Appeal No.	 EAT/393/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR J A SCOULLER
MS B SWITZER

MRS V WALKER	APPELLANT

KENT INSTITUTE OF ART AND DESIGN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S TAGGART
(of Counsel)
Mr A Lean
Tribunal Officer
Gravesham C A B 
8 & 9 Parrock Street
Gravesend
Kent DA12 1ET	

	JUDGE PETER CLARK:     This is an appeal by Mrs Walker, the Applicant before the Ashford Industrial Tribunal sitting on 5 January 1998, against that Tribunal’s decision, promulgated with Extended Reasons on 7 January 1998, dismissing her complaint of unfair dismissal against her former employer, The Kent Institute of Art and Design (KIAD).

	The Appellant commenced employment with KIAD on 18 April 1995 as a language laboratory technician at their Rochester Campus.

	In December 1995 her job title was altered to language resources assistant to reflect the fact that her work did not relate to computers, as the first title suggested, but to the use of simpler audio/visual equipment used in the language laboratory.  This change involved a reduction in grade, although not earnings.  She worked a 25 hour week.  

	In late 1996 it had become clear to the KIAD Directorate that the courses which were run at the Rochester Campus were not attracting sufficient recruits and required remodelling.  A reorganisation was necessary.  In particular, there was a need to create a Learning Resources Centre in which a number of computers would be available for students.  Such a Centre was created and placed in the Library Complex of the College at Rochester.  The language laboratory, previously situated outside the Library, was brought into the Library and located next door to the Learning Resources Centre.

	Prior to the transfer the Appellant had been required to be on call throughout her working hours, since for security reasons it was necessary for a member of staff to be in the language laboratory whenever it was open.  That security factor disappeared once the language laboratory was moved into the Library.  Further it was thought necessary to create a full-time technician post to service the Centre.  Guidance and assistance was necessary to help students with the use of computers and software.  However, funding for the new post had to be found from within the existing budget.  To this end a part-time technician post in the Fashion Department was deleted.  Management next looked at the post held by the Appellant.  Although originally a 25 hour per week post, the task could now be accomplished in 12 hours.  Further, the remaining functions of the post could be assimilated into the job of the soon to be appointed full-time technician in the Learning Resources Centre.

	On 16 June 1997 a decision was taken to incorporate the functions of the Language Resources Assistant into the new technician post with effect from 1 September.

	On 18 July the Appellant was called, at short notice, to a meeting with Mr Sanger, Head of the Maidstone Campus and Ms Crane, the Institute Librarian.  The Appellant was told for the first time of the restructuring and that she faced potential redundancy.  A search would be made for alternative employment for her, but if none could be found she would be redundant.

	The Tribunal found that that meeting could not properly be described as consultation with the Appellant, but they accepted evidence from the Respondent’s witnesses that it was inevitable that once the reorganisation had been decided upon the Appellant’s post would be deleted and she, as post-holder-holder, would be redundant.  Nothing that she could have said would alter that chain of events.  Although strictly entitled to only two weeks notice, the Appellant was dismissed with effect from 31 August 1997 on 9½ weeks notice.

	As to alternative employment the Tribunal found that there were two possible alternative posts for the Respondent; the first was the new technician post, but the Appellant accepted that she was neither technically nor physically (she suffered from angina and was aged 55) capable of performing that role.  She did not apply for that post.  The second was a post described by the Tribunal as secretary/telephonist at the Maidstone Campus.  In the Appellant’s written submission in this appeal it is said to have been referred to as a telephonist/receptionist post in the Respondent’s evidence.  The distinction does not appear to us to be material.  She applied unsuccessfully for that post.

	On those facts the Tribunal found that the reason for dismissal was redundancy, a potentially fair reason.  As to the reasonableness of the dismissal, the Tribunal were principally concerned with the absence of consultation.  However, the Tribunal accepted the submission of Counsel for the Respondent that this was one of those rare cases where, once the reorganisation had been decided upon, consultation with the Appellant about her position would have been a futile exercise.  Secondly, it was submitted on behalf of the Respondent that the Respondent had done all that was reasonably possible to find alternative employment for the Appellant and there were only two possible jobs available; the new technician job for which the Appellant did not apply and the secretary/receptionist job for which the Appellant applied without success.  Overall the Tribunal concluded, whilst having reservations about the absence of consultation, that the dismissal was fair.

	In this appeal Mr Taggart has appeared on behalf of the Appellant, pro bono, and has developed the two points which were made in a Skeleton Argument submitted on her behalf by her CAB Adviser.  The first point relates to the lack of consultation, the second to the question of alternative employment.

	First, it is submitted that the Tribunal erred in law in failing to consider the total lack of consultation as sufficient to render the dismissal unfair.  Reference in the written argument is made to the House of Lords decision in Polkey v A.E. Dayton Services Ltd [1987] IRLR 503 for the propositions first that the argument that consultation would have made no difference to the result is irrelevant to the question of fairness.  We accept that proposition as a matter of law.  However, this Industrial Tribunal and indeed Counsel who appeared on behalf of the Respondent, were alive to that point.  The Respondent’s case was that consultation would have been a futile exercise.  It is in those circumstances, the House of Lords held in Polkey, that a dismissal for redundancy absent consultation may be fair.  The second proposition advanced is that Polkey establishes the principle that an employer cannot be sure it is futile to consult unless he is actually consulted.  We are unable to accept that submission on a proper reading of the speeches in Polkey.  What Lord Bridge said was this:

“It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.  In such a case the test of reasonableness under section 57 (3) [now section 98 (4) of the Employment Rights Act 1996] may be satisfied.”

	That dictum has been further explained by the Court of Appeal in Duffy v Yeomans [1994] IRLR 642, disapproving the Scottish EAT decision in Robertson v Magnet [1993] IRLR 512.  It is sufficient that a reasonable employer would have decided that consultation would have been a futile or useless exercise.  It follows that such an exception to the normal requirement of consultation only arises in cases where there has been no consultation.  Otherwise there would be no exception to that requirement.

	Finally, we accept the proposition that it is for the employer to show why consultation would have been futile.  On the facts of this case the Respondents succeeded in doing so.  The Tribunal’s conclusion on this aspect was a permissible one in fact and law and we reject Mr Taggart’s submission that there is a reasonably arguable point of law to proceed to a full appeal hearing on the basis that that part of the Tribunal’s decision was perverse.

	As to the question of alternative employment, it is submitted, by reference to the case of Euroguard v Rycroft (EAT/842/92. IDS Brief 498), that the employer failed adequately to consider the employee’s application for an alternative post elsewhere within the organisation.  We reject that submission on the facts of this case.  In Euroguard the Tribunal found as a fact that inadequate consideration had been given to the employee’s application for an alternative job within the Group of Companies to which the Respondent employer belonged.  That finding was upheld on appeal.  Here, the Tribunal found that adequate steps had been taken to find Mrs Walker alternative employment.  We are no more inclined to interfere with that finding of fact than was the EAT in Eurogard. 

	Mr Taggart has developed that latter point by submitting that, on the face of the Tribunal’s reasons, no consideration was given to the alternative employment issue.  No specific finding was made that reasonable steps were taken by the Respondent to seek alternative employment for the Appellant.  We cannot accept that submission.  At paragraph 14 of the Reasons the Industrial Tribunal sets out in summary form the submissions made on the question of reasonableness of the dismissal by Counsel for the Respondent.  She dealt specifically with the question of alternative employment.  We infer from the Reasons as a whole that the Tribunal accepted that submission in concluding that the dismissal was fair.

	Finally, Mr Taggart submits that the Tribunal’s conclusion, if it is to be inferred that reasonable steps were taken to find alternative employment for the Appellant, is one which can properly be characterised as perverse.  Appellants who seek to rely on that ground of appeal face a high hurdle.  On the facts of this case we are quite satisfied that the Appellant cannot overcome that hurdle.

	In these circumstances we have concluded that the appeal raises no arguable point of law and accordingly must be dismissed at this preliminary hearing stage.