"It is with great regret that I have to inform you that your position on the SAP Plant is to be made redundant." 17. The letter went on to give details of meetings at the end of the previous week regarding the cessation of supply to Procter and Gamble and stated that the supply of raw materials would run out on Saturday, that was 17 August, and accordingly the Respondent had no realistic choice other than to cease production of SAP on Friday 16 August. The letter goes on: "
"Staff to be retained will be offered new contracts with new job specifications, which will reflect the work to be carried out. A key feature of the specifications will be the introduction of greater flexibility in terms of the duties allocated to different jobs. The redundancy situation, which we are facing, is confined to the SAP Plant. Because the existing production operation ceases from tomorrow, all employees on the SAP Plant are being given notice to terminate their employment. This letter gives you notice of [ ] weeks running from Monday 19 August. You will be required to work out your notice unless you are notified otherwise." 19. The letter went on to explain the employees' redundancy entitlement and indicate that interviews would be held from Monday, that was 19 August, to decide who should be offered the jobs which were to be retained. It stated that the specifications for those jobs "are available today" and also stated that the jobs to be retained were broadly comparable to what the employees were doing at the present time. It also stated: "
"Although we have not been able to carry out consultation to date, there will be ongoing consultation throughout the notice period of affected employees. We propose to consult with a representative from each of the affected groups i.e. one of the fitters, one of the process operators, one of the chemists laboratory technicians and one of the foremen. You are invited to nominate (in secret) the person from your group who you would like to represent you. If you wish to take part in this selection, please write the name of the individual you would like to represent you on a piece of paper, place this in a sealed envelope and deliver it to Tracy Griffiths in the office on Monday. Tracy will supply you with an envelope for this purpose. The individual with the most votes will be the elected representative. This person will represent your group for the duration of the consultation process. Consultation is required by statute to include consultation about ways of avoiding the dismissals, reducing the number of employees to be dismissed and mitigating the consequences of dismissal. We will be looking at the existence of any openings elsewhere within the Company. We will be willing to consult about any matters of importance relating to the redundancy process. If no representatives are elected by you, we shall in any event continue consultation with employees on an individual basis. If for any reason, you do not feel that any decision in the redundancy process is fair, you may appeal against the decision by setting out in writing to Angela Meads the reasons why you do not think that the decision was fair." . 21. That letter although dated 15 August, was handed to members of two shifts who worked at the SAP Plant during the course of 16 August. Members of the third shift were contacted at home and asked to attend work at 8.30am on Monday morning 19 August where the meeting took place and they were provided with the letters at that time. 22. The company also wrote on16 August 2002 to the Redundancy Payments Office. We were not told that a form HR1 was completed. However the information required on such a form was written in letter form giving the detail that redundancies were taking place at the Titan Works, Hogg Lane, Grays, Essex. The total number of employees was 297 and 61 were being made redundant. It also stated the earliest day for people to leave was 23 August and the latest date was20 September 2002 . At paragraph 6 the letter says: "
"We have now completed the interviews and compared the scores achieved. I am sorry to have to tell you that you did not score high enough to be offered one of the retained posts." 32. The unsuccessful employees were then told that they were not required to work their notice and there were no other vacancies within the company for which they could be considered. It appears that contrary to the plans initially envisaged by the Respondent that 40 people would be made redundant, in fact other positions were found so that only 25 had to be made redundant. 33. In relation to the fitters, the scoring produced Mr Johnson and Mr Webster as the two top scorers. Mr Webster indicated that he wou1d prefer the post offered to him to be offered to Mr Olivier on the basis that Mr Olivier was close to retirement age and was unlikely to obtain other employment. The post was then offered to Mr Olivier and he. also turned it down. The next highest score was Mr Cooper who scored 73 as against Mr Olivier and Mr Webster who scored 74. He was made redundant on his indication that he was not interested in a post as a fitter which he disputed, he said in the tribunal hearing. The other four fitters: Mr Ryan, Mr Lucas, Mr Hill and Mr Weeks did not attend interview and were not offered posts. 34. In relation to the process operators, the Respondent initially required 20 individuals and the lowest average score appointed was 85. Subsequently it was decided to take a further three which took the lowest average score appointed down to 77.5. Mr Dickens scored 75; Mr Higgins scored 72.5, as did Mr Uren, and Mr Reeks scored 46.5. We found that at no time were the employees either offered or given sight of the scores which they had achieved and none of the employees made any attempts to challenge the outcome of the decisions made, indicating that their experience of the Respondent suggested that such a challenge would be fruitless. Those are the findings of fact."
"188 Duty of employer to consult ...representatives (1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals. (IA) The consultation shall begin in good time and in any event- (a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and (b) otherwise, at least 30 days, before the first of the dismissals takes effect. (IB) For the purposes of this section the appropriate representatives of any affected employees are- (a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or (b ) in any other case, whichever of the following employee representatives the employer chooses:- (i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf; (ii) employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1). (2) The consultation shall include consultation about ways of (a) avoiding the dismissals, (b) reducing the numbers of employees to be dismissed, and (c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives. (3) In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun. (4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives (a) the reasons for his proposals (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant, (c) the total number of employees of any such description employed by the employer at the establishment in question, (d) the proposed method of selecting the employees who may be dismissed, ... (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect and (f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed. (5) That information shall be given to each of the appropriate representatives by being delivered to them], or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the union at the address of its head or main office. (5A) The employer shall allow the appropriate representatives access to the affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate. (6) ... (7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection [(lA), (2) or (4)], the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly), a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement. 7A Where- (a) the employer has invited any of the affected employees to elect employee representatives, and (b ) the invitation was issued long enough before the time when the consultation is required by subsection (A)(a) or (b) to begin to allow them to elect representatives by that time, the employer shall be treated as complying with the requirements of this section in relation to those, employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives. (7B) If, after the employer has invited affected employees to elect representatives, the affected employees fail to do so within a reasonable time, he shall give to each affected employee the information set out in subsection (4). (8) This section does not confer any rights on a trade union a representative or an employee except as provided by sections 189 to 192 below."
"50. In the circumstances of this case the Respondent was proposing to make more than 20 employees redundant. The primary obligation is therefore to enter into a period of consultation at least 30 days prior to notice of dismissal being given. Failure to do so entitles affected employees to claim a protective award. In order to avail itself of the section 188(7) defence, special circumstances must be shown that rendered it impracticable for employer to comply with the consultation requirement. As Ms Chambers pointed out the defence must be narrowly construed by the Tribunal as it is not to be found in the directive. 51. In the present case the Tribunal found that, despite the claim by the Respondent that the meetings which took place on 16 and 19 August amounted to consultation, in reality the decision to dismiss had already been made at that stage. The only correct analysis of this case is that no consultation whatsoever took place. Further, it is clear from the letter of 15 August to the employees that the Respondent was aware of the obligation to consult. It accepted that no consultation would take place. The Respondent took, at the time that letter was prepared, a calculated decision that compliance with the obligations in the 1992 regarding collective redundancies was impossible. Individual employees were not provided with the information required to be given in for HR1. The letter records: "
"What, then is meant by 'special circumstances'? Here we come to the crux of the case. In this aspect, also, the decision under the Road Traffic Acts appear to me to be unhelpful. The decisions are too well known to need reference. The basis of them all is probably Whittle v Kirby in 1946. A "special reason" is one special to the facts of the particular case, special to the facts which constitute the offence. A circumstance peculiar to the offender, as distinguished from the offence, is not a special reason'. Insofar as that means that the special circumstances must be relevant to the issue then that would apply equally here, but in these circumstances, the Employment Protection Act, it seems to me that the way in which the phrase was interpreted by the Industrial Tribunal is correct. What they said, in effect, was this, that insolvency is, on its own, neither here nor there. It may be a special circumstance, it may not be a special circumstance. It will depend entirely on the cause of the insolvency whether the circumstances can be described as special or not. If, for example, sudden disaster strikes a company, making it necessary to close the concern, then plainly that would be a matter which was capable of being a special circumstance; and that is so whether the disaster is physical or financial. If the insolvency, however, was merely due to a gradual run-down of the company, as it was in this case, then those are facts on which the Industrial Tribunal can come to the conclusion that the circumstances were not special. In other words, to be special the event must be something out of the ordinary, something uncommon; and that is the meaning of the word 'special' in the context of this Act."
"Turning then to the length of the period for the protective award, we operate as is clear from the authority EAT 0646/02 Transport & General Workers Union v Morgan Platts Ltd from the starting point of a 90 day award as provided in section 188. We considered whether there were circumstances rendering it appropriate to reduce that figure of 90 days. We took into account the Respondent's redeployment of almost two-third of the workforce resulting in the redundancy exercise being limited to 25 people. On the other hand we noted that the Respondent was clearly aware of its obligations and decided to ignore them. We considered that in those circumstances it was appropriate to reduce the protective award from 90 days to 60 days. We note that the debate in the authority cited regarding whether the award of a protective award is penal or a compensatory. We considered that an award of 60 days adequately compensates the employees made redundant for the loss of the right to be properly consulted and to have an opportunity to elect representatives to carry out that function. We do not consider that an award of 30 days would be adequate compensation for the loss of that right."
" I suggest that ETs, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind: (1) The purpose of the award is to provide a sanction for breach by the employer of the obligations in s. 188: it is not to compensate the employees for loss which they have suffered in consequence of the breach. (2) The ET have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default. (3) The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult. (4) The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s. I88. (5) How the ET assesses the length of the protected period is a matter for the ET, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate."
"57. We turn then to the unfair dismissal claims brought in this case. We note Ms Chambers' submission sets out the criteria identified in Williams v Compair Maxam:- (i) the employer must warn at the earliest opportunity; (ii) the employer must consult, including about the selection criteria for the retained positions; (iii) the employer must use selection criteria which are fair, reasonable and capable of objective checking; (iv} the employer should reveal the assessment scores and give employees the opportunity to challenge those scores; (v) the employer should look at the reasons behind answers given at interview e.g. reasons for absences; (vi) the employer should consider the total pool of employees rather than isolating certain employees for redundancy; (vii) voluntary redundancy should be sought. 58. We deal with the question of the total pool of employees first. We did not accept the Applicants' submissions that other employees in other plants should have been pooled with the Applicants. We entirely accept that it was the SAP Plant where posts were made redundant, It was the SAP Plant where the individuals concerned worked and we did not consider that it was realistic to select for redundancy employees on other plants. While we accepted that the SAP employees worked on other plants from to time during periods of shutdown, we found no signs of general interoperability between this plant and the Respondent's other plants. Indeed, if anything the contrary was the case and the operatives from the SAP Plant were, to an extent, more highly qualified than those on the other plants. 59. Having dealt with that factor, the other instance where the Respondent might be considered to have attempted compliance with the factors in Compair Maxam relate to using selection criteria which are fair, reasonable and capable of objective checking. We note the Respondent's attempts in this context. We note that it is very difficult to define an entirely objective set of criteria. However, we considered that the criteria adopted in this case tended excessively towards the subjective and bore all the hallmarks of a set of criteria created and defined by an employer acting unilaterally without the consideration involved in consultation and negotiation of those criteria. 60. Aside from that issue, we found that the Respondent failed completely in respect of the other criteria set out in Compair Maxam. The Respondent failed to warn, did not seek volunteers, failed to consult about the selection criteria but instead informed the employees of dismissal as a first step. The Respondent failed to reveal the assessment scores and give the employees the opportunity to challenge those scores. It is not clear whether the Respondent looked at the reasons behind answers given at interview, particularly reasons for absences. The right of appeal contained in the letters expressly provided that the appeal should be made to one of those making the scores. It was said on behalf of the Respondent that it is not a necessary implication that the appeal would be determined by Mrs Meads, but we found that to be the practical effect of the right of appeal offered to the Applicants. 61. Taken all in all, and without in any sense following slavishly the provisions of Compair Maxam, we consider that the Respondent's deficiencies in this context were so significant as to render it impossible to find the dismissals in this case fair. We remind ourselves thatsection 98 of the Employment Rights Act 1996 provides for the Respondent to show that the reason for dismissal is potentially fair. There is no issue in this case that there was a redundancy situation and that is a potentially fair reason. However, in applying the section 98(4) fairness test, we have to consider with a neutral burden of proof whether the Respondent acted reasonably in treating the reasons shown as sufficient to justify dismissal. It is in that context that the Compair Maxam guidelines are relevant. We found that the selection process established by the Respondent failed to meet those guidelines or even approach the standard envisaged in individual let alone collective redundancies. 62. We also considered in accordance with the authority of AKZO Coatings plc vSW Thompson and others EAT 1117/94 and 1037/95, whether it was possible to apply a lower threshold in this case on the basis that the employees were not being selected for redundancy but rather were being offered new posts with new job descriptions. Despite the terms of the Respondent's letter of 15 August, we consider that that was not the true and correct analysis in this case. This is not a point which was pleaded by the Respondent in the Notice of Appearance and not a point that sits easily with the facts. This is therefore a case where the Respondent operated in extreme haste and without any contact with those to be made redundant, or representatives on their behalf, in taking action to bring their employment to an end. We considered that in each case that was unfair. 63. We considered the provisions of Polkey and we also considered the issues of contribution. We did not find that the individual employees took any steps that could be considered culpable in the context of a reduction of an award of compensation for unfair dismissal. It may be that there are individual points regarding the approach taken to the selection process that will have to be further considered under a general "just and equitable" heading at the time of the remedy hearing in this case but we find it inappropriate to make any deductions for contribution. Similarly, given the nature of our criticisms of the redundancy selection process, we found no basis for saying that there was an identifiable prospect that fair dismissals would have resulted from a fair redundancy selection "