Appeal No. UKEAT/0103/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 May 2010

Before

THE HONOURABLE MRS JUSTICE COX

DR B V FITZGERALD MBE LLD FRSA

MR D J JENKINS OBE

MR N BOND (APPELLANT)

URMET DOMUS COMMUNICATION & SECURITY UK LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS LOUISE PRICE (of Counsel)

Instructed by:
Messrs Colemans CTTS LLP
25-29 High Street
Kingston-upon-Thames
Surrey
KT1 1LL

For the Respondent
MR JAMES ARNOLD (of Counsel)

Instructed by:
Messrs Wollastons LLP Solicitors
Briely Place
New London Road
Chelmsford
Essex
CM2 0AP

UNFAIR DISMISSAL

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Whether infringed

Employment Tribunal found that employers had complied with the statutory procedures in a redundancy dismissal. The question was whether they erred in so finding when the employee had not been informed as to how the chosen selection criteria were applied to him personally. Appeal by Claimant upheld, applying Alexander, and finding of automatic unfair dismissal substituted. Remitted to fresh ET for remedy to be determined.

1. This is yet another appeal raising the question of compliance with the statutory dismissal and disciplinary procedure which, although much criticised and now repealed, was still in force at the material time. The issue in this case is whether the Claimant/Appellant was automatically unfairly dismissed by the Respondent because of a failure to comply with Step 2 of the statutory procedure.

1. The Claimant contends essentially as follows: (a) the Tribunal erred in law in finding that there had been compliance, and that the Claimant was not unfairly dismissed by virtue of section 98A(1) of the Employment Rights Act 1996; and (b) in coming to these conclusions the Tribunal failed to have proper regard to the evidence before them.

1. The Respondent contends that the Tribunal applied the law correctly and came to the right conclusion on the evidence in this case. Further, the appeal is said in any event to be academic because the Claimant does not assert that it would have made any difference to the outcome.

1. The relevant facts are these. The Respondent is a small company that supplies door entry systems to the multi occupancy housing sector. The Claimant commenced employment with them in 2003. He started work in the technical department, in technical sales support, and was subsequently promoted to the post of product development manager in 2005. He then worked on activities related to specific entry systems known as Urmet and FDI products. There were four people employed in the technical department, namely the technical director, Mr Carpenter; the Claimant as product development manager; Mr Nery O'Nery, working on automated product support and Simon Crane, technical support. The employees dealing specifically with the mechanical FDI and Urmet products were the Claimant and Simon Crane.

1. By the autumn of 2008 the Respondent was experiencing financial difficulties due to the adverse economic climate. On 6 October 2008 the Respondent held a group meeting with all staff, at which they were informed that the situation was being evaluated in order to see whether reorganisation or redundancies should be proposed. The Respondent took advice from the human resources service, Sage, in order to consider the best way to carry out any redundancy or reorganisation process, and in order to ensure that they complied with the legislative requirements then in place.

1. On the following day, 7 October 2008, the Respondent wrote to all staff setting out a timetable of events, as follows:

"Wednesday 8th Oct 2008 - Individual meetings will take place where you can ask for additional information.

Monday 13th Oct 2008 - Individual meetings will take place where the company will advise you if your position is at risk or not. Proposals maybe made for change of roles as part of the Process Reorganisation.

Wednesday 15th Oct 2008 - Individual meetings will take place for those affected by 13/10/2008 outcome to discuss situation further.

Friday 17th Oct 2008 - Final consultations will take place today. Any redundancies would be effective immediately."

1. On the same date the Claimant and other members of staff were sent another memorandum setting out the following redundancy selection criteria for consideration:

* "The requirements of the process and functions that now needed to meet current conditions.

* Qualifications and ability to meet current requirements.

* Flexibility.

* Absence.

* Timekeeping/punctuality."

This memo also set out the process in relation to the making of redundancy payments.

1. Pursuant to the timetable, the Respondent's Director, Mr Gami, and Mr Carpenter had a meeting with the Claimant on 8 October 2008. At that meeting the timetable for consultations and the selection criteria were discussed, as was possible redundancy pay. The meeting was found to be constructive and the Tribunal found that the Claimant was "aware of the possible redundancy criteria that would be utilised in the event of redundancy" and that "he had the opportunity to comment on them but did not do so". The Claimant acknowledged the serious financial situation for the Respondent at this meeting and offered to take a sabbatical if that would help.

1. On 13 October, once again in accordance with the timetable, the Claimant and other members of staff were sent a letter informing them of possible redundancies. The following was relevant to the Claimant:

"Timetable:

Monday 13th Oct 2008 - We have established that we will need to make redundancies and/or have operational changes involving role changes in the following areas:

* Technical Department activities relating to Urmet and FDI products."

1. Since only the Claimant and Simon Crane undertook these activities in the technical department, the Tribunal found that the Claimant was aware at this stage:

"… that it was only either him or Mr Crane that would be considered for redundancy and/or reorganisation in the Technical Department."

1. Further, a meeting took place on 13 October, when the letter of that date was discussed. The Claimant was informed that either he or Mr Crane was being considered for redundancy, in accordance with the criteria, and that reorganisation was not appropriate to meet the future needs of the business. Once again the Claimant apparently offered a sabbatical of one or two months at this meeting, in an effort to be helpful.

1. In accordance with the timetable, on 15 October individual meetings took place with those employees who were affected. The Claimant and Mr Crane attended separate meetings. At his meeting the Tribunal found that the Claimant was informed that he was at risk of redundancy. He asked if he was actually being made redundant, but was told that at this stage no final decision had been made. He was informed that a final decision would be made on 17 October.

1. On 17 October a final consultation meeting was held with the Claimant, attended by Mr Carpenter and Mr Gami as usual, but attended in addition by another director, Mr Haggen. Mr Gami told the Claimant that his offer of a sabbatical had been considered but that the Respondent "had to propose his redundancy".

1. Before the Tribunal there was a dispute between the parties as to what had actually been said at this meeting and as to what was meant. The Claimant's case was that he was told at this meeting that he was being made redundant, that in accordance with the timetable he was aware that it took place with immediate effect, and that he therefore believed he was being dismissed on that day.

1. The Tribunal found that there had been some confusion about this meeting. The Claimant had had regard to the contents of the timetable. He was also asked to leave the premises after the meeting, which the Tribunal said he may reasonably have interpreted as consistent with his dismissal being with immediate effect. We also note the Tribunal's finding that the Claimant had been told at the meeting on 15 October that a final decision would be made on 17 October. However, the notes of the meeting specifically referred to the words "proposed redundancy" and to a subsequent meeting to take place on 22 October 2008.

1. The Tribunal noted that the Respondent's notes of the meeting were accepted by the Claimant as accurate, save in these two specific respects, and they noted that the Claimant had not himself provided any notes of the meeting, despite the fact that he had had the opportunity to make his own notes at the time or shortly afterwards.

1. The Respondent had also written a letter to the Claimant on 17 October, which he accepted he had received on 20 October. This letter referred specifically to a planned meeting on 22 October to discuss the Claimant's redundancy. The Claimant responded to this letter by email dated 21 October stating that he would not be attending that meeting. The Tribunal found that there was no logical explanation why the letter of 17 October would have been sent to the Claimant if it did not in fact reflect what had been said at the meeting. Further, they considered it surprising, if the Claimant's account were correct, that he had not mentioned in his email that he believed he had already been dismissed with immediate effect on 17 October.

1. The Tribunal therefore found that the notes of the meeting accurately recorded what had happened and what had been said. They found that the Claimant was informed at the meeting that his redundancy was proposed and that it was not effective immediately.

1. Following the Claimant's email of 21 October the Respondent wrote to the Claimant on the same day, inviting him to attend a rearranged meeting on 29 October 2008. The Claimant did not attend this meeting, or give any notice that he would not be attending. However, on the day before the meeting he did send a further email stating his belief that he had been made redundant with immediate effect on 17 October.

1. In this email he set out a number of complaints. He stated that he had been made redundant without prior notice, either verbally or in writing, and that he had been personally selected without any explanation as to why he had been selected, without the opportunity to consider and discuss it, and without the opportunity to appeal and to ask for a further meeting. He asserted that the Respondent's letters of 17 and 22 October were written after he was made redundant and that the Respondent had failed to explain how the criteria listed in the notice dated 7 October applied to him, or why he was the one who had been selected.

1. He also stated that the Respondent had refused to allow him to record what was said at meetings, so that he could make notes later on. Before the Tribunal the Claimant maintained that the Respondent was aware that he was dyslexic. The Respondent denied any knowledge of this, but the Claimant appears to have accepted that he was not prevented in any event from making notes after the meeting. In fact he stated that he had made some notes in accordance with his recollection of events.

1. The meeting on 29 October took place in the Claimant's absence, and he was then informed by letter of the same date that he was made redundant. His termination date was stated to be 29 October 2008. However, the Respondent treated the Claimant's email of 28 October as grounds of appeal and invited the Claimant to exercise his right of appeal. Mr Arnold points out that the meeting on 29 October was, in fact, the Step 2 meeting required by the statutory provisions, although the Tribunal does not appear to have made an express finding to that effect.

1. The Claimant exercised his right of appeal, setting out his grounds in a further email dated 4 November 2008. He then attended an appeal hearing on 7 November, where his appeal was considered but dismissed. He then brought his Tribunal claim, alleging that his dismissal was both automatically and ordinarily unfair.

1. Having found these facts, the Tribunal stated that they had considered the relevant statutory provisions and the case law relating to unfair and automatically unfair dismissal. They referred to the provisions of section 98, section 98A and section 139 of the Employment Rights Act 1996; and they indicated that they had had regard to the decisions of the EAT in Alexander & Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422 and to Williams v Compair Maxam Ltd [1982] IRLR 83. It is, perhaps, unfortunate that the relevant statutory provisions and extracts from the authorities were not expressly set out in the judgment. Citation of the relevant law concentrates the mind and enables Tribunals to focus on the applicable legal principles.

1. The Tribunal's conclusions were set out at paragraphs 6 to 13 as follows:

"6. The first consideration the Tribunal undertook was as to whether the statutory procedures had been complied with. We have concluded that the Claimant was informed of the criteria that would be used and applied to him and Mr Crane during the meetings which were held by the Respondent. The Claimant was under no doubt as at 15 October 2008 that it was him or Mr Crane that would be subject to potential redundancy and/or reorganisation. The Claimant had an opportunity to discuss the criteria and chose not to make any observations in relation to it. Further, the Claimant had an opportunity to attend the meeting on 22 October 2008 and the meeting of 29 October 2008 but chose not to do so.

7. The Claimant had a good opportunity at these meetings to assert, understand and become aware of the reasons for redundancy and why he has been selected. The Claimant was offered an appeal which took place on 17 November 2008 and was able to put forward his concerns which the Respondent did not accept.

8. The Claimant was informed in writing of the meeting but did not attend the meeting, which was rearranged. He was offered the right of appeal and he exercised that right. The Tribunal concluded that the statutory procedure has been complied with by the Respondent.

9. The Tribunal has concluded that this is not a case which is consistent with Alexander & Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422. The Claimant had opportunity to make representations as reasons and alternative to redundancy. The Claimant knew it was either him or Mr Crane that would be selected for redundancy in accordance with the criteria and he had the opportunity to make representations at the meeting on 29 October 2008 to discuss any issues he wished to raise as set out and informed by the letter of 17 October 2008 but chose not to attend this rearranged meeting.

10. In dealing with ordinary unfair dismissal principles, the Tribunal concludes that the Respondent has established a potentially fair reason for dismissal, namely redundancy. There was concern about the severe downturn in business due to the economic climate which occurred in the second quarter of 2008 and the Respondent established it had less requirement for workers to undertake work of Urmet and FDI technical support.

11. In respect of whether the dismissal was fair and reasonable in all the circumstances, the Claimant, and other staff, were warned of potential redundancy on 6 October 2008 in a group meeting. The Claimant was informed of the timetable to be followed and he was informed of the selection criteria and had an opportunity to comment and make representations on it. The Claimant attended meetings on 8 October 2008, 13 October 2008 and 15 October 2008 where he was able to make representations and observations on the criteria and its implementation. He was told that it was proposed to select him for redundancy at the meeting on 17 October 2008.

12. However, the Claimant did not get the full reasoning as to why he particularly was selected for redundancy instead of Mr Crane until the Respondent's much later letter dated 11 March 2009. Further, the Respondent did not undertake specific scoring and weighting process when evaluating Mr Crane as against the Claimant.

13. The Tribunal considered whether this rendered the dismissal unfair. Having regard to the size of the Respondent and the information about administrative operations of the Respondent, the fact that it was in effect a straightforward comparative exercise between two closely matched employees, namely the Claimant and Mr Crane and the fact that the Claimant was at all times aware of the criteria he would have been able to deduce that Mr Crane was viewed more favourably against the criteria. This was so and the Tribunal is not satisfied that the Respondent's assessment in this regard was unreasonable. Therefore, we do not find that the dismissal was unfair."

1. On behalf of the Claimant, Ms Price contends that he Tribunal erred in deciding that the case of Alexander v Bridgen was not "consistent" with the present case. Alternatively, they erred in failing adequately to explain why they made that determination, or indeed what they meant by it. She draws attention to the Tribunal's conclusions at paragraphs 7, 8, 9 and 11 of their judgment. There was no dispute in this case that this was a dismissal to which section 98A(1) applied. It was therefore necessary for the Tribunal to determine whether the parties had followed the steps set out in Schedule 2, Chapter 1 of the Employment Act 2002. It was agreed that the standard procedure applied.

1. Ms Price points out that, before the Tribunal, the following facts were not in dispute: (1) the Respondent had used a scoring method to select the Claimant for redundancy; (2) the scores had not been provided to the Claimant until March 2009, when the Claimant's solicitors requested them some five months post dismissal; and (3) although the Claimant was aware of the selection criteria that the Respondent proposed to use to select an employee for redundancy from his department, the Claimant was not informed as to how these criteria had actually been applied to him or to any other employee until after his dismissal. This all appears to be borne out by the entries in the agreed chronology before us.

1. Relying on the cases of Alexander v Bridgen and Davies v Farnborough College of Technology [2008] IRLR 14, Ms Price submits that the Tribunal erred in law in concluding that this case was not "consistent" with Alexander and in failing to explain why it was not, and what they meant by that finding. Alexander, she submits, was very relevant in this case. The fact that the Tribunal found, at paragraph 9, that the Claimant had had an opportunity to make representations relating to the selection criteria and alternatives to redundancy, does not address the issue raised by Alexander. The important point is that the Claimant was never given the opportunity to challenge the Respondent's application of the criteria to him, and to understand why he personally was being made redundant.

1. The Tribunal were therefore in error, she submits, in finding as they did at paragraphs 7, 9 and 11. The Claimant was not informed why he had been selected, or how he had been assessed against the criteria. The Tribunal appear to have assumed that the burden was upon the Claimant to ask for this information, rather than upon the Respondent to provide it.

1. We shall consider this ground of appeal first, before turning to the Claimant's other grounds, which challenge the adequacy of the Tribunal's reasoning and raise evidential criticisms.

1. Section 98A (1) provides as follows:

"(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 the requirements."

1. At the time with which we are concerned in this case, the standard procedure in Part 1 of Schedule 2 required the following steps:

"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 a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.