ALSTOM TRACTION LIMITED v STEPHEN BIRKENHEAD & OTHERS [2002] UKEAT 1131_00_1010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1131_00_1010Case No Appeal No. EAT/1131/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ALSTOM TRACTION LIMITEDAPPELLANTSTEPHEN BIRKENHEAD & OTHERSRESPONDENT
Before
Mrs Recorder CoxDate 10 October 2002
[1]APPEARANCES For the Appellant MR JOHN HAND QC Instructed By: Messrs Nightingales Solicitors 127 Buxton Road High Lane Stockport Cheshire SK6 8DX For the Respondents MR TIMOTHY BRENNAN QC Instructed By: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE MRS RECORDER COX QC: By a Decision promulgated on 17 th May 2000, the Manchester Employment Tribunal held unanimously that the Applicants, who were dismissed on grounds of redundancy, were all unfairly dismissed in the circumstances. They found, essentially, that there was inadequate consultation with the employees concerned and that this was not cured by the appeals process, which was flawed. The Appellants, their former employers, contend that in so deciding the Tribunal erred in law. They argue that the Tribunal erroneously approached the question of fairness as a matter of principle, adopting a formalistic approach to judicial guidance on consultation in redundancy dismissals, given in a number of well-known authorities, and applying that guidance as if it had statutory effect. In approaching the matter in this over elaborate and legalistic way, it is said, they failed to stand back and consider the question of fairness as a whole, by examining all the circumstances, and they added an unwarranted gloss to the statutory test for determining fairness laid down in section 98(4) of the Employment Rights Act 1996 . The Respondents contend that the Appellants seek, unjustifiably, to characterise questions of fact as questions of law and that the extent and nature of appropriate consultation in a redundancy exercise is pre-eminently a question of fact and degree for the Tribunal. They argue that the Tribunal correctly directed themselves on the law and made findings of fact with which, absent perversity, this Appeal Tribunal cannot interfere.[2]The issue in this appeal is therefore whether the Tribunal erred in approaching the question of fairness as a matter of principle, to be decided by the rigid application of judicial opinion and guidance in the case-law, rather than by concentrating on the words contained in section 98 (4) and applying them to the facts as found. John Hand QC, for the Appellants, submits that the relevant authorities, on a proper analysis, do not in fact establish that fairness in redundancy dismissal cases is to be approached as a matter of principle but that alternatively, if they do, the cases go too far and the law requires to be re-stated. Although perversity was included originally as a ground of appeal in this case, it is no longer pursued. Mr. Hand now accepts that if we consider that this Tribunal did approach fairness as a question of fact, having regard to the words of section 98 (4) in all the circumstances, then the appeal must fail and he no longer seeks to argue that no reasonable Tribunal could have arrived at the decision that the Appellants acted unreasonably in dismissing for redundancy. Background[3]The Appellants were part of the Alstom Group with a site in Preston, Lancashire, where 1,043 people were employed. They were involved in the design, manufacture and servicing of rail traction equipment and auxiliary power systems and the supply of spare parts. It was common ground that the Appellants were encountering serious trading difficulties in 1998. As the Tribunal found, the initial proposal was to reduce the workforce by approximately one-third and the proposed 350 redundancies cut across both the manual and staff employee sections. A formal announcement of the redundancy situation was made on 2 nd February 1999 and it was inevitable that a substantial number of valued employees would be made compulsorily redundant.[4]After the redundancy exercise and consequent dismissals had taken place, a total of 52 applicants, employed in different capacities, lodged claims against the Appellants at the Tribunal alleging unfair dismissal on grounds of redundancy. We were told that this figure represented around half of those employees who were made compulsorily redundant. The Tribunal refers to 6 claims being taken as test cases. The employment of these 6 applicants terminated in April 1999. All of them complained that there had been no individual consultation concerning the decision to dismiss, that the selection procedure was flawed and their dismissals were unfair. The Appellants contended that they had devised a fair selection procedure and had conducted lengthy and detailed consultations with the trade unions in relation to the redundancies and the procedure. They pleaded that each applicant was properly and fairly selected under the procedure and was consulted individually following selection. Further, the procedure included a right of appeal. The dismissals were therefore fair.[5]The case was heard over the course of 6 days. As is to be expected, in a case where the selection procedure for a substantial redundancy exercise is under scrutiny, there was a great deal of evidence placed before the Tribunal. They heard or read evidence from the 6 applicants and a total of 18 witnesses. There were 2 bundles of documents with over 700 pages, which the Tribunal considered in reaching its decision. Where there was a conflict in the evidence they stated that they preferred that which was given by the Appellants' witnesses on a balance of probabilities (paragraph 7). Issues arose as to the subjective application of the selection criteria in individual cases but, in the event, the Tribunal found it unnecessary to determine them. The Tribunal's Decision[6]The applicants had conceded that they were all dismissed on grounds of redundancy and, further, that there was a genuine redundancy situation at the Appellants' undertaking. The Tribunal declared itself satisfied that the need for redundancies was clear and that there was adequate warning of the impending redundancies in this case (paragraph 7 (1)). In paragraph 3 of the Extended Reasons the Tribunal identified the issue for them to determine as being "….whether, or not, the applicants were dismissed fairly according to the principles set out in Section 98 (4) of the Employment Rights Act 1996."[7]The findings of fact are set out at paragraphs 6 (1) to (11). In relation to consultation the relevant findings begin at paragraph 6 (4). There was collective consultation with four recognised trade unions and the period of consultation followed the formal announcement of redundancies on 2 nd February. Collective consultation meetings took place between February and April, which included consultation on the selection process and appeals systems. This collective consultation was found, at paragraph 6 (8) to be "extremely detailed". It broke down, ultimately, because no agreement could be reached on the selection criteria to be applied. However, the Tribunal was satisfied that there had been adequate, collective consultation with the unions with regard to the redundancy process and ancillary matters (paragraph 7 (2)). During the consultation with the unions the Appellants were also providing the employees with written communications, slide presentations, joint communiqués and consultation meetings. On 23 rd February an explanation was given to the workforce with regard to consultation, selection and the assessment process.[8]There were 8 selection criteria to be used in the exercise, which are identified at paragraph 6 (7). Three of these criteria were found to be wholly objective, namely "attendance" (sickness or unauthorised absence), "time-keeping" and "continuous service". The other criteria were more subjective, including for example "accuracy of work", "co-operation" or "job flexibility and versatility", which required detailed assessment by line managers who acted as assessors. The Tribunal was satisfied that the criteria used were clear and unambiguous and did not regard the criteria as unreasonable or excessively subjective (paragraph 7 (3)).[9]It was held at paragraph 6 (9) that "The workforce was kept appraised of matters relating to redundancies by means of various documentation. The respondents took steps to warn the employees of the impending redundancies and to provide necessary information on the selection procedure. The employees were well informed by the time that the individual consultation commenced in April 1999." However, it was in relation to the adequacy of the individual consultation which took place in this case that the Tribunal was critical.[10]Assessments in relation to all 6 applicants were carried out in March 1999. The assessment procedure was described in detail at paragraph 6 (7). The assessment against the selection criteria by the line managers was subject to analysis before a moderator, who was a more senior manager or member of the human resources team. There then followed a two-stage process of validation. The first process involved a review, on analysis of any scoring differences and any reassessment of works if necessary under the moderator facilitation. The second process was the same, save that it was undertaken under the facilitation of a Director. The Tribunal found that "….The respondents sought by this three-stage process to achieve a measure of consistency and objectivity with regard to the criteria which were not wholly objective……The layered checking system sought to avoid criticism that the criteria were subjective. Detailed training was given to all those who acted as assessors, moderators, validators and undertook the subsequent appeals."[11]It is immediately apparent that the individual employees played no part themselves in this assessment process. The Tribunal found at paragraph 6 (9) that, the assessments having taken place, the 6 applicants then all received letters informing them that they were "at risk" on 12 th or 13 th April. Following receipt of those letters each man, save for one who was away ill, had a meeting with a manager on 13 th or 14 th April. At this first individual consultation meeting "….each applicant was given an individual consultation pack which included guidance notes on the selection criteria, the appeal procedures, employees support services information and information about taking time off work. They were given their assessed criteria scores, the human resources total, the total score and the cut-off point score. They were not given information with regard to the breakdown of their individual scores nor were they permitted to argue or challenge the assessments which had been made in March."[12]They were then each called to a meeting where their dismissal was confirmed on 20 th or 21 st April 1999. At this second consultation meeting, which was called the "final termination consultation", "….each applicant was told that his redundancy was being confirmed. There was discussion as to financial packages and payments to be made, which were available from that time. The applicants were each provided with a copy of the assessment sheet which set out the individual scores that they had achieved under the criteria together with the justification notes of the assessor, details of the appeals system and details of the Employee Support Centre."[13]The Tribunal stated, at paragraph 7, that they reached their decision in this case "….having considered all the relevant evidential material." Further they stated that they "….considered the principles applicable to Section 98 (4) of the Employment Rights Act 1996 together with the cited authorities which are set out at paragraph 5 of this Decision." Their conclusions follow in sub-paragraphs (1) to (7). At (4) they held that they were not satisfied with the adequacy of the individual consultation process, as described above, for the following reasons:
"(a) An outline of the system to be operated under the redundancy programme was given on 23 February 1999. However there was no meaningful consultation with the applicants. (b) Once the assessments have taken place in March 1999 there was a meeting between individual managers and each applicant in or about 13 or 14 April. This was not a meeting for discussion. It was a meeting where each applicant was informed that he was at risk and he was given information about the redundancy. He was not advised as to the basis of assessment merely given the two part score, his overall score and the cut-off score showing why he was at risk. The applicants were not given a chance to make meaningful input into the reasons behind the proposed dismissal. They were not given any reasons for the dismissal at that time. (c) Each applicant only saw a break down of the score and the assessment on 20 or 21 April after the decision to dismiss had been taken and when he was informed of his right of appeal and each appears to have stated that he intended to appeal in the circumstances. The applicants could not challenge the scoring before dismissal. The tribunal did not consider that this was adequate consultation in any instance. "
[14]In relation to the appeal which each applicant pursued, the Tribunal records its findings of fact at paragraph 6(10). The appeal hearings were heard in May. There was a two-stage process. "The first hearing in May was the only opportunity which each applicant and his representative had to challenge the assessment scores. Each appeal meeting was attended by the applicant and his representative alone. The respondents did not present any evidence at that hearing nor was there an officer present to deal with the arguments advanced by the representative. The applicant's representative did not have an opportunity to cross-question the assessors or the moderators with regard to the scoring systems or marks awarded. The appeals officer, having listened to the arguments, then undertook his own investigation and reduced his decision to writing. That decision was given at the resumed Appeal Hearing which was held in either June or July 1999. At no time did the applicant's representative have the opportunity to challenge the assessors or the moderators. The representatives were not provided in any instance with all the information which was relied upon by the assessors in order to reach their judgment or any information as to what was discussed or considered upon moderation. The only material which each representative was provided with was the assessment form itself which contained a short justification for the mark awarded by the assessor." The 6 applicants lost their appeals and their employment terminated in April.[15]The Tribunal concluded, at paragraph 7 (5), that it was "….not satisfied that the appeal process was a rehearing for the following reasons:(a) As the applicants had not been able to challenge their individual scores as part of the consultation process they were reliant upon challenging the scores at appeal. The Tribunal was not satisfied that an independent process was set up under the appeal system to allow the employee a fair hearing on appeal. The Tribunal accepted the criticism made by the representative regarding his challenge of the individual consultation system at that stage as a justified criticism and of considerable force.(b) The manner of conducting the appeal hearing was flawed. The Chairman of appeals heard the appellants' case in the absence of the respondents and then adjourned the process in order to question the assessors, the moderators and any other relevant persons who could assist with his enquiry. He did not afford the applicant's representative the opportunity to question either the assessors or assess the material which was relied upon by the assessors in reaching their decisions. Having carried out his own enquiry the appeals officer then reconvened the appeal hearing having made his decision and thereupon announced his decision on the appeal.(c) The applicants never had all the information which was used to make the assessment and never knew the full case against them before coming to the Tribunal.(d) The appeals officer therefore had no independent means by which to assess the assessors' awards in respect of the selection criteria where he had some personal input. The Tribunal did not regard this as a rehearing. The Tribunal regarded the appeals process as a review in the circumstances, which was flawed in the case of each applicant. It was not a rehearing."[16]The Tribunal therefore concluded at paragraph 7 (7) that it was satisfied "…by reason of the deficiency in the individual consultation process and the failures of the appeals system that the dismissal of each of the applicants was unfair." As we have previously observed the Tribunal, in paragraph 7, expressed its decision to be based upon all the relevant evidential material and upon the principles contained in section 98 (4), together with a number of relevant authorities. The Law[17]The fact of and reason for these dismissals not being in dispute, the issue for the Tribunal to determine was, as they correctly identified at paragraph 3, whether or not each of the applicants was dismissed fairly according to the principles set out in Section 98 (4) of the Employment Rights Act. This provides that:
"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."
It is well established that the burden on this limb of a tribunal's inquiry has been placed neutrally.[18]That this Tribunal understood clearly that they had to apply the words of Section 98 (4) in determining the fairness of the redundancy dismissals of the applicants is clear, in our view, from their references to it in paragraphs 3, 5 and 7 of their Decision. In paragraph 5, in particular, when they set out the applicable law, they directed themselves correctly at the outset in stating that "The Tribunal has to determine whether the dismissals were fair or unfair having regard to that reason and whether, in all the circumstances, including the size and administrative resources of the employer's undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. This issue is to be determined in accordance with equity and substantial merits of the case. This principle is set out in Section 98 (4) of the 1996 Act."[19]However, the Tribunal also recognises that determining the fairness of an employee's selection for redundancy, particularly where there are a large number of dismissals, "…requires careful and sensitive handling by employers"; and that "Guidelines have been set out in decided legal authorities as to the approach to be adopted by an Employment Tribunal in resolving the issue of the selection for redundancy." The Tribunal then refers to the well-known "guidelines" given by the Employment Appeal Tribunal (Browne-Wilkinson P. presiding) in the seminal case of Williams v Compair Maxam Limited [1982] ICR 156 . A number of additional authorities are referred to where, as the Tribunal observes, "The issue of consultation has been addressed further by the appeal courts."[20]It is worth recalling briefly how and why the guidelines in Williams first came into existence. Having stated that it must be shown that the employer acted reasonably in treating redundancy as a sufficient reason for dismissing the particular employee complaining of unfair dismissal, the judgment continued as follows at pp.161-2:
"In law, therefore, the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. It is accordingly necessary to try to set down in very general terms what a properly instructed industrial tribunal would know to be the principles which, in current industrial practice, a reasonable employer would be expected to adopt. This is not a matter on which the chairman of this appeal tribunal feels that he can contribute much, since it depends on what industrial practices are currently accepted as being normal and proper. The two lay members of this appeal tribunal hold the view that it would be impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances: the fair conduct of dismissals for redundancy must depend on the circumstances of each case. But, in their experience, there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:"
The five well-known principles set out immediately after this passage appear verbatim in paragraph 5 of the Tribunal's decision in this case.[21]The Williams case, and in particular the passage cited above, emphasises two matters of relevance to the present appeal and, no doubt, to many others. Firstly, it is made clear that the fair conduct of redundancy dismissals will be a question of fact for an Employment Tribunal in each case. Secondly, the "principles" referred to are not to be treated as if they were statutory provisions or to be applied in place of the statutory test in Section 98 (4). The extent to which one or more of these principles apply will always depend on the circumstances in any particular case; and an employer's failure to adopt one or more of them will not lead necessarily to a finding of unfair dismissal. Their purpose, rather, emanating as they do from the industrial experience of the lay members of this Appeal Tribunal, is to serve as useful indicators of common industrial practice for Tribunals of fact charged with the duty of determining the fairness of redundancy dismissals in accordance with section 98 (4) in any particular case.[22]The Tribunal found further assistance in the more recent case of Mugford v Midland Bank plc [1997] IRLR 208 , in which the EAT reviewed the state of the authorities on current industrial practice in relation to consultation. Dealing with the employers' contention that there was no obligation upon an employer to consult both with the recognised trade union and the individual employee, the EAT stated as follows at paragraph 33 of the judgment:
"As to whether a reasonable employer would or would not consult with an individual employee is, it seems to us, essentially a question of fact for the industrial jury, properly directing itself ……. experience also shows that trade unions rarely if ever wish to be involved in the actual selection of individuals for redundancy (other than on the basis of the LIFO principle), since to do so would involve choosing between their members …… It is in these circumstances that consultation between the employer and individuals identified for redundancy becomes important. It should normally take place before a final decision to dismiss is reached. It gives the employee an opportunity to put his case to the manager carrying out the selection, so that the latter may reach a fully informed decision."
The EAT observed that support for this view was also to be found in Walls Meat Co. Ltd. v Selby [1989] ICR 611 and Rolls-Royce Motor Cars Ltd. v Price [1993] IRLR 203. Later on, at paragraph 41, having considered the various authorities, the EAT summarised the position as follows:
"(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."
[23]As the EAT recognised in this case, consultation with the individual should normally take place before a final decision to dismiss has been reached and when the individual has a chance to put his case to the employer to enable him to make a fully informed decision. We agree with that view of the meaning and purpose of consultation in this context. The employer consults in order to enable the individual to respond and to provide information, which may then influence the decision whether or not to dismiss. The employer ought therefore to provide adequate information upon which to respond, at a time when the proposals are at a formative stage, to take note of what the employee has said and to give it conscientious consideration. See R v British Coal Corporation and the Secretary of State for Trade and Industry ex parte Price [1994] IRLR 72. Mr. Hand submits that one should not automatically transpose into the section 98 (4) reasonableness test requirements for adequate consultation established in the public law context, where one is concerned with the explicit duty to consult placed upon a public body (as in ex parte Price ). However, whilst we accept that one should not just carry across automatically consultation requirements from the public law context, we consider that consultation in the context of fairness under section 98 (4) does connote some meaningful input from the employee. We take the view that, in order both to enable an employee to have the chance to "put his case" before a final decision to dismiss has been taken, and to enable an employer to reach a "fully informed decision", as per Mugford , the ex parte Price approach is entirely appropriate in the section 98 context. So long as the Employment Tribunal approaches each case on its own individual facts we see nothing wrong in them having recourse to such guidance when considering the overall question of fairness in accordance with section 98.[24]With regard to the role of an appeal process, we were referred by Mr. Hand to the well-known case of Whitbread & Co. plc v Mills [1988] IRLR 501, where the EAT observed that the fairness issue must be decided in accordance with the statutory test after the appeal process has been completed. "It seems to us that in the context of industrial relations those appeal procedures form an important part of the process of ensuring that a dismissal should seek to be fair. Secondly …. Both the original and appellate decision of the employer are necessary elements in the overall process of terminating the contract of employment. Thirdly in the context of section 57 [now section 98] it seems to us that the legislature envisages that the principles to be applied in considering overall fairness – and we are dealing with unfair dismissals – are closer to the domestic disputes and the intermediate cases envisaged by Lord Wilberforce … [a reference to the decision of the Privy Council in the case of Calvin v Carr (1980) Ac 574 ]. It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing. If it has then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a review."[25]The Tribunal was not referred to Whitbread which is not a redundancy case, but they were referred to Lloyd v Taylor Woodrow Construction [1999] IRLR 782. In that case it was held by the EAT that the general principle that a procedural defect at the dismissal stage may be cured at the appeal stage, provided that the appeal represents a re-hearing and not merely a review of the original decision, applies to a failure to consult in the context of a redundancy dismissal. Further, a case of redundancy is not distinguishable from cases of conduct or capability. There is no distinction in principle as regards a case of procedural deficiency at the dismissal stage being cured by a full rehearing on appeal between any of the potentially fair reasons for dismissal under section 98 of the Employment Rights Act.[26]Our attention was also drawn to Clark v Civil Aviation Authority [1991] IRLR 412 , in which the EAT ruled that the question whether an internal appeals process amounts to a full and proper rehearing is a question of fact for the Tribunal to determine. In addition we considered Byrne v BOC LTD. [1992] IRLR 505 in relation to appeals, in which the EAT held as follows: where the first stage of the disciplinary hearing is seriously flawed, it is essential if the appellate process is to be treated as establishing fairness overall that it should be able to stand on its own merits as conferring upon the employee all the rights which should have been accorded at the initial stage, notably proper notice of the complaint and a full opportunity of stating the employee's case. Accordingly it is desirable that Industrial Tribunals which have to deal with the question of whether an internal appellate process cures defects in an earlier disciplinary hearing, should in terms deal with the issue of whether or not the appellate process is sufficiently comprehensive adequately to cure the deprivation of rights suffered at the disciplinary hearing.[27]That this Tribunal was aware of the need not to subject the marking system to officious scrutiny or to seek to substitute its own view of how a particular applicant should have been marked, is clear from their reference to British Aerospace plc v Green [1995] IRLR 433 . They directed themselves correctly that "….Every [marking] system had to be examined for its own inherent fairness, judging the criteria employed and the method of marking in conjunction with any factors, to demonstrate its fair application including the degree of consultation which accompanied it. The Tribunal had to judge the system which was operated and not scrutinise it officiously."[28]Having considered all the authorities put before us, we agree with Mr. Hand's submission that, properly analysed, they do not seek to impose on Employment Tribunals a prescriptive or formulaic approach to the issue of fairness in redundancy dismissals. In our view they do no more than seek to provide guidance to tribunals of fact as to the application of the statutory provisions in Section 98 (4) in the particular context of redundancy cases. In so doing they make clear that the ultimate decision will always be one of fact and degree for the industrial jury, depending on the evidence and the particular circumstances in each case. As the EAT expressly recognised, in the case of Rolls-Royce Motor Cars Ltd. v Price and others [1993] IRLR 203, it was not appropriate to express the consultation obligations on employers in such cases as rigid rules to be adhered to in every case. Giving the judgment of the court Knox J. said as follows at paragraphs 30-31:
"…..it would not be right to express the obligations on employers in terms of a rigid rule that the obligation is only to consult either the unions or the individuals and if the unions have been consulted as far as the unions are prepared to be consulted, that releases the employer from any further consultation duties. We do not of course go to the opposite extreme and say that in all cases employers are under an obligation to consult with individuals. Here we have a decision on the facts of this particular case by the Industrial Tribunal, that an employer acting reasonably would have seen, for example, individuals identified on the points system and disclosed the assessment to them. We are unable to find that there is any principle of law that makes that a necessarily erroneous view. To do that it seems to us that we would be in grave danger of erecting what was said in Williams v Compare Maxam [1982] IRLR 83 into the terms of a statute, and we would equally be in grave danger of providing an alternative to the actual provisions of s. 57 (3) which leave the matter wide open for decision by an Industrial Tribunal whether the dismissal was fair or unfair in the circumstances set out in that subsection."
[29]We note that, in this case, the EAT upheld the Employment Tribunal's decision that the dismissals were unfair on the basis that there was no error of law in their conclusion, on the facts, that:
"…. In our view, a reasonable employer would have seen each individual on the points system and disclosed the assessment to them. It is not inconceivable that an employee could then have brought forward matters which the makers of the assessment had perhaps overlooked or failed to give correct prominence…."
[30]We take the view that none of the cases loses sight of the essential requirement in redundancy dismissal cases for Employment Tribunals always to ask themselves the statutory question in section 98 (4) in relation to the facts as found and looking at the matter overall. The response to that question will always be one of fact for them to make on the evidence in each particular case. We do not consider, therefore, that the law requires re-stating by this Appeal Tribunal. The issue for us to determine in the present case is therefore whether, as Mr Hand submits, this Employment Tribunal erroneously failed to consider the matter as a whole, from the initial notice of redundancies through to the conclusion of the appeals and the termination of employment; and that they adopted an approach which resulted from too prescriptive or literal a reading of the authorities, elevating the guidance offered by them into matters of principle, having statutory effect, and thereby adding an unwarranted gloss to the provisions of section 98 (4). To that issue we now turn. Submissions and Conclusions[31]In oral submissions Mr. Hand rolled into one the two separate grounds of appeal, namely that the Tribunal erred in law(a) as to what constitutes adequate consultation; and(b) in finding that the appeal process was flawed. His main attack upon the Decision is, thus, that the Tribunal failed to look at the selection system as a whole and ask themselves the one question required under section 98 (4). In having regard to the wealth of authority on the issue of fairness in redundancy dismissals they fell into the trap of imposing upon the employers a normative or prescriptive procedure, akin to a civil trial, which was wholly rigid and unrealistic in the circumstances. This was, he submits, a significant redundancy exercise for which the Appellants adopted a sophisticated selection mechanism. The Tribunal erred in adopting a series of steps taken from the cases in order to test its fairness at the various stages rather than standing back, concentrating on section 98 (4) and asking whether what was done overall was justifiable, having regard to what a reasonable employer would have done.[32]He submits that the Tribunal misdirected itself in deciding, on the basis of the authorities:(1) that there should be individual consultation;(2) that where selection is based on assessment against criteria, that consultation should provide an opportunity for a forensic challenge to the assessment under those criteria;(3) that such forensic challenge must include the opportunity for employees or their representatives to question the maker of the assessments on the material used to make them;(4) that the information supplied to an employee, to enable him to mount this forensic challenge, should comprise more material than simply markings or comments on a form;(5) that it is a vital part of fairness in section 98 (4), for an employee to be able to set out his basis for challenging the assessment and, to that end, to be able to put points to the assessor; and, further, that he should then be allowed a further opportunity to comment before the person arbitrating makes up his mind about it;(6) that, for a decision to dismiss to be fair under section 98 (4), any appeals process must constitute something called a re-hearing and, if it is not, then it will not be capable of curing any defects in the first hearing. This approach, it is said, amounts to a counsel of perfection, which has no place in an industrial process of this kind, and is wrong in law.[33]We have considered these submissions carefully. However we find that we are unpersuaded by them. In our view this Tribunal had clearly in mind throughout that the test to be applied in this case, in order to determine the fairness of the dismissals, was the statutory test in section 98 (4). They make this plain in paragraphs 3, 5 (in particular the second paragraph) and 7. We do not consider, reading the Decision as a whole, that they lost sight of this test or substituted for it a series of judicial tests which they applied rigidly or without regard to the need to consider the reasonableness of the employers' actions overall. Whilst they clearly had regard to a number of the relevant authorities in this area, they were entitled to have regard to them to assist them in their task. Their consideration of the fairness question was not, in our view, reduced to a formulaic application of fixed judicial conditions for determining the adequacy of consultation and of the appeals procedure provided for those who were dismissed.[34]We bear in mind that this Tribunal heard from a large number of witnesses and considered extensive documentation concerning the redundancy exercise. They had a detailed picture of what took place, which we do not, and there is no allegation of perversity in relation to the findings of fact they made. Before the dismissal decision was made they found that, at the "first individual consultation" on 13 th or 14 th April, the applicants were given no information with regard to the individual breakdown of their particular scores. Nor were they allowed to challenge the assessments, which had already been made in March. At the subsequent "final termination consultation" they were given details of their assessments but told simply that their redundancies were being confirmed.[35]Mr Hand accepted, in his submissions in Reply, that the employees did not really have the chance to make any input into the selection process before the decisions to dismiss were taken. This, we consider, was a proper concession for him to make. The Tribunal found that many of the criteria used were not objective and required detailed assessment by line managers. We were shown some of the many relevant documents in our Bundle B, where these assessments were made. Assessments were made for example in relation to an employee's level of co-operation, performance in the job and job flexibility. At no stage was an employee able to make any input into the score he had been given or to correct any inaccuracies in the comments appearing on the form. Employees were told that they were "at risk" but at no time were their individual positions the subject of consultation. Indeed the employers' own documents in relation to the process to be followed stated that those meeting with individuals should not be drawn into the process of discussing individual assessments (Our Bundle B at page 368ff). There was no dialogue between the Appellants and the individual applicants in relation to their own individual positions and therefore no applicant had any influence on the decision-making process. The Tribunal was entitled in our view to conclude as a matter of fact, as they did at paragraph 7, that this individual consultation was inadequate, that the applicants were not given a chance to make meaningful input into the reasons behind the proposed dismissal and that they were given no reasons for their dismissal at that time. We find that, in referring to the "reasons behind the dismissal" the Tribunal was clearly referring to the basis for selection of the applicants and the assessments made. We see no error of law on the Tribunal's part in relation to this finding.[36]In relation to the appeal process, Mr. Hand contends that any defects in relation to individual consultation at the earlier stage of the process were cured by the appeal. He no longer seeks to argue, as appears in his skeleton argument, that an appeal process in a redundancy case should be regarded differently from the way in which such a process is regarded in misconduct dismissals and he accepts that the requirement for fairness is the same for both. He does complain however that the Tribunal erred in requiring the process to be a re-hearing, with an opportunity to cross-examine the assessors, akin to a civil trial. He submits that the appeals process here was sufficient in all the circumstances and failed to survive scrutiny only because the Tribunal applied a rigid requirement for a certain type of hearing in order for the dismissals to be fair.[37]It is correct that, at paragraph 7 (5) of their Decision, the Tribunal refer to being not satisfied that the appeal process was a re-hearing. However, reading the Decision as a whole, we do not consider that the Tribunal was laying down or applying any rigid rule that, in order to cure the initial defects in the consultation process, there must be a re-hearing akin to a civil trial. We accept the submission of Tim Brennan QC for the Respondents that, in essence, this Tribunal found that the employers decided to dismiss the applicants, leaving them to displace that decision in a domestic appeals process, but without providing them with the core material which might enable them to do so. Mr Brennan took us through a number of the many documents before the Tribunal in order to demonstrate that they were entitled to find as a fact that the appeal process was insufficient to remedy the lack of any earlier applicant input into the assessments. The findings of fact in relation to the appeal are set out at paragraph 6 (10) and we have already referred to them above.[38]As the Tribunal observed at paragraph 7 (5) (a), since the applicants had not been able to challenge their individual scores as part of the consultation process, they were reliant upon challenging the scores at the appeal. In this case the Tribunal found that the employee was seeking to displace a decision which had already been made but, as Mr Brennan described it, in attempting to do so, the employee was "working in the dark". Having become aware of his individual scores, he could not ascertain how those scores had been arrived at and what factors had influenced them. At the appeal the Appellants' case was not subjected to scrutiny save in respect of matters which were raised by the individual employee. When such matters were raised, the appeal chairman adjourned the hearing, questioned the assessors in the absence of the employee and reached his decision without giving the employee an opportunity to address the result of the discussions with the assessors. Mr. Brennan says, and we agree, that the employee was no wiser at this stage as to what information had been provided to rebut the points he had raised in his defence and had no chance to address what had been said against him.[39]We consider that the Tribunal was entitled to conclude as they did, on the facts as found, that the appeal was not a re-hearing sufficient to remedy the earlier defects, for the reasons set out at paragraph 7 (5). Their reference to the lack of an "independent process" in sub-paragraph (a) can only be a reference in our view to the lack of any independent means by which to scrutinise the assessments made against the criteria and the scores awarded. We are satisfied that this Tribunal regarded the appeals process as one which, in all the circumstances, was insufficiently comprehensive to remedy the earlier defects.[40]Consequently, we are not persuaded that the Tribunal erred in setting up a series of formalistic tests based on the authorities. They seem to us to have had full regard to the section 98 (4) question and to the need to consider the overall fairness of the dismissals. They find as a matter of fact, firstly, that the applicants did not have sufficient information or any meaningful input into the decision-making process in the first place; and, secondly, that there was not a sufficient reconsideration of that initial decision in circumstances where the applicants still did not have sufficient information with which to displace the decision. We do not agree that this Tribunal was applying a rigid rule that, absent the right to cross-examine the assessors on their assessments and scores, the appeal process adopted rendered the dismissals unfair.[41]One point arose which was the subject of dispute between the parties as to what had occurred in the evidence below. Mr. Hand argued that, in relation to the appeal, the Tribunal had misunderstood the evidence, which was that the trade unions and the employer had agreed that the assessors would be made available if asked for but that none of the applicants asked for this. He relied on page 292 of our Bundle B, the minutes of the joint consultation meeting held on 5 th April 1999, which he said had been before the Tribunal, and referred to the possibility of assessors giving evidence at the appeals if there was a real chance of any conflict arising.[42]Mr. Brennan disputes this and maintains both that there was no evidence adduced by the Appellants to this effect and no mention of it in their detailed, written closing submissions to the Tribunal. No Chairman's notes are available or have ever been asked for. It seems that the point was first taken in the skeleton argument served on the EAT by the Appellants. We were taken to other documents in Bundle B which tended to show that no assessors were present at the appeals and that the moderators who attended, who might have been expected to be able to answer any questions about individual assessments, were there only to help gather evidence as required and to record the notes of evidence; e.g. pages 390 and 398.[43]In the absence of agreement and of any notes of the Chairman, we take the view that Mr. Hand cannot go behind the clear finding of fact in paragraph 6 (10) that "….At no time did the applicant's representative have the opportunity to challenge the assessors or the moderators." We shall therefore say no more about it.[44]Our conclusion is therefore that the Tribunal's Decision was entirely grounded in fact and, reading it as a whole, that they were looking at the process overall in determining whether the section 98 (4) test was satisfied. Having found that the applicants had not been given the material on which they could make any real input at the formative stage, prior to the decision to dismiss, they found that the appeal stage should have provided the applicants with an opportunity to correct errors made in the original assessments. They found as a fact that this did not happen and gave their reasons for so finding. On this basis we identify no error of law in their decision and this appeal must be dismissed.[45]Since we take the view that this decision was one of fact and degree for the Tribunal and that no error of law has been identified, we refuse the Appellants' application for permission to appeal on the basis that we do not consider an appeal to have any real prospects of success.