerned. That is not the law, in our belief, and never has been. Management are entitled to formulate plans and insofar as those plans affect employees adversely, then employees are, as a broad proposition, entitled to be consulted. Certainly, unless the circumstances are quite exceptional, employees are entitled to be consulted before they are made redundant as a result of reorganization.

In the present case, it appears to us, that that is exactly what did happen. There followed very lengthy consultations in which the employers believed, whatever was in Mrs Marche's mind, that they could find her other suitable employment in the organization. Those hopes were dashed but that was not to be foreseen on 29 June. What was foreseen, so far as we can see, at that date, was simply that somebody else might - might - have to be made redundant. It was a great disappointment to the employers and we are told, and of course accept, that it was a great disappointment for Mrs Marche, who had hoped to stay on.

The Tribunal considered all those matters. It is a question of fact for the Tribunal to say, when redundancy is established (and, certainly, it was established here before the Tribunal) whether the employers acted reasonably or unreasonably in treating that as a reason for dismissing the employee. They looked at what happened here about warning, what happened about consultation, and they said the employers acted fairly. The employers were not, of course, actuated by racial discrimination or by sex discrimination and, in the matters of consultation, warning and so on, they acted reasonably and fairly.

It is not up to us to retry the case. The authorities which have been cited to us do not lead us to think that this Industrial Tribunal approached their task by making any error of law whatever. On the contrary, it seems to us that they decided the case strictly in accordance with law. It is not up to us to say whether we would have decided the case in the same way. But there was plenty of material here which entitled them to say that Mrs Marche had been treated in every way fairly by the employers and that is what they did say. In those circumstances, there being no error of law, we have no power to intervene and we have to say that the appeal cannot succeed and must be dismissed.

We are very grateful to Mr Daly for putting the matter so clearly and forcefully to us and we are also grateful to Ms McNeill, whose skeleton argument we have read and it has helped us, of course, to reach our decision.