Merton & Sutton Community NHS Trust v Cook [1997] UKEAT 721_95_2101

EAT
Merton & Sutton Community NHS Trust v Cook
[1997] UKEAT 721_95_2101 · 1996-11-05

JUDGE BYRT QC :

This is an appeal against a decision promulgated on 17th May 1995 of an Industrial Tribunal sitting at London (South). After a two-day hearing, they decided that the Applicant, now the Respondent, had been unfairly dismissed. The Employers now appeal.The relevant facts are substantially agreed. The Appellants employed the Respondent as a painter between 1986 and 20th November 1993 when that employment was terminated by reason of redundancy. The fact that a redundancy situation existed was accepted by the Respondent. His complaint was that the selection procedure and its implementation was unfair.The need for the Appellants to reduce their staff came about because the St Hellier Trust decided to put out to tender the estate services the Appellants had hitherto provided at the sites of Queen Mary Hospital and Nelson Hospital. Within five days of being notified that this was the intention of the St Hellier Trust, the Appellants held a meeting with the staff likely to be affected, to inform them that they would be submitting a tender but that if they were unsuccessful, there might have to be redundancies.The Appellants put in their tender but, on the 13th July 1993, learned that their bid for the contract had been unsuccessful and that their contract would terminate on the 14th October 1993.Within the week, the Appellants had worked out ways of meeting the impending loss of some £300,000 annual income. They proposed that the labour forces, currently engaged on work at the two sites which had been lost, should be amalgamated for the purpose of considering staff changes, and that there should be a combined shedding of between 13 and 16 jobs. The remaining staff would have to be multi-skilled. The resulting alteration in the job specifications meant that these would have to be re-drawn.These proposals were put to union representatives of the work force at two meetings on the 19th and 27th July, to the work force itself on the 28th July, and to the full-time officials of the unions concerned on the 3rd August. As a result, the way ahead was largely agreed. The Trust had but recently been formed, and as yet there had been no time in which to agree a formalised redundancy procedure with the unions. Full scale discussion and agreement with the unions was therefore important. No criticism has been made of this early consultative process either by the Respondent or the unions.It was agreed that interviewing the work force would proceed in two stages. The first entailed a sifting process of one-to-one interviews with representatives from the Personnel Department to ascertain into which of three categories each person whose job was at risk should fall. The first category was of those with the longest continuous service who wished to opt for voluntary redundancy. The second was of those with the longest continuous service who wished to opt for a post in another department. The third was of those competing for posts where applications exceeded requirements and interviews would be required to select for redundancy. Those categories were agreed with the unions and referred to in the Minutes we have seen as selection criteria. The Industrial Tribunal found that this description was a misnomer, and we agree. We will comment on this later.The early stage sifting by means of one-to-one interviews began in early August. The third category selection interviews began about the 20th August. The new job descriptions were agreed with the unions on the 19th. The job of the painter disappeared and a new post of painter/decorator took its place. There had been four painters; these were now to be reduced to three painter/decorators. Competing for those three positions were five painters and two building labourers. From among this number, therefore, four redundancies were sought.The selection panel consisted of four members. There were the two estate managers, Mr Mollett and Mr Auletta. There was a representative from the Personnel Department. Ms Webb, the Deputy Director of Personnel, fulfilled that role for most but not all the interviews. Ms Margaret Elliott was the representative from that Department when the Respondent was interviewed. Then there was the outside assessor. He/she would be an Estate Manager with experience of PLD services from another Trust. As Ms Webb told the unions during the early consultative meetings, this assessor's function would be to give "an objective view of the candidate's abilities in their specific trade." In all, there were three outside assessors who, in turn, fulfilled that role. When the Respondent was interviewed, the assessor was a Mr Evans. He joined the interviews for just that once.The Appellants' intention was that the format of each of the seven interviews should be the same. Each member of the panel was provided with a form, consisting of two pages, for each interview. At the head was the candidate's name and the post for which he was applying. Down the left hand side of each page, set out in tabular form, were separate headings. On the first page were fifteen headings which related to the candidate's personal qualifications. The second page set out nine sub-headings relating to work experience. Opposite each heading was a boxed space for the panellist to record his/her impression how the candidate rated under the corresponding heading. At the bottom of the second page was ample space for the panellist to record his brief personal comments on the candidate's overall performance.In evidence, Ms Webb referred to the headings as the selection criteria, a description adopted by the Industrial Tribunal. They had not been agreed by the unions. Ms Webb said the headings were drawn by the two Estate Managers against the new job descriptions. She had not advised on those headings, nor had she advised how the panellist's assessments should be recorded save that she had advised there should be no discussion till the end of the interview when each of them should complete his/her own form.The Respondent was not interviewed until the 1st September. He had been away on holiday when the others had been interviewed some days earlier. The panel who interviewed him consisted of Mr Mollett and Mr Auletta, the two Estate Managers, Ms Elliott from Personnel, and Mr Evans, the outside assessor. Thereafter, these same four persons subscribed their names to a list of the three candidates recommended for continued employment and of the four, including the Respondent, recommended for redundancy. These recommendations were forwarded to Mr Welch, the Estate Development Manager, with whom lay the ultimate decision.On the 7th September, Mr Welch met up with the two Estate Managers, Mr Mollett and Mr Auletta, together with Ms Webb, to discuss with the managers in particular certain aspects of their recommendations. Having been through the panellists' interview notes, he decided to make the Respondent redundant. He was notified the next day by a letter from Mr Welch.Unhappily, Mr Welch failed to remind the Respondent of his right to appeal. The Industrial Tribunal also found as a fact that Ms Webb had informed the Respondent that there was no mechanism for appealing against the decision of redundancy. Notwithstanding these failures and disinformation, the Respondent wrote to Ms Webb a letter dated the 15th October 1993 in which he indicated his intention to appeal. For reasons which are not very clear in the witness statement and the Chairman's Notes of Evidence, he never did so. Instead, he issued his Originating Application to the Industrial Tribunal on the 1st December 1993.So much for the factual narrative.The Tribunal was satisfied that the reason for dismissal was redundancy. It then considered the various matters which have to be taken into account under s.57(3) of the Employment Protection (Consolidation) Act 1978 . When considering the issue of reasonableness, they directed themselves appropriately on the basis of the guidance provided in Williams v Compair Maxam Ltd [1992] ICR 156 . It would seem that they had no criticism to make of the Appellants' consultative process. Having determined that the categories agreed with the unions in July could not aptly be described as the selection criteria, they do not seem to have criticised the objectivity or overall fairness of the headings used by the selection panel as the basis of their interviews, although there seems to have been no evidence that these headings had at any time been agreed with the unions.Their criticism lay with the manner in which and the procedures whereby those criteria were applied. They say that no evidence was adduced to show the weight which was given to the individual criteria nor was there any objective yardstick devised whereby the panellists would be able to rate their assessment of the separate candidates so that, at the decision-making stage, there could be a fair comparison made between the respective merits of the various candidates. The problem, thereby arising, was they say compounded by the panellists who interviewed the Respondent being a different team from those who had interviewed the other candidates. They concluded that the ultimate recommendations arising from the interview process were but the personal opinions of the two managers.The Tribunal's criticisms are encapsulated in paragraph 14 of their Reasons where they say:
"14. What concerns us is that we do not consider, or at least no evidence had been brought before this Tribunal, that the assessments were carried out objectively and on a level playing field for all of the employees and for the Applicant in particular. He had a different outside assessor and a different personnel department representative and at the end of the day we believe that the recommendation was the personal opinion of Messrs Auletta and Mollett."
Further, they considered the Appellants were guilty of procedural unfairness in failing to remind the Respondent of his right of appeal and in providing him with disinformation to the effect that there was no such right of appeal.For all those reasons the Tribunal considered the redundancy selection as unfair.The Appellants criticise those findings. Mr Hoskins, who has argued the appeal, contends that the Tribunal's findings that the assessments were not carried out objectively and on a level playing field for all employees was perverse. He stressed that the objectivity of the criteria set out in the forms the panellists had to complete and the uniformity of approach adopted by the panellists in the completion of the forms, demonstrated that the Tribunal's findings in this respect was one which no reasonable tribunal could have come to.Mr Hoskins rejected the contention that a change of panellists for the Respondent's interview made his selection unfair or seemingly unfair. The presence of Mr Mollett and Mr Auletta throughout provided the continuity. The change in the outside assessor was of no significance because his role was merely to ensure an objectivity of approach. The change did not detract from the carefulness and conscientiousness of the Appellants' approach to the task of selection.The ultimate demonstration of objectivity was the care with which Mr Welch sifted the recorded evidence forthcoming from the interviews before making his decision.In conclusion of this part of his argument, Mr Hoskins referred us to the case of British Aerospace plc v Green [1995] IRLR 433 in which Waite LJ said:
"Employment Law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge - namely a swift, informal disposal of disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him."
Mr Hoskins declares the Appellants have done just that and, accordingly, it was perverse of the Tribunal to have found their procedures unfair.As for the Appellants' omission to advise the Respondent of his right to appeal, Mr Hoskins accepted that Mr Welch had omitted to advise him of his rights in his letter dated the 8th September, but says no unfairness resulted from that omission. Over the relevant time, the Respondent had access to union advice, and whether he learned from them or some other source, it is plain he knew of his rights by the time he wrote his letter dated the 15th October 1993 in which he announced his intention to appeal. If the Respondent's case was that Ms Webb had actually told him he had no rights, then the matter was more serious but, says Mr Hoskins, there was no or no effective evidence before the Tribunal that she had so told him. He said the matter was never put to Ms Webb either in chief or cross-examination. Further, the Respondent gave no oral evidence in support of this contention though several times he complained he had not been advised of his right to appeal. All that the Tribunal could have relied upon was the Respondent's unsworn witness statement which does not seem to have been put in evidence. In paragraph 17, it reads:
"Mrs Webb told us that there was not a mechanism to appeal against redundancy ... I had already spoken to Mrs Webb about an appeal with Mr Holloway and a letter was submitted saying that I intended to appeal."
Mr Hoskins submits that this, if in evidence, would be insufficient to raise even a prima facie case.Mr Freer, for the Respondent, in an equally careful argument submitted that the Tribunal had directed itself appropriately on the law and made findings of fact which, putting it at its lowest, there was evidence to support. In consequence, it was not open to this appellate tribunal to disturb the conclusions of the Industrial Tribunal.So how do we find?In the Summer of 1993, the Appellants were in something of a difficult situation as they had but recently assumed their responsibilities as a newly formed Trust, and had not yet had the benefit of tapping the unions' experience in such matters in the course of agreeing a formal redundancy procedure. Once a redundancy situation had come upon them, they clearly set about matters in a sensitive, conscientious way, consulting the unions and keeping the work force informed of developments. No one before the Industrial Tribunal or here has criticised the way in which they initially set about their task. The sole issues before the Tribunal when they came to deliberate, were those canvassed above, namely(1) whether the selection procedures and their implementation were fair; and(2) whether the Appellants' failure to advise the Respondent on his rights of appeal rendered the dismissal unfair. We deal with those two issues separately. First, we consider the selection process.The authorities of this jurisdiction have always sought to avoid legislating how an individual company should set up its own selection procedures and thereafter ensure they are implemented fairly. There is inevitably a range of practical factors which dictate the details of how a company tailors those arrangements to meet the needs of a particular redundancy situation. If the fairness of those arrangements is challenged in any particular respect, it is the responsibility of the Industrial Tribunal, as an industrial jury, to make a finding on that issue, primarily by considering whether the arrangements made match up to the requirements of good industrial practice. Such a finding will be one of fact, and as such is not to be disturbed by the Employment Appeal Tribunal unless it is so clearly wrong that it points to an approach which is erroneous in law or perverse.The Industrial Tribunal began their deliberations by appropriately directing themselves on the law. They did not have the advantage we have had of the guidance offered in Eaton Ltd v King and Others [1995] IRLR 75 which was published just days before the Tribunal had to make its decision. Nor did they have the benefit of the guidance set out in the case already referred to, of British Aerospace (supra), the report of which was published some five months later. They reminded themselves that the overall test was that of reasonableness, and that reasonableness required procedures in place which, if properly implemented, would result in a selection for redundancy which was essentially objective and not merely reflective of the personal opinions of the selector. This is sound law.In paragraph 4 of their Reasons, they said:
"There is no evidence at all before the Tribunal to show the weight which was given to each individual criteria ..."
We have seen the Chairman's Notes of Evidence, and there is no suggestion in them that any such weighting was given. We have seen the panellists' assessment forms for each of the three candidates who were given jobs and those relating to the Respondent, and think it inconceivable, having regard to the individual way in which the several panellists recorded their assessment against the criteria, that they had been given any instructions as to weighting. Nor did Mr Hoskins submit that any such weighting had been given. In the circumstances, we are satisfied the Tribunal were fully justified in their finding.The same paragraph 4 continues:
"... nor is there any indication as to the "mark" given to each individual under any head."
If, by this observation, the Tribunal sought to legislate that, to be fair, marks have to be given against each criteria for each candidate, this would be a requirement unsupported by any authority. However, we have not read this observation this way. The quotation marks used by the Tribunal in making this point indicate to us that the reference to "marks" was but a shorthand way of saying that there was no uniform method or language of recording the assessments of the individual panellists so that, at the end of each interview, their collective results could be translated into a grading or assessment of each candidate which, in turn, could be used for an objective comparison against the grading or assessment of the other candidates.The panellists' comments against each criteria vary in style as between one answer and another, and as between one panellist and another. Sometimes the comment is wrapped up in a descriptive phrase or encapsulated in a single word of the panellist's own choosing; sometimes the panellist would register his/her assessment by a mere tick or by leaving the box space blank. Two panellists observed the Respondent was "Too Good" in certain respects. The evidence shows that no attempt was made to grade the candidates' rating against each criteria by a numerical marking, a letter of the alphabet, or by using a limited range of uniform terminology such as "very good", "good", or "moderate" for instance, which would have facilitated comparison.Again, we are satisfied that the Tribunal had ample evidence to justify their conclusion on this point and it is one with which we concur.The Tribunal's next criticism of the Appellants' selection procedures, is that the candidates were not seen by the same panel throughout. In the result, the recommendations which went through for Mr Welch's decision were the personal opinion of Messrs Auletta and Mollett above.Mr Hoskins accepts that continuity of the selection procedures depended solely on the presence of the two managers at all the interviews but we reject his submission that this is all that matters, that the remainder who changed and interchanged were there merely to instil the required element of objective advice. Not only did the latter complete forms which went through to Mr Welch like those of any other panellist, but Ms Elliott and Mr Evans joined with the two managers as signatories to the document which contained the complete list of recommendations. And further, when Mr Welch, on the 7th September discussed that list of recommendations, Ms Webb joined in the discussion he had with the two manager even although she had not interviewed the Respondent. The Appellants, and in particular, Mr Welch, may well have believed that the opinion of the managers was all that counted, but, in so saying, they breached the integrity of the system they had chosen to set up to ensure a fair selection process and to present the image of fairness to those to be selected for redundancy.Bearing in mind that, when advising Mr Welch how he might decide, the managers had no objective grading of the candidates, no "markings" with which to justify their recommendations, it is, in our judgment, a reasonable conclusion for the Tribunal to have reached that the recommendations they passed on to Mr Welch were only their personal opinions.We think it right that the Tribunal did not pick out any one failure in the system and blame that failure for the unfairness of the selection process. They took all their criticisms into account before reaching that judgment. Unhappily, in our view, they say they took some account of the Appellants' failure to notify the Respondent of his right to appeal and of a finding that Ms Webb had told him he had no such right. We accept Mr Hoskins' submission, set out earlier in this judgment to the effect that the evidence does not warrant the latter finding. To the extent that the Tribunal found Ms Webb had misinformed the Respondent, we are satisfied that they misdirected themselves on the evidence relating to this issue. Equally, we are satisfied that no separate element of unfairness flowed from Mr Welch's admitted failure to remind the Respondent in his letter dated the 8th September 1993 of his undoubted right of appeal. There was no time bar to his exercising that right. He clearly was acquainted with his rights by the time he wrote his letter dated 15th October 1993. Notwithstanding this, he failed to enter an appeal. We are satisfied that the Tribunal would or should have regarded their findings on this issue of the Respondent's appeal rights as of peripheral significance only, insufficient on their own to have tipped the balance of their overall findings either way. So, we find that this relatively minor weakness in the decision does not invalidate the whole.Those last observations complete this Tribunal's analysis of the decision under appeal. Having considered the Appellants' argument with care, we can see no ground for disturbing it and accordingly the Appeal will be dismissed. But before so ordering, we would wish to make a point about interviewing boards. As we observed earlier, it is for the individual company to decide what, in the circumstances of a particular redundancy situation, would be and be seen to be a fair and reasonable way of going about the selection for redundancy. Having decided that the central feature should be an interviewing board, it is highly desirable that the same board members should be retained for all the interviews. Not only does this ensure a consistency of approach in the assessment of each candidate, but it also enables the candidates to have confidence that each of them have been assessed by the application of the same yardstick.However, practicalities of commercial life may make it impossible for all the interviews to be completed within the period of the several members' availability. As in the present case, a candidate may be on holiday, or he may be on sick leave, and it may not be possible for the same members to be re-assembled within an acceptable time for the resumption of interviewing. When this situation arises, it remains the employers' choice, subject to the overall requirement of fairness, how he resolves the attendant problems. What he decides would, of course, be open to review by an Industrial Tribunal. In most similar situations, the only fair way of proceeding would be for the interviews to continue with a reduced board. In this event, the assessment papers of the retiring member should be discarded, and the candidates informed that they have been. The introduction of a new member at that stage is the wrong solution.Such observations would not apply to someone who sits in on the interviews in a purely advisory capacity to ensure correct procedures are followed or merely to handle the personnel files. The fairness of the proceedings would not be marred by the replacement of such a person because he/she would not have been a member of the board, and so would not have participated in the assessment of any of the candidates.These remarks are apposite in the circumstances of this case because, in our judgment, the Appellants resolved the problem arising from the non-availability of members in a way which the Industrial Tribunal reasonably found contributed to the unfairness of the selection for redundancy.Having found no substantial ground on which we should disturb the Tribunal's finding of unfairness, we dismiss the appeal.