Appeal No. EAT/0256/03 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 2003

Before
HIS HONOUR JUDGE D M LEVY QC
MR B V FITZGERALD
THE HONOURABLE DR WILLIAM MORRIS OJ

BOWNE INTERNATIONAL LTD	APPELLANT

MR A SILVERSTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J CLAY
(of Counsel)
Instructed by:
Messrs Halliwell Landau Solicitors
75 King William Street
London EC4N 7BE	
For the Respondent	MR A SILVERSTON
(the Respondent in Person)	

HIS HONOUR JUDGE D M LEVY QC

1	This is an appeal by Bowne International Ltd (“the Appellant”) from a decision of an Employment Tribunal held at London (Central) on 23 and 24 January 2003 and 12 February 2003.  The issue before the Tribunal was whether, in a redundancy exercise, the Respondent had been fairly dismissed.  By unanimous decision the Tribunal held that the Respondent had been unfairly dismissed.  He appeared in person below as he does here.  Mr Clay of Counsel appeared for the Respondent below as he does here.

2	In a far from textbook exercise in redundancy the Respondent was made redundant.  In his IT1 and in the way he presented his case, in the Extended Reasons promulgated on 24 February 2003, the Tribunal held that those which he had put forward failed.  But in a number of paragraphs in their conclusions they reached the conclusion that the Respondent succeeded on grounds which were not in his IT1 or which he had put forward.  It was apparent to us, having heard from Mr Clay, that they were matters which were raised by the Tribunal and they were argued by Mr Clay before them and that the whole of that argument is not reflected in the Extended Reasons.

3	Paragraph 12 has its oddities.  There are two paragraphs numbered (ii) and we have numbered them (ii) (a) and (ii) (b); and there are two paragraphs numbered (iii) and we have numbered those (iii) (a) and (iii) (b).  (iii) (b) is one of the crucial ones for the purpose of this appeal.  It reads as follows:

(iii)	(b)	“However, having given the matter careful consideration, the Tribunal considers that the [Appellant] failed to engage in meaningful consultation with the [Respondent].  In our view, meaningful consultation in the circumstances of the case meant providing the [Respondent] with adequate information on which to contest his selection for redundancy once the assessment had taken place.  We consider that the policy decision to withhold from the [Respondent] (and the other employees in his position) details of how he had faired in the assessment exercise resulted in individual unfairness.  By withholding this information, the [Respondent] had no chance to raise any specific matters which might have a bearing on the mark achieved such as his attendance or timekeeping record or even simply to check the arithmetical accuracy of his total score.  The situation was compounded by the fact that there was clearly no consultation with the employee representatives in regard to employees actually selected for redundancy and no right of appeal for the individuals concerned.  In the opinion of this Tribunal it cannot be said that such a system amounts to meaningful consultation.  This is especially so when dealing with employees of many years service, particularly in the present case when length of service did not form any part of the criteria and the assessment marks were withheld.”

4	Of that paragraph it is clear to us that Mr Clay had made submissions which were not reflected.  For that reason we feel the matter has got to be remitted for a further hearing by a different Tribunal differently composed.  We say that because of the next paragraph which follows:

(iv)	“The Tribunal considered the [Applicant’s] assertion that it was not reasonably practicable for consultation of this nature to have been taken place because of the large number of employees selected for redundancy.  Though proper consultation would obviously have taken some time to arrange and as a consequence the date of dismissal put back, there were no good reasons as to why it could not have taken place.”

5	We have seen and we have been taken through what was called the consultation and the consultation exercise.  Though it is right, as Mr Clay submitted, that points were not taken on behalf of the Respondent on this feature in his IT1, it seems to us that what the Tribunal said in that paragraph is right.  It might be that if the Respondent was represented in the fresh hearing matters might arise, which could lead to a Tribunal reaching the same decision as did the Tribunal whose decision is under appeal.

6	On the authorities cited by Mr Clay, we also conclude that the decision on the grounds in paragraph (iii) (b), cannot be sustained.  In all the circumstances we direct that the rehearing of the Respondent’s case should be before a fresh Tribunal.

7	We will therefore allow the appeal to that extent.