MR P BYRNE v ARVIN MERITOR LVS (UK) LTD [2003] UKEAT 239_02_2201

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 239_02_2201

Case No Appeal No. EAT/239/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR P BYRNEAPPELLANT

ARVIN MERITOR LVS (UK) LTDRESPONDENT

Before

Mr Justice Burton

Date 22 January 2003

[1]APPEARANCES For the Appellant MS CAROLINE TRUSCOTT (of Counsel) Instructed By: Messrs Patwa Solicitors 25 Abbey Road Bearwood Smethwick West Midlands B67 5RA For the Respondent MR JAMES LADDIE (of Counsel) Instructed By: EEF Broadway House Tothill Street London SW1H 9NQ MR JUSTICE BURTON (PRESIDENT) : This is the hearing of an appeal by Mr Byrne, against the dismissal of his claims for unfair dismissal and breach of contract against the Respondent by an Employment Tribunal sitting in Birmingham on 27 September and 29 November 2001.

[2]The case resolved around the termination of the Appellant's employment in November/December 2000. The history of the latter part of his employment should be briefly set out. In April 1999 he was appointed Supply Quality Assurance Manager (SQA) for Europe and Asia, based in Birmingham at the Respondent's site. In January 2000 he was invited to accept the role of Integration Manager. It was expected that this Integration Manager position would not last more than 12 months, and the Appellant was understandably concerned as to what was to happen to him on the completion of the 12 month period, and so he received a letter which was decided by the Tribunal (and there has been no appeal against this finding) not to have contractual force, but to constitute assurances, dated 3 March 2000, which read as follows:

"With regards to what happens at the end of the integration period, I confirm that you will return to the Birmingham site on the same terms and conditions of employment but not necessarily back to your old job. Clearly, every effort will be made to place you in an appropriate job which recognises the skills and experience acquired over the next 12 months."

[3]While he was off doing that job, and only some two to three months into it, his old role of SQA Manager disappeared. It was amalgamated with another role which was now to be based in the United States, and the Tribunal found that they had no doubt that the Appellant was fully aware in March or April 2000 that that was happening, and there is no challenge to that conclusion. That meant that his old job had gone, but, in any event, as can be seen from the letter, he had not been promised, even putting the assurances at their highest, that he could or would be returned to the old job.

[4]In May 2000 there was a significant restructuring exercise in Birmingham which led to a number of redundancies. The significant fact, for the purposes of the substantial part of this appeal, is that the Appellant was not one of those who was in the redundancy firing line, that is, it was not his position which was in consideration for redundancy, he was not himself considered for redundancy. He was still employed as Integration Manager, in fact, in Sheffield, on the basis that it had been anticipated that that job would last, as we have explained, 12 months. In fact, some months after those redundancies were completed, it became apparent that the role of Integration Manager had progressed more speedily than had been originally anticipated, and it became apparent in September that all the functions that were expected from that position of Integration Manager were going to be completed by the end of September 2000.

[5]On 5 September 2000 there was a meeting to discuss the Appellant's situation, and he was offered, and accepted, temporary employment to work with the Director of Quality for Access Control in Birmingham, in a job which lasted until the end of October 2000. It is therefore, apparent, that by the beginning of November, his Integration Manager job having come to an end, and the temporary secondment having come to an end, he now had no position with the Respondent company.

[6]On 17 November he was offered the position of Quality Manager in Blackpool, and he immediately replied to reject that suggestion, no doubt on the basis that he, in any event, wanted to live in Birmingham, but at that stage, and indeed at all times until he lost his claim for breach of contract, on the basis, as the Tribunal found, that he regarded himself as entitled to be employed in Birmingham on the same terms and conditions of employment, as per his letter of 3 March 2000.

[7]On 19 November, the Appellant was informed by a Mr Coe that he was at risk of redundancy, and on 20 November he was supplied with a list of vacancies in Birmingham, none of which were suitable and, consequently, all of which were rejected by the Appellant, and on the same day there was a meeting at which the Appellant was told by Mr Coe that there were no positions at a similar level currently in Birmingham, and that the only job that had been available, similar to the kind of position which the Appellant would be entitled to expect, was the one in Blackpool, which he had rejected. Consequently, he was told that he had been provisionally selected for redundancy, and he was given the opportunity of an appeal which took place on 1 December 2000. The appeal hearing was adjourned to see whether there might be some further vacancies available. A vacancy had recently become available for a Programme Manager in Birmingham. The Applicant attended an interview on 15 December for that post, but he was not successful because he did not possess the requisite qualifications for the post, and there has been no challenge to that finding. At the same time further enquiries were made, as to other jobs, which resulted in the possibility of a two-month temporary contract in Sheffield, which is, of course, where he had been Integration Manager, but the Appellant refused that offer. On 22 December, after the exhaustion of all these possibilities, the Appellant was made redundant, and he received a total payment of £15,008.73.

[8]The Tribunal correctly set out the legal approach, including paragraph 18, the self-reminder that:

"We must be careful not to substitute our reasons for those of the employer. In many cases there is a band of reasonable responses to the employer's conduct within which one employer might reasonably take one view and another, quite reasonably, take another"

. The conclusion in paragraph 23, in relation to what occurred in November/December, was that the Tribunal was satisfied that "the company made every reasonable effort to locate the Appellant in some form of employment".

[9]The grounds of appeal, which appeared from the preliminary hearing and the skeletons to be two, have in fact become three, without vociferous complaint by Mr Laddie, who has appeared as Counsel for the Respondent. They have been developed before us, ably, by Ms Truscott. Her first ground was a short one, and it related to the question of unfair selection for redundancy, and in particular, to what is colloquially called "bumping". She pointed to us the fact that, in his witness statement, the Appellant had said, towards the end of it, this:

"If, alternatively, a role for me ceased to exist in Birmingham as a result of the restructuring in Birmingham (or was in danger of not existing) and if I had been informed of this, I would most certainly have argued that I should be assigned to the role of Quality Assurance Manager. The person appointed to that post is less experienced than I was and I am better qualified than that person for the post."

That person was a Mr Atkin. Mr Atkin also featured in the evidence of a Mr Colin Bosworth, who was Site Manager for the Respondent, who had left their employment in May 2000, and gave evidence for the Appellant. In his witness statement, he said this:

"From a personal plant perspective the move of Pat to Sheffield weakened the Quality managership of the plant and in fact the replacements, following the closure of roofs, did not match Pat's qualities. Martin Pugh lasted 2-3 months in the job. Although Paul Atkin, who followed on, has lasted the course, he is more suited to Quality investigation, rather than running a department. Pat could have certainly been considered back in his old position."

[10]Chairman's notes have been helpfully provided by the Chairman, and there is a note of Mr Bosworth's oral evidence, in relation to Mr Pugh, when he was cross-examined, and he said this:

"Martin Pugh left January, replaced by Mr Atkin. Atkin had worked in quality roles since 1987. There was nothing on his file about his performance. Atkin was receiving approximately £10,000 less [than the Appellant] possibly. He would certainly be earning less than the Appellant."

[11]There is a note of the closing submissions of the Solicitor for the Appellant, which reads as follows:

"There could have been 'bumping' off with Quality Manager in [Birmingham]. "

We have the written skeleton argument of Mr Forrest, the representative of the Respondent, which reads as follows:

"It has been claimed that the Applicant should have been assigned to the role of Quality Assurance Manager in Birmingham. This post was not vacant at the time when the Applicant faced redundancy. The Quality Assurance Manager is Mr Atkin. He was appointed to this post in January 2000. Mr Atkin has been with the Company since the 1980s and has always worked in Quality. He is as professionally well qualified as the Applicant. The role attracts a salary of £10,000 less than that being paid to the Applicant at the time of his dismissal. The Applicant has raised the issue of 'bumping'. He could not advise as to any posts he believed 'bumping' to be appropriate to."

The Tribunal dealt very briefly with this aspect of the case in paragraph 22, which begins as follows:

"Was the Applicant dismissed unfairly by reason of redundancy? The Applicant argues that he was unfairly selected. However, he does not refer to anyone who was not selected."

[12]It may be that the Tribunal were setting out that passage of their judgment by misrecollection, or misunderstanding, of the submission, an extract from which we have quoted, by Mr Forrest, when he said that the Appellant had been unable to "advise as to any posts he believed bumping to be appropriate to". It is plain, from the fact that that follows on immediately from the paragraph which addresses the question of Mr Atkin in terms, that Mr Forrest was referring to a vacant position, having dealt with the position that was not vacant; but the Tribunal, as we have indicated, does not make any distinction between a vacant job, or a non-vacant job, in relation to the question of "bumping" or unfair selection, although, as we have indicated, the Tribunal, in terms, said at paragraph 23 that they were: "satisfied that the company made every reasonable effort to locate the applicant in some form of employment".

[13]Ms Truscott submits that this is a lacuna in the Tribunal decision, that they ought to have made an express finding on the point that was raised before them, namely as to whether the Respondent acted unreasonably, outside the reasonable band of responses, so that it can be said that their selection of the Appellant was unfair, by virtue of a failure to consider, or, if considered, implement the course of "bumping" Mr Atkin.

[14]It is plain that not every failure to make a finding by a Tribunal is material to the outcome of an appeal. Some findings are themselves, or would be, if made, or if not made, immaterial. This finding is, of course, on the face of it, a material one made or nor made, particularly given that it is apparent that the Appellant was indeed running the point that, as far as he was concerned, he could or should have been given Mr Atkin's job. But, of course, the matter will only be remitted to the Employment Tribunal if there is any reasonable prospect that, on reconsideration, a different conclusion would be reached.

[15]We have here the benefit, not only of the witness statements, and of the notes of the submissions, and indeed including written submissions, but also the notes of evidence, and together with that which we have already summarised, there should be included reference to the evidence which was given, according to the Chairman's notes, by the Appellant.

[16]The Chairman makes a reference to the list of other jobs available in Birmingham, to which we have already referred, as recited in the Tribunal's decision, and to the confirmation in cross-examination by the Appellant that, having seen all those and given the opportunity to consider all those positions, he rejected them. The note further recites, under the heading "Bumping", his statement, "I feel I should have been part of the restructuring exercise in Birmingham", which of course is a reference back to his belief that he should have been involved in May, which is the subject-matter of the second ground of appeal, to which we shall turn, and he said, "I felt there were Quality Manager's roles". He does not expressly refer, at that stage to Mr Atkin, which is only dealt with, apart from his brief reference in the witness statement which also primarily refers to the May situation, by Mr Boswell, but at the end of cross-examination, a central statement is made by the Appellant. He says this, "If salary had been the same but status lower, I would have accepted it". Quite apart from his insistence that he was entitled to a job in Birmingham, which had led to his refusing jobs in Sheffield and Blackpool, he quite plainly also wanted to insist on no salary reduction, and Mr Atkin's job would have entailed a substantial salary reduction. It is plain that, on his own evidence, he would not have accepted Mr Atkin's job, even had it been offered, as Ms Truscott realistically has accepted, but her submission is, that there is no evidence as to whether the Respondent would have, or should have, offered that job, having first, of course, "bumped" Mr Atkin out of it, either by making him redundant or finding some alternative job for him, and secondly, increased the remuneration of Mr Atkin's position by £10,000 in order to make it acceptable to the Appellant.

[17]It is certainly right to say that there is no finding in that regard, or indeed evidence, but we have to turn to the question as to whether, if this matter were remitted, given that we know that the only kind of "bumping" which would be available to be reconsidered by a Tribunal would be one which involved the removal of a man, namely Mr Atkin, who was, on the evidence even of Mr Bosworth, but certainly on the evidence of the Respondent and summarised by Mr Forrest, equally qualified, from a position which he had held since January 2000, which of itself was an inferior position to that which would normally have been expected to be filled by the Appellant, and for which the Respondent would be expected to pay £10,000 over the odds in order to persuade the Appellant to accept it. We have to ask ourselves whether it is at all realistic that that submission would have succeeded before the Tribunal, if made, or if considered, or would now succeed, if the matter was remitted to the Tribunal for further consideration?

[18]The obligation on an employer to act reasonably is not one which imposes absolute obligations, and certainly no absolute obligation to "bump", or even consider "bumping". The issue is, what a reasonable employer would do in the circumstances, and, in particular, by way of consideration by the Tribunal, whether what the employer did do was within the reasonable band of responses of a reasonable employer? Mr Laddie has drawn our attention, as indeed did Ms Truscott, to Green v A & I Fraser (Wholesale Fish Merchants) Ltd

[1985] IRLR 55

, in which that very point is made. In paragraph 13 of the judgment of the EAT, given by Lord McDonald MC, the following is stated, and various cases to which he refers make it clear that:

"In certain circumstances in making a selection for redundancy, an employer should not confine himself to employees holding similar positions in the same undertaking"

. There is then reference to the facts of some of these other cases, and then he continues:

"We do not consider that this case lays down any hard and fast principle which must be followed in every other case irrespective of the circumstances."

Then, Lord McDonald concludes, in paragraph 14:

"In our view the proper approach to this matter is as follows. S.57(3) raises the question of reasonableness. As has been said in a number of recent cases this is a situation in which one employer may act in a certain way and act perfectly reasonably and another employer in identical circumstances may act in the opposite way and still act perfectly reasonably. There is in short what has been described as a band of reasonableness and the actions of an employer will only be unfair if it is shown that they fell outwith that band."

[19]It appears to us an open question as to whether the Tribunal, had they considered the matter in terms, would have concluded that it was outwith the band of reasonable responses of the employer to consider "bumping" another employee, removing him in order to make a place for this Appellant, given the finding by the Tribunal that the employer took all reasonable efforts to locate a position, and given that all the jobs in respect of which there were vacancies were concluded to be unacceptable by the Appellant? But this is not just an ordinary case of 'bumping', this would impose upon the employer the obligation, to the extent of his being found unreasonable for not having done it, to remove a perfectly satisfactory employee from a job which he had held for quite some time, and replace him with the Appellant, and to incorporate a substantial salary rise for that job as part of the package. It appears to us that, had the Tribunal been asked expressly to consider the point, they would not have hesitated to find that it was not outwith the reasonable band of responses of the employer, not to consider, and certainly not to take any action in relation to, such a possibility. We are entirely satisfied that we should not remit on that basis.

[20]We turn to the second ground of appeal put forward by Ms Truscott. She referred to, or used as her starting point, paragraph 22 of the Tribunal decision, in which they say:

"What has troubled us is whether the Applicant ought to have been part of the consultation exercise when there were a number of posts declared redundant in Birmingham in or about May 2000. It is clear from the Applicant's evidence that he was aware of the fact that the SQA Manager's position was being re-located [that, of course, was in March/April]. He made no enquiry as to applying for the new foreign-based role, if this is what he wanted. Equally, he was aware of the restructuring exercise in May 2000 but made no attempt to be part of the process for selection of alternative jobs at that stage."

Ms Truscott submits that, simply knowing about a consultation exercise, and taking no steps to be part of it, would not, as she submits, be sufficient to fulfil the obligations of the Respondent at common law which she asserts to have existed.

[21]Mr Laddie does not accept that proposition, and submits that in certain circumstances a failure to take any steps to involve himself, by someone in a senior position, knowing of the exercise taking place, may be an answer to a claim of failure to consult; but it is not the way that he rests his case before us. His case is a simple one. The exercise in May, by which a number of jobs, and, no doubt, therefore, people, were made redundant, was in May 2000, at a time when the Appellant was happily ensconced in his position as Integration Manager, and in a different city, and likely to remain so for an anticipated 12 months, not expiring until January 2001. He was then entitled to expect to come back to Birmingham, in the following year to a job, but not to any specific job. He submits that any consultation exercise imposed upon the Respondent at common law, or otherwise, did not extend to the Appellant in such a circumstance.

[22]Both parties have referred to the decision of Judge Peter Clark in the Employment Appeal Tribunal in Mugford v Midland Bank

[1997] IRLR 208

. In that case Judge Peter Clark discusses, and summarises helpfully, the various questions arising out of a consultation exercise. At paragraph 36 of his judgment, he says:

"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."

At the end of his judgment, he summarises what he conceives to be the position on the authorities:

"(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) ... (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."

The background to that summary had already been stated by

Judge Peter Clark, at paragraph 33, where he said:

"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."

The findings of the Tribunal, in relation to the instant case, included the following, in paragraph 43:

"It is clear that the tribunal asked itself whether adequate individual consultation took place in this case. It was critical of the lack of consultation with the applicant before the decision to identify him for redundancy was finally reached. However, it concluded that such consultation as did take place with the union and with the applicant was adequate in the overall context of fairness, taking into account the other factors which weighed in favour of a finding of fair dismissal, namely, that the selection criteria were reasonable and were reasonably applied."

[23]Mr Laddie has submitted to us that there is some uncertainty in the employment law field as to precisely what is meant by "consultation", and precisely whether there is any obligation to consult with an employee who is subsequently made redundant, before a decision is made to identify that person for redundancy, as well as, as is clear from the authority, once he has been identified for redundancy, and before the final decision to dismiss is reached. He would submit that, notwithstanding dicta in Mugford , the paragraph 36 conclusion of Judge Peter Clark, that the consultation should normally take place before a final decision to dismiss is reached, and that that consultation is inevitably involved with someone who has already been identified for redundancy, should be the limit of the decision. But we do not need to go anywhere near as far as Mugford , and it does not appear to us that this is a suitable case in which we should clarify those points, because this case on its own particular facts can be totally distinguished from the facts of Mugford .

[24]This is not a case in which the Appellant was ever identified for redundancy in the exercise that took place in Birmingham, in May 2000. Neither he nor his position was made redundant, nor ever was affected by the redundancy, nor was he, in fact, made redundant, so that any question should arise as to when he was identified for redundancy, and whether there should have been discussion or consultation before he was so identified, as opposed to before he was dismissed, having been so identified. He simply had no role to play in the consultation exercise, because he was not a target of the redundancy. The highest that could be said would be that there would be a possible consequence to him some months later, when it came to his returning to Birmingham, by virtue of there being less jobs available to consider him for.

[25]If Ms Truscott is going to succeed, she has here to identify the crucial question of, to whom there was duty to consult, or with whom there was a duty to consult? There is plainly a duty to consult at some early stage, how early is a matter depending on the facts, with someone who is identified for redundancy. There is, we are satisfied, no duty to consult with someone who is not such a target, but who might in the foreseeable future, be affected by it. The way that Ms Truscott put her submission was that there was a duty to consult someone, who it is reasonably foreseeable may subsequently, in the reasonable future, be made redundant as a result. Even if that extremely nebulous proposition began to be right, as a matter of law, and it would impose, in our judgment, massive obligations on an employer to consider the potential economic consequences of a redundancy in a far wider context than he is obliged to do at the moment, even there that would not begin to touch the Appellant.

[26]This is not a case, for example, in which the Appellant had been promised a particular job or, perhaps, someone had expected promotion to a particular job, from an existing job, and then some months or years before he hoped for transfer or promotion to that job, the job was made redundant, such that it might be said that it was a reasonable consequence that he might have been affected by such redundancy, not in relation to his existing job, but as to the future possibility of his taking that job. But that is not even the case here, because he had not been promised any particular job, it was simply a question of there being lesser jobs in the Birmingham pool, as a result of a redundancy exercise. Even if it had been the case, we would have been satisfied that there is no authority to support the proposition, and that the law should not be extended to go that far. In those circumstances, we reject the ground of appeal put forward by Ms Truscott.

[27]The third ground related to the case which was not specifically adumbrated in the Notice of Appeal, namely that there was no proper or adequate finding by the Employment Tribunal as to consultation, not in relation to May with which we have now dealt, but in relation to the November/December. We have recited the factual history of those months, which form the findings by the Tribunal in paragraphs 4 to 13 of their decision. It is apparent that, as indeed the Tribunal found, in paragraph 23, they were "satisfied that the company made every reasonable effort to locate the Applicant in some form of employment". Considerable efforts involving the Appellant were made to find what to do when, after first they found him a temporary job in Birmingham and, thereafter, even that had come to an end, and he was now faced with Blackpool or Sheffield, or nowhere, in the circumstances to which we have described; and subject to the point that we have decided, that he was not unfairly treated in relation to the lack of consideration with regard to Mr Atkin's job, they did also consult him clearly in relation to the vacancies in Birmingham.

[28]It is right to say that, no doubt, because of the way in which the submissions went in front of the Tribunal, and the evidence which we have already quoted from the Appellant himself was directed, the Tribunal was concentrating on the question of consultation in May, and as to whether they were satisfied with regard to it. In terms they did not make a positive finding in the words that they were satisfied that there was an adequate consultation exercise in November/December, in the way that they used that term in relation to May. But it is totally clear that, on their findings, they were satisfied that there was such consultation and that it was sufficient, and there was certainly no evidence which is relied upon before us today, to set against the positive steps involving the Appellant, to which we have referred, which could begin to put forward an argument that the Respondent had, in fact, failed to carry out adequate consultation in relation to the November/December situation.

[29]In those circumstances, this appeal is dismissed.