The claimant had been made redundant following a merger of two jobs. Before the ET he had argued that it was not a genuine redundancy, as his post remained, there had been no consultation and the procedures had been unsatisfactory as the tribunal did not have sufficient evidence on the criteria used. Before this court he went further and claimed that the dismissal was potentially automatically unfair as he had not been provided with adequate information in Step 2 and following the EAT decision in Venneri v Autodex.

Elias LJ rejects those submission partly because this was not a Venneri case, as in that case there had been a fundamental failure to follow procedures and partly, on the strongest submission, while it was true that the tribunal did not use the word criteria they had considered whether it was a fair and proper selection. Therefore the decision of the ET could not be overturned.
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Case No: A2/2009/1176

Neutral Citation Number: [2010] EWCA Civ 47
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 19th January 2010

Before:

LORD JUSTICE ELIAS

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Between:

**JONES (Applicant)

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Northumberland County Council (Respondent)**

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(DAR Transcript of
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THE APPLICANT APPEARED IN PERSON

THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED.

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Judgment
(As Approved)

Crown Copyright

Lord Justice Elias:

1. This is an oral renewal for leave to appeal.

1. The background is very briefly this.  Mr Jones was dismissed for redundancy by Northumberland County Council.  There was a process whereby he was considered for redundancy along with a Mr Pearce.  The council contended that the posts of Mr Jones and Mr Pearce had been merged into a single post and they ring-fenced them for a particular job.  The council engaged in the consultation process with Mr Jones and Mr Pearce and the union.  The two men were interviewed.  They were asked the same questions and given much the same time to answer them.  The council took the view that Mr Pearce was more appropriate person to do the job and Mr Jones was made redundant.  He went to an employment tribunal.

1. First, he contended that he was not redundant, that there was in truth no genuine merger of two posts and essentially it was his post that remained and he should therefore be entitled to carry on that job.  He also submitted that the procedures had been unsatisfactory in various ways.  Even if the two men were to be considered for a single job, he contended that the interview process was unfair.  There was an allegation of bias about the way it was operated but also -- a point that he has emphasised before me today -- that there were no properly objective criteria which were taken into account by the panel when they considered to whom to give the job.

1. He also contended that there had been no genuine consultation.  He did not deny there had been consultation, but he said it was not properly and conscientiously carried out and that there was an insufficient response by the employers to certain observations he had made in response to the consultation documents.  He also submitted -- and again the point has been emphasised before me this morning -- that the tribunal ought to have considered whether the statutory procedures had been complied with.  He contended it was potentially an automatically unfair dismissal because he had not been provided with adequate information in the Step 2 procedure and he contends that, in the light of the decision of the Employment Appeal Tribunal in Venneri v Autodex [2007] UKEAT/0436/07, that this was a matter which the tribunal should have taken of its own motion.  He accepted that it was not a point that was emphasised by the solicitor who represented him before the employment tribunal, although that solicitor did take a point on another aspect of procedures, but he said nonetheless this was a matter that the tribunal should have considered.  Equally he contended that there was not a proper consideration on the consultation requirement.

1. The tribunal, as I said, found against him on these points.  They held that there was a merger of two posts and it was reasonable for the two individuals to be put in a pool for selection and that, looking at the procedure in the round, it was fairly carried out.  The tribunal, in particular, concluded that, as I have said, the same questions were asked and the same time allocated and the marks given to the questions were ultimately provided to the tribunal; and Mr Jones tells me it was not given to him until the appeal process before the employers but it was given at that stage.  The question I have to ask is whether there is any realistic prospect of showing that the employment tribunal erred in law in the approach that it adopted.  The Employment Appeal Tribunal considered the matter and considered that there was no relevant error, and I have to say I think they were right to reach that conclusion.

1. But I will deal with the three principal points that Mr Jones identified.  The first was the failure to deal with the fact that there may have been no adequate information in the statutory procedure.  As I say that was never in fact a point that was put before the tribunal.  This is not, I think, with respect to Mr Jones, Venniri territory.  In that case there was, on the face of it, a fundamental failure to comply with procedures.  Here there was, on the face of it, compliance with procedures and there is a solicitor who is making certain representations about possible ways in which the procedure was not complied with and yet he did not identify this particular arguable breach.  I say arguable.  It is by no means clear to me that it could be established even if the point had been made.  It is, with respect, a misunderstanding to think that the tribunals had of their own motion to take up points of that kind and to decide them.  Mr Jones was represented.  He was unhappy with the representation he had but he recognises that is not a matter that can justify a finding of error of law by the tribunal.

1. The second point was whether there was a proper, genuine and conscientious consultation process.  I do recognise, as Mr Jones says, that the employers may have not responded fairly and properly to all the questions he raised.  But in truth the tribunal, I think, implicitly found there was a proper and genuine consultation process and that the conclusions that the employers reached were proper conclusions they could reach as to the jobs merging and so forth, and that the appropriate pool should be just the two candidates, Mr Jones and Mr Pearce.

1. Mr Jones says that the tribunal was plainly wrong to say that he had agreed to that.  That may be so, but that is a finding of fact I cannot interfere with.  But in any event, and perhaps more importantly, the tribunal went on to conclude that it was reasonable that these two individuals should be pooled, and I do not think it is possible to say that there is a realistic chance of showing that the consultation was all a sham, given that the tribunal found that the way in which the employers dealt with the matter was essentially fair, and there is no doubt that the trade unions were consulted.  That is not to say, of course, that employers have to accede to the points made in a consultation exercise.  They have to consider them and reach conclusions on them.

1. The third ground (and I do accept that this perhaps is the strongest, but I still think that it is not strong enough) is the argument that the employers did not provide to the tribunal sufficient evidence of the objectivity of the criteria that they used to determine who should be given the job.  Indeed Mr Jones submits, and I am sure he is right, that the tribunal does not use the word “criteria” as such in its decision.  What the tribunal did find, however, was that the questions that were posed were related to the job description that was given.  They considered whether, in the circumstances, it was a proper and fair selection and they concluded that it was, given that the questions were based on the description and that equal time was given and that they were marked, as the tribunal found, genuinely.  I can see that it might be said that other tribunals might have concluded that the employer should have identified more clearly what the underlying criteria were that might have led to the questions being posed in the way that they were.  But, as I understand it, the marks given to Mr Pearce were greater and not insubstantially greater than those given to Mr Jones.  The tribunal reached a conclusion which is here essentially a question of fact or at any rate mixed law and fact, that the procedure was adequate, and the EAT concluded that, in the circumstances, they were entitled to reach their conclusion.  I agree.

1. I do recognise Mr Jones feels very deeply aggrieved by the whole process, both the outcome,and the findings of fact of the tribunal.  He wants to have a chance to try and challenge these conclusions again. But even if he were to succeed, at the end of the day it would simply lead to the matter to go back to the tribunal.  The tribunal would still have to make an assessment as to what the chances were that he would have been selected in any event, and that looks very high in the circumstances.

1. In any event, for the reasons I have given, I am satisfied that there is insufficient to establish an error of law here.  As I say the question is not whether every tribunal would have reached the same conclusion on the facts.  It is whether what this tribunal reached was sustainable and whether the tribunal could reach the conclusion it did, and whether the EAT were right to say there was no error.  I know Mr Jones will be disappointed but I do not think there was and I have to say, as I have told him, that it is hard for an appellant to understand this but the cost of taking these cases before the appeal court is not insignificant and to take a weak case would be a potentially disastrous in costs terms.

Order: Application refused