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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Davies v Farnborough College of Technology [2007] UKEAT 0137_07_1007 (10 July 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0137_07_1007.html Cite as: [2007] UKEAT 137_7_1007, [2007] UKEAT 0137_07_1007, [2008] IRLR 14 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE BURTON
MR P R A JACQUES CBE
MR A E R MANNERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MS A BEALE (of Counsel) Instructed by: University and College Union Solicitors (UCU) 27 Britannia Street London WC1X 9JP |
For the Respondent | MS A JAMESON (of Counsel) Instructed by: DAS Legal Expenses Insurance Company Ltd DAS House Quay Side Temple Back Bristol BS1 6NH |
SUMMARY
Unfair dismissal – Automatically unfair reasons
Redundancy – Fairness
Unfair dismissal – Polkey deduction
The Employment Tribunal erred in concluding that a breach in relation to Step 2 (failure to give sufficient information as to reasons for selection of the Appellant for redundancy to enable consideration and challenge) could be "cured" at an appeal hearing (Step 3). Alexander does not require the giving of the actual mark in each case, but on the facts of this case sufficient information was not given in the absence of disclosure of the marks. Although there was automatic dismissal by virtue of the Step 2 breach (which will be substituted for the Tribunal's decision) it was clear beyond doubt that the Appellant, whose marks were very significantly lower in all respects than his two competitors, would have been fairly dismissed even if given a further opportunity to challenge at Step 2 or otherwise.
THE HONOURABLE MR JUSTICE BURTON
"Step 1 Statement of grounds for action and invitation to meeting
1 - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: Meeting
2 - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless—
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it."
There is then provision relating to Step 3: appeal. There was an appeal in this case, as we shall describe, and the details of Step 3 do not arise for consideration in this case and we say no more about it.
(1) "An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements."
S98A(2) gives a let-out in certain circumstances to an employer, but it is conceded that that sub-section does not apply on the facts of this case. The result is that if there is a breach of the procedure by the employer there is an automatic dismissal which leads to a compensatory award if appropriate and to a basic award uplifted in accordance with the provisions of s121A. The provisions of Polkey v AE Dayton Services Ltd [1987] IRLR 503 can apply to an automatic unfair dismissal in the same way as to an ordinary unfair dismissal in terms of limiting or reducing or in some cases eliminating the compensatory award if the Tribunal concludes that had the procedure been complied with there would have been a fair dismissal. The result however would be that, albeit no compensatory award might then follow, or at any rate one limited to the period of time needed to ensure compliance with the procedure and the fair result postulated, there would be a basic award not only of the minimum but the uplifted amount, unless it were concluded, by reference to s120(1)(b) of the 1996 Act that an uplift would result in injustice to the employer.
"45. In our judgment neither of these submissions is correct. We see the force of Mr Barnett's submission that, once given the selection criteria, the employee is in a position at least to address some arguments to the employer as to the justification for selecting him. But we - and in particular two very experienced lay members - are of the view that this is not enough to enable the informed response which essential procedural safeguards should allow. In our judgment in order to comply with the statutory provisions [and we pause here to say that this makes it quite plain that they were thereby not indicating what would be appropriate steps to take in order for an employer not to act unfairly but giving a considered view as to the way in which the statutory requirements should be interpreted] an employer should provide to the employee not only the basic selection criteria which have been used, but also the employee's own assessment. That will give the employee an opportunity to make representations not only about whether the criteria are justified and appropriate but also, more importantly, whether the marking given to him in respect of any particular criterion is arguably unjust, and why. It may be that he can correct some obvious factual error, such as being attributed with a disciplinary record he does not have, or what appears to be a rogue mark on one of the criterion, apparently wholly out of line with his work performance. His response will be difficult to formulate, and very much in a vacuum, without this information.
46. We have considered whether more is required from the employee. There is some merit in the argument that the break point should be provided to the employee, by which we mean the mark which he would need to attain in order to remain in employment, but we think that that is going beyond the basic standards required. We also reject the submission of Mr Toms that it is necessary in order to comply with the statutory procedure to provide the assessment of the other employees. We recognise that the selection is inevitably a competitive exercise but we are all of the view that this goes well beyond what minimum standards of procedural fairness would demand."
"That will give an employee an opportunity to make representations not only about whether the criteria are justified and appropriate, but also more importantly whether the marking given to him in respect of any particular criterion is arguably unjust and why"
as referring to whether the assessment made in relation to him in respect of any particular criterion is arguably unjust. That may be satisfied by giving something short of the actual mark. On the other hand there may well be cases in which giving the mark alone may not be sufficient. What is necessary however is for sufficient information to be given to allow the employee both to understand and to challenge why he, rather than others, has been selected in accordance with the chosen criteria.
"Regrettably, you were the person with the lowest score and therefore you are the person we are going to make redundant".
"As I explained in our meeting your scores are the lowest when compared with your two colleagues in the Marketing team, and consequently you have been selected for redundancy."
The Appellant responded by saying this in a letter of 20 July:
"Analysing the selection criteria against my two colleagues I disagree strongly that I score lowest of the three. I have been through the criteria in detail and cannot agree with the college's assessment."
"13. … A summary of their marking is at pages 60 to 61. The total scores for each were Mr Hutton 87, Mr Taylor 70 and Mr Davies 41. The higher the score the better the rating. During the course of the proceedings Mr Davies questioned each of Messrs Horner and Brady and Mrs Morewood on the individual components of the scores. It was clearly and understandably hurtful to Mr Davies to have scored less than his two colleagues in this way. Indeed it was clear to us that it was Mr Davies' unhappiness on this score which is one of the two drivers in Mr Davies' claim to this Tribunal. The other is that the "pain" was not shared, as has already been mentioned."
And then, in the context of the half-suggestion of collusion, in paragraph 14 the Tribunal is entirely satisfied that was not the case:
"We listened carefully to the answers to the questions put by Mr Davies on the subject of scoring and we found no bias in the explanations. We noted that the scoring followed a pattern. Mr Davies was scored consistently low by all the scorers, Mr Taylor was scored consistently in the middle and Mr Hutton consistently highest. Of course this might simply reflect collusion but we do not think that it does. We have also taken note that Mrs Davis spent some time going over aspects of the scoring [Mrs Davis being the chairman of the appeal panel], with Mr Davies during the appeal hearing which we will come to …
17. Mr Davies appealed against his dismissal … The thrust of his appeal was then, as it is now, that he disagreed strongly with his lowest of these score in the selection process."
The Tribunal concluded that there was sufficient warning, sufficient consultation, a use of objective selection criteria, a fair application of the selection criteria and sufficient consideration of alternatives, and that the respondent acted reasonably in the circumstances and not in breach of the procedures. At paragraph 25.2 of the judgment the Tribunal says this:
"The only observation we would make about the consultation process was that it did not include the communication of Mr Davies' marks to him until these proceedings were commenced, nor were these discussed other than in passing until the appeal hearing on 25 July 2006. That was unfortunate. The marking is one of Mr Davies' principal disagreements about what has happened to him. Had it been tackled, say at the meeting with Mr Brady on 19 July, the need for this Tribunal to judge the process might have been avoided. Nonetheless we find any defect in this respect was cured at the appeal hearing on 25 July when a full discussion of the application of the selection criteria to Mr Davies took place. The consultation process was adequate."