Arora v Coopers & Lybrand [1998] UKEAT 806_97_2404

EAT
Arora v Coopers & Lybrand
[1998] UKEAT 806_97_2404 · 1998-03-04

JUDGE PETER CLARK :

This is an appeal by Mr Arora, the applicant, before an Industrial Tribunal sitting at Stratford under the Chairmanship of Mr Jeremy McMullen QC on 9th-10th April 1997, against that tribunal's decision to dismiss his complaint of both unfair dismissal and racial discrimination against his former employer, the accountants, Coopers & Lybrand. Extended reasons for that decision are dated 15th May 1997.The applicant, a very well qualified accountant, joined the respondent in 1987. In 1989 he was promoted to the grade M2. He was one of a small team of four working on the tax affairs of corporate clients faced with insolvency. The other members of the team were Messrs Hearn and Chalk, white Europeans, and Mr Sethii who, like the appellant, was of Asian ethnic origin.In 1993 the Insolvency Tax Team were transferred to the larger Financial Services Tax Department ["FST"]. In February that year the appellant met with Mr Allen, a partner in the respondent. There was a factual dispute as to whether or not the appellant complained at that meeting that he had been refused promotion on grounds of his colour and ethnic origin. The tribunal accepted Mr Allen's evidence that no such thing was said.It was the appellant's case that the meeting with Mr Allen triggered a conspiracy against him to hit him hard and to get rid of him. That conspiracy theory was rejected by the tribunal.During 1993 disciplinary proceedings were commenced against the appellant. He received an informal, followed by a formal warning about his performance. However no further disciplinary action was subsequently taken after December 1993.The appellant felt that his job was at risk and he began to take time off due to illness. First, due to lumbago and bronchitis; subsequently anxiety.On 14th February 1994 he began his final period of sick absence, not returning to work before his dismissal by letter dated 23rd February 1995.On 30th June 1994 Mr Hearn, who was senior to the appellant and had 22 years service with the firm, was dismissed by reason of redundancy. In recognition of his long service, and for no other reason, so the tribunal found, he was given an additional early retirement payment, as were two other long-serving employees, Mr Stevens, a white European and a further employee of African extraction.At the time of Mr Hearn's dismissal consideration was also given to making the appellant redundant. He was then suffering from anxiety. Ms Clark of personnel liased with the appellant's medical advisers in November 1994. She was advised that consultation with the appellant over his possible redundancy ought not to take place due to his medical condition. There was, before the tribunal, a file note compiled by Ms Clark and dated 17th November 1994, following a telephone conversation with the appellant. The material paragraph read:
"Roshan [the appellant] asked me to clarify his position in terms of termination because, once he had left he will have to sell his house. I told Roshan that, as he had discussed with Dr Gill's occupational psychologist, his position is redundant. I was told by Dr Gill that Roshan would rather prefer us to write to him to explain the position than call him into the office and go through the formal procedure. He confirmed to me that this was the case."
Following that conversation Mr Scott, also of personnel wrote to the appellant on 26th January 1995 informing him that his position was redundant; that during the following month the respondent would look for alternative employment for him, but that if unsuccessful his employment would terminate by reason of redundancy on 23rd February 1995. In that event he would receive his statutory redundancy payment, pay in lieu of notice, and an additional termination payment, but not the early retirement payment made to Mr Hearn and the two other long-serving employees to whom we have referred.The tribunal found that Ms Clark caused a search to be made within the firm, which employs some 9,500 people at 33 locations, but no alternative employment could be found for the appellant. Consequently his employment was summarily terminated by letter dated 23rd February 1995, with three months pay in lieu of notice together with a statutory redundancy payment and an additional termination payment, in all totalling £13,460.18.Against that factual background the tribunal considered and determined the following issues arising in the case:(1) There was no policy barring Asians from promotion within the respondent. The reason for dismissal was redundancy. The appellant was not selected for redundancy on racial grounds; Mr Hearn, and later Mr Chalk were made redundant; Mr Sethii was retained. Although the appellant was less favourably treated than Mr Hearn in respect of the additional early retirement payment, that was not treatment on racial grounds. The difference lay in their respective length of service with the respondent.(2) As to the fairness of the dismissal by reason of redundancy, the tribunal found that the selection criteria and procedure adopted were reasonable. The appellant had been selected by reference to the following criteria: attendance record, performance, experience and qualifications. Further there was sufficient consultation and warning on the particular facts of the case. The tribunal found that the respondent behaved sensitively in light of the advice which personnel received from the appellant's own medical advisers. Next, it was accepted that the respondent took adequate steps to seek alternative employment for the appellant.In these circumstances the tribunal concluded that the appellant had not been subjected to unlawful racial discrimination and that his dismissal was fair.

The Appeal

Unfair Dismissal

Pool for selection

Mr Tayler submits that no pool for selection for redundancy was identified by the respondent at the time when the appellant was selected. We cannot accept that submission. On the tribunal's findings of fact the respondent identified a diminishing requirement for employees to provide insolvency tax services in early 1994. Applying the criteria set out in paragraph 206 of the respondent's written redundancy policy Mr Hearn and the appellant were identified for redundancy out of the four members of the insolvency tax team. But for his absence through sickness which commenced on 14th February 1994 the appellant would have been interviewed at the same time as Mr Hearn and it seems to us in all probability also have been dismissed in June 1994. However, the respondent decided to wait until the appellant was fit to return to work before discussing redundancy with him. In view of his continuing ill health Ms Clark discussed the matter with both his medical advisers and the appellant, by telephone, in November 1994. The medical advice, with which the appellant agreed, was that he ought not to be seen in the usual way for a discussion. Instead, the matter was dealt with by correspondence. In our judgment, on the particular facts of this case, the tribunal was entitled to conclude that the appellant was properly identified for redundancy, applying the respondent's established selection criteria, as long ago as early 1994. Dismissal did not take place until one year later due the appellant's sick absence from work.

Consultation

The respondent's written policy provided, at paragraph 211:

"Consultation

211 To avoid successful unfair dismissal claims, it is the firm's policy to explain to employees the redundancy situation, the alternatives explored, to discuss possible suitable alternative employment where appropriate and to explain the selection criteria and the decision made."We think that the nub of this appeal is that, having identified the appellant for redundancy, no opportunity was given to him to make representations, whether in person or in writing, as to his selection for redundancy. No attempt was made to explain the selection criteria to him or the basis upon which he had been identified for redundancy. The medical advice against holding a meeting did not preclude individual consultation taking place in correspondence in relation to those matters before the decision to make him redundant was taken. Is that failure sufficient to vitiate the tribunal's finding of fair dismissal?We bear in mind that our powers to interfere with Industrial Tribunal decisions are limited to correcting any misdirection in law or decisions which are, in any of senses identified by Mummery J. in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 , perverse. As we observed in Mugford v Midland Bank PLC [1997] IRLR 208 , it will normally be a question of fact and degree for the Industrial Tribunal to consider whether consultation with the employee (there was no union representation in this case) was so inadequate as to render the dismissal unfair. In that case there had been no consultation with the employee before the decision to identify him for redundancy was finally reached.In the present case the tribunal, having asked themselves the correct questions, concluded that there was sufficient consultation and warning of the impending redundancies. On the facts Ms Clark had informed Dr Gill, who was treating the appellant, of the intention to make him redundant on 11th July 1994; that was communicated to the appellant by Dr Gill prior to preparation of Ms Clark's file note dated 4th August 1994. On 17th November she spoke with the appellant direct; he was content that the respondent wrote to him to explain the position, rather than have a meeting. Mr Scott's letter to the appellant of 26th January 1995 was not a letter of dismissal. It warned him that his position was redundant and that if no alternative employment could be found for him during the next month he would be made redundant with effect from 23rd February 1995. The appellant was invited to contact Ms Clark if he had any queries, or in relation to alternative employment. He did not do so.The tribunal were satisfied that adequate steps were then taken by the respondent to find alternative employment for the appellant; none was available. In these circumstances he was dismissed by letter dated 23rd February 1995.We are unable to say that the tribunal has misdirected itself in its approach to the overall question of reasonableness posed by s.98(4) of the Employment Rights Act 1996 . Neither can we say that its conclusion was an impermissible option so as to render the decision perverse, although we acknowledge that another tribunal could permissibly have come to a different conclusion and found that the failure to consult over the appellant's selection for redundancy rendered the dismissal unfair.In these circumstances we dismiss the appeal against the finding of fair dismissal.

Racial discrimination

Mr Tayler's submission under this head of claim is dependent upon his succeeding on the points raised in relation to the findings as to the pool for redundancy selection and consultation over the redundancy. The contention is that if the tribunal erred in these matters there was a fundamental flaw in determining the treatment accorded to the appellant for the purposes of the racial discrimination complaint.It follows that, having failed in his earlier submissions, this ground of appeal falls.We should add that following the oral hearing, having reserved our judgment, we received written representations from the appellant himself dated 5th March 1998 in relation to his complaint of racial discrimination. Having considered those representations we do not find it necessary to reconvene the hearing. They do not raise any further arguable point of law.Accordingly, this appeal must be dismissed.