[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Camelot Group Plc v Hogg (Unfair Dismissal : Reason for dismissal including substantial other) [2011] UKEAT 0019_10_1310 (13 October 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0019_10_1310.html Cite as: [2011] UKEAT 19_10_1310, [2011] UKEAT 0019_10_1310 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
On 23 September 2010 and 13 October 2011
Before
MR P PAGLIARI
CAMELOT GROUP PLC APPELLANT
MRS S A HOGG RESPONDENT
JUDGMENT
APPEARANCES
(of Counsel) Instructed by:
|
|
(Advocate) Instructed by: EMC Solicitors Waterloo Chambers 19 Waterloo Street Glasgow G2 6AY |
SUMMARY
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
PRACTICE AND PROCEDURE
Unfair dismissal. Redundancy. Minor omission (to do what, in circumstances, employers were not obliged to do) at initial stage of what was, otherwise, found by Tribunal to have been a fair redundancy procedure. Tribunal deciding case on the basis of resolution of an issue not pled. Perversity. Polkey. Appeal upheld and finding of fair dismissal substituted.
THE HONOURABLE LADY SMITH
Introduction
3. We will continue, for convenience, to refer to parties as Claimant and Respondent.
Background
12. The Claimant was interviewed at a criteria based interview on 22 April 2009. There were seven applicants for the post for which the Claimant was a candidate. Candidates were scored by reference to past performance and numerical and verbal reasoning tests, as well as the interview assessment; the interview assessment formed only 30% of the overall score. The Claimant’s scores were such that she ranked 6th out of those 7. Whilst some of the group were successful in securing other posts, there were 3 candidates who scored higher than the Claimant who were also made redundant.
“Inconsistencies within the selection process which led to redundancy.
Dates on items of correspondence.
Outplacement contact DBM timings.
Unfairly selected.”
“Inconsistencies with (sic) the selection process:-
(1) Not all employees were treated equal as some employees received a phone call from a number of management informing then that they did not have to go through the process and that they did not remain at risk of redundancy.
(2) The criteria based interview was not carried out by the same interviewers for everyone that remained at risk which resulted in the lack of continuity within the results.
(3) Dates on the severance package would indicate that it was run prior to the results of the interview being available.
(4) At the second consultation despite being told I remained at risk of redundancy I was encouraged to make contact with DBM and not informed that alternative funding was available if DBM was not used.
(5) Not all of the employees that indicated their interest in redundancy was contacted which would indicate that the selection for redundancy was pre-determined.
This process was there for (sic) not dealt with fair play and integrity in mind.”
24. The Respondent replied by letter of 30 June 2009.
The Claimant’s Claim
“If there are other matters you intend to argue which you have not yet given us notice of, you will need to do so with sufficient time for us to prepare for them (and you may need to seek the Tribunal’s permission to raise them). Neither party is meant to spring new issues on the other at the hearing.”
33. The Claimant did not respond to that letter.
“With some hesitation we took the view that it was not in the interests of justice to permit the application to amend. As Mr Cordrey pointed out, expenses in this case are already high; the inevitable consequence of any successful application to amend would have been the adjournment of the proceedings with consequential lengthy delay and considerable additional expense, and we refused the application to amend.”
Relevant Law
“…….where the employer has fulfilled the requirements of subsection (1), 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.”
38. It is self evident that the primary task for an Employment Tribunal is to apply the statutory test. As was observed by Lady Justice Smith in Taylor v OCS [2006] IRLR 613, at paragraph 43:
“…the ET must focus on the statutory test and …in considering whether the dismissal was fair, they must look at the substance of what happened throughout .”
“47. ……(the ET) should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care……their purpose in so doing will be …to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open mindedness (or not) of the decision – maker, the overall process was fair, notwithstanding any deficiencies at the early stage.
48. In saying this, it may appear that we are suggesting that ET’s should consider procedural fairness separately from other issues arising. We are not; indeed it is trite law that s.98(4) requires the ET to approach their task broadly as an industrial jury.”
40. In Mugford v Midland Bank plc [1997] IRLR 208, HHJ Peter Clark, sitting in this Tribunal, considered the significance to considerations of overall fairness of a criticism of the consultation process involved in a redundancy situation (where there had been no individual consultation with the claimant). We agree with his observations at paragraph 41:
“It will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and his/her 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 grounds of redundancy.”
41. In similar vein, various observations have been made in the authorities regarding redundancy dismissals which show that, in assessing the reasonableness of a decision to dismiss for redundancy, it will rarely be appropriate for an Employment Tribunal to embark on a detailed scrutiny of the system used for scoring or the application of the system in a particular case. We would refer to our discussion in First Scottish Searching Services Ltd v McDine and Middleton UKEATS/0051/10/BI regarding a number of authorities including Buchanan v Tilcon Ltd [1983] IRLR 417, a decision of the First Division in which the opinion was delivered by the Lord President (Lord Emslie) (referred to in both Eaton Ltd v King in 1995 and British Aerospace plc v Green) and where a clear limitation is expressed as to what was to be expected so far as scrutiny of employers acting in a redundancy situation was concerned:
“ …In this situation where no other complaints were made by the appellant all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision. As was pointed out by Phillips J in Cox v Wildt Mellor Bromley Ltd [1978][1978] IRLR 157 it is quite sufficient for an employer in a case such as this to call witnesses of reasonable seniority to explain the circumstances in which the dismissal of an employee came about and it was not necessary to dot every “i” and to cross every “t” or to anticipate every possible complaint which might be made.” (at p. 418)
42. We also repeat our reliance on British Aerospace plc v Green, where Waite LJ, at paragraph 3, said:
“Employment law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge – namely a swift, informal disposal of disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him.”
43. The same theme was taken up by this Tribunal in John Brown Engineering Ltd v Brown and others. At paragraph 8, Lord Johnston said:
“….in each case what is required is a fair process, where an opportunity to contest the selection of each individual is available to the individual employee….it also has to be reasserted that it is no part of the industrial tribunal’s role in the context of redundancy to examine the marking process as a matter of criteria under a microscope; nor to determine whether, intrinsically, it was properly operated. At the end of the day the only issue is whether or not the employers treated their employees in a fair and even handed manner.”
44. The judgment of the Court of Appeal in Bascetta v Santander [2010] EWCA Civ 351 makes it clear that the principles articulated in the earlier cases, referred to above, still hold good. The passages that we have referred to in both British Aerospace plc v Green and Eaton Ltd v King are referred to with approval.
45. We were also referred, in the course of the appeal, to a decision of this Tribunal relating to a redundancy dismissal where certain very specific enquiries made by an employee about his being selected for redundancy were not answered and the dismissal was found to be unfair. That is, the facts contrasted quite markedly with those of the present case: Pinewood Repro Ltd v Page [2011] ICR 508. The following observations of HHJ Ansell at paragraph 46 are relevant to the circumstances of the present case and we agree with them:
“It may well be that it is too broad a principle for the tribunal to set out as they did that it is necessary for an employee to provide an explanation of why an individual has received the scores that he has. ...It is, in our view, for a tribunal to decide whether an employee has been given a fair and proper opportunity to fully understand the matters about which he is being consulted and to express his views on those subjects.”
46. As HHJ Ansell also observes, the employee may need to be provided with sufficient information to enable him to challenge his scores but whether or not that is required will turn very much on the facts and circumstances of the individual case. In Pinewood, the employee had made clear and specific enquiries of his employer in respect of material matters which could easily have been but were not answered; it is not surprising that the tribunal’s finding of unfair dismissal was upheld. Equally, however, as was observed HHJ J Hull QC, sitting in this Tribunal, in the case of Boal and Langley v Gullick Dobson Ltd EAT/515/92, at p.7, there is no rule that an employer is generally obliged to furnish the employee with all the material gathered in the redundancy process:
“…..this suggestion …….is that the consultation with the employee involves furnishing the employee with all the material, virtually, on which the employer has acted…Is that something which could possibly be commended to an employer? Something which he should do? We all, however reluctantly, say it is conceivable that there might be circumstances and it would be for an Industrial Tribunal to say so, in which in some very limited class of case it would be thought desirable or even, perhaps, necessary, to take the employee into the confidence of the employer, to that extent. But to say that in general such an operation is necessary seems to us to be wholly misconceived.”
47. The matter of making a Polkey deduction also arose: Polkey v A E Dayton Services Ltd [1988] AC 344. The principle is well known and we do not propose to rehearse it at length here. Shortly put, where the employee might, absent whatever is the procedural unfairness in question, have been dismissed in any event, compensation falls to be reduced to reflect that. As was explained by Elias P, as he then was, in Software 2000 Ltd v Andrews [2007] IRLR 568 the question of whether any sensible prediction can be made is a matter for the tribunal of first instance but, warning employment tribunals against taking too narrow a view of their role, he said:
“…in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.”
49. We turn to issues of fair notice. It is trite that a tribunal only has jurisdiction to determine complaints that are before it: Bradford Hospitals NHS Trust v Al-Shabib [2003] IRLR 4. Whilst that case involved an attempt by a claimant to found on a quite separate statutory claim of which no notice had been given, it is not only in those circumstances that the principles of fair notice are relevant. It may arise in respect of a particular aspect of the complaint in the ET1 on which the form is silent. It is a fundamental principle that a respondent have fair notice of the case against him so as to enable him to consider his response, including considering whether to respond in writing and how best to decide on his line of evidence and submissions . Thus, if a new reason why, according to the claimant, the dismissal was unfair, unforeshadowed in the ET1, arrives in the course of the hearing, a respondent may well be able to legitimately complain that the claimant ought not to be allowed to pursue it. Hence the concerns we expressed in First Scottish Searching at paragraph 47.
The Tribunal’s Judgment and Reasons
Finding of Unfair Dismissal
“We ... concluded that the respondents had initially given the claimant sufficient information by providing her with information concerning the selection criteria and her ratings, but that, once she made it clear that she was not satisfied concerning the application of the criteria to her, and requested more information, it was incumbent on the respondents to give her that information prior to taking the decision to dismiss which the respondents did not do, and the dismissal is accordingly unfair.”
“87……if the employee gives reasonable notice that he wishes to challenge the application to him of the assessment criteria, the employee concerned must be given a reasonable opportunity do so. See Brown above. We are satisfied that the claimant, by requesting details of the basis of her scores, gave reasonable notice to the respondents that she did not acquiesce in the manner in which the criteria had been applied to her, and reserved her right to challenge it, and the respondents, by taking the decision to dismiss the claimant before the final consultation meeting, effectively deprived the claimant of the opportunity to challenge her assessment.”
Amendment/the Respondent’s Objection
Polkey
“113. The Tribunal considered carefully what material they had before then that would entitle them to reduce the award to the claimant. It is certainly true that we were advised that there were three candidates ahead of the claimant so that (we were urged to accept) the chances of the claimant remaining in employment were slender.
114. At first sight, this argument is attractive, but there is the difficulty that, as a result of the respondents’ successful objection to the leading of evidence concerning the fairness of the assessment, no evidence relating to this crucial issue was laid before us. We have no idea whether the claimant would have been able to point to an error of approach on the part of the respondents’ which vitiated the entire exercise, and if we were to accept the respondents’ argument we would, in effect be finding in favour of the respondents as a result of their mere assertion that everything was in order in connection with the precise point in issue, and when they had the opportunity to lead evidence relating the crucial issue, but did not.
115. We ultimately concluded that we could not reach any rational conclusion concerning the claimant’s prospects of remaining in employment, had the respondents acted fairly, and that for us to make any finding in this connection would involve us in setting sale (sic) on a sea of speculation, and, accordingly, we make deduction.”
The Appeal
“100……..the respondents required the claimant to set out her position in detail and in writing as a condition of being permitted to proceed with an oral appeal hearing. Although the matter did not play any significant part in the decision in this case, all the members of the tribunal, but particularly the very experienced lay members were concerned about the attitude of the respondents in this connection. Bearing in mind the respondents’ assessment of the claimant’s verbal reasoning ability, all members of the tribunal were concerned that an insistence that an employee set out in writing the grounds of his appeal had the potential to deny the right to an appeal in practical terms.”
Remedy
The Appeal
59. First, he submitted that the Tribunal had erred in law by failing to assess the fairness of the redundancy process as a whole. Lack of consultation in any particular respect will not necessary lead to a finding of unfairness: Mugford v Midland Bank and the fairness of a redundancy procedure requires to be viewed as a whole: Taylor v OCS Group Ltd. The Tribunal had failed to consider the whole process including the Claimant’s appeal. She had the interview notes prior to the meeting of 5 June and raised no challenge relating to them at that meeting, in her first written appeal or in her letter clarifying her appeal. She had ample opportunity to raise any issue that she wished to raise relating to them.
60. Secondly, in a submission which was, essentially, related to the first ground of appeal, Mr Cordrey submitted that the Tribunal were not entitled, on the facts found, to conclude that the Claimant had put the Respondent on notice that she was challenging her overall assessment or her interview assessment. They had, in all the circumstances, erred in finding that the Respondent was obliged to provide them to the Claimant. The Claimant had gone no further than requesting her interview notes; that was what the Tribunal had found. She had not explained why she wanted to see them or indicated that she was challenging anything to do with them. In these circumstances, the law did not require the Respondent to provide the notes to the Claimant. He referred, in support of these submissions, to Boal and Langley v Gullick Dobson Ltd, John Brown Engineering Ltd v Brown and British Aerospace v Green. Further, in respect that the Tribunal approached matters on the basis that the Respondent had undertaken to provide the Claimant with her interview notes before they decided to dismiss her, there was no evidential basis for them to do so. No indication had ever been given to the Claimant that the decision to dismiss would be postponed until meeting of 5 June, which was what appeared to be the Tribunal’s approach. It was wrong for a Tribunal to find a redundancy dismissal unfair based on an entirely unquantified risk to the fairness of the procedure: First Scottish Searching Services Ltd v McDine. That, however, was what the Tribunal here had done, accepting as they did that they had no idea whether or not the Claimant would have been able to point to an error of approach (paragraph 114).
61. Thirdly, Mr Cordrey submitted that the Tribunal had erred in law in failing to make a Polkey deduction. It was an irresistible inference from the facts found that if the Claimant had had the interview notes sooner, it would not have made any difference. Once she had them, she had several opportunities to raise any challenge she wished to raise based on them but did not do so. It was perverse for the Tribunal to say that they had no idea whether or not she would have been able to point to any error. Further, she came 6th out of a pool of 7 employees and unfairness would have had to be demonstrated that would have lifted her interview score substantially – from 11/28 to 27/28, if it was to have had the effect of outstripping the score of the successful candidate. The only possible conclusion was that the Claimant would have been dismissed in any event and a Polkey reduction should have been made: Software 2000 Ltd v Andrews. It was also evident from Mr Cordrey’s submissions that there was a sense of grievance on the part of the Respondent in respect that the Tribunal had, as they saw it, criticised them for not leading evidence about an issue which had been ruled out when the Claimant’s amendment was refused and the Tribunal had accepted that if it had become part of the case, there would have had have been an adjournment for them to organise further witnesses.
62. Fourthly, Mr Cordrey submitted that the Tribunal had erred in deciding the case on an issue which was not pled or raised prior to the conclusion of evidence. Natural justice required adequate notice: Bradford Hospitals NHS Trust v Al Shabib.
64. Sixthly, there were errors in the calculation of compensation. The Claimant was entitled to a basic award, not a redundancy payment. The relevant maximum weekly figure on which to calculate that award was £350 not £380. The Tribunal had, further, failed to give any indication of taking account of the ex gratia payments to which we have referred. They were obliged to give credit for all post dismissal payments: Ruston v Harcos Timber and Building Supplies Ltd [1993] ICR 230.
65. For the Claimant, Mr Forsyth accepted that at no time during the redundancy process had the Claimant raised a challenge to her scoring but it could, he submitted, be implied that when she requested to see her interview notes, she was doing so because she sought an opportunity to respond and that she understood that the context of the meeting of 5 June would be that it was for her to challenge her scores. The Respondent should have regarded the consultation period as ongoing and refrained from deciding to dismiss her in the meantime. He referred to Alexander v Bridgen Enterprises Ltd [2006] IRLR 422, at paragraphs 45 – 47 as authority for the proposition that an employee who is at risk of redundancy is entitled to see their own assessment. We did not, however, understand him to suggest that the Claimant had not seen her assessment – she had seen her various scores, as we have explained.
67. Regarding the argument that the Tribunal had decided the case on an issue not pled, Mr Forsyth sought to distinguish between the amendment that the Claimant was not allowed to make and the reason for the Tribunal’s decision which was, he said, different. He referred to the Bradford Hospitals case as being special on its facts and referred also to Langston v Cranfield University [1998] IRLR 172, for a passage where HHJ Peter Clark referred to it being a generally accepted although new points will not generally be allowed on appeal that will not be the case if the principle is so well established that a tribunal may be expected to consider it as a matter of course. It was not, however, clear how he thought that that met the argument against him.
Discussion and Decision
70. We are satisfied that this appeal is well founded on all grounds.
71. We would observe that the case of John Brown Engineering Ltd v Brown and others [1997] IRLR 90, contrary to what the Tribunal suggest, is not authority for the proposition that if an employee intimates a broad unspecific challenge to the application to him of redundancy assessment criteria, then he must be afforded the opportunity to see his interview notes (or any other documents) prior to any decision to dismiss. The decision in Brown related to its particular circumstances which were that the employees had been given no information at all about their individual assessments, not even their individual scores. That was, plainly, not the position here. Nor, indeed, was it the case that the Claimant raised any challenge to the application to her of the assessment criteria or to her scores. The circumstances were that she knew her total score, what scores she had been awarded under each heading and the respective weightings afforded to each of those heads. She at no time put the Respondent on notice that she sought to challenge her scores. She did not, on the Tribunal’s own findings, ask for details of the basis of her scores. She only asked to see her interview notes. That is, she asked, without any specification of the reason why, to see the notes taken at the interview when she was assessed against a list of previously agreed criteria; an assessment which, as above noted, formed only 30% of her overall scores. She knew that she had scored 11 out of 28 at interview. She did not, at any time, assert that any of her scores, including her interview score, should have been higher. There was no reason for the Respondent to think that she was, by asking to see her interview notes, raising any such challenge.
73. We would also observe that the Tribunal were wrong to suggest as, at paragraph 99 they seem to do, that whenever an employee who is at risk of redundancy makes any request for information, an ensuing dismissal will be unfair if that request has not been acceded to. Whilst an employer who has received a specific request for specific relevant information would be well advised to provide it, that is far from saying that he requires to do so in respect of every unspecific request for documentation unaccompanied by reasoned justification. In any event, the Claimant here did not ask for ‘information’ of the sort that might be expected in a redundancy exercise e.g. “why did I score only ‘x’ for my performance rating when I was told that I was an outstanding performer at my last appraisal?” Or , as was the issue which arose in the case of Pinewood Repro Ltd v Page [2011] ICR 508: “why did I receive a low score for flexibility when I have always been as willing as the next person to tackle any task that was asked of me?”. She asked to see a document which, of its nature, was bound to contain a wide range of information. Her request was plainly, at best, a fishing exercise and, given that once she had the notes she raised no complaint at all by reference to them, it can only be concluded that she did not catch so much as a minnow.
Disposal