Tabani v United Bank Ltd [1999] UKEAT 585_98_2106

EAT
Tabani v United Bank Ltd
[1999] UKEAT 585_98_2106 · 1999-04-30

JUDGE PETER CLARK :

This is an appeal by Mr Tabani, the applicant before the Bedford Employment Tribunal sitting on 5th January 1998, against that tribunal's reserved decision, promulgated with extended reasons on 3rd March 1998, dismissing his complaint of unfair dismissal brought against his former employer, the respondent United Bank Ltd ["the Bank"].

Facts

The Bank is incorporated in Pakistan with its Head Office in Karachi. In 1991 the Bank had eleven branches in the United Kingdom including its Luton Branch at which the appellant was employed as a cashier from 2nd August 1993. There were a total of four employees at the Luton Branch.Following trading losses in the United Kingdom for 1996 a decision was taken at the Karachi Head Office to close unprofitable branches here. That decision was communicated to the UK General Manager, Mr Jafri, for implementation.The first branch to be closed was Luton, later followed by four others, Hounslow, Commercial Street - London, Glasgow and Oldham.The UK Management was informed at the beginning of February 1997 that the Luton Branch was to close from 7th March. The Luton Branch manager was told to inform staff of the closure. There was some delay and he did not inform the appellant and other employees of the Branch's closure until a letter dated 19th February 1997. It appears that as an account holder at the Branch the appellant was informed of its closure by letter dated 6th February 1997. In the letter of 19th February the appellant was informed that he was at risk of redundancy and that the period of consultation was commencing.The appellant was a member of the Banking Insurance and Finance Union ["BIFU"], a trade union then recognised by the Bank.The written Procedural Agreement made between the Bank and BIFU provided, under the heading "General Principles":
"f) The Bank agrees that before implementing significant alterations to terms and conditions of employment in relation to pay and other emoluments, overtime, territorial allowances, holiday, working hours, redundancy, sick pay and pensions or any other matter which the parties agree it will consult with the Union and resolve any consequent issue through the negotiating procedure."
There was no further formal Redundancy Procedure Agreement made between the parties.On 24th February 1997 Mr Nusrat, Assistant Vice-President of the Bank, met with the appellant for almost an hour. During that meeting the closure and the reasons for it were discussed. There were discussions about the appellant and his personal circumstances and Mr Nusrat explained that the Bank was seeking to redeploy staff where possible. The appellant was asked whether he was prepared to move to another branch. He indicated that he wished to remain in employment with the Bank.There was a factual dispute before the tribunal as to whether a possible vacancy at the Bradford Branch was discussed at that meeting. The tribunal found that the Bradford Branch may well have been mentioned and if it was, the appellant did not rule it out.The Luton Branch duly closed on Friday, 7th March, although there remained work to be done by staff in connection with the closure.On 11th March the first meeting took place between management and the Union. We see from a letter from Mr Nusrat to Mr Brawley, Assistant Secretary of the union, dated 26th February 1997, that the Bank had earlier proposed a meeting to be held on 21st February by a letter dated 14th February. It seems that Mr Brawley was unable to attend a meeting on that date.At the meeting on 11th March Mr Brawley asked why no consultation with the staff/union had taken place about the proposed closures. Mr Jafri replied that that this was a commercial decision taken as part of a rationalisation programme within the UK operation. The question of further possible branch closures was discussed.That meeting was followed by a letter dated 11th April from Mr Jafri to Mr Brawley, enclosing a copy of the minutes of 11th March meeting for approval, and inviting representations from the Union concerning staff redeployment. A further invitation to consult over alternative employment for those displaced as a result of the Luton Branch closure followed in Mr Jafri's letter dated 16th April. That correspondence was followed by a second consultation meeting held on 24th April.Prior to that meeting Mr Nusrat telephoned the appellant and invited him to move to the Commercial Street - London Branch on a temporary basis as the cashier there was on extended leave. It was anticipated that that branch would also close, and it did so in July 1997. The appellant agreed, and commenced work at Commercial Street on 24th April.At the meeting held on 24th April Mr Brawley complained that the Union had not been consulted over the closures of the Glasgow and Hounslow branches. He also tabled a 'model job security agreement', dealing with matters such as early retirement and redundancy, adding that he did not expect anyone in the Bank to be displaced until such an agreement was in place and asking for the Bank's reply to the proposed agreement by 1st May.On 7th May a third consultation meeting took place between management and the Union. At that meeting Mr Jafri asserted that the question of which branches were to close was purely a matter for management to decide. The minute of the meeting, which the tribunal found was sent to the Union and not challenged by them, concluded with Mr Jafri seeking Mr Brawley's co-operation and views as to redundancies.On 2nd June Mr Jafri wrote to the appellant notifying him of his transfer to the Bradford Branch. The appellant did not respond. On 7th June Mr Nusrat wrote to the appellant, urging him to give an indication as to whether the Bradford job was acceptable to him. Again, the appellant did not reply but instead sent a medical certificate showing that he was unfit for work.On 9th June Mr Howard took over the role of Personnel Manager. He wrote to the appellant on 11th June requiring a decision from him as to whether he would take the Bradford position, failing which he would be made redundant.On the same day Mr Brawley wrote to Mr Jafri, enclosing the Union's terms for voluntary redundancy/early retirements and seeking discussion about the proposed Job Security Agreement tabled at 24th April meeting. We observe that in that letter there is no suggestion that at that meeting, or at the later meeting on 7th May, Mr Jafri had agreed not to serve notice of redundancy on any employee before a procedure for handling job losses was agreed with the Union.On 13th June Mr Howard wrote to Mr Brawley in response to his enquiry about the appellant made by fax the previous day. Mr Howard stated that the appellant was clearly redundant, his branch having closed. He had been appointed to the Bradford Branch, but that was plainly not "suitable alternative employment", and therefore the appellant retained the option of redundancy on terms which had been communicated to him. A decision as to whether he wanted to take up the Bradford appointment, or to take redundancy was required from him.Mr Brawley's response, by letter dated 16th June, was to assert that at the meeting held on 7th May Mr Jafri:
"agreed that no member of staff would be served notice of redundancy until a severance package and procedure for handling job losses were agreed between us."
No mention was made of the Bradford job.Meanwhile, in accordance with the General Manager's alleged undertaking, Mr Brawley did not expect any member of staff to be served notice of redundancy.Two things followed. On 20th June the appellant was dismissed by reason of redundancy. On the same day Mr Howard wrote to Mr Brawley refuting the alleged undertaking given by Mr Jafri given at the 7th May meeting and referring to the unchallenged minutes of that meeting. Unhappy with industrial action which, it is said, took place on 16th June and relations with the Union, the Bank served three months notice of de-recognition of the Union.On 18th September 1997 the appellant presented his Originating Application, signed by his solicitors, Lawfords. There is no mention there of the alleged undertaking, given by Mr Jafri on 7th May, that no redundancy notices would be served until a severance package and redundancy procedure had been agreed with the Union.

Issues

It was common ground between the parties that the reason for the appellant's dismissal was redundancy. Further, the tribunal had the advantage of detailed written closing submissions from the professional representatives on both sides when they came to consider this case in Chambers on 20th February 1998, following the oral hearing on 5th January. At paragraph 3 of their reasons the tribunal identified the following issues arising under s.98(4) of the Employment Rights Act 1996 :(a) did the appellant receive sufficient prior warnings of impending redundancies?(b) was there proper consultation with both the appellant and his trade union?(c) were the criteria for selection reasonable and objectively and properly applied?(d) was sufficient consideration given to alternatives to redundancy?

The tribunal decision

Addressing those issues the tribunal found as follows:(1) The decision to close unprofitable branches, including Luton, was a management decision which it was not for the tribunal to question. That proposition is not challenged in this appeal, and is well-established. Moon v Homeworthy [1977] ICR 117 .Although there was some delay in formally warning the appellant that he was at risk of redundancy by the Branch Manager's letter of 19th February, some advance notification, (the letter to account holders dated 6th February) had been given.The appellant was seen on 24th February; alternative employment was sought and was offered the vacancy in Bradford. The tribunal found that in these circumstances prior warning to and consultation with the appellant took place.(2) Consultation took place with the recognised union. We have earlier referred to the correspondence and three consultation meetings when setting out the facts. The tribunal considered and distinguished the case of Rowell v Hubbard [1995] IRLR 195 , a decision of the EAT, on its facts. In that case the EAT held, contrary to the Employment Tribunal's finding, that no consultation had there taken place. We further infer, from this tribunal's reference to Rowell , that they also found that the consultation with the Union was proper consultation in the sense set out at paragraph 15 of the report in Rowell by reference to the formulation by Hodgson J in R v Gwent County Council ex parte Bryant [1988] Crown Office Digest 19 , adopted in R v British Coal Corporation and Secretary of State for Trade & Industry ex parte Price [1994] IRLR 72 , paragraph 24, per Glidewell LJ.(3) The tribunal record that no criticism of the selection criteria, set out in a circular issued by the Bank on 19th February 1997, was pursued at the hearing. Having considered the way in which the case was put in the written submissions on behalf of the appellant below under the heading "warning and selection criteria" that is plainly correct. Further, there was no question of applying those criteria to a pool for selection in the appellant's case. All the jobs in the Luton Branch were lost as a result of its closure.(4) The Bank took reasonable steps to find alternative employment for the appellant, culminating in the offer of the Bradford position to which he did not respond, either personally or through his trade union representative.In these circumstances, looking at the matter in the round, the tribunal held that the dismissal was fair.

Unfair redundancy

In Williams v Compair Maxam [1982] ICR 156 the EAT (Browne-Wilkinson J presiding) set out the ordinary standards to be applied by an employer when contemplating redundancies as a matter of good industrial relations practice. It is clear that this tribunal considered those standards. cf. Langston v Cranfield University [1998] IRLR 172 .In Mugford v Midland Bank PLC [1997] IRLR 208 we reviewed the cases on consultation with the employee and the recognised union in a potential redundancy situation. At paragraph 41 I summarised the position in this way:
"(1) Where no consultation about redundancy has taken place with either the trade union or the employee the dismissal will normally be unfair, unless the industrial tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.
(2) Consultation with the trade union over selection criteria does not of itself release the employer from considering with the employee individually his being identified for redundancy.(3) It will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy."More recently, the Court of Appeal upheld an Employment Tribunal decision that a dismissal was fair on the particular facts of the case, even although no consultation took place, where administrative receivers urgently needed to find a purchaser for an ailing business. Warner v Adnet Ltd [1998] ICR 1056 .Absent an agreed redundancy procedure, dealing with selection, we have been referred to no authority which requires an employer to identify any particular pool for selection. It is open to a tribunal to find that an employer acts reasonably in declaring redundancies where they fall, here the employees at the closed Luton Branch, subject to alternative employment.The duty on the employer is to take reasonable steps to find alternative employment for the displaced employee. He is not required to create an alternative job, nor is he expected to take every conceivable step to find alternative employment.

The Appeal

Mr Thacker, who appeared below, has advanced this appeal under the following heads:

Warnings and consultation and the selection criteria

(1) It is submitted that a warning of possible redundancy ought to have occurred earlier than 19th February 1997. That was accepted on behalf of the respondent. The tribunal took that into account, but held that the absence of earlier formal warning, in circumstances where informal warning was given to appellant as an account holder of the Branch by letter of 6th February, did not render the dismissal unfair. That was a permissible approach in our judgment.(2) Complaint is made that the first meeting with the Union took place after the Branch had closed. That is correct; however the tribunal was entitled to take into account the fact that an attempt was made by the respondent to arrange a meeting with Mr Brawley prior to the closure. He was unable to attend on the date suggested.(3) As to the consultation process, it was submitted on behalf of the appellant below that:(a) the respondent was in breach of the Procedure Agreement (paragraph f), referred to above). The tribunal was entitled to reject that complaint. Paragraph f) is in general terms; it was open to the tribunal to find that the consultation which did take place complied with the spirit and intent of paragraph f).(b) The Union was provided with insufficient information to make a meaningful contribution to the process. Again, having considered the facts, we think that the tribunal was entitled to reject that submission. We do not regard it as necessary for the tribunal to set out each and every argument put forward by the parties. It is enough that they know why they have won or lost. Meek v City of Birmingham District Council [1987] IRLR 250 , 251. Per Bingham LJ.(4) There was no consultation about the selection criteria adopted by the Bank. That is correct; however we accept that no complaint was made about the criteria themselves and in any event, as the tribunal observed, no question of selection arose. Redundancy lay where it fell, subject to redeployment.In these circumstances we reject the submission that the tribunal's finding of adequate consultation was unsustainable; in other words, perverse in any of the senses identified by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 , 443.

Alternatives to redundancy

Mr Thacker complains that the tribunal made no reference to his suggestion below that the respondent ought to have considered alternatives to redundancy including "bumping", seeking volunteers or job-sharing. Again, we observe that it was not necessary for the tribunal to refer to those submissions expressly. No doubt some or all of those measures might appear in the detailed redundancy procedure agreement. However, no such agreement was reached in this case.We cannot say that it was perverse for the tribunal to find this dismissal fair in the absence of consideration by the respondent of those alternatives. What the respondent did was to find the appellant, first, a temporary post at their Commercial Street Branch, and then to offer him an alternative post at the Bradford Branch., to which offer neither he nor his trade union representative responded. In these circumstances the tribunal was entitled to conclude that reasonable attempts were made by the respondent to find alternatives to making the appellant redundant.

Failure to made a finding of fact

The complaint here is that the tribunal ought to, but failed to make a material finding of fact, namely, whether agreement was reached between the parties that no redundancy notices would be served until a redundancy procedure agreement had been reached.At the direction of the EAT, sitting on the preliminary hearing held on 24th September 1998, the Chairman, Mrs C Tribe, has commented on this ground of appeal. It appears from the Notes of Evidence that this alleged agreement was not put in cross-examination to any of the respondent's witnesses. On the contrary, the question from Mr Thacker recorded by the Chairman and put to Mr Aznet who was present at 7th May meeting was this:
"Do you recall Mr Jafri saying that he was looking for an agreement regarding the terms for handling redundancy before anyone was declared redundant?"
The answer to that question was in the negative.Apparently, the first time the alleged agreement, referred to in Mr Brawley's letter to Mr Howard of 16th June 1997, was raised in evidence was by Mr Brawley in his evidence-in-chief. In cross-examination he accepted there was no mention of the agreement in the minutes of the 7th May meeting, and further that had such an agreement been reached it would have been unworkable.We think that the short answer to the point is that there is no mention of the agreement in the minutes of that meeting, which the tribunal expressly found were unchallenged by the union. It follows that the tribunal implicitly found that no such agreement was reached at the meeting on 7th May as alleged.

Conclusion

In our judgment this appeal is an attempt to reargue points which were properly considered and rejected by the tribunal below. There are no grounds in law for interfering with the tribunal's decision. The appeal is dismissed.

Leave to appeal

At the conclusion of the hearing before us we announced our decision, but not the full reasons now contained in this judgment. Mr Thacker applied for leave to appeal. We reject that application on the grounds that the proposed further appeal to the Court of Appeal has no real prospect of success for the reasons which we have given.