Prince v Groundwork Wrexham & Flintshire (Unfair Dismissal) [2013] UKEAT 0492_12_2811

EAT
Prince v Groundwork Wrexham & Flintshire (Unfair Dismissal)
[2013] UKEAT 0492_12_2811 · 2013-11-28
[1]This is the Claimant’s appeal against the dismissal of her unfair dismissal complaint by the Employment Tribunal, sitting at Towyn and Kinmel Bay, presided over by Employment Judge Hoult and sent to the parties on 7 December 2010. In this judgment we will refer to the parties as Claimant and Respondent, as they were before the Employment Tribunal.[2]The original Notice of Appeal contained many grounds, including an allegation of bias. From the Employment Tribunal’s process there came a judgment on a Rule 3(10) hearing by Mr Recorder Luba QC which rejected a number of grounds of appeal but also permitted some grounds to go through to a full appeal hearing. Four possible grounds were regarded as arguable. It was directed that a re-amended Notice of Appeal be provided which embodied those points alone; and it is those four points (albeit developed by Mr English on behalf of the Claimant into five points) which were argued before us.[3]The Claimant was represented before us by Mr English, a friend of the Claimant, who had represented her before the Tribunal. The Respondents were represented by Mr West of Peninsular Business Services; before the Tribunal the Respondents were represented by a colleague of Mr West. History[4]The Claimant was employed as Operations Director and Deputy Executive Director of the Respondents from 10 September 2001 until her dismissal on 8 May 2009. She was, therefore, a senior member of the Respondents’ management team. In May 2008 Ms Griffiths was appointed Executive Director, a post in which the Claimant had been acting up for two months and for which she had unsuccessfully applied for appointment.[5]The Respondents are a charity, constituted as a company limited by guarantee. The Tribunal found, at paragraph 4, that they provided projects and programmes which benefited the local community. At the end of 2008 the Respondents faced financial challenges. Towards the end of January 2009, as the Tribunal found, on about 27 th – the precise date does not matter – Ms Griffiths received the accounts to December 2008 which showed a loss of £80,000 and predicted loss of £60,000 in groundwork services. The financial position was obviously serious.[6]As a result Ms Griffiths produced a report, dated 13 January 2009, which the Tribunal found to be a comprehensive report as to action which needed to be taken. The report proposed a detailed restructuring plan based on the conclusion that the Respondents had too many managers and insufficient staff actually delivering their services. The plan involved the loss of three management posts and one project assistant post and the creation of one new management post and three project officer delivery posts. Ms Griffiths’ post was not involved; the plan provided, therefore, that four management posts should be reduced to two. Four employees were identified as potentially redundant; they included the Claimant. The report had, as attachments, diagrams of the Respondents’ present structure and the proposed new structure, in which the Deputy Executive Director post occupied by the Claimant was no longer present. The plan set out a timetable for consultation.[7]Ms Griffiths presented this report to a meeting of the Respondent’s Finance and General Purposes Group on 3 February 2009. The Tribunal found that that Group thought that change was needed and recommended that the report should be taken to a main Board meeting – as it was on 9 February.[8]The Claimant was first given a copy of the report before that Board meeting. She was present at the meeting; she did not agree with the report’s conclusions or with the lack of consultation with her. However the Board reached a consensus that Ms Griffiths’ plan should be approved but that a consultation period should start. The Claimant, of course, was now aware that she was at risk of redundancy. Next day she received a letter by way of consultation, inviting her to put forward alternative proposals; and on 18 February 2009 there was a consultation meeting. Then or later, she put forward a rival proposal; she was, perhaps unsurprisingly, unhappy with Ms Griffiths and felt that she was, despite her experience and excellent record, being removed and replaced by a lower level of management.[9]On 22 February 2009 there was a special Board meeting at which the Claimant’s counter-proposals were discussed; those counter-proposals contained a comprehensive set of alternatives which involved four redundancies – two management posts, one project assistant post and one conciliation officer post. The Claimant’s post was to be retained under these proposals but with lesser hours. The Claimant said in her document that Ms Griffiths’ proposals were dangerous and could exacerbate the Respondent’s problems. The Claimant was invited to attend the meeting but was unwell and did not do so. Ms Griffiths’ proposals were and the Claimant’s counter-proposals were not accepted by the Board, by a majority of 7 to 1.[10]The Claimant raised a formal grievance which did not succeed; her appeal against that result also failed.[11]Thus the decision was that the Claimant would be made redundant. The new posts available under the reconstructed system were all made available to her; and at first she was interested in making applications; but she changed her mind and did not apply. She was therefore dismissed ostensibly for redundancy, by letter dated 8 May 2009. Her internal appeal was unsuccessful. The Tribunal’s Judgment[12]The Tribunal correctly identified the issues which they had to decide as: – 1) was there a redundancy situation, 2) was the Claimant dismissed for redundancy and 3) was the dismissal fair? As to 1) the Claimant’s case was that there was no genuine redundancy. An important part of her argument as to that was that there had been no consultation with her prior to the presentation by Ms Griffiths to the Board of her action plan on 9 February, that this was contrary to the Respondents’ redundancy policy and that the Respondents had not proved that redundancy was the reason for dismissal. The alternative put forward appears to have been based on rivalry. Two further arguments which were advanced were that costs could be cut without getting rid of staff and that there was no proof that the requirement for the work carried out by the Claimant had ceased or diminished.[13]The Tribunal concluded, at paragraphs6.1 to6.2 of their judgment, that the requirement for management work had ceased or diminished. They said: – “If the Claimant had (been dismissed), had the requirements of the employers business for employees to carry out work of a particular kind, ceased, or diminished or were they expected to cease or diminish. Yes on the evidence we heard.” The Tribunal pointed out at paragraph6.3 that the Claimant’s own proposals involved redundancies, although different redundancies.[14]They then found as follows: – “If so was the dismissal of the employee caused wholly or mainly by that state of affairs. We answered yes to that question. The Respondents clearly no longer required employees to carry out work that had been carried out by the Claimant and three of her colleagues. The decisions were a result of the financial difficulties that the Respondents faced. They reduced costs and were diverting resources into those employees that directly delivered service to the Respondents provided.” And at paragraph 6.3 they said:- “We were of the view that the Respondents had proved the reason for the dismissal. It was a redundancy situation.”[15]As to the redundancy procedure document, the Tribunal at paragraph 6.5 and 6.6 referred to the relevant clauses in these terms: – “Two significant clauses: Clause 1(2) ends with the following words; “The following procedure will be adopted wherever possible.” 3 (1) refers to “It may not be appropriate for the Executive Director to discuss the issues with the Operations Director and then with the management team as a whole”. We were provided with detailed submissions on this; a very detailed one from the Claimant. In our view, it was not unreasonable, given the claimant was involved, that Ms Griffiths took it to the Board first. It was clear that this was a permissible option on the redundancy policy. It was suggested that this was done to avoid input from the Claimant, and the self-interest of Ms Griffiths. She was preserving her own job. We did not accept this, the report had been prepared by Ms Griffiths with a view to resolving the serious situation that the Respondent was faced with. It was suggested that all management, including the Claimant, should have been involved as part of the exercise. In our view, Miss Griffiths was entitled to do it as she did. She was the Executive Director, and if she felt that that was the way forward, we could not say it was not genuine, and certainly not, as suggested, a plan to get rid of the claimant because of alleged rivalry. There was no evidence to support the marginalisation of the Claimant.”[16]As to lack of consultation and lack of selection criteria, the Tribunal found at paragraph 6.8 as follows: – “Amongst other things it was submitted that the claimant had a greater entitlement to have her views taken into account than the average claimant by virtue of her senior management status: again reference was made to the conflict of interest as far as Ms Griffiths was concerned. Complaint was made about the fact that the document prepared by Ms Griffiths was only given to her on 9 of March 2009 just prior to the Board meeting. We accepted that that was not consultation, that was simply notifying that the claimant was at risk. She was however permitted to take part in the board meeting and indeed expressed her views of what was being suggested. Reference was made to the fact that the Board treated the appendices as a grievance procedure. We can see why they would be but they were considered by the Board. The claimant was fully apprised of what was taking place and of course she had been able to provide detailed alternative proposals as part of the consultation process. Reference was made to the selection criteria. The claimant was the only person in that post. A decision had been made that the Respondents no longer required that post along with others.”[17]We will refer to other parts of the Tribunal’s judgment as becomes necessary. Conflict of Evidence[18]We will address Mr English’s five grounds in the order in which he set them out in his skeleton argument. The first ground is described by him as “Conflict of Evidence”. It was the Claimant’s case that Ms Griffiths could not have put together the comprehensive report which she produced before the meeting of the Finance and General Purposes Group on 3 February 2009 if she had only received the relevant accountants’ figures on or about 27 January. Mr English had submitted that the task must have taken longer than Ms Griffiths was willing to accept; she was, therefore, not telling the truth and had had a longer time to consult with the Claimant about her proposals than she was willing to accept.[19]In her witness statement Ms Griffiths said, at paragraph 3, that the consultation proposal had been drawn up by her, as part of an eight -page document called the “action plan”, over previous weeks. In another document she had written that she had spent January putting together the consultation proposal. Thus, Mr English submitted, there was inconsistency in her various accounts which was important for the reasons we have set out above. The Claimant had not been given any notice of the action plan until 9 February; but she should have been consulted about it much earlier than she was and when the plans were in their formative stage. Mr English made no bones as to the Claimant’s case; it was, to use his words, that she had been “stitched up”. Yet, despite the importance of these inconsistencies, the Tribunal made no reference to this. Mr English accepted at the rule 3(10) hearing that he had not cross examined Ms Griffiths about these inconsistencies; but as a matter of law the Tribunal were bound, he submitted, expressly to consider them and make a finding upon them.[20]To support these submissions Mr English referred orally and in his skeleton argument to a number of authorities from which he sought to draw the conclusion that the Tribunal’s failure to address these inconsistencies amounted to an error of law. As an example he relied upon a passage in the judgment of Gibson LJ in Comfort v Lord Chancellors Department (2004 EWCA Civ 34) in which it was said, at paragraph 32, that:
“The E T erred in coming to its decision on constructive dismissal without making the findings on the evidential dispute about the meetings and without explaining why it left that factual dispute out of account.” and upon a passage in the judgment of Sedley LJ in Anya v University of Oxford (2001 EWCA Civ 405 ), as follows: – “It is precisely because a witness who by himself comes across as essentially truthful may be shown by documentary evidence or by inconsistency to be less reliable than he seems that the totality of the evidence in a case like this has to be evaluated; and there was in this case no useful way of approaching the totality except through its parts.”
[21]However valuable as those extracts from the authorities to which we were referred are, in general terms, the context of this case was wholly different; it is not in law necessary for an Employment Tribunal to address in their judgment each factual inconsistency which may be said in closing submissions to be found in the evidence. The context of each case has to be considered individually. It is clear from the judgment in this case that the Tribunal had well in mind the Claimant’s points that she should have been consulted earlier and before the action plan was put to the Finance and General Purposes Group on 3 February (see paragraphs 4.15 and 6.8), that she was not consulted until after the first board meeting (see paragraph 6.8) and that Ms Griffiths had not been telling the truth (see paragraph 6.13). The Tribunal expressly rejected the case that Ms Griffiths was acting deliberately against the Claimant and out of self-interest. The Tribunal found, at paragraph 6.6, that there had been no plan to get rid of the Claimant or to marginalise her; they plainly believed Ms Griffiths and accepted her evidence generally.[22]Further Mr West drew to our attention that, in her witness statement, Ms Griffiths said that, because of the financial challenges, she had been working up the consultation proposals over a period of weeks but not the action plan of which the consultation proposals formed part. The Respondents’ case had been that, when the close of year figures had sharpened the financial difficulties, Ms Griffiths had speedily produced the action plan; therefore, there was no inconsistency.[23]We are not persuaded that there was a conflict of evidence which was so important that the Tribunal, in not referring to it, fell into error of law. Mr West’s argument appears to us to be consistent with the evidence which was reflected in the Tribunal’s findings. The action plan included proposals for consultation; see paragraph 4.7; but it was much more than consultation proposals; it was, as the Tribunal found at paragraph 4.6 a detailed restructuring plan. While the Tribunal could have described, in their narrative the steps Ms Griffiths had taken before she received the end of year figures and put the action plan together as a matter of urgency, it was not essential that they should do so.[24]For these reasons we do not accept that, under Mr English’s first ground, an error of law on the part of the Tribunal has been made out. Finding of fact based on no evidence[25]The second ground of appeal advanced by Mr English on the Claimant’s behalf was that the Tribunal’s finding at paragraph 6.2(ii), that the Respondents clearly no longer required employees to carry out the work which had been carried out by the Claimant (this is how the finding is set out in Mr English’s skeleton argument) was not supported by evidence and was contrary to the evidence. Mr English submitted that advertisements for the Claimant’s job had been subsequently issued by the Respondents and that a “risk assessment document” which set out how work was to be allocated under Ms Griffiths’ action plan showed that the duties of the Claimant’s job were to continue. Thus the Tribunal erred in concluding that the Claimant’s position was redundant.[26]Cogently as Mr English put his submissions on this point, we do not accept them; they were based on a misunderstanding of the Tribunal’s conclusions and of the law. It is necessary first to refer back to paragraph 6.2 (ii) of the judgment, which we have set out above, so that the Tribunal’s approach can be seen and understood. The Tribunal did not, in that paragraph, find that there was no further need for the work which the Claimant carried out; Ms Griffiths had proposed that the management work previously done by four employees should, under the action plan, for the future be carried out by two employees, so that resources could be put into service delivery. The Tribunal were there expressing the conclusion that the dismissal of the Claimant came about because the requirements of the Respondents for employees to carry out management work had ceased or diminished. The fact that the duties of the Claimant’s job were to continue was not inconsistent with the existence of a redundancy situation. As a matter of law if an employer who has had two employees performing certain duties decides that, for the future, those duties will be carried out by one employee, it is open to a Tribunal to find that the requirements of the employer’s business for employees to carry out work of the relevant kind have diminished; and there is therefore a redundancy in respect of one of them; see section 139(1)(b)(i) of the Employment Rights Act 1996 .[27]Experience tells us that sometimes facts such as those which are described in this case are treated as establishing a case of a reconstruction rather than a true redundancy situation and the reason for dismissal is put as “some other substantial reason”; but there is no need to approach such facts – including the facts of the present case – in that way. The particular part of the Tribunal’s judgment upon which this ground is founded is not limited to the work of the Claimant but refers to the work of the Claimant and her management colleagues. It may perhaps be somewhat clumsily expressed; but in our judgment it is clear from paragraph 6.2, when it is read as a whole, that the Tribunal were directing themselves to the correct question, as contained within section 139(1)(b)(i) of the Act, permissibly answered that question in the affirmative i.e. that there was a redundancy situation and, in the remainder of that sub-paragraph, explained why they did so in terms which were supported by evidence, namely the action plan itself, Ms Griffiths’ evidence as to what the action plan consisted of and the Board’s decision to accept the plan and to reject the Claimant’s counterproposals. The fact that the Claimant’s duties were to be carried out by someone after the number of management employees had been reduced from four to two did not negate or undermine the Respondent’s case that there was a redundancy situation and that the Claimant’s employment had been terminated by reason of redundancy. Having asked the correct question at the beginning of this relevant sub-paragraph, the Tribunal reached factual conclusions by way of answer to it which were open to them on the evidence.[28]We should add that, even if contrary to our view there was not a redundancy situation, the Respondents had in their response to the claim relied on the alternative ground of “some other substantial reason” set out in section 98(1)(b) of the 1996 Act, often relied upon where employers are carrying out a restructuring exercise. The Tribunal did not need to consider that alternative; but on the facts as found, it is difficult to see, if there had not been a redundancy situation, how the Tribunal could have considered that it was unfair to dismiss for the alternative reason; the primary facts in play when fairness came to be considered would have been exactly the same if the alternative reason for dismissal had been found to have been the reason, rather than redundancy, for the dismissal of the Claimant. Failure to make a finding of fact[29]The third ground goes to the adequacy of consultation about redundancy with the Claimant. We have referred above to the risk assessment document which the Tribunal found had been suggested by one of the Board members, Mr Bithell, on 9 February. In his closing submissions Mr English argued that that document had been withheld from the Claimant; but, Mr English submitted, the Tribunal had concluded, at paragraph 4.16, only that it had, by the time of the Board meeting on 22 February, been provided; they made no finding as to whether it had been provided to the Claimant. Mr English relied upon the decision of the EAT, HHJ David Richardson presiding, in Key Organics v Billington (EAT/0315/09, judgment 8 February 2010), in which the claimant was informed that he was to be made redundant from his management post without any “discussion or consultation of any sort prior to the decision or prior to the implementation of the decision”. The Tribunal found, at a time when the procedural requirements of the Employment Act 2002 applied, that there had not been an automatically unfair dismissal but that the dismissal for redundancy had been procedurally unfair in the absence of any consultation. At paragraph 32, addressing the question whether there had been compliance with step 2 of the Standard Procedure for dismissal – a different question from that which arose in the present case – the EAT said:
“We are all satisfied that in the case of an employee in the position of Dr Billington it was not sufficient for him to know that the management of the company was top-heavy and that savings needed to be made. It was necessary for him to be told why it was his job which was to be made redundant when the work which he did continued to be necessary – which in his case entails explaining why and how the work was to be divided up. Without this explanation he was not in any position to comment on the Company’s proposal to make him redundant or to put forward any concrete proposal himself.”
In reliance on that, Mr English submitted that the Tribunal had erred in law in failing to make a finding as to whether the risk assessment document, which set out how the proposed changes would affect the Respondent’s operation, was provided to the Claimant. In his oral submissions he started, on this point, by referring back to Ground 2, saying that this omission by the Tribunal showed that they had not appreciated that the Claimant’s duties had to be done by someone else; we have addressed the misapprehension which that submission involved earlier in this judgment and do not repeat what we then said.[30]We have come to the conclusion that the Tribunal were not in error of law in not setting out or expressing a particular finding as to whether the Claimant had seen or had had the opportunity to see the risk assessment document. The issue before the Tribunal, to which this point was relevant was whether there had been adequate consultation; the Tribunal’s decision on that issue was one of fact. At paragraphs 6.7 and 8 of their judgment they dealt with that issue; they recorded that the consultation provided by the Respondents had come “under detailed attack” – as it had in Mr English’s submissions. There is no reason to suppose that they excluded from that general description the individual prong of attack upon consultation advanced on behalf of the Claimant as to the risk assessment document; nothing supports any such analysis. At paragraph 6.8 the Tribunal expressly found that the Claimant was fully appraised of what was taking place and that she had been able to provide detailed alternative proposals as part of the consultation process. They found at paragraph 6.7 that the Claimant had put in very detailed alternative proposals and had put a great deal of effort into doing so. As Mr West pointed out, the Claimant was present at the meeting at which the risk assessment document was proposed; if she had not seen it and regarded it as important, she only had to ask for it and make the point that she had not had it.[31]In the circumstances it was open to the Tribunal to conclude that the Claimant was fully aware of the Respondents’ proposals, sufficiently to put forward a detailed alternative and that there had not been unfairness in relation to consultation. It was not, in our judgment, essential to that conclusion that the Tribunal should expressly set out, in relation to the risk assessment document, what is implicitly set out in the passage within paragraph 6.8 to which we have referred. Withholding of Action Plan[32]It was the Claimant’s case before the Tribunal that the action plan had been withheld from her until shortly before the first Board meeting on 9 February and that she only had 3 weeks after that to put alternative proposals forward to the Board; the action plan should have been provided to her at its formative stage but was not. Yet, contrary to the principles in Williams v Compair Maxam (1982 ICR 156 ) the Tribunal, by finding at paragraph 6.6 that Ms Griffiths was entitled to act as she did, endorsed that withholding from the Claimant over the period between 30 January and 9 February; alternatively it was submitted that the Tribunal’s reasons for concluding that the consultation was adequate were insufficient because it was not possible to tell from what the Tribunal had set out whether they had taken the withholding of the action plan into account.[33]Mr English referred us to R v British Coal Corporation ex parte Price (1994 IRLR 72) in which, at paragraphs 24/25 the Divisional Court said of consultation – albeit not consultation of the type considered in unfair dismissal cases but consultation as required in order to comply with section 46 of the Coal Industry Nationalisation Act 1946 , a provision as to consultation by the National Coal Board with trade unions rather than between employers and employees –: – “24 I would respectfully adopt the tests proposed by Hodgson J in R v Gwent County Cancel ex parte Bryant … when he said: ‘Fair consultation means:(a) consultation when the proposals are at a formative stage(b) adequate information on which to respond(c) adequate time in which to respond(d) conscientious consideration by an authority of the response to consultation.’ 25 Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fairer and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely.” However the law as to statutorily required consultation between employer and trade unions does not directly inform the proper assessment of reasonable consultation and issues as to fairness arising therefrom in the context of an individual dismissal for redundancy. As to such consultation, the EAT in Williams gave this oft-repeated guidance: – “… There is a generally accepted view in industrial relations that, in cases where the employers are represented by the independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles – 1 the employer will seek to give as much warning as possible of impending redundancies so as to enable the union employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.” That guidance applies to consultation between employer and employee where no statutory consultation is in issue.[34]We draw attention to the essential approach by an appellate tribunal to an Employment Tribunal’s factual decision that the extent of consultation provided in an individual case was or was not reasonable. What in an individual case should have been done by way of reasonable consultation and when the duty to consult arose, within the general principles set out in Williams , are, as Mr English accepted, questions of fact. An appellate tribunal can only interfere with such a factual conclusion if it is demonstrated overwhelmingly that it was a perverse conclusion or a conclusion which was based on the omission of a potentially important fact or the inclusion of an irrelevant fact. In this case the Employment Tribunal made it clear at paragraph 6.5 of their judgment that they had to consider whether the Claimant should have been consulted before the Board meeting when she was given a copy of the action plan. The factual arguments, including arguments as to earlier disclosure, were set out in great detail by Mr English in his written submissions to the Tribunal; much reliance was placed on the Respondent’s redundancy policy; which said, at paragraph 3 (1):
“It may not be appropriate for the Executive Director to discuss the issues with the Operations Director and then with the management team as a whole.”
There is nothing to show that the Tribunal did not consider those arguments; they expressly referred to them; but they reached the factual conclusion at paragraph 6.5 that it was not unreasonable for Ms Griffiths to have taken her proposals to the Board first.[35]We do not accept that the Tribunal, in reaching the conclusion that Ms Griffiths had acted reasonably in not consulting the Claimant earlier, reached a perverse conclusion or a conclusion which was in error of law on any other basis. The Tribunal put their minds to the issue of earlier disclosure of the action plan and reached a view as to that for reasons which they set out in paragraphs 6.5 and 6.6. They were entitled to take the view that the policy document justified Ms Griffiths in not disclosing earlier; it might indeed have been argued, if the facts had been slightly different, that, until the Board had accepted the views of Ms Griffiths set out in the action plan, there was no duty to consult; but (although other employees were not) the Claimant was given the action plan before the Board meeting and was thereafter able to consult about it; she was able to put forward detailed counter-proposals. There was in the circumstances ample material to support the Tribunal’s conclusion that there had been adequate consultation and that that consultation was not rendered inadequate by what was complained of as late disclosure of the action plan. It was not necessary for the Tribunal to address each of Mr English’s many points on consultation individually; the judgment, by referring to Mr English’s detailed submissions, shows that the Tribunal had them in mind. Nor, in this area, was the judgment deficient in terms of reasons. The paragraph to which we have referred set out why the Tribunal concluded as they did on the consultation issue sufficiently to enable the parties to know and understand why they had respectively lost and won on that issue. No more was required. Selection Criteria[36]The thrust of Mr English’s submissions under the fifth ground was that, although he had raised the issue of the Respondent’s choice to make the Claimant redundant without the deployment, as between the four managers whose posts were to be coalesced into two, of any objective selection criteria, the Tribunal in effect sidestepped that issue by concluding, at paragraph 6.8, that: – “Reference was made to the selection criteria. The Claimant was the only person in the post. A decision had been made that the Respondents no longer required that post along with others.” He submitted that the Tribunal erred in law in failing to proceed on the basis that there was a pool of at least four managers – and potentially a larger pool, for there were, as could be seen from the Respondent’s structure charts he said, managers whose posts and duties were not subject to the action – and that there should have been that had not been a redundancy selection exercise between at least the four managers based on objective criteria. The absence of any such process rendered the dismissal of the Claimant unfair.[37]Mr English supported his argument by reference to two EAT decisions, Fulcrum Pharma v Bonassera (EAT/0198/10 HHJ Ansell presiding; judgment 22/10/2010) and Taymech Ltd v Ryan (EAT/663/94 Mummery J presiding). In the latter decision the EAT said: – “The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind to the problem. This is a case where the Tribunal concluded that the employers had not even applied their minds to the question of a pool, consisting of people doing similar administrative jobs. As the employers had never applied their mind to anything, except Mrs Ryan’s actual job of telephonist/receptionist, they had not applied their mind to a pool and therefore there was no meaningful consultation as to who was in the pool, with whom comparisons should be made with Mrs Ryan’s position, and as to who should be selected. In a sentence, there was no process of selection from a pool.” In the former of those decisions the Employment Tribunal had found that the employers had erred in considering, when it was decided that because the Human Resources Manager’s post was to go, she should automatically be regarded as to be dismissed when she was in a pool of two, there being a human resources executive who was to undertake some of the remaining human resources tasks. The EAT upheld the Employment Tribunal’s conclusion that the employers had unreasonably automatically determined that, because the Human Resources Manager’s role had to go, the pool was constituted by her alone; but the EAT also held that it did not follow that the pool should have been a pool of two and remitted the case to the Employment Tribunal for reconsideration. At paragraph 22 the EAT quoted this proposition from Harvey – Employment Law , at paragraph 1685 (as it then was) –“ the pool should include all those employees carrying out work of that particular kind, but maybe widened to include other employees such as those whose jobs are similar to or interchangeable with those employees”.[38]The facts in the present case were, however, capable of being seen as different in important respects. There was no suggestion that the Claimant’s role was similar to those of the other relevant managers; she was the Operations Director and Deputy Executive Director – in effect the number two in the hierarchy. Ms Griffiths being number one; her post was being deleted; she was offered the opportunity of applying for the reconstituted management posts along with the other effective managers but decided not to do so. These facts were capable of being treated as distinguishing this case from cases such as Fulcrum Pharma and Taymech . The employer in this case could have approached the situation on the basis that there was a pool of four (or more, if Mr English’s analysis of the Respondent’s structural charts was correct); but in our judgment it was also open to the employers on the facts to proceed on the basis of a pool of one; that was, as the EAT said in Taymech , primarily a matter for them; and the Tribunal can only be criticised for failing to substitute their view of the correct pool for that of the employer if the employer’s response to the situation before them was outside the range of reasonable responses – which principle applies to considerations of fairness in this area as it does to others. In our judgment there was no material upon which it could be concluded that the Tribunal had erred in law in not taking that approach to the Respondent’s decision. On the facts it was open to the employers to proceed on the basis of a pool of one; and it was open to the Tribunal to reach, on this point, the conclusion which they did.[39]Accordingly we have concluded that no error of law has been established under this ground of appeal. Conclusion[40]We have considered each of the five grounds of appeal put forward by Mr English on behalf of the Claimant. For the reasons we have set out no error of law on the part of the Tribunal has been established under any of them. Therefore this appeal is dismissed.