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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 0019_10_1310

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Appeal No. UKEATS/0019/10/BI

 

 

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

 

 

At the Tribunal

On 23 September 2010 and 13 October 2011

 

 

Before

THE HONOURABLE LADY SMITH

MR P PAGLIARI

MR R THOMSON

 

 

 

 

 

CAMELOT GROUP PLC APPELLANT

 

 

 

 

 

 

MRS S A HOGG RESPONDENT

 

 

 

 

JUDGMENT

 

 

 


 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant

MR T CORDREY

(of Counsel)

Instructed by:

Camelot Group plc

 

For the Respondent

MR A FORSYTH

(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

1.            This is an employer’s appeal from a Judgment of an Employment Tribunal sitting at Glasgow, Employment Judge Hugh Murphy, registered on 3 March 2010, finding that the Claimant, who was employed as a retail development executive, was unfairly dismissed.  They awarded compensation of £15,051.

 

2.            The appeal hearing began on 23 September 2010 but was not completed that day and required to be adjourned.  It was continued on the next suitable date, 13 October 2011.

 

3.            We will continue, for convenience, to refer to parties as Claimant and Respondent.

 

4.            The Respondent was represented by Mr T Cordrey of counsel before the Tribunal and before us.  The Claimant represented herself before the Tribunal and was represented by Mr Forsyth, advocate, before us.

 

Background

5.            The Respondent operates the national lottery.  They were successful in renewing their contract to do so in 2009 but it was subject to a requirement that they reduce their costs.  That led to a business reorganisation and a decision that the role of retail development executive and retail business executive could be combined into one sales force of fewer employees.  The retained employees in the new sales force would carry out a new role - that of retail sales executives.  There required, accordingly, to be redundancies; of a total of 158 employees, 58 required to be made redundant.

 

6.            This was, on any view, a substantial redundancy exercise.  The Respondent prepared for it on the basis that they would require to assess up to 158 candidates for the new retail sales executives roles.  Each candidate would be assessed by a retail business manager.  Those managers were trained in the assessment process and, further, consistency interviewers were appointed to attend all interviews with a view to maintaining consistency of approach.

 

7.            The Claimant was warned that her role was at risk of redundancy (by letter dated 12 March 2009) and advised that the Respondent would be consulting with employee representatives.  The Respondent then embarked on a series of redundancy consultations with those representatives including consultation on criteria and pools, duly fulfilling their statutory responsibilities in that regard.

 

8.            The Claimant was, by letter of 19 March 2009, again advised that her role was at risk of redundancy.  She was also told that it was proposed that the period of consultation would end on 9 June 2009.

 

9.            The Claimant attended what was referred to as a “First Formal Consultation Meeting” with Bradley Edwards, one of the retail business managers appointed as an assessor for the redundancy exercise, on 3 April 2009.  She was advised that her role continued to be at risk of redundancy, that she was to be included in a closed selection pool, and that the Respondent proposed, subject to consultation with the Staff Forum, to use a selection process.  She was advised of the criteria that would be used.  The advice tendered at the meeting was confirmed in a letter dated 9 April 2009.

 

10.         The Claimant completed an online questionnaire that was part of the assessment procedure, on 14 April 2009.

 

11.         On or about 20 April 2009, Bradley Edwards telephoned an employee called David Scott, who lived and worked in Cumbria, and advised him that he need not attend the assessment process.  That was because he was the only candidate for the territory in which he worked (Cumbria).  He told David Scott that he should not discuss the fact that he had been excluded from the assessment process with anyone but it, nonetheless, came to the attention of the Claimant (who lived and worked in Ayrshire and had not applied to work in Cumbria) and appears to have been what prompted her presentation of the present claim (see: ET1 paragraph 5.2).

 

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.

 

13.         The Claimant attended a second meeting with Bradley Edwards on 8 May 2009.  She was advised that she had not been successful in securing the post for which she had applied and that she was to be made redundant.  She was shown her scores; the scores were broken down under four different headings, namely performance ratings, criteria based interview, numerical reasoning test and verbal reasoning test.  The weightings for each head were shown to be 50% to performance ratings, 30% to criteria based interview, 10% to numerical reasoning test and 10% to verbal reasoning test.  The Claimant scored 47.8% out of a possible total of 100%.  Her interview score was 11 out of a total possible score of 28.  She was given the opportunity to comment on her scores.  She was advised that she could, if she wished, have another consultation meeting.

 

14.         The highest interview score achieved by a candidate was 24 out of a total possible score of 28.  It was awarded to the candidate who, in the event, had the highest overall score of 64.7%.  There was thus, on any view, a very wide gulf between the Claimants’ score and that of the successful candidate.

 

15.         By letter dated 19 May 2009, what had passed at the meeting on 8 May 2009 was confirmed to her.  In particular, it was confirmed to the Claimant that she had not been successful in securing one of the available roles and that she continued to be at risk of redundancy and that her ‘likely leave date’ was 12 June 2009.

 

16.         The Claimant met with Bradley Edwards again on 22 May.  She said she did not accept that the scores attributed to her fairly reflected her abilities.  She gave no specification of actually seeking to challenge her scores or which of her scores she was referring to.  She asked to see a copy of her interview notes.  The written record of the meeting, which was signed by the Claimant and Bradley Edwards, stated, in the box for “Comments”:  “Shirley would like to see a copy of interviews (sic) notes – BE to ask Liz:?”.  Although the Tribunal found that the Respondent agreed to provide her with the notes prior to the next meeting (at paragraph 50 of their written Reasons), it was agreed between parties that that was not the evidence.  The evidence before them was that, at the meeting, the Claimant was told that she was not allowed to see the notes but, later, they reluctantly gave her a copy of them.  The Claimant received the notes on a date that, on the Tribunal’s findings, was not before 1 June 2009 but was prior to 5 June.

 

17.         On a date a few days prior to 5 June, the Respondent’s head of HR and head of retail sales decided to dismiss the Claimant as she had been unsuccessful in her application for any of the new posts.  Bradley Edwards was, accordingly, instructed to terminate the Claimant’s contract of employment at the meeting that was due to take place on 5 June.

 

18.         At the meeting on 5 June, the Claimant was accompanied by her union representative. She was told that her employment would be terminated on 12 June 2009, by reason of redundancy.  The Claimant did not raise any challenges.  In particular, she did not raise any challenge to her scores or to anything contained in the interview notes with which she had been provided and had, by then, had time to consider.  The decision to dismiss was confirmed to the Claimant by letter following the meeting.  The letter also advised her that she had the right to appeal, in writing, and the Claimant did so.

 

19.         The Respondent’s appeal procedure included a ‘sift’ system.  Appeals required to be submitted in first instance, in writing.  They were then submitted to an appeal panel and if it considered that the employee had a legitimate appeal, he/she would be asked to attend an appeal hearing.

 

20.         The Claimant appealed using an appeal form provided by the Respondent.  As her grounds of appeal, she stated:

 

“Inconsistencies within the selection process which led to redundancy.

Dates on items of correspondence.

Outplacement contact DBM timings.

Unfairly selected.”

 

21.         The Claimant did not challenge her scores or the way in which the redundancy criteria had been applied to her in that note of appeal.  Nor did she appeal on any basis which related to her interview notes.

 

22.         The Respondent requested the Claimant to provide additional information regarding her stated grounds of appeal and she replied by letter dated 16 June 2009 which included:

 

“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.”

 

23.         Thus, again, the Claimant did not challenge her scores or the way in which the redundancy criteria had been applied to her.  Nor, again, did she appeal on any basis that related to her interview notes.

 

24.         The Respondent replied by letter of 30 June 2009.

 

25.         First, it was explained that all the retail sales team were put at risk of redundancy and it was only where the geographic isolation of a particular individual made it unlikely that anyone else would apply to voluntarily locate to their region that those persons were not put through a selection process – i.e. cases where there was no current ‘competitor’ for that post.

 

26.         Secondly, all the interviewers (who worked in pairs) had received competency based training, all candidates were measured against the same criteria and, furthermore, there was daily calibration of results to ensure that there were no discrepancies as between assessments; it was not feasible, given the tight timescale and the number of interviews that required to take place, to have all candidates interviewed by the same panel.

 

27.         Thirdly, whilst draft severance statements were prepared in advance so as to assist in consultation with those at risk of redundancy, selection outcomes were not pre-determined.  The Claimant was told at her second consultation meeting that the severance statement was a draft document.

 

28.         Fourthly, the Respondent pointed out, put shortly, that all staff had been advised of the availability of alternative funding to assist with outplacement by means of a company wide email sent by the Staff Forum on 11 May.

 

29.         Thus, it was not considered that the Claimant had a legitimate appeal and she was not invited to an appeal hearing.

 

30.         Finally, the Claimant was advised that there was no policy decision regarding voluntary redundancy; what had happened was that if an employee had of their own volition expressed an interest in being made redundant or in relocating on a self financing basis, that was taken note of.  If an employee was willing to be made redundant then they were not - unsurprisingly - put through the selection process.

 

 

 

The Claimant’s Claim

31.         The Claimant’s complaint in her form ET1, can be summarised as follows: (a) during the redundancy selection process, 19 employees were contacted by management and told that they were excluded from the process, which showed that the process was unfair; and (b) that during the 90 day consultation period, employees were asked to express any interest in voluntary redundancy and not all who did so were given offers of being made redundant.

 

32.         The Claimant’s case was set down for a hearing to take place on 14 January 2010.  By letter dated 3 December the Respondent wrote to the Claimant advising her that their understanding of her claim was that she was unfairly dismissed for the above two reasons.  They then stated:

 

“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.

 

34.         In the course of evidence being led, it became apparent that the Claimant sought to complain about and challenge the scoring that had been attributed to her in the assessment process.  The Respondent’s counsel, Mr Cordrey, objected on the ground of lack of fair notice and his objection was upheld.  The Claimant was not allowed to amend to include any such complaint as part of her claim.  At paragraph 68, the Tribunal said:

 

“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.”

 

35.         The Tribunal, accordingly, determined that any complaint about the assessment that was made of her by the Respondent during the redundancy process was not and could not form any part of her claim.

 

Relevant Law

36.         Section 98 of the Employment Rights Act 1996 provides that it is for the employer to show the reason for a dismissal (s.98(1)) and that redundancy is a potentially fair reason (s.98(2)(c)).  Whether or not dismissal for that reason is fair or unfair depends on the answer to the issue identified in section 98(4):

 

“…….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.”

 

37.         Accordingly, once a potentially fair reason for dismissal is established, the question of whether or not the employer acted reasonably in deciding to dismiss lies at the heart of every case where a claim for unfair dismissal is pursued including cases of dismissal on grounds of redundancy.

 

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 .”

 

39.         A flaw at one stage of a dismissal process for any of the potentially fair reasons, including redundancy, does not of itself mean that the dismissal is unfair.  Accordingly, tribunals should guard against minute scrutiny of individual parts of the process lest it diverts them from the task set by the statute.  As Lady Justice Smith explained further, at paragraphs 47 and 48:

 

“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.”

 

48.         He also observed that whilst it was for an employer who contended that, had fair procedures been followed, the employee would still have been dismissed, to adduce any evidence on which he wishes to rely, employment tribunals require to have regard to all the evidence including any evidence from the employee himself.  We agree and would add that it is a good example of circumstances where, once the evidence in a case is all out, onus rarely has a significant role to play.

 

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

50.         The Tribunal found that the Claimant’s dismissal was procedurally unfair.  That was because the Respondent had, they said, decided to dismiss her prior to providing her with her interview notes.  Given their finding in fact that she received the interview notes by 1 June and the decision to dismiss was taken on a date between then and 5 June, that cannot be right.  We can only think that their criticism was levelled at the decision to dismiss being taken prior to the meeting of 5 June, which seems to be their approach elsewhere in the judgment.  They explain their reasoning at paragraph 99:

 

“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.”

 

51.         That conclusion was drawn against a background of the Tribunal’s findings about what passed at the meeting on 22 May.  Although they accepted that an employer need not provide an employee who he proposes to dismiss as redundant with the full basis of the assessment carried out, they found:

 

“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

52.         We have already referred to this matter and the Tribunal’s determination, at paragraph 68, of the issue that arose.

 

Polkey

53.         An issue having, by the time of submissions, having arisen as to whether or not there was procedural unfairness relating to the provision of the Claimant’s interview notes, Mr Cordrey had invited the Tribunal, if they found the dismissal to be unfair, to make a Polkey deduction from compensation.  The Tribunal declined to do so and give their reasons at paragraph s 113 – 115:

 

“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.”

 

54.         The Tribunal make no attempt to reconcile their approach to the respondent’s Polkey submission with their having earlier excluded from the Claimant’s case any issue regarding the Respondent’s assessment of her.

 

The Appeal

55.         The Tribunal expressed concern that the Claimant could only appeal in writing although they did not go so far as to say that that rendered the appeal procedure unfair. At paragraph 100 they said:

 

“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.”

 

56.         The Tribunal heard no evidence regarding the effect, if any, that the level of the Claimant’s verbal reasoning ability would have had on her ability to communicate the points she sought to make on appeal and whether she would be better able to do so orally or in writing or vice versa.

 

Remedy

57.         The Tribunal awarded the Claimant £15,051 comprising (a) a statutory redundancy award of £3,990; (b) an award in respect of past loss of earnings and loss of pension contributions of £9,237, and (c) an award in respect of future loss of earnings of £12,931.  They deemed her employment to have terminated on 13 August 2009, based their calculations of the redundancy payment they awarded on a gross weekly maximum of £380, and took no account of payments that the Respondent had already made to the Claimant totalling £7,663.97 (£1,795.96 for loss of benefits and allowances, £4141.00 for loss of bonus and transition initiative, and £1727 as pay in lieu of notice).

 

The Appeal

58.         Mr Cordrey had six grounds of appeal which were supported by a well structured skeleton argument and clear oral submissions.

 

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 LtdThe 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.

 

63.         Fifthly, Mr Cordrey submitted that the Tribunal reached a perverse conclusion regarding the meeting on 5 June.  They implied that the Claimant had been misled into thinking that she would have a chance to challenge her interview assessment during that meeting but the facts did not bear that out; the Respondent had not agreed at the meeting on 22 May, to provide her with the interview notes at all.  Nor had they ever agreed to provide them prior to the next meeting.  We refer to this matter in the ‘Background’ section above – parties were agreed that the evidence was not as the Tribunal represents it to have been.  The Claimant had, further, repeatedly been told that the meeting was to confirm her likely leaving date of 12 June due to redundancy.

 

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.

 

66.         As for the appeal, whilst recognising that the Claimant had not raised any issue regarding her scores or the interview notes in her appeal, Mr Forsyth submitted, without reference to authority, that non utilisation of an opportunity to appeal does not render an unfair dismissal fair.  Further, there was, he submitted, a problem with the appeal in this case because it was restricted to writing.  He relied on the Tribunal’s observations at paragraph 100 (quoted above) in support of that submission.  It could, he said, be implied that the Tribunal were saying that the whole manner of the appeal was unfair because it was limited to writing.  Regarding Polkey, Mr Forsyth submitted that the Tribunal was entitled to reach the view that they could not embark on a “sea of speculation”.

 

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.

 

68.         Regarding the Tribunal’s approach to what the Claimant could expect at the meeting on 5 June, he submitted that it was not perverse.  The fact that she had disagreed was enough.

 

69.         As to the Tribunal’s calculations, Mr Forsyth accepted that they had erred in awarding a redundancy payment; it should have been a basic award based on £350 per week.  As for the  ex gratia  payments, whilst he submitted that they might not have been deductible, depending on the view the Tribunal took of appropriate compensation, in the end of the day, he appeared to accept that there was a problem in that the Tribunal had taken no account of or made reference to them at all.

 

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.

 

72.         In short, the Claimant knew her overall score and its individual components, did not challenge the overall score or any part of it and the Tribunal had no basis for saying that the Claimant had, by asking to see the notes taken at interview, somehow communicated to the Respondent that she reserved the right to challenge her scores; it was not an inference which could arise from the facts found by them.  They erred in drawing that inference and it was a fatal error as it formed the basis for their conclusion that her dismissal was unfair.

 

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.

 

74.         We are, put shortly, satisfied that the Respondent was under no duty to provide the Claimant with a copy of her interview notes.  It reflects well on them that they did so but it remained the position throughout that they were not put on notice that she had any complaint or challenge which she wished to raise under reference to them.

 

75.         Turning to the Tribunal’s approach to the meeting of 5 June, we are satisfied that given that the Respondent did not, at the meeting on 22 May, agree to provide the Claimant with her interview notes - matters went no further than Mr Edwards noting the request and that he would need to “ask Liz” about that – the Claimant cannot have left it thinking that they had agreed to postpone consideration of whether or not to dismiss her or that the purpose of the meeting of 5 June would be for her to raise objections to her assessment under reference to those notes.  There was no basis in the evidence for the Tribunal approaching matters on the basis that the Respondent had agreed with the Claimant that, in her case, the consultation period was extended.  There was no basis for them to infer that the Claimant had given notice that she did not acquiesce in their assessment of her and reserved her right to challenge it.  In any event, whether or not an employee acquiesces in an employer’s redundancy assessment is beside the point; an employer cannot reasonably be expected to respond absent a specific challenge.

 

76.         Moreover, we are satisfied that the Tribunal failed to stand back and ask whether, overall, there was a fair redundancy process, as they required to do: see our ‘Relevant Law” section, above.  They failed to take account of the opportunity that the Claimant had and used, to appeal; she could have raised any challenge, including in relation to her interview notes, in her appeal.  The fact that, at first instance, the appeal required to be in writing did not bar her from doing so; she never suggested that it did and she was evidently well able to articulate, in writing, a series of complaints, particularly in her supplementary appeal letter of 16 June 2009.  There was no basis in the evidence for the Tribunal to have any concern that if she had, at that time, any complaint to make about her scores or her interview notes, she was somehow unable to make them.  Further, we do not understand why it would supposedly be easier for someone who does not have a high level of verbal reasoning skills to engage in an oral hearing, an occasion which would be bound to be stressful in a way that preparing a written appeal document in the privacy of one’s own home would not.

 

77.         It is clear that the Claimant had ample opportunity to raise any query, complaint or challenge she had about her scores or her interview notes in a process which, overall, was thorough and careful.  There was no basis on which it could be concluded that the decision to dismiss the Claimant was not fair.

 

78.         Turning to the ground of appeal that the case was decided on an issue not pled, we accept that the Tribunal did not entertain any case to the effect that the Claimant’s scores were too low or, having excluded such a case, find that they were.  However, the basis on which they found that the dismissal was unfair was very closely allied to that complaint, a complaint which the Claimant sought but was not allowed to pursue.  Further, the basis on which they determined the case formed no part of the Claimant’s complaint as set out in her form ET1.  That being the position, the Tribunal had no business doing so.

 

79.         Moving to Polkey, we can fully understand why the Respondent felt aggrieved.  They had been successful in preventing the Claimant’s challenge to her assessment scores becoming belatedly part of the case, did not anticipate it or anything relating to it being a relevant issue, still less the determining issue and were then criticised for not having addressed the matter in evidence.  We agree that the Tribunal’s approach in paragraph 114 seems unfair.  Further and perhaps more importantly, the Tribunal took no account of evidence that was material and relevant to the Polkey issue namely that once the Claimant had the interview notes she made no complaint about them or anything relating to them despite having chances to do so at the meeting on 5 June, in her initial appeal document, in her supplementary appeal document, in her form ET1 or in response to the Respondent’s letter to her dated 3 December 2009.  Far from it being open to the Tribunal to conclude that they had no idea whether the Claimant would have been able to point to an error of approach by the Respondent, it is plain that, not having done so on any of these occasions, the only conclusion which could properly be drawn was that she could not do so.  In those circumstances, there would have to have been a Polkey deduction of 100%.

 

80.         We do not, in the circumstances, require to deal in detail with the calculation of the Claimant’s basic award and compensation.  We are, as we have said, satisfied that the challenges to it were well founded.

 

Disposal

81.         In these circumstances, we will pronounce an order upholding the appeal and substituting for the judgment of the Employment Tribunal a finding that the Claimant was fairly dismissed.

 

 


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