"9.1 The respondent is a well known provider of employment law consultancy, advice and advocacy. It is run by a Board comprising the Managing Director, Mr Peter Done (who is also a shareholder); Director of Consulting, Mr Anthony Sutcliffe, and Finance Director, Mr Keith Hayward. Mr Sutcliffe has an Assistant Director, Mr Kieron Hill, who is not at Board level. 9.2 Mr Sutcliffe was responsible for the respondent's consultancy functions comprising four areas or departments: Advice Service, Advocacy (also known as Advocacy and Litigation), Personnel Services and Health and Safety. Each department had its own separate manager. In the Advocacy Department, Ms Michelle Johnson, Advocacy Service Manager, and Ms Ellen Singer, Advocacy Preparation Service Manager, both reported to the overall manager, Mrs Julie English. Another experienced and long-serving manager, who was also a former manager of the department, Mr Martyn West, was Mrs English's Deputy Manager. 9.3 Mr Sutcliffe had himself managed the Advocacy Department for many years, several years earlier, and he had extensive experience of presenting claims at the Tribunal as an advocate. Mr Kieron Hill, too, had managed the department on an interim basis between 2003 and 2004 before Mrs English was appointed. 9.4 The respondent is a substantial organisation, based in Manchester. The Advocacy Department itself employed some 57 employees of whom about 31 were advocates including trainee advocates; about 17 of these were home-based rather than based in Manchester, with some based in Scotland and Northern Ireland. 9.5 The respondent employed some 500 employees and had the fullest possible resources and administrative support systems. 9.6 The respondent had some 18,000 client employers under three or five year contracts. Other than where clients came because they already had Tribunal proceedings against them, the respondent provided an insurance indemnity scheme whereby if the client employer followed its advice and guidance in respect of employees, the respondent's associated insurer would indemnify the client against any award sustained as a result of an Employment Tribunal claim. Accordingly, both to advise and guide the client employer but also to protect its own insurer's funds, the respondent provided to client employers detailed written guidance to be followed in respect of many employment areas and in particular in respect of compulsory redundancy situations. 9.7 That advice included its own documents…."
"18. However, the Tribunal found a number of weaknesses in the overall process, in particular on Mrs English's part. Firstly there was no overall documented sequential process or guidelines being followed both initially and on appeal. Having declared a redundancy exercise likely to result in 4 redundancies, the respondent changed mid-process when Mr Sutcliffe directed 8 redundancies were to be made. There was no collective consultation, only a general announcement followed by "individual consultation" which was actually no more than a scoring meeting. There was no real opportunity for the claimants, even acknowledging they were employment law professionals (some of their peers taking the opportunity to query the criteria), to challenge the appropriateness or relevance of the criteria or to suggest alternatives to redundancy, even accepting the respondent had already sought to cut down to a bare minimum its use of outside agents and did ultimately afford the opportunity of applying for alternative advice line positions. The individual consultation afforded no real opportunity for individuals to change either the content or application of the criteria themselves or their specific scores prior to Mrs English's announcement of the outcome (save in the very limited example of Mr McLachlan's sickness absence). The change from 4 to 8 redundancies was unfortunate, not least for Mr Rees who as a result of informal discussions was clearly of the view when he entered his individual consultation that only one compulsory redundancy was likely to be needed. 19. Despite her protestations, the process adopted by Mrs English was somewhat secretive and certainly not fully transparent. Only when she sent the 12-page scores documents out was the full process, including how she applied scores to the various criteria, clear; there was nothing preventing her providing the additional guidance alongside the 12 criteria on12 December 2005 or at least well ahead of individual meetings. Whilst the Tribunal did not conclude that she had acted in bad faith, it did conclude that, given the several years of hindsight and bolstering of position (which affected both sides and not solely the respondent), Mrs English gave in evidence at the Hearing a version that she had been more open about scores with advocates than was actually the case at the time. Even at the appeal stage, she had not wanted individual comparative scores to be known, whereas Mr Hill did. The respondent only gave consideration to alternative employment fairly late in the process with Mrs English contacting other managers on 30 January when the redundancy situation had been known of for nearly two months."
"20. Overall, consideration of the criteria means the balance within the matrix was slightly more subjective than objective. While that in itself does not make the dismissal or redundancy selection unfair, it reinforces the Tribunal's view that the lack of meaningful opportunity for employees to respond about the selection criteria, at a time when they could have an impact, was significant; this is particularly so when Mrs English alone was scoring 11 of the 12 criteria."
"21. The Tribunal did find some considerable strengths of this redundancy process, firstly the fact that Mrs English had live discussions with individual advocates at the time of or immediately prior to scoring them on most criteria. Whilst not going so far as the respondent's Counsel, who described this as "innovative", the Tribunal was impressed by this step and would have been still more impressed had Mrs English fed back the results of her scores before reaching her final selection. At the initial selection stage, another considerable strength was criterion 5 and the careful discussion between Ms Johnson and Ms Singer over how that was to be marked, with the random selection of case management files ensuring objectivity before that mark was scored. A further strength was the appeal stage by Mr Hill. Not only was he mandated with authority to change individual selections if appropriate, it was within his authority to overturn the decision to make redundancies or the number of redundancies made (although he did not do so). His appeal stage, whilst probably not technically the rehearing he asserted, was a detailed and careful review of what had gone before by Mrs English although it did not mirror it in all respects. Moreover, in Mr Jaffier's case alone, there was the highly sophisticated analysis given by Mr Huss to Mrs English's criteria and scoring. 22. On balance, having regard to the lack of transparency by Mrs English and lack of opportunity for the claimants meaningfully to challenge not just the overall criteria but particularly the individual application of those criteria in their own cases, for instance having regard to the bands within which the criteria were scored and the various comments made by Mrs English on their score sheets which informed her scoring process, the respondent did not act fairly in all the circumstances in treating redundancy as a sufficient reason to dismiss. In addition to "automatic" unfair dismissal, the respondent unfairly dismissed the claimants in the "ordinary" sense."
"22. When the tribunal stood back and considered the process as a whole, the defects as to consultation were not put right or smoothed out by the appeal process."
"23. A further aspect of the Tribunal's finding on "ordinary" unfairness is that Mr Sutcliffe's decision to increase the number of redundancies from 4 to 8, made without reasoned discussion with Mrs English, meant no additional opportunity for the advocates to discuss the number of redundancies and, for instance, propose alternative ways of working or for management to seek still further volunteers for redundancy. Mr Sutcliffe's memos of 10 and 11 January showed a distinct change of approach by him in asserting that advocates were deliberately not resolving cases i.e, that they were working more slowly in the knowledge of the reduced workload; this approach was never discussed with the advocates generally or individually nor was it referred to by Mrs English nor indeed by Mr Hill when dealing with the appeals. Since Mr Sutcliffe's motivation was more efficiency-gaining than cost-saving, the immediate increase, without no transparency or clarity to employees as to what lay behind it and no notice to them of it until they had been selected for redundancy, was unreasonable. Finally, while the Tribunal did not accept Mr Rees's initial argument that the standard against which the respondent's actions should be measured must be that of a highly professional employment law advisor i.e. higher than any employer not providing such services, it did not find that the respondent acted reasonably when wholly ignoring its own guidance documents prepared for clients dealing with redundancy situations. No reasonable employer having ready access to what might be termed "best practice" guidance available within its own organisation, would disregard that guidance entirely without considering which parts of it might provide assistance in dealing with its own redundancy situation."
"24. Having regard to issue 3.7 which relates to the "
"43. More usually, however, a matrix approach is adopted to selection, as in this case. Various factors are identified and the relevant pool of employees is assessed under each of them. When that system is adopted, the basis of the selection-the reason why this particular employee has been selected-rests upon that assessment. We think that it is clearly necessary that the employer, in order to comply with step 2, should in advance of the meeting notify the employee of the selection criteria. Without that information, it is impossible for the employee to give any sensible response to the proposed decision at all. 44. A more difficult question is what more information, if any, needs to be provided. Mr Barnett says none; Mr Toms says further details of how the criteria are applied, and also the assessments of each of the workers in the relevant pool. 45. In our judgment neither of these submissions is correct. We see the force of Mr Barnett's submission that, once given the selection criteria, the employee is in a position at least to address some arguments to the employer as to the justification for selecting him. But we-and in particular two very experienced lay members-are of the view that this is not enough to enable the informed response which essential procedural safeguards should allow. In our judgment in order to comply with the statutory provisions an employer should provide to the employee not only the basic selection criteria which have been used, but also the employee's own assessment. That will give the employee an opportunity to make representations not only about whether the criteria are justified and appropriate but also, more importantly, whether the marking given to him in respect of any particular criterion is arguably unjust, and why. It may be that he can correct some obvious factual error, such as being attributed with a disciplinary record he does not have, or what appears to be a rogue mark on one of the criterion, apparently wholly out of line with his work performance. His response will be difficult to formulate, and very much in a vacuum, without this information. 46. However, the question here is not what should be provided to prevent a particular dismissal being considered unfair under general unfair dismissal law, but rather what information is so basic that failure to provide it ought to be deemed to be automatically unfair as falling foul of the minimum procedural standards which any employer ought to comply with in a redundancy dismissal."
"49. In doing that we are engaged in an exercise of statutory construction, seeking to give a sensible meaning to language which unfortunately Parliament has left elusively vague. We are having to decide what kind of information falls within the concept of "the basis ... for including in the statement ... the grounds" for contemplating dismissal. In our view it cannot be right that on such a basic question different tribunals throughout the country can reach wholly inconsistent conclusions and all be right. Employers and employees are surely entitled to expect the law to provide some certainty and predictability on a matter of this kind, and to identify at least in general terms what type of information ought to be provided to comply with the terms of the statute."
"10. It is important that, because of the automatic consequences to an employer and in favour of the employee of a breach of the procedure, tribunals should be slow to put glosses on a procedure so that what might simply be unfair or unreasonable conduct can be constituted or castigated as breach of procedure leading to automatic unfair dismissal, as opposed to ordinary unfair dismissal. But not only do we conclude that, if not bound, we are certainly strongly influenced, by such a recent and persuasive reserved judgment by the President and two experienced lay members of the Employment Appeal Tribunal, but we agree with it. It is quite plain that when in the standard procedure at para. 2(2)(a) and (b) it requires that the employer must inform the employee 'what the basis was' and that the employee must have a 'reasonable opportunity to consider his response', that must be interpreted as indicating that sufficient information must be given both so that it may be understood, and so that the employee may have the reasonable opportunity to challenge its accuracy or completeness."
"19. If there was a breach of the statutory procedure, such that there would be automatic unfair dismissal, then that could not be cured by the appeal. If all they meant to say was that there had been an ordinary unfair dismissal, then of course it is trite law that unfairness or unreasonableness in the course of the procedure can be and ordinarily is cured by the giving of a fair and independent appeal. But if the tribunal had concluded that there was a breach of statutory procedure, then their statement that there was an unfortunate failure by the respondent which was cured at the appeal hearing would have needed to have been reworded or reconsidered. That is now what we have to address." … "24. We have indicated already that the statutory defect could not be cured."
"Would the Respondent have decided to dismiss each of the Claimants if the procedure had been followed: section 98A(2)."
"It is for the employer to show on the balance of probabilities that, whatever inadequacies in procedure (in the wider sense of procedure), the result would have been the same such as the employee would have been dismissed in any event at the same time."
"The Tribunal was not satisfied on the balance of probabilities by the Respondent that it would have dismissed each Claimant at the same time in any event ..."
"The Tribunal was not satisfied that the Respondent would necessarily have dismissed each of the Claimants ... at that time in any event."