National Health Service Supplies Authority v Evans [1998] UKEAT 208_98_0503

EAT
National Health Service Supplies Authority v Evans
[1998] UKEAT 208_98_0503 · 1998-03-05
MR JUSTICE BELL : This is an ex-parte preliminary hearing in respect of a decision of an Industrial Tribunal held at Leicester. The decision was entered in the register on 14 October 1997 and 12 November 1997 with extended reasons on the latter occasion.The unanimous decision of the Tribunal was that the Applicant employee, Mr Evans, was unfairly dismissed and his employer, the National Health Service Supplies Authority, now appeals against that finding.The essential factual background to the Originating Application and Appeal is that prior to his dismissal by reason of redundancy effective from 31 March 1997, Mr Evans was a Higher Clerical Officer in a supplies unit of eight people at Glenfield Hospital, Leicester. Five of them were on Grade A and C Scale 3. Reorganisation of the National Health Service, by whom Mr Evans had been employed, into purchasers and providers, produced the National Health Service Supplies Authority as a special Authority to provide supplies to National Health Service Hospitals and National Health Service Trusts in competition with private suppliers.Although the Authority is a national organisation and employer, it operates from a large number of supplies units - different hospitals, for instance - and each unit has its own customers and service agreements with those customers. There are a number of such supplies units in the Leicestershire area, of which the Glenfield Unit, where Mr Evans worked, is one.It was the Authority's case that each unit was, in effect, discrete and that the Authority's policy was that there should be no financial cross-fertilisation between them, although the Industrial Tribunal noted, for instance, that Mr Evans' terms and conditions of service allowed for movement to another work base within his division and it was surprised that more evidence was not called to support the existence of the policy.It was common ground that a genuine redundancy situation arose at Glenfield as a result of a genuine decision to restructure it. One promotion and one employee taking voluntary redundancy meant that there were three Scale 3 Clerical Officers at Glenfield for two Scale 3 places at Glenfield. On the basis of its treatment of Glenfield as a discrete unit and in accordance with the policy to which we have referred, the Authority limited the pool of selection for redundancy to the three Scale 3 staff at Glenfield, and since it was impossible to choose between the three staff on any other ground the Authority adopted a "last in, first out" approach. Mr Evans had been the last of the three to come in, so he was the one to go out.Mr Evans did not take issue with the "last in, first out" basis of selection. He did take issue with the size of the pool. There were other Scale 3 staff in the area at other units who had come in after him and he challenged the choice of the pool as unfair. He also alleged lack of consultation and lack of enquiry about avoiding his redundancy by re-deployment.Having considered the facts in some detail, the Industrial Tribunal concluded that:
"However, given the nature and size of the respondent's undertaking and the number of employees at grade 3 at least in the Leicester area in its central division, we consider that the pool from which the redundant employee was to be selected was not one that any reasonable employer would have chosen, i.e. the remaining three Grade 3 support supply staff at Glenfield.
Despite the difficulties of the absence on sick of the applicant, no reasonable employer would have dismissed him beforehand without consulting the applicant. No proposals about the basis of selection were conveyed to him or his views sought before the decision was made on 3 February 1997 or afterwards before he was dismissed by the letter dated 6 February 1997.No reasonable enquiries were made about any alternative possibilities for avoiding the applicant's redundancy, and no reasonable employer would have dismissed the applicant without making full enquiries as to alternative employment for him.Accordingly we find that the respondent did not act reasonably in treating redundancy as a sufficient reason for dismissing this employee and his dismissal was therefore outside the range of reasonable responses of a reasonable employer and therefore unfair."The first point made by the Appellant Authority is that the use of the word "accordingly" at the beginning of the last sentence which we have quoted, indicates that it was the cumulative effect of the three types of failing which the Industrial Tribunal found, the choice of pool, lack of consultation and failure to seek to avoid by re-deployment which produced the finding of unfair dismissal. It is not safe to argue that the Industrial Tribunal would have found any one or two of those matters sufficient.It seems to us arguable that the Industrial Tribunal attached particular weight to what it saw as the unreasonable choice of the pool, so we proceed to the Authority's substantial grounds of appeal, which really amount to a contention that the Industrial Tribunal was not entitled to hold that the pool of staff at Glenfield alone was not one that any reasonable employee would have chosen.The grounds of appeal, 6 (a) - (d), which we will not rehearse here, and Mr Napier's skeleton argument, contend that the Authority erred in law in reaching that conclusion because the Industrial Tribunal was, in effect, re-writing the redundancy selection criteria established by the employer, which was not a legitimate exercise, and that it failed to acknowledge the employer's right to decide, on commercial grounds, the nature and scope of redundancies which it saw as required. The employer was entitled to restrict the redundancy pool to what it saw as the discrete unit where the redundancy arose.The Industrial Tribunal expressly directed itself:
"... that in judging the reasonableness of the employer's conduct we must not substitute our decision as to what was the right course to adopt for that of the employer and that our function is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band the dismissal is unfair."
The Industrial Tribunal proceeded to perform that function and reached the conclusion that "the pool from which the redundant employee was to be selected was not one that any reasonable employer would have chosen" as we have already pointed out.In our view it is arguable that the soundness of that conclusion depended upon whether, firstly, the Industrial Tribunal was entitled to find that the Glenfield Unit was discrete and did so find, and on whether, secondly, the Industrial Tribunal was entitled to find that the Authority did not have a policy, or justifiable policy, to limit redundancy to the particular unit where the reduction in business was taking place and did so find.We have come to the conclusion that it is arguable that the Industrial Tribunal did not make a clear finding that the Glenfield Unit was not discrete and that it did not make a clear finding that there was no policy, or no justifiable policy to limit redundancy to the particular unit where reduction in business etc., was taking place, although its reasons appear to doubt both matters.In those circumstances we have concluded that the Appellant's grounds of appeal are arguable, so that this appeal should be allowed to continue to go to a full hearing.