MR M MOFUNANYA v 1) RICHMOND FELLOWSHIP 2) MR A HANLEY [2003] UKEAT 0449_03_1512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0449_03_1512Case No Appeal No. UKEAT/0449/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M MOFUNANYAAPPELLANT1) RICHMOND FELLOWSHIP 2) MR A HANLEYRESPONDENT
Before
His Honour Judge AnsellLord Davies of CoityDate 15 December 2003
[1]APPEARANCES For the Appellant MR M MOFUNANYA In Person For the Respondents MR E KEEN Solicitor Messrs D L A Solicitors 3 Noble Street London EC2V 7EE HIS HONOUR JUDGE ANSELL This is an appeal against the decision of an Employment Tribunal sitting at Watford on 12, 13 and 14 November 2002 who in a decision promulgated on 3 December 2002 held that the complaints of unfair dismissal, sex discrimination, race discrimination, victimisation failed. Leave was given for this hearing on the issue of redundancy alone on 27 August 2003 at a hearing over which I presided.[2]The Notice of Appeal drafted by those who then represented the Appellant at the preliminary stage indicated that the grounds were the Tribunal had failed to consider properly the lack of consultation prior to the applicant being selected for redundancy and how the selection criteria were chosen and whether they were objectively applied.[3]The employee was employed from 8 August 1998 until 2 February 2002 as a project worker working night shifts. The Respondent employer is a charity and runs a site at Colindale comprising of six buildings which provides support, care and housing for those with mental health problems and in particularly deals with a number of patients who were formerly receiving in-patient treatment at Shenley before it was closed.[4]There are two residential areas and we are concerned in this case with what is known as Harris House. Harris consists of two buildings Harris and Burcote and the evidence was that, Harris contains patients who in more need of care than does Burcote. There is a third property called Meridan House which figures in the case who are for patients requiring more intensive mental health nursing care.[5]The employee has always worked night shift at Harris House. He is one of two workers, he being more senior working on that two house complex. The other worker is always a female and the reason for that is that there is an in-patient at Harris House who was referred to as PP. She is a female of Asian origin. She has severe problem. She is unable to communicate properly. She is incontinent and she also requires intimate help in particular dealing with sanitary towels. The employers have never been able to get any consent from her to allow male staff to deal with these intimate areas. There was evidence which the Tribunal accepted that the employee has dealt with PP in terms of some of her help for instance taking her to the toilet and giving her medication.[6]There is a clear finding of fact which is not disputed that the intimate care has always been done by the female member of staff and in particular for that reason it seems that the female member of staff was usually working in Harris House and the Appellant was working at Burcote.[7]Financial problems arose in relation to the funding of this site and particular funding from the primary care trust. The staff used to meet periodically. The problem is that staff meeting took place during the day and the Appellant being on right duty never attended that staff meeting. There is a finding of fact that minutes were left in his tray or pigeon hole whether or not he chose to read them was a matter for him. It appears from 30 January that the issue of staffing levels was raised in terms of a need to cut down and a figure of £30,000 was being mentioned at that time.[8]One of the members of staff raised the possibility that instead of having two waking night staff at Burcote they could do with one waking night staff and one member of staff doing a sleepover. That would be a member of staff who had already been on duty earlier on in the day and would simply be sleeping over to provide additional emergency cover.[9]That proposal seems to have been discussed between the employers and those responsible for the management and also with what is known is the inspection unit and although not recorded by the Tribunal it appears from documents that we have seen which were in front of them that that issue was raised briefly at a further staff meeting in June 2001 and in more detail again at a staff meeting in September 2001 when the proposal seems to have become firmer namely that effectively they will be getting rid of the cover in Burcote where it was not needed and only having one waking member of staff to cover both the houses and the Tribunal worked out the mathematics or it was worked out for them, but there was clearly a substantial saving.[10]However, the matter did not seem to crystallise until a letter of 29 October was written by the employers to the Inspection Unit asking for permission for this proposal to be implemented and that permission came through very quickly, within a matter of a couple of days and there is a telephone note on the copy letter of the 29 th to show that it was communicated on the 31 st .[11]The Tribunal then went on to say this:
"(17) In the light of the personal care requirements of PP set out earlier in this decision the view was taken by the First Respondent that the Applicant would have to be made redundant as the assistant project manager Folake Oshunremi was female."
The Tribunal here saying that a fairly speedy decision was taken about the redundancy of the Appellant. No meetings took place with the two people who were directly affected by this decision until after a staff meeting which took place on 7 November and again the Tribunal record that meeting as the second Respondent who was the manager of the house informing those present of a decision to change the night working arrangements. So that is put in very positive terms. It is put in terms of the manager informing the staff of the changes. They were asked to keep it confidential because those directly involved, Folake and the Appellant had not yet been seen. He was seen by the Personnel Manager who came to speak to him at the beginning of his shift on 9 November. It was a brief meeting and in the Tribunal findings they record him being taken back by the news.[12]At that stage he was saying that he would agree to look for other vacancies. A further meeting was arranged for 19 November. He was told he could bring a representative to the meeting. It took place. He arrived without a representative but he asked for it not to be postponed. That second meeting went over the proposals and the employers made it clear that they had come to a view that because of the needs of a female dealing with PP his position in those houses was effectively redundant.[13]The issue of alternative position seems to have been raised briefly within that meeting. The Tribunal recorded that they had raised the question of alternative appointment in respect of an Assistant Project Manager working in Meridan House. That effectively is a demotion, working as a number two to the mental health nurse who is in charge overnight. It records the Appellant saying he was not interested in anything but night work at Harris House. He stated that was a job he had applied for and that was a job he wanted to retain and three days after that meeting he has dismissed on the grounds of redundancy with effect from 2 January.[14]There were discussions thereafter and there was an appeal meeting held and there are notes of that meeting conducted by Mr Arnold and at that stage Mr Brewer a Union official did represent the Appellant. The facts were again considered. It seems that either at that meeting or possibly the earlier meeting the issue had been raised of the possibility of PP moving to Meridan House which therefore allows the Appellant to continue as the male overnight worker. That was considered and was briefly dealt with by Mr Arnold in the letter dismissing the appeal saying there were no plans for the female resident to be transferred out of Harris House.[15]That aspect has considered in more detail by the Tribunal itself explaining that PP who was not so mentally ill as to require her to be in Meridan House and it was appropriate for any vacant beds in Meridan House to be kept back for patients requiring more intensive mental health care. So that issue was gone into. The other issue was the question of alternative employment. An offer was made with some phasing in of the £4,000 salary deduction that would ensue from him taking up Meridan House post. It is right to say that prior to the appeal meeting the Appellant had indicated that he might consider Meridan House but he wanted complete salary protection. He was offered four months salary protection and the Tribunal do make a finding that that possibly this offer was insufficient.[16]The Tribunal's finding briefly on the issue of unfair dismissal record that it was inevitable for the Appellant would be selected and they then said this:
"So far as the procedure adopted by the First Respondent is concerned, the Tribunal finds that there was nothing wrong with the procedure adopted and, even if there was something wrong with the procedure, it was rectified on appeal."
The Tribunal did have concerns that the Second Respondent, the Manager should not have been left to deal with the dismissal as he alone had been responsible for the decision to dismiss, in the light of the history of the Applicant having raised a grievance previously. They also considered that the employers had acted fairly with regard to alternative employment although suggesting that the phasing in should have been for a period of one year rather than the short period of four months that was offered.[17]The essence of the case advanced by the Appellant in person today really relates to the issue of consultation. It is well-known that whenever redundancy occurs there should if possible be proper consultation either with the Union if it is a case where there are recognised Unions and there are the required number of employees involved or with the individual concerned. The well-known passage of Glidewell LJ in the case or R v British Coal Corporation [1994] IRLR 72 at paragraph 24 sets out the position thus:
"24. It is axiomatic that the process of consultation is not in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p 19, when he said: 'Fair consultation means: (a) consultation when the proposals are still at a formative stage; (b) adequate information on which to respond; (c) adequate time in which to respond; (d) conscientious consideration by an authority of the response to consultation.'"
A more recent decision is that of this Court in Mugford v Midland Bank [1997] IRLR 208 , where His Honour

Judge Clark gave the decision of the Court and the headnote reads thus:

"(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 [employment] 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 [employment] tribunal to consider whether consultation with the individual and/or 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."
And later on in the case those passages are confirmed and it is made clear in other authorities that consultation does not necessarily have to take place prior to the provisional decision being taken for redundancy but certainly should take place after that provisional decision has been made.[18]The problem we face in this case is that the word 'consultation' is at no stage used by the Tribunal in their decision. They mention generally the issue of fair procedure from which we understand them to be referring to consultation. They refer to any unfairness being rectified on appeal whereas of course the essence of consultation is prior to the decision to dismiss. Counsel for the employers Mr Keen urges us to take a practical view and to suggest that there was consultation in this case both in terms of the staff meetings and the information that was provided at those meetings and was available to the employee in this case through the medium of the minutes; he also refers to the two meetings that took place on 9 and 19 November.[19]However, in our view to categorise those meetings of consultation is to stretch the use of the English language in an unreasonable manner. The fact remains here that these employers had been discussing these proposals, for a period of around nine months and certainly from September it was abundantly clear that Burcote and Harris House and those people working the night shifts were those who were in the centre of the picture as far as redundancy was concerned. And yet at no stage were any steps taken to have any personal discussions with the two people who were intimately involved in this process. The fact that they were on night shift should not have presented any great difficulty for the employers. They were after all able to consult on 9 November without too much difficulty and bearing in mind that they were employing some night shift only staff it seems to us that in those circumstances it would be incumbent on employers to have some relationship of a personal nature with those working on the night shift.[20]Having reached decision on 31 October matters it seems to us are then rushed. Yet again it is not the two people involved in the process who are spoken to; is the other members of staff who are presented the result of the discussions that have taken place with the London Borough of Barnet. We refer again to the Tribunal's decision which is that they "informed" the staff of the "decision" to change the night working arrangements. That again in our view can in no sense be described as consultation with those involved and we are by no means satisfied that having seen the minutes of the two meetings in November that they could in any way be described as proper consultation.[21]It seems to us that what was required here was a period of a reflection with this employee to enable him to take in and assess what was being put to him and to consider carefully the various options being made to him. Indeed the phasing of arrangements with regard to his salary, should he take up Meridan House, was not one that was offered to him prior to dismissal. The employers actions were not within the band of reasonable responses.[22]Having said that at the end of the day we are of the view that had a proper process taken place then it is almost certain that the employers would have come to the same decision. PP clearly demanded that a lady was looking after her overnight which means to us that this Appellant was not the person who was going to be able to stay in post at Harris House. The question of PP being transferred was one which was considered and was not available option for the reasons that the Tribunal had made out and at the end of the day this employee was making clear that he expected salary protection to last indefinitely and was not prepared to consider any phasing arrangements.[23]The fault here it seems to us is one of timing and of a failure to have a proper consultation period with the staff involved before a decision was taken. It was the process that was too rushed and not enough thought and consideration was given to those who were directly involved. At the end of the day therefore we propose to vary the Tribunal's decision to reflect the fact that this dismissal was unfair simply to the extent that there was not a sufficient consultation process. We do not propose to remit the matter back. The economics of this case demand that we take a sensible view which is that we would award a further four weeks by way of consultation period namely £125.