Appeal No. EAT/0996/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 February 2002

Before
MR RECORDER BURKE QC
MS S R CORBY
MR P A L PARKER CBE

MR D BARRY & MRS A NEALE	APPELLANTS

POT BLACK (UK) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr NICHOLAS HART
(Solicitor)
Instructed by:
Employment Law Solutions
Solicitors
Lloyd Chambers
The Square
Barnstaple
Devon EX32 8LS	

MR RECORDER BURKE QC

1.	This is the Preliminary Hearing of an appeal by Mr Barry and Mrs Neale against the decision of the Employment Tribunal sitting at Exeter, chaired by Mrs Harper and sent to the parties with Extended Reasons on 18 July 2001.  Mr Barry and Mrs Neale were employed by the employers who are the manufacturers and distributors of snooker tables and pool tables; Mr Barry was an assembly manager and Mrs Neale was a wages and salaries administrator.  The employers were acquired by new owners.  It was clear to the new owners that the company was in a parlous financial state and that staff costs would have to be reduced.  The Tribunal found that 9 roles or posts were identified which could be dispensed with.  Those 9 roles included the roles of Mr Barry whose functions were seen to be partly surplus to requirements and were partly to be taken over by the Operations Director and of Mrs Neale whose functions were to be outsourced.  Each of the 2 employees was the only employee in his or her role.  On 19 December, they and the 7 other persons who occupied the posts which had been identified to be cut were told of the redundancy that was going to fall on them; and next day they received a written notice of their dismissal for redundancy with effect from 31 December.  The Tribunal found that there was no consultation process at all, as plainly was the case.  It found that there had been a fair selection process because it was reasonable for the employer to limit the pool to one in the case of each of the 2 employee applicants but that the dismissal for redundancy was unfair by reason of the effect of the wholesale absence of consultation. 

2.	The Tribunal went on to find that, on the balance of probabilities, a proper consultation process would have taken 1 month but would not have altered the outcome.  Accordingly they awarded 1 month’s loss of earnings by way of compensation for unfair dismissal to each of the employees.

3.	Mr Hart on behalf of the 2 employees submits that the Tribunal erred in law in 2 broad respects.  He has put his arguments before us in the Skeleton Argument and today with admirable succinctness for which we are grateful.

4.	Mr Hart firstly criticises the Tribunal’s finding that it was reasonable for the employers to limit in each case the pool for selection to one.  He tells us that there was evidence, albeit not referred to in the decision, that the managing director and financial director of the employers, who carried out the selection exercise, reviewed every post and function in the factory, as part of the selection exercise.  Therefore, it is submitted, the effective pool for selection was the entire workforce and thus it would follow that a process of the establishment of selection criteria and the application of selection criteria to each member of the workforce objectively would have been necessary so as to discover who from the whole of the workforce should have been made redundant.

5.	We do not accept this submission nor do we regard it as at all arguable that the Tribunal erred in law in this respect.  The facts as found are that the employers had to cut staff costs and that, in order to do, so they identified the 9 roles to which we have referred which could be dispensed with without affecting the company’s operations.  It was inevitable and certainly reasonable as part of that identification that they should examine the functions of everyone to see which if any posts had functions which could be dispensed with.  That is not a process of identifying the persons to be made redundant but of deciding what jobs are to be kept and what jobs can go.  It is only after that process of identifying the jobs to go that the employers can then embark on what is properly called a selection exercise, that is to say choosing those who are to go so that the 9 jobs can be dispensed with.  It is similar, although not identical it seems to us, to the case of a foundry where it is decided that the employers can dispense with 5 grinders out of 10.  The act of so deciding is not a selection exercise.  The selection exercise as between the grinders would follow the decision that 5 jobs out of 10 in grinding could go.  Thus, while we accept that the evidence which Mr Hart relies upon was no doubt given, it does not reasonably lead to the conclusion or arguably lead to the conclusion that the employers had acted unreasonably in choosing, in the case of each post which was to be cut, from a workforce of 1 or that the Tribunal had erred in concluding that the employers had acted reasonably in choosing a workforce of 1.  Once the posts were identified, it was then for the employers to embark on the selection exercise.  If the posts were unique, as the Tribunal found, to the employees who held them, and that is a finding which is not challenged, then it was at least open to the Tribunal to find as they did that the employers had acted reasonably in confining the selection pool in respect of each post to 1.

6.	Mr Hart, secondly, focuses our attention on the Tribunal’s decision that, had there been a proper consultation process, the outcome would not have been any different although it would have been postponed for 1 month.  Mr Hart at one stage suggested that the finding that the consultation process would have only taken 1 month was a little harsh; but he did not seem to us to be submitting that was a conclusion that no reasonable Tribunal could reach, nor do we think it is arguable that that was so.  What he does submit is, firstly, that the Tribunal has given no reasons for its conclusion that nothing would have emerged during the consultation period which would have altered the outcome and, secondly, that the Tribunal erred in reaching that conclusion and that it should not have so concluded because this was not a technical failure on the part of the employers but a substantive failure which went to the heart of the fairness of the dismissal.  The Tribunal in those circumstances, he submitted, should not have embarked on an exercise in trying to reconstruct what would have happened in a situation which did not in fact happen.  

7.	We regret to say that we do not think that these submissions give rise to an arguable point of law either.  It is correct that the Tribunal, in paragraph 5 of the extended reasons, do not set out expressly there the reasons for their conclusion; but they had made a series of findings of fact which are not challenged; and in a brief decision as this was we do not think it was arguably necessary for them expressly to incorporate within paragraph 5 the findings of fact which they had made only shortly before in paragraph 3.  The reality based on those findings of fact was that the posts of the 2 employees had been identified to go and only those 2 employees were in those posts.  There was no evidence of any other equivalent post; and it is difficult to see, in those circumstances, how consultation could have made any difference.  That of course is not for us to say but it is not arguable in our view that, in finding as they did the Tribunal made a decision without reasons.  The reasons are set out in the findings of fact.  

8.	Those reasons also contained within them the facts as found that the only suggestion of any alternative which was made was one made by Mrs Neale, namely that she should do her work on a part time basis which was regarded by the employers as impractical.

9.	On the individual facts of this case as found we can well see what the reasons were for the Tribunal’s decision in this area; and we do not think it can be argued that their decision was not based on reasons or was not one which they could properly come to.

10.	As to the second way in which this area of the decision is attacked we would say this; it is clear from the substantial extract from the decision of the Court of Session in King v Eaton [1998] IRLR 686 with which we have been provided in his Skeleton Argument by Mr Hart that the categorisation by a Tribunal of unfairness as procedural or as substantive may draw a Tribunal into failing properly to approach the question which they are often asked to answer namely, what would have happened had there not been the failure on the part of the employers which has caused the dismissal to be unfair.  But in this case the Tribunal did not in fact categorise or label this dismissal as procedural or as substantive.  They correctly as it seems to us simply described and found the unfairness and then went on to consider the consequences of the unfairness.  There is nothing in King v Eaton which suggest that, where there is a total lack of consultation, it is not open to a Tribunal to embark upon a consideration of what would have happened if the defect which renders the dismissal unfair had not occurred.  It may be that that exercise is one which has to be approached with caution; but it is clear from the words of the extract which Mr Hart has put to us that it is open to a Tribunal to approach the question to which we have referred in the way in which this Tribunal did and to answer that question on the basis, if the facts justify it, that no difference would have been made or to come to the answer that a substantial difference would have been made or to come to the answer that they cannot say what difference would have been made.

11.	It may be that all 3 of those possibilities were properly open to this Tribunal.  It does not seem to us to be arguable and we are confident that it is not arguable that, in reaching the conclusion that it did, this Tribunal either embarked on an exercise which in law it was not permitted to embark upon or that it came to a conclusion which was wrong in law or perverse.  

12.	For these reasons we dismiss this appeal.