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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hailwood v. Best Power Technology Ltd [2000] EAT 1253_99_2909 (29 September 2000) URL: https://www.bailii.org/uk/cases/UKEAT/2000/1253_99_2909.html Cite as: [2000] EAT 1253_99_2909 |
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At the Tribunal | |
On 8 June 2000 | |
Before
MR RECORDER LANGSTAFF QC
MR D A C LAMBERT
MR R N STRAKER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR R MOORE (of Counsel) Messrs White & Bowker Solicitors 20 Brunswick Place Southampton SO15 2AQ |
For the Respondent | MS S WILSON (Solicitor) Messrs Allen & Overy Solicitors 1 New Change London EC4 9WQ |
MR RECORDER LANGSTAFF QC:
(1) that her former employers had unfairly dismissed her;
(2) that they had discriminated against her on the grounds of sex; and
(3) that they had discriminated against her on the grounds of disability. She appeals to this Tribunal by leave of a Tribunal presided over by His Honour Judge Smith on a number of grounds that relate to the rejection of her claim for unfair dismissal, and in respect of one point that relates to her claim that she was discriminated against on the grounds of sex.
The Appellant's Case
(1) that there had been a failure to consult in any meaningful way;
(2) that the assessment made by the four interviewing managers was totally subjective;
(3) that the failure to tell the Appellant of the discovery of the credit notes, or to challenge her as part of the interview process with what she had told a customer, was a breach of the rules of natural justice rendering the procedures unfair;
(4) that the Tribunal in addressing the facts had impermissibly applied the "range of reasonable responses" test;
(5) that the way in which the Tribunal dealt with the influence that the Appellant's pregnancy might have had upon quality of her performance in interview did not sufficiently inform the Appellant why she had lost on that issue, and
(6) that the fact that the Appellant's pregnancy was not enquired into or raised as a reason for the quality of the Appellant's performance in interview constituted unlawful discrimination on the ground of sex against her.
Consultation
"… the submission of Mr Moore that it is incumbent upon an employer to consult with its employees before taking the economic or commercial decision to make redundancies in case by so doing the employees might provide answers not contemplated by the employer and that a failure to do so amounts to procedural unfairness. The managers of a business are entitled to manage their business and make the economic or commercial decisions which they think appropriate. Sometimes they may get it wrong and, with the benefit of hindsight, make bad decisions. That is not a matter for a tribunal's consideration or comment. In this case the Tribunal is satisfied that [the Respondent] regarded its business strategy as commercially sensitive and concluded it was not in its best commercial interests to disclose in August 1998 that it was considering reorganising its UK service department and that redundancies might result. It was under no duty to consult with its employees at that stage. Once it formulated its policy resulting in potential redundancies, and this was approved or confirmed by its US parent company, it had a duty to consult with those who might be affected. …"
"(1) The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and 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.
(2) The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
(3) Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
(4) The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
(5) The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment."
(Miss Hailwood complained in her Notice of Appeal not only about the apparent breaches of each of the principles (1) to (4), but also that the Respondent had failed to offer her alternative employment: but at the hearing of the appeal that ground was withdrawn).
"… the need for consultation was with regard to redundancy or loss of employment consequent upon reorganisation. This [the Respondent] did. It held a general meeting on 23rd October when it disclosed its plans. The service department were consulted on the 30th October and particular attention was paid to Miss Hailwood by Ms Whitworth immediately after the close of the formal meeting. Her position was also discussed with her by Ms Whitworth prior to the interviews on 4th November. …"
"Fair consultation means:
(a) consultation when the proposals are still 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."
Lack of Criteria
"…4 managers of [the Respondent] conducting separate interviews … each had their own individual practices for conducting interviews and from the notes of those interviews there was nothing unfair or inappropriate about the way those interviews were conducted. The Tribunal might not itself have conducted the matter in a similar way. Other employers might have adopted different practices, but there was nothing inherently improper or unfair about the practice adopted by the Respondent and, in the Tribunal's view, it falls within the bounds of that which might be undertaken by a reasonable employer acting reasonably in similar circumstances. …"
Natural Justice
"… It is clear that both Mr Verma and Ms Whitworth gave some adverse consideration in their assessment of Miss Hailwood to their perception of her reasons for withholding credit notes. … Ms Whitworth also took into consideration Miss Hailwood's response to a customer without giving her an opportunity to comment. …"
Later in the same paragraph, the Tribunal says:
"… whilst it was an error ofjudgement by Ms Whitworth not to give Miss Hailwood an opportunity to answer the two criticisms held against her, these criticisms did not have a material effect on Ms Whitworth's decision not to select Miss Hailwood for one of the new positions. …"
In respect of Mr Verma, the Tribunal said:
"The Tribunal also criticise Mr Verma for not raising the credit note issue with Miss Hailwood. The Tribunal is satisfied however that this negative factor was not material in the decision making process of Mr Verma. He made his choice based upon what he perceived as the positive factors and abilities displayed by the various candidates and he judged others to be better than Miss Hailwood rather than making a decision based upon negative factors. …"
The Tribunal also indicated that Ms Whitworth's preference for others was based upon their positive attributes and that the negative influence, in Ms Hailwood's case, of the credit note and the customer incident was not decisive in any way.
"[The Tribunal] has to ask itself whether on the evidence before it this defect in procedure either did or might reasonably have affected the result and but for it whether Miss Hailwood might reasonably have been selected for one of the posts on offer. This is perhaps the most difficult decision in this case as there can be by its very nature no clear and positive answer."
The conclusion which the Tribunal reached was expressed at the end of the same paragraph in these terms:
"… whilst it is right to criticise the Respondent over its handling of this issue, when taken in the round, this defect in its procedure did not make a material difference to the result and does not turn an otherwise fair dismissal into an unfair one."
Mr Moore pointed out that this appeared to repeat the fundamental error of British Labour Pump Co Ltd v Byrne [1979] IRLR 94, which had been identified by the House of Lords in Polkey v A E Dayton Services Ltd [1987] IRLR 503.
The Reasonable Responses Test
"Other employers might have adopted different practices, but there was nothing inherently improper or unfair about the practice adopted by the Respondent and, in the Tribunal's view, it falls within the bounds of that which might be undertaken by a reasonable employer acting reasonably in similar circumstances. The Tribunal concludes that the selection for termination whether it was for redundancy or some other substantial reason was fair, reasonable and equitable on the facts of this case."
Mr Moore argued that the Employment Tribunal had adopted a test akin to perversity which by virtue of the combined effect of Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672, Wilson v Ethicon Ltd [2000] IRLR 4 and Midland Bank Plc v Madden [2000] IRLR 288 was impermissible. Mr Moore's reasons for thinking that the Tribunal had posed itself what was effectively a perversity test were that the Tribunal "probably" viewed the case as being borderline fair / unfair, and certainly observed that both it and other employers might have handled matters differently, described the Respondent's approach to the redundancy situation as "novel", and criticised the Respondent for not putting to the Appellant the various allegations against her in respect of the credit notes and customer incidents. A tribunal was bound, he submitted, in approaching section 98 (4) of the Employment Rights Act 1996 to consider first how it would have behaved as a reasonable employer, and then have judged the conduct of the Respondent. Here, they gave no consideration to this.
Pregnancy
"The Tribunal has found as a fact that Mr Johnstone, Mr Verma and Mr Braechtken [three of the four interviewing officers] were unaware of Miss Hailwood's pregnancy at the time of the interviews on 4 November 1998. Her pregnancy therefore cannot have been a factor influencing their decisions not to select her for one of the new posts. Ms Whitworth was aware of the pregnancy but the Tribunal is satisfied on the evidence that Ms Whitworth was sufficiently professional in her attitude to ignore or discount it from her decision and that it did not influence her in any way. The Tribunal also rejects the suggestion that Ms Whitworth's failure to consider that pregnancy may have accounted for Miss Hailwood's lack-lustre performance in interview was unfair."
Sex Discrimination
Conclusions
Consultation
"It will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy."
"(4) …the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
Criteria
Natural Justice
Reasonable Responses Test
"First, the question for the tribunal is the reasonableness of the decision to dismiss in the circumstances of the particular case having regard to equity and the substantial merits. Because the tribunal are applying an objective test, that is, a test of reasonableness, it is not sufficient for them simply to say 'well, we would not have dismissed in those circumstances'. They must recognise that, however improbable, their own personal views may not accord with reasonableness. Just asking 'what would I have done?' is not enough. However, it is neither reasonable nor realistic to expect the objective question to be asked and answered without the members of the tribunal having first asked 'what would we have done?' And provided that they do not stop there, we see nothing wrong with that approach.
The mantra 'the tribunal must not substitute their own decision for that of the employer', is simply another way of saying that the tribunal must apply the reasonableness test by going somewhat further than simply asking what they themselves would have done. It is likely, however, that what the tribunal themselves would have done will often coincide with their judgment as to what a reasonable employer would have done. The tribunal is, after all, composed of people who are chosen to sit as an industrial jury applying their own good sense of judgment. The task of the tribunal is to pronounce judgment on the reasonableness of the employer's actions and whenever they uphold an employee's complaint they are in effect 'substituting their own judgment for that of the employer'. Providing they apply the test of reasonableness, it is their duty both to determine their own judgment and to substitute it where appropriate.
The second point simply recognises that there may be cases where a decision not to dismiss would be reasonable and a decision to dismiss would also be reasonable. … The mantra 'the band or range of reasonable responses' is not helpful because it has led tribunals into applying what amounts to a perversity test, which, as is clear from Iceland itself, was not its purpose. The moment that one talks of a 'range' or 'band' of reasonable responses one is conjuring up the possibility of extreme views at either end of the band or range. In reality, it is most unlikely in an unfair dismissal case involving misconduct that the tribunal will need to concern itself with the question whether the deployment of each of the weapons in the employers' disciplinary armoury would have been reasonable. …. There is a danger of tribunals testing the fairness of the dismissal by reference to the extreme."
Pregnancy
Sex Discrimination
Overall Conclusion