Asif v Elmbridge Borough Council (Unfair Dismissal : no sub-topic) [2012] UKEAT 0395_11_2609

EAT
Asif v Elmbridge Borough Council (Unfair Dismissal : no sub-topic)
[2012] UKEAT 0395_11_2609 · 2012-09-26
[1]The Appellant, Ms Asif, appeals against part of the judgment of the Employment Tribunal, sitting at London South, presided over by Employment Judge Baron and given after a three‑day hearing in March and May 2011. By that judgment, sent to the parties on 20 May 2011, the Employment Tribunal dismissed Ms Asif’s claims against the Respondent, Elmbridge Borough Council, that she had been unfairly dismissed and the victim of disability discrimination; the Tribunal also dismissed her equal pay claim.[2]In this judgment we will refer to Ms Asif as the Claimant and Elmbridge Borough Council as the Respondent, as they were before the Tribunal.[3]The Claimant was not represented before the Tribunal. Her original Notice of Appeal did not distil the grounds that she wished to pursue into easily comprehensible statements of errors of law on the part of the Employment Tribunal; but at a preliminary hearing held on 19 October 2011 the Claimant came armed with the services of Mr Catherwood of counsel under the ELAAS scheme; and in effect he redrafted the Notice of Appeal and put the Claimant’s case into shape to such an extent that the Employment Appeal Tribunal, on that occasion HHJ McMullen QC presiding, allowed the appeal to go forward to a full hearing but only on the grounds set out in paragraphs 2.1‑2.6 of the amended grounds of appeal; all other grounds of appeal were dismissed.[4]Those grounds all go to the Employment Tribunal’s decision that the dismissal of the Claimant was not unfair. The decision as to the other claims raised by the Claimant is no longer the subject of any appeal. Mr Catherwood appeared on behalf of the Claimant before us, as he did at the preliminary hearing; Ms Thorp appeared before us on behalf of the Respondents, as she did before the Tribunal. We are grateful to both for their clear and helpful arguments. The facts[5]We take the history from the Employment Tribunal’s findings of fact. The Claimant was employed by the Respondent from December 2007 as an IT helpdesk administrative officer. There were two other employees with the same job, Ms King and Mr Wray. Another employee, Mrs White, held a similar post; but her area of responsibility lay in the Respondent’s telephone system rather than its IT function. There was also a job entitled “IT support services officer”, which was vacant at the material time.[6]In early 2010 the Respondent decided to restructure its information systems division. Phase 2 of that exercise involved the abolition of the five posts which we have just described and the creation in their place of three new posts of ICT customer services officer, which would include responsibility for both IT and telephones. A redundancy procedure was agreed with the relevant trade union. Under that procedure, where there was considered to be an 80 per cent (or greater) similarity between old and new posts, employees would be assimilated from old to new post. Where the similarity was 50 to 79 per cent, employees in the old posts would be “ringfenced” for the new posts. It was recognised that there was a pool of four who would be involved in the competition for the three new posts, those four being the Claimant, Mr Wray, Ms King and Mrs White, the fifth of the old posts being, as we have said, vacant.[7]When the new posts were compared with the old posts, it was determined that there was not, in the case of any of them, an 80 per cent match. The Respondent’s document derived from the exercise of comparison shows a match of 77.14 per cent, except in the case of Mrs White’s job where the match was 72.86 per cent. Therefore there could be no assimilation; and the four employees in the pool were in competition for the three new posts. The Tribunal accepted, at paragraph 18 of their judgment, the evidence of Mrs Jackson on behalf of the Respondent that the new posts differed from the old in that the postholders would be expected to be proactive in developing solutions and would not be limited, as in the old posts, to fixing problems. The greater responsibility and competency requirements of the new posts were reflected in their being graded at grade 6; the old posts had been, we were told, at grades 3‑5.[8]The Tribunal did not set out the details of the process of consultation which was carried out, there being no criticism of that part of what occurred. For the same reasons, we will say no more about that aspect of the redundancy exercise.[9]All four employees were invited to apply for the new posts by completing a form which contained various sections including “Qualification and Education”, “Experience”, “Knowledge/Skills/Abilities” and “Special Requirements”, consisting of elements relatively specific to the posts. Each employee was interviewed on the basis of an agreed set of standard questions (save for one irrelevant omission). Marks were allocated to each employee under the above four criteria, based on the application forms and the interviews that followed. Marks were also assessed for past performance, conduct and attendance. The process had been agreed with the trade union.[10]The total scores produced by the process were added up and expressed in percentage terms. The Claimant scored 54.1 per cent overall, Mr Wray 81.9 per cent, Ms King 82.8 per cent and Mrs White 65.2 per cent.[11]The process did not include a pass mark, i.e. a minimum percentage below which an employee could not be offered one of the new posts. However, the interviewing panel concluded that the Claimant was not appointable to any one of the posts even if there had been a vacancy. In any event, at that stage there was no vacancy; for the Claimant had been out-scored for the three posts by each of the other three candidates. The Claimant was, therefore, told on 22 April 2010 that she would be made redundant with effect from 21 May.[12]She appealed unsuccessfully; in the course of the appeal she complained that she had been set up to fail and that her selection had been predetermined. The Tribunal, at paragraph 27, rejected that part of her case; and their conclusion on that issue is not challenged in this appeal.[13]The three successful candidates were then, again pursuant to the agreed process, given a three‑month trial period in the new posts. However, in mid‑May, after the Claimant had been found to be unacceptable for any of the new posts but before her notice expired, Mrs White decided that she did not want to stay in the new post; and she resigned, during the Claimant’s notice period. Although the Claimant was on the Respondent’s redeployment register, there were no posts suitable for her. She was not offered the post rejected by Mrs White. The Tribunal found at paragraph 29 that the Claimant did not meet the essential criteria for the new posts and that, if Mrs White had left before the interviews took place, the Claimant would still have been interviewed as required by the process and therefore would have found herself in the same position because she did not meet those essential criteria. It was not, in the circumstances, appropriate for her to be offered Mrs White’s post.[14]The Claimant herself did not identify to the Tribunal, at least initially, the Respondent’s decision not to offer her that post as unfair. At the Case Management Discussion held some time before the substantive hearing, she focussed her attention on two contentions: the first was that she had been set up to fail and her failure had been predetermined; the second was that Mr Wray should not have been included in the relevant pool. The Employment Tribunal rejected both of those contentions, but, during the hearing, the question of Mrs White’s post arose; and the Tribunal agreed to consider that question. Ms Thorp, on behalf of the Respondent, did not resist that approach. The Employment Tribunal’s conclusions[15]The Tribunal stated at paragraph 37 that the Claimant accepted that the reason for her dismissal was redundancy; that concession is also recorded in paragraph 1. The Tribunal therefore had to consider fairness in accordance with section 98(4) of the Employment Rights Act 1996 , as they correctly said at paragraph 37. At paragraphs 38, 39 and 43 they set out the principles which governed that consideration in these terms:
“38. The ‘touchstones’ by which fairness is usually considered are as follows [footnote: ‘See Williams v Compair Maxam [1982] ICR 156 ’]. There must be appropriate warning to the employees likely to have affected about the proposals, and thereafter proper consultation should take place. Where there is a recognised union, as here, then the procedure and selection criteria will be discussed and hopefully agreed. Those criteria should as far as reasonably possible be ones which can be assessed objectively, and not simply the opinion of one person. Redeployment will be considered where possible. 39. The role of an Employment Tribunal in such a case is limited. The matter has been considered very recently by HHJ Serota QC in the Employment Appeal Tribunal in Dabson v David Cover and Sons Ltd EAT/0374/10. He reviewed the authorities and in paragraph 65 helpfully and succinctly summarised the position as follows: ‘The Claimant correctly recognised that the Employment Tribunal should not go beyond seeing whether the selection, including the marking, was fair and should only investigate marking where there was an absence of good faith or obvious error.’ […] 43. Having said that, it is not our function to substitute our decision for that of the Respondent. We must consider whether the Respondent acted within the range of reasonable responses of an employer in such circumstances. Those circumstances included a reduction of expenditure, which resulted in a reduction in the number of staff from five to three but an increase in the expertise required from them, along with more limited supervision.”
[16]At paragraph 40 they said that they were satisfied that the redundancy process had been agreed with the union, that it was fair, and that the result in the Claimant’s case had not been predetermined. At paragraph 44 they set out that, apart from Mrs White’s post, no other suitable posts were available and there was no complaint or criticism on the Claimant’s part of any failure to offer her any post other than that initially allocated to Mrs White.[17]Thus the Tribunal, having set out the principles, had to direct their attention to fairness in the specific context of the Respondent’s decision not to offer Mrs White’s post to the Claimant. Their conclusions on that issue were set out at paragraphs 45‑49 as follows:
“45. We have accepted the evidence on behalf of the Respondent that during the application and interview process it had been concluded that the Claimant was not appointable to the new post even if there had been a vacancy. We have rejected any allegation of bad faith. In her witness statement the Claimant made reference to the scores of each of the interviewees in their last appraisals, and compared that with the final marks allocated. That it [sic] to misunderstand the process. The process was directed to ascertaining those who were most likely to be capable of fulfilling the new role. The marks obtained in an earlier appraisal were therefore of marginal relevance. 46. The process was clearly carefully prepared and had been agreed with Unison. We are satisfied that it was properly applied in the circumstances. The outcome was that the Claimant was not appointable. In such circumstances we accept that there was absolutely no point in offering her the post vacated by Mrs White. That would have negated the purpose of the process. 47. Two further points were made by the Claimant in her closing submissions. She said that she had been prevented from talking about her telephone experience during her interview. The Claimant secretly recorded the interview and produced what she said was an accurate transcript. On the assumption that the transcript is correct (which is not a finding of fact) the Claimant was told that she could not refer to telephone experience before working for the Respondent when asked a question as to whether she had set up any such systems for the Respondent. We do not consider that there is anything in this point. 48. The final point is that in her submissions the Claimant said that she had asked in her appeal for the scores to be reconsidered. That is not something which had been raised previously during this hearing. The transcript of the appeal is 75 pages long and we were not taken to the relevant extract. However, in the absence of some grounds for calling the accuracy of the scores into question we do not consider that it is the proper function of an appeal in such circumstances to undertake a remarking exercise. 49. We therefore find the dismissal to have been fair.”
Grounds of appeal[18]Mr Catherwood put forward his argument on behalf of the Claimant on three fronts. They were, in summary:(1) On the Tribunal’s findings of fact there was no true redundancy situation by and indeed before the date on which the Claimant’s employment came to an end; the resignation of Mrs White had the effect that there was thereafter then a pool of three employees for three posts; but the Tribunal did not consider that possibility or the consequences for the parties of a conclusion to that effect or examine and make findings as to whether the new posts were in substance different from the old posts. If there was no substantial difference, the requirements of the business for employees to carry out work of the particular kind that the Claimant had carried out had not ceased or diminished.(2) The dismissal of the Claimant was in conflict with the agreed procedure for redeployment and was, as such, unreasonable and unfair; but the Tribunal failed to consider the issue of fairness in the light of the agreed procedure.(3) The agreed procedure provided for a three‑month trial period in the new posts to enable employer and employee to identify whether or not the employee was suitable for the role and to identify a development programme to achieve the level of competency required; but the Claimant was not offered even a trial period in any of the posts, including that which became vacant when Mrs White decided to leave. The Tribunal did not consider unreasonableness in that light.[19]Although the amended Notice of Appeal invites some reconsideration of the Respondent’s scoring in the course of the selection process, Mr Catherwood did not ask us to follow that invitation, save to a limited extent where necessary for the above three points. No freestanding criticism of that scoring was put forward, it being rightly accepted by Mr Catherwood on clear authority (e.g. Eaton v King [1995] IRLR 25) that close scrutiny of the marking in a redundancy exercise is inappropriate.[20]We will address Mr Catherwood’s three points in the above order. Redundancy[21]Mr Catherwood’s argument in support of his first point, again in summary terms, was that:(1) By the time of the termination of the Claimant’s employment there was no redundancy situation; once Mrs White had resigned, there remained three candidates for the three posts in the new structure.(2) The Tribunal were required to make specific findings as to the facts that justified the conclusion that there was a redundancy situation (see e.g. Elliott v University Computing Co (Great Britain) Ltd [1977] ICR 147, per Phillips J at page 152A‑B); if they had done so, they would have found that there was not at the relevant time a cessation or diminution of the Respondent’s requirement for employees to carry out work of a relevant kind.(3) But the Tribunal did not carry out that exercise; if it had done so, it would have had to have considered the differences between the old posts and the new posts in detail. For all of them there were job descriptions, which the Tribunal did not refer to let alone examine in detail to consider whether the work had sufficiently changed; and that exercise would have shown or at least could have shown that the new posts were not sufficient to sustain the conclusion that, once Mrs White had gone, there was a continuing redundancy situation. In her letter putting forward the grounds of appeal against her dismissal, the Claimant had made the point that there were no substantial differences between her old post and the new posts; she made the same point elsewhere, e.g. in her claim form. The issue of the degree of difference between old and new posts was not important while there were four employees seeking three posts; but once Mrs White had gone it was necessary for the Tribunal to consider those differences in detail; yet they made no findings on that issue.[22]Mr Catherwood accepted as a correct summary of the law what the EAT (HHJ Serota QC presiding) recently said at paragraphs 49 and 50 of their judgment in Dabson :
“49. Williams v Compair Maxam concerned a workplace where there was a trade union but it was held in Freud v Bentalls [1982] IRLR 443 that the same principles would apply to a workplace where there was no trade union. The essential matter to be determined where the employee’s only complaint is of unfair selection for redundancy, and no other complaints are made, is that the method of selection was fair in general terms and that it was applied reasonably in the case of [that employee] (from the headnote in Buchanan v Tilcon Ltd [1983] IRLR 417 per Lord Emslie, Lord President in the First Division, cited by His Honour Judge McMullen QC in Inchcape Retail Ltd v Symonds [2009] EAT/0316/09). 50. The EAT and the courts have considered on a number of occasions the principles that pertain to the investigation of marking and scores in a redundancy exercise and have made clear that close scrutiny is inappropriate. What is in issue is the question of fairness of the selection procedure and marking should only be investigated where there are exceptional circumstances such as bias or obvious mistake; see Eaton v King [1995] IRLR 75 (Employment Appeal Tribunal (Scotland)) subsequently upheld by the Court of Session. Lord Coulsfield observed at paragraph 11 that: ‘every redundancy situation is one of distress for employees who are affected; and every redundancy situation is one in which hard decisions have to be made. It is, however, essential to remember that what is required of the employer is that he should act reasonably’”
[23]He accepted, too, paragraphs 29, 30 and 36 of the judgment of the EAT (HHJ David Richardson presiding) in Morgan v Welsh Rugby Union [2011] IRLR 376 which are in these terms:
“29. There are some redundancy cases, of which this is one, where redundancy arises in consequence of a re-organisation and there are new, different, roles to be filled. The criteria set out in Williams did not seek to address the process by which such roles were to be filled. 30. We shall turn in a moment to the authorities which support this proposition. But it is, we think, an obvious proposition. Where an employer has to decide which employees from a pool of existing employees are to be made redundant, the criteria will reflect a known job, performed by known employees over a period. Where, however, an employer has to appoint to new roles after a re-organisation, the employer’s decision must of necessity be forward-looking. It is likely to centre upon an assessment of the ability of the individual to perform in the new role. Thus, for example, whereas Williams type selection will involve consultation and meeting, appointment to a new role is likely to involve, as it did here, something much more like an interview process. These considerations may well apply with particular force where the new role is at a high level and where it involves promotion. […] 36. To our mind a Tribunal considering this question must apply section 98(4) of the 1996 Act. No further proposition of law is required. A Tribunal is entitled to consider, as part of its deliberations, how far an interview process was objective; but it should keep carefully in mind that an employer’s assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment. A Tribunal is entitled to take into account how far the employer established and followed through procedures when making an appointment, and whether they were fair. A Tribunal is entitled, and no doubt will, consider as part of its deliberations whether an appointment was made capriciously, or out of favouritism or on personal grounds. If it concludes that an appointment was made in that way, it is entitled to reflect that conclusion in its finding under section 98(4).”
[24]Ms Thorp submitted that:(1) The Claimant had conceded at the Case Management Discussion and at the substantive hearing that the reason for her dismissal was redundancy. The issues that she raised at the CMD were (a) the outcome of the selection exercise being predetermined against her and (b) Mr Wray not being entitled to be in the selection pool. At the hearing there had emerged as a new issue that it was unfair to dismiss the Claimant when Mrs White had left. The Tribunal had addressed and found against the Claimant on all three issues. The suggestion that there was no redundancy situation had never arisen; that there was a redundancy situation on the grounds of which she had been dismissed was conceded. The Claimant should not be permitted on appeal to raise a wholly new assertion that there was no redundancy situation when she was dismissed, which was in contradiction to her concession at the hearing.(2) In any event, the Tribunal made findings of fact which were sufficient to support the conclusion that there was a continuing redundancy situation. The new jobs were different from the old jobs; the requirement for the Claimant and her colleagues to carry out work of the kind carried out in the old jobs had ceased or diminished, and that position was not affected or altered by Mrs White’s departure. The concession[25]It was apparent to us, and indeed not in dispute, that the Claimant had conceded at the CMD and throughout the substantive hearing that the reason for her dismissal was redundancy. The Respondent, not unnaturally, sought to rely upon that concession. Mr Catherwood submitted that, if a litigant in person makes a concession as to a central issue which, on the evidence before the Tribunal, might be factually incorrect, the Tribunal should nevertheless enquire as to whether the concession is correct and that, on appeal, that litigant in person should be permitted to resile from the concession. Ms Thorp did not agree.[26]We intend no criticism in saying that neither Mr Catherwood nor Ms Thorp was equipped fully to argue the concession issue with the benefit of a full examination of the authorities. We therefore asked Mr Catherwood and Ms Thorp to provide further written submissions on the issue; they did so, and we are grateful to them both for the hard work that they have both manifestly devoted to the point.[27]In Langston v Cranfield University [1998] IRLR 172 , the EAT (HHJ Peter Clark presiding) considered the line of authorities, starting with Kumchyk v Derby City Council [1978] ICR 1110, which established the general principle that, save in exceptional circumstances, a party will not be permitted to raise new points on appeal which could have been raised below. It was held that the ineptitude of a party or his representative in conducting the case below is not a reason for permitting a new point to be taken on appeal. However, in an unfair dismissal for redundancy case, the Tribunal is bound to consider issues of selection, consultation and alternative employment as part of the broad question of reasonableness, even if not expressly raised.[28]In Jones v Governing Body of Burdett‑Coutts School [1998] IRLR 521 the Court of Appeal (a few months after Langston , which was not cited) expressed the principle in this way at paragraph 20, per Walker LJ, with whom Morritt and Stuart‑Smith LJJ agreed: “20. These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the Industrial Tribunal. In Kumchyk the Employment Appeal Tribunal (presided over by Arnold J.) expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason. In Newcastle the Employment Appeal Tribunal (presided over by Talbot J.) said that it was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer this court (in a judgment of the court delivered by Slade LJ which fully reviews the authorities) was inclined to the view that the test in the Employment Appeal Tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal. In particular it was inclined to the view of Widgery LJ in Wilson v Liverpool Corporation [1971] 1 W.L.R. 302, 307, that is to follow "the well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter fairly, without injustice to the other party, and without recourse to a further hearing below."[29]In Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 the Appellant raised allegations of race discrimination in her originating application; she pursued only some of her allegations at a directions hearing and at the substantive hearing. She was not represented. On her appeal to the EAT she sought to raise the unpursued allegations. The Court of Appeal reversed the decision of the EAT in her favour, in reliance on the principles we have set out; see paragraphs 22‑27 of the Judgment of Peter Gibson LJ, with which Henry LJ and Sir Christopher Slade agreed.[30]In reliance on these principles Ms Thorp submits that the Claimant should not now be permitted to raise on appeal a new issue, namely whether there was a redundancy situation at the time of her dismissal, which was admittedly not raised below. The fact that she was not represented at the CMD or at the substantive hearing is irrelevant; she did seek at the latter hearing to raise a new factual issue that had not been raised before and was permitted to do so; but she did not seek to raise the point which she now sought through Mr Catherwood to advance and should not be permitted to do so. There were no exceptional circumstances, and on the Claimant’s argument (although she did not admit that it was right) there would have to be further factual findings made and further evidential investigation, which the Tribunal did not undertake.[31]Mr Catherwood in his written submissions does not seek to challenge the above principles. He concentrates his attention on the Claimant’s concession in the light of the recent decision in the EAT, Langstaff P presiding, in Segor v Goodrich Actuation Systems [2012] UKEAT/0145/11. Segor was a highly unusual case. The Claimant claimed to have been the victim of discrimination in a number of respects. The Tribunal rejected all her complaints save one; that she had not been appointed to a particular role because she was a French national. The Respondent did not challenge that as an assertion of fact; they claimed that they had a defence, described as a technical defence, that they could not so appoint the Claimant because of the terms of manufacturing licensing agreements between themselves and the Government of the USA. As to that complaint, the Tribunal sought further submissions from the parties. When the Tribunal reconvened to consider those submissions, the Claimant’s representative, who was not in current professional practice, was thought by the Tribunal to have conceded that the Claimant did not wish to argue that the technical defence was not open to the Respondent, if, to put it in shorthand, the Respondent’s explanation was genuine. The Tribunal then found against the Claimant on the remaining part of her claim.[32]The EAT allowed the Claimant’s appeal and remitted the claim to the Tribunal. The fundamental basis of the EAT’s Judgment is that what had been said by the Claimant’s representative was not a clear, unequivocal and unambiguous concession. At paragraphs 11 and 13 the EAT said: “ 11. What we should say, however, is this. A Tribunal will always want to take care where a litigant, particularly one who is self-represented or who has a lay representative, seeks to concede a point or to abandon it. It may be a matter of great significance. Though it is always for the parties to shape their cases and for a Tribunal to rule upon the cases as put before it, and not as the Tribunal might think it would have been better expressed by either party, it must take the greatest of care to ensure that if a party during the course of a hearing seeks to abandon a central and important point that that is precisely what the individual wishes to do, that they understand the significance of what is being said, that there is clarity about it, and if they are unrepresented, that they understand some of the consequences that may flow. As a matter of principle we consider that a concession or withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous. […][13]But the issue for us is whether in the course of a hearing to determine the issue of a defence the Claimant had effectively abandoned a principal plank of her case. The Respondent sought to characterise the complaints that the Claimant was making as falling under either a technical head or a factual head. Technical discrimination would be discrimination upon the basis that the Regulations left no space for the Respondent employer to do anything differently however much they may have wished to; the factual claim was effectively that the Respondent had discriminated against the Claimant because of ill feeling toward her based upon her nationality, race or sex. ” and, having reviewed the evidence as to what had happened before the Tribunal, the EAT concluded, at paragraphs 26 and 34:[26]“26. It is plain from Ms Yates' account that the Judge demonstrated he was unclear as to how Ms Akintola was putting the case. There is some reflection of that in the notes themselves. We have considerable sympathy with the Judge and the Tribunal, but the exchange as recorded falls short on any view of an unequivocal, clear and unambiguous abandonment of part of the case. […][34]It is sufficient for the purposes of this appeal to say that, having examined the evidential material, having taken into account the arguments by Ms Cunningham, we have nonetheless come to the conclusion that it is simply not possible to say on appeal, appreciating that we may by virtue of our position and limited material not have available to us the full force of the matters before the Tribunal in Birmingham, that Ms Akintola clearly, unambiguously and unequivocally abandoned part of her claim. Just as it would be surprising for the Tribunal to have come to the conclusion it did without there being some basis for doing so, it would equally be surprising if the Claimant had abandoned her claim at that time, and the continued apparent promotion of the self same claim in submissions by Ms Akintola (without immediate objection, it has to be said, from Ms Cunningham) demonstrates that the situation was properly to be described as confused, and in those circumstances, given that the Claimant has thereafter maintained that this part of the claim was not abandoned or withdrawn, we consider that the appeal must be allowed. The error of law was in the Tribunal not carefully adopting the approach that we have identified. ”[33]Basing himself on Segor , Mr Catherwood argued that the Tribunal ought not simply to have accepted the concession made by the unrepresented Claimant and ought to have investigated whether she had correctly understood the nature and content of her concession, for instance by asking her, “Do you accept the kind of work that you had been doing was different from the kind of work that the new job required?” Her concession, in the absence of clear answers to such questions, maintained Mr Catherwood, was not clear, unequivocal or unambiguous.[34]Ms Thorp responds that there was, in the present case, no lack of clarity or difficulty of interpretation. The Claimant did not abandon any claim in the middle of the hearing, still less in unclear terms; her position was made clear at the CMD and remained clear throughout the substantive hearing. There was no need for the Tribunal to ask her questions; they ensured that she did indeed accept the reason for dismissal and did not need to go any further.[35]We prefer Ms Thorp’s submission. In Segor there were two difficulties about the Claimant’s supposed concession: the first was that it was a surprising concession, made in the face of what would appear to have been extremely well‑known legal principles; the second was that what was being conceded was far from clear; there were very real difficulties in understanding what was or was not being conceded or what position on the relevant issue the Claimant was in truth taking. In the present case, in contrast, there was, in our judgment, nothing that rendered the Claimant’s acceptance of redundancy as the reason for her dismissal anything other than clear, unequivocal and unambiguous. Further, although as a matter of principle the fact that the Claimant was unrepresented does not avail her, the Respondent’s redundancy policy and the consultation document, provided to those affected by the restructuring exercise, both contained clear and accessible explanations of the meaning of redundancy. The Claimant could not be said to have made the concession that she did make in ignorance.[36]Further, if there was, on the facts as they turned out after Mrs White resigned, no longer a redundancy situation, it did not follow at all that the Respondent had appreciated that and that redundancy was not the cause of the dismissal.[37]If the Claimant were now entitled to withdraw from her concession and it became necessary, as Mr Catherwood urged, for a much fuller examination of the differences between the old posts and the new posts to be made and then to be the subject of findings by the Tribunal, there would arise precisely the situation in which a concession should not be allowed to be withdrawn and a new point should not be allowed to be raised, on well‑established principles which we have set out. In such circumstances, those principles make it clear that a party should not be permitted to raise a new point, whether or not the subject of the concession below, at an appellate stage. We can find no exceptional circumstances that would justify the granting of such permission in this case. Substance[38]In any event, if we were to grant that permission, we would be bound to come to the conclusion that it would not in the end assist the Claimant. There is nothing to show or even suggest that the Respondent’s understanding that there was a redundancy situation or that redundancy was their reason for dismissing the Claimant ever changed. The issue which the Tribunal had to address was correctly appreciated by the Tribunal when, at paragraph 37 they said:
“The Claimant has accepted that the reason for her dismissal was redundancy. The Tribunal must therefore consider whether in all the circumstances the dismissal was fair or unfair in accordance with section 98(4) of the Employment Rights Act 1996.”
[39]In thereafter addressing the issue of fairness the Tribunal, as Ms Thorp submitted, can in our judgment be seen to have considered the similarity or otherwise of the old jobs to the new to a sufficient degree. At paragraph 19 they referred to the fact, which was no doubt not in dispute, that there was not an 80 per cent match between the existing and the new posts but there was a 50 to 80 per cent match between them. As we set out earlier in recounting the facts, they accepted the evidence of Mrs Jackson that the new roles required the holders to be proactive in developing solutions, a requirement that did not exist in the old roles. The new roles were to be at grade 6, as opposed to grades 3‑5. At paragraph 43 the Tribunal found that the new posts required an increase in expertise and a lesser degree of supervision.[40]Ms Thorp told us – and Mr Catherwood, who was not present at the hearing before the Tribunal, very fairly did not object – that during the course of the hearing considerable time was taken up by the Tribunal’s looking with the witnesses at the old and new job descriptions and asking questions about them of the Respondent’s witnesses; and that is consistent with the findings to which we have referred. Mr Catherwood is correct to point out that the judgment does not contain a detailed analysis of the differences between the two sets of job descriptions, but that was, in our judgement, unnecessary. If the Tribunal’s Judgment is read as a whole, it can be seen that they regarded the new roles as substantially different from the old roles. They did not need to go any further than that. The Claimant’s concession was consistent with those findings; but the Tribunal did not simply proceed on the basis of the concession; they made findings of fact which support the continuing existence of a redundancy situation despite the resignation of Mrs White.[41]For these reasons, the first of Mr Catherwood’s three lines of attack upon the Tribunal’s judgment fails. The redundancy procedure[42]Mr Catherwood relied upon the Respondent’s redundancy policy, which said:
“Every effort will be made by the Council to reduce the number of possible redundancies. This may include: Training, re-training or redeploying employees to different work for which there is a requirement […].”
[43]He relied, too, on the redeployment policy, which stated:
“If the employee does not have sufficient experience for the vacant post, they may be offered the role on a trial basis for a period not exceeding three months. This allows the employee and the manager to identify whether or not the employee is suitable for the role and to identify a development programme to achieve the level of competence required over an agreed period.”
[44]These provisions, he submitted, should have caused the Tribunal to conclude as a part of fairness that there should be no departure by the Respondent from those principles that guided the exercise being carried out or at least no such departure without strong justification. It was therefore perverse of the Tribunal to say, as they did at paragraph 45:
“The process was directed to ascertaining those who were most likely to be capable of fulfilling the new role. The marks obtained in an earlier appraisal were therefore of marginal relevance.”
[45]The procedure required careful assessment of past performance; there was no pass mark; and past performance as part of the exercise was fed into the scoring. It had therefore been assessed; her lack of success at interview – success at which was not a formal criterion – should not have been held against the Claimant.[46]We are not persuaded that the Tribunal erred in law in this area. Ms Thorp drew our attention to a passage in Darlington Memorial Hospital NHS Trust v Edwards [1996] UKEAT/0678/95, HHJ Hull presiding, in which the EAT said that the criteria for selection for new posts did not have to be the same as those used for the redundancy selection exercise. We agree with that view; but it is not directly applicable in this case. What is, in our judgment, central is that, when the four candidates for the three posts were assessed pursuant to the agreed procedure, the Claimant achieved a score which was much lower than those achieved by Mr Wray and Ms King and significantly lower than that achieved by Mrs White. Once the Tribunal had rejected the Claimant’s case that failure had been preordained, there was no further challenge to the bona fides of the marking or to the Respondent’s conclusion, which the Tribunal accepted at paragraphs 29 and 45 of their judgment, that the Claimant did not meet the essential criteria for the new posts and was not appointable to them.[47]As Ms Thorp pointed out, the amended grounds of appeal do not contain any pleading of perversity; even if they did, no overwhelming case of perversity has been made out. The description of the process in the last two sentences of paragraph 45 was based on the evidence that the Respondent gave.[48]We heard rival arguments about the way in which the scoring was achieved, particularly as to past performance. We were, as we have said earlier, rightly not asked to go deeply into the scoring; neither was the Tribunal. These rival arguments did not, as we saw them, illuminate the parties’ positions to any real extent. The Claimant’s case was based on a more general criticism, which we have endeavoured to summarise. The extent to which past performance was taken into account (the area of difference between Mr Catherwood and Ms Thorp) is not in our judgment of real importance; it must have been open to the Respondent to conclude that an employee had, in the assessment exercise, done so badly that they did not regard that employee as appointable to a new post with greater responsibilities at a higher grade.[49]While we understand why the Claimant may feel aggrieved that she was adjudged not appointable to any of the new posts, when there was no formal pass mark in the agreed procedure, it was for the employer to decide whether any candidate had come out of the assessment exercise so poorly as to be unappointable. On this point Ms Thorp referred us to Samsung Electronics (UK) Ltd v Monte‑D’Cruz [2011] UKEAT/0139/11, in which, where the claimant in the course of a restructuring was not selected for a new post, the EAT, presided over by Underhill P, as he then was, said, at paragraph 38:
“ First, as regards para. 103 of the Reasons (see para. 33 above), we note that the Tribunal found that "it would have been reasonable" to use past performance appraisals, not – which is the relevant question – that it was unreasonable not to do so. We are reluctant to convict the Tribunal of substitution on what may be a mere verbal inexactitude, though it is a bad start. The real point, however, is that if the Tribunal did in fact mean [to] say that it was unreasonable of the Appellant not to use past performance appraisals, we do not believe that that decision was open to it. What assessment tools to use in an interview of this kind – which is not, we should repeat, a redundancy selection exercise – is prima facie a matter for the discretion of the employer. If the tools used had been plainly inappropriate that might be influential in the issue of the fairness of the dismissal, but we do not believe that that could be said here. The Appellant regarded Business Region Team Leader as a new job, whatever similarities it might have had with the Claimant's previous role; and it is understandable that it should choose to interview for it on a forward-looking basis (cf. the observations of Judge Richardson in Morgan , at para. 30). It is true that the criticism made in this paragraph is not clearly picked up in para. 110, which summarises the Tribunal's reasons for finding the process unfair: this focuses on the Appellant's apparent use of other (less reliable) indicators of past performance. But it is hard to say that it did not form part of the Tribunal's reasoning. ”
[50]And in paragraph 39 he said:
“ Good faith assessments of an employee's qualities are not normally liable to be second-guessed by an employment tribunal: cf. [ Symonds ] at para. 29. ”
[51]The principles there set out have relevance to this case. Mr Catherwood in reply accepted that the central criteria in the agreed process were not outside the scope of reasonableness; and it was for the Respondent, from the scores which emerged from that process, to decide whether or not the Claimant was or was not appointable to the new posts, subject of course to it being demonstrated that the conclusion that they reached on that issue was made in bad faith or outside the scope of reasonableness, neither of which was established on the facts. The Tribunal were entitled to conclude that the process had been properly applied and that the outcome was that the Claimant was not appointable to the post vacated by Mrs White. Trial period[52]The Tribunal set out the passage in the redeployment policy on which Mr Catherwood relied. He, very fairly, told us that he did not argue that the Claimant was entitled to be redeployed on a trial basis as a matter of law; his submission was that, in the circumstances of this case, the Tribunal in considering reasonableness should have taken into account, but did not take into account, the similarities between the old and new posts, the fact that the Claimant had performed her old job without criticism, that there was a vacancy (Mrs White’s post), and the fact that every effort should have been made to avoid redundancy and to see whether through a trial period the Claimant could have achieved the necessary level of competence. Rather than take those factors into account, the Tribunal, at paragraphs 29 and 46, considered only the failure of the Claimant to meet the essential criteria.[53]Ms Thorp submitted that the redundancy policy provided for a trial period, “If an offer of alternative employment can be made”, but in the Claimant’s case no such offer could be made because, on the Tribunal’s findings, there were no available posts other than that vacated by Mrs White; and the Tribunal held that offering the Claimant Mrs White’s post, whether or not on a trial basis, would have had no purpose because the Claimant did not meet the essential criteria for the job. The Tribunal were at the very least entitled to find that that was not an unreasonable approach for the Respondent to take.[54]In our judgment, Mr Catherwood’s submissions amount to an attempt to re-argue the Claimant’s factual case on the Tribunal’s approach to reasonableness. The Tribunal expressly considered the redeployment policy at paragraph 44 (and note that the policy did not suggest that the granting of a trial period was compulsory). The Tribunal considered whether the Claimant ought to have been offered the job vacated by Mrs White at paragraphs 44‑46. They were aware of the trial period provisions (see paragraph 28); it was during such a period that Mrs White left. They made findings about the contrast between the old and new posts, to which we have referred earlier; and there was no suggestion of criticism of the Claimant in her old post. If the Tribunal’s judgment is read as a whole, the factors to which Mr Catherwood directed our attention were all considered; and in any event once the Claimant had failed to meet the essential criteria of the new post the Tribunal were entitled to find that it was not unreasonable for the Respondent not to offer her Mrs White’s post, whether on a trial basis or otherwise. It was for the Tribunal to consider these factual elements and to assess whether the Respondents had acted reasonably or unreasonably in not offering Mrs White’s post to the Claimant and not for us, in the absence of any argument based on perversity, to reconsider them or to make our own assessment. Conclusion[55]We should add to the above that Mr Catherwood asked us to consider the elements of reasonableness to which we have referred in the foregoing paragraph cumulatively as well as individually, and we have done so; but, in our judgment, taken together, the criticisms made of the Tribunal’s approach to reasonableness do not demonstrate any error of law.[56]Accordingly, for the reasons we have set out, this appeal must be dismissed.