TURCK BANNER LTD v FRANK CASSIDY [2004] UKEAT 0098_03_2508

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0098_03_2508

Case No Appeal No. UKEAT/0098/03

Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF

Between

TURCK BANNER LTDAPPELLANT

FRANK CASSIDYRESPONDENT

Before

Lord Johnston Miss J A Gaskell Mrs A E Hibberd

Date 25 August 2004

[1]APPEARANCES For the Appellants Mr G Alliott, Counsel Instructed by- Messrs Drysdales Solicitors Cumberland House 24-28 Baxter Avenue SOUTHEND-ON-SEA SS2 6HZ For the Respondent Mr C Marney, Advocate Instructed by- Messrs Hay Cassels Solicitors Almada Chambers 95 Almada Street HAMILTON ML3 OEY SUMMARY UNFAIR DISMISSAL Unfair selection for redundancy - unfair dismissal LORD JOHNSTON: This is an appeal at the instance of the employer against a decision of the Employment Tribunal sitting in Glasgow to the effect that the applicant was unfairly dismissed. The issue of remedy was held over for further consideration.

[2]The background to the matter was the determination by the company that the post of what is entitled "Key Account Manager", geographically covering Scotland, should be closed down for economic reasons. The respondent employee held that post. He was accordingly notified that he was potentially redundant and the case arises out of whether or not that matter was handled fairly by the employer. The case raised both issue of selection and consultation, both of which were determined by the Tribunal in favour of the employee.

[3]However, the preliminary issue was raised by Mr Alliott of Counsel, appearing for the appellants, in respect of a decision by the Tribunal to admit, in evidence, correspondence concerning a compromise agreement, which was said to be "without prejudice". The correspondence in question was before us, both in a partially masked state, and, in a full state, and we were able to compare them. The Employment Tribunal adjourned the hearing and determined that the material could be admitted.

[4]The argument advanced on behalf of the employer was simply, that, particularly in accordance with the law of England, "without prejudice" correspondence could not be relied upon in any litigation, and, at least at one point, Mr Alliott suggested that rule was absolute.

[5]Mr Marney, appearing for the respondent employee, submitted, by the law of Scotland, not least in the context of a decision Richardson v Quercus

[1999] SC 278

, the matter was not as absolute as that and required to be determined in accordance with fairness and the surrounding circumstances of the case.

[6]That is the position we will adopt in the present case. The matter was one for the discretion of the Tribunal and it cannot be said that they exercised that discretion unreasonably, albeit, that they had determined apparently the matter upon the basis that no prejudice was likely to be caused, which was not, as Mr Alliott submitted, the proper question. However, looking at the matter broadly, and the fact that, in terms of procedural rules governing Tribunals, rules of evidence are genuinely not to be regarded as absolute, or even relevant. We cannot say that the Tribunal reached a decision they were not entitled to make in that respect and we take this matter no further.

[7]With regard to the issue of fairness of selection for redundancy, the decision of the Tribunal quite simply was, that, notwithstanding that the system known as "LIFO" was adopted, that was nevertheless an unfair exercise by the employer.

[8]Mr Alliott's position in this respect was that there did not have to be a policy of LIFO. What the employer had to do was justify the selection as being a fair one, and, it having stated it was following the system of LIFO, that was enough in itself to justify the selection on grounds of fairness.

[9]Mr Marney's position on this was not entirely clear inasmuch that he recognised a certain difficulty for him. LIFO does not have to be, as he accepted, a policy ordained in advance, nor could he really indicate on what other basis of selection would have been fairer than the one that was adopted.

[10]In this respect the Tribunal's decision was as follows:- "The submissions made on behalf of the applicant found favour with the Tribunal. In particular, the Tribunal was in no doubt that there was no fair selection procedure and there was no consultation with the applicant in the implementation of his dismissal. It was clear to the Tribunal from the terms of the memo of 13 June 2001 from Mr Marlow to Mr Gardner (R8) that not only was the position of Key Account Manager for Scotland going to disappear but that the respondents had decided that the applicant would be made redundant. This decision was apparently made on the basis of last in first out and on the basis that it was the respondents' belief that the applicant would not relocate from Scotland to alternative employment elsewhere. Whilst in his memo of 13 June 2001 referred to the respondents' policy of dealing with redundancies on the basis of LIFO, there was no specific policy in this regard. Whilst in the same memo Mr Marlow made reference to a full consultation period with the applicant, no such consultation, full or otherwise actually took place."

[11]Putting aside the reference in that passage to consultation, this Tribunal is concerned that the Tribunal misdirected themselves on the question of LIFO, by reference to the fact that there was no specific policy. They also introduced the question of whether or not the applicant was prepared to relocate outside Scotland, their view being that he had stated he had not. However, we do not consider this is relevant to the question of fairness. Fairness is an intrinsic test to be applied to the means of selection and that in this case, entirely, was limited to LIFO.

[12]In these circumstances, it is the opinion of this Tribunal that the decision of the Tribunal in this respect is flawed, and cannot stand. In our opinion, the evidence which is indisputable, justifies the fairness of the selection process.

[13]The question of consultation raises a much more difficult issue. Mr Alliott took us comprehensively through the findings of fact by the Tribunal, indicating a number of discrepancies, if not mistakes, when the findings were compared with the correspondence that was before us. In particular, he attacked the conclusion on page 5 to the following effect:- "The only discussion which took place with the applicant in connection with his dismissal was during a telephone conversation on 17 July 2001 with Mr Gardner. At no time did the respondents ever meet with the applicant to discuss or consult with the applicant. No meaningful consultation took place at all."

[14]Mr Alliott's position was that that was simply wrong. There were in fact additional conversations on 20 July and 1 August and letters on 20 July and 27 August, all featuring the topic of consultation, and even offering to attend at the respondent's home. He had in fact sustained a car accident which was the reason why he declined to attend a meeting which was scheduled with his employers in this context.

[15]Mr Marney's position was the time-honoured one that the issues were ones of fact to be determined upon the evidence. The Tribunal had plainly determined that the selection of the respondent was determined at the outset, and, the whole subsequent process was a sham, or meaningless. The context of the comprise agreement added nothing to that position.

[16]In general terms, this Tribunal recognises the very high test it has to meet if it is going to interfere with evidential findings of fact determined by the lower Tribunal, who have heard all the evidence. In this respect the observations in Yeboah v Crofton

[2002] IRLR 634

are highly relevant and accepted. However, that does not mean that evidential findings by the Employment Tribunal are necessarily set in stone if they are apparently contradicted, or, at least, called into question by correspondence or other elements of the evidence, admittedly before this Tribunal, for our consideration.

[17]Correspondence and memos to which we have made reference, contain offers of consultation on more than one occasion and attempts to obtain a meeting. It is significant that the failure to obtain a meeting did not in any way lie at the door of the employer's conduct but rather for various reasons at that of the employee, which, in itself, is not an irrelevant factor. An offer was even made to attend at his home.

[18]We, therefore, accordingly, have serious doubts as to the validity of the Tribunal's conclusions with regard to the issue of consultation, but we also recognise, as that was the only issue before us, it would be difficult for this Tribunal to interfere having regard to what is said in Yeboah. However, having regard to the view we have taken on the question of selection, we consider the matter will have to be re-investigated, not least, in relation to the issue of consultation.

[19]In these circumstances we consider there are sufficient flaws in this decision not to allow it to stand. The appeal will accordingly be allowed and the case remitted to a differently constituted Tribunal for a rehearing. We consider that the issue of "without prejudice" should not be raised again.