Phillips v Xtera Communications Ltd UKEAT/0244/10/DM

Appeal against rejection of claim for a protected award because of an alleged failure to hold a ballot to elect staff representatives in a redundancy exercise. Appeal dismissed.

The claimant worked in a site for a US owned company who in May 2008 decided that they needed to close the site. Following formal notification of a redundancy process, the employees at the site met to elect representatives and, after some changes, three representatives were notified to the employers and no objections received from employees. As the process unfurled the respondent changed tack and decided to retain the site but with a reduced workforce. The claimant was part of the exercise and was found by the ET not to have engaged with a consultation meeting. He was subsequently made redundant with one other worker. He issued proceedings but these were rejected by the ET.

In this appeal, the claimant submitted, among other things, that the employer had not complied with ss 188 & 188A of TULRCA as there had been no election of employee representatives and that the ET had been wrong to have found so.  Recorder Luba QC reviews the language of the relevant sections and the intention of Parliament. He concludes that there was an election as the number of candidates matched the number of required representatives and in such circumstances no ballot is required. However he then goes on to reject the ET's further finding that holding a compliant ballot would not have been reasonably practical and that had the appeal succeeded on the election point the respondent would not have been able to rely on that submission.

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Appeal No. UKEAT/0244/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 April 2011

Judgment handed down on 17 June 2011

Before

MR RECORDER LUBA QC, MR B R GIBBS, MR J MALLENDER

MR D PHILLIPS (APPELLANT)

XTERA COMMUNICATIONS LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MS CLAIRE DARWIN (of Counsel)

Instructed by: Messrs Thomas Mansfield LLP Solicitors 4th Floor, 35 Artillery Lane London E1 7LP

For the Respondent MS ELEENA MISRA (of Counsel)

Instructed by: Morgan Denton Jones LLP Solicitors Ground Floor, Park House Greyfriars Road Cardiff CF10 3AF

**SUMMARY**

REDUNDANCY – Collective consultation and information

Collective consultation in a redundancy situation. Meaning of "election" and "elected" in Trade Union & Labour Relations (Consolidation) Act 1992 sections 188 and 188A. In this case, the number of candidates precisely matched the number of available places for elected employee representatives. The employer treated them as 'elected'. The Employment Tribunal decided that was correct and rejected a claim for a protected award under section 189. Appeal dismissed. Despite the absence of a ballot, the representatives were 'elected' when they were the only nominees and filled all the available places. The statute did not require a ballot in an uncontested election.

**MR RECORDER LUBA QC** **Introduction**
  1. This is an employee's appeal against the dismissal by an Employment Tribunal of claims arising out of the termination of his employment on grounds of redundancy. By a reserved judgment sent to the parties on 3 February 2010, the Employment Tribunal at London East chaired by Employment Judge Foxwell unanimously rejected claims by Mr Phillips that he had been unfairly dismissed (whether put on the basis that the dismissal was 'automatically' unfair or that it was unfair in the ordinary sense) and for a protective award. The appeal from that judgment is pursued on a number of grounds which include grounds raising a specific issue of law as to the 'election' of elected employee representatives in a collective redundancy situation.
**Factual background**
  1. In 2003 Mr Phillips was engaged by AZEA Networks Ltd, a UK company concerned with the sale of specialist telecoms equipment. He was based at their Harold Wood site in England. In November 2007, AZEA was acquired by Xtera Communications Ltd ('the company'), which is another technology company based in the USA, as part of a number of acquisitions in its own expansion programme.
  1. By 2008, Xtera had 390 employees at sites all over the world and it decided to embark on a programme of substantial cuts. In May 2008 its settled plans included the projected closure of the Harold Wood site.
  1. At a meeting on 11 June 2008, the employees were told that the site would be closed although some staff might be relocated to Peterborough in England or Texas in the USA.
  1. The formal written notification that the site would close was given to staff by email on 16 June 2008. That message made clear that over 20 staff may lose their jobs and that a formal process of consultation would be undertaken. The author noted the need for employee representatives to negotiate with the company and suggested two would be sufficient. The staff were invited to indicate whether they wished to have an election for those representatives. The author of the message stated that if candidates were proposed and an election was desired then "I will then arrange for an election to be held to formally elect the representatives of your choice".
  1. The following day (17 June 2008) employees at Harold Wood met to discuss the notification received. Those present came up with two nominees to act as their representatives. Mr Phillips (who had not been present at the meeting) was asked by colleagues whether he was happy with this and he said that he was. The next day (18 June 2008) the company was notified of the names of the nominees and on the same day it sent an email to all UK staff asking whether there was any objection to them being the elected representatives. No objection was received.
  1. However, later on the same day, one of the two nominees stepped down and a replacement came forward. Also, a third representative volunteered. The company agreed to a third representative and no objection was made by any employee to these adjustments.
  1. Two days later (on 20 June 2008) the company gave the staff notice that the consultation process would end on 25 July 2008 and that the Harold Wood site would close on 31 October 2008.
  1. The formal consultation process then got underway and by early July 2008 the senior executives of the company had begun to reconsider the position. On 22 July 2008 they presented a written proposal to staff for retention of the Harold Wood site with a reduced workforce and with support functions of the type provided by Mr Phillips relocated to the USA. The proposal set out a new staffing structure for Harold Wood and how candidates would be selected to fill the new roles. Three senior managers at the site were tasked with 'scoring' those individuals who had not already elected to take voluntary redundancy against the posts in the new structure. Mr Phillips was 'scored' as part of that process.
  1. On 24 July 2008 Mr Phillips attended an individual consultation meeting accompanied by one of the three employee representatives. The Tribunal found that this was a genuine consultation meeting with which Mr Phillips failed to engage.
  1. The following day marked the formal end of the consultation period. The company had advised the three employee representatives that there would be only two compulsory redundancies. They in turn informed all staff. The two employees concerned were Mr Phillips and one other. Mr Phillips was given written notice of dismissal on grounds of redundancy on 29 July 2008 and was paid in lieu of notice. He appealed against that decision but on 29 September 2008 his appeal was dismissed.
  1. Mr Phillips then made his claims to the Employment Tribunal. It heard the matter over three days, receiving the written and oral evidence of witnesses for both parties and considering over 500 pages of written evidence.
  1. The Tribunal found that the company had established that the reason for dismissal was 'redundancy'. It rejected Mr Phillips' assertion that he had been pre-selected for redundancy and found that there had been proper consultation with the employee representatives and with Mr Phillips personally. It was satisfied that the company had adopted a fair basis on which to select for redundancy given the size of the company and its resources. It accordingly rejected the claim for unfair dismissal in so far as it was framed by reference to the 'ordinary' basis in Employment Rights Act 1996 section 98. It also examined Mr Phillips' claims that the automatic unfair dismissal provisions of section 98A were triggered but rejected them, as it did his claim for a protective award. In sum it said at paragraph [48]:

"When we step back from this case, whilst we acknowledge that redundancy is a difficult, traumatic and shocking experience for many employees and plainly was for Mr Phillips, we do not see that the [company] has done anything wrong notwithstanding the close examination by the Claimant of its actions during this difficult reorganisation."

**The appeal**
  1. The Claimant's Notice of Appeal to this Appeal Tribunal originally contained six Grounds of Appeal. However:

(1) Ground 1 was withdrawn by Mr Phillips in light of the Employment Tribunal's clarification as to which part of section 139 of the Employment Rights Act 1996 (relating to the definition of redundancy) they had relied upon. His Honour Judge Serota QC accordingly dismissed Ground 1 on 19 November 2010;

(2) Judge Serota QC allowed Ground 2 (a 'reasons' challenge) to proceed to a full hearing after this Tribunal had obtained a Burns/Barke response from the Employment Tribunal;

(3) His Honour Judge McMullen QC had been satisfied on consideration of the papers that Grounds 3 and 4, concerning the Trade Union & Labour Relations (Consolidation) Act 1992 ("the 1992 Act"), should proceed to a full hearing;

(4) Judge Serota QC allowed Ground 5 (a 'perversity' challenge) to proceed to a full hearing following a rule 3(10) hearing; and

(5) Ground 6 concerned the internal appeal Mr Phillips had made against his dismissal. Judge Serota QC did not permit this ground of appeal to proceed to a full hearing.

  1. Of the four grounds remaining for determination, we shall first address Grounds 3 and 4, then Grounds 2 and 5.
**The election of employee representatives**
  1. By his third and fourth grounds of appeal, Mr Phillips seeks to overturn the finding by the Employment Tribunal that the company had complied with the statutory requirements for employee representation in a collective redundancy situation as contained in sections 188 and 188A of the 1992 Act. As amended and so far as material they provide:

"188

Duty of employer to consult . . . representatives

(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.

(1A) The consultation shall begin in good time and in any event—

(a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and

(b) otherwise, at least 30 days,

before the first of the dismissals takes effect.

(1B) For the purposes of this section the appropriate representatives of any affected employees are—

(a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or

(b) in any other case, whichever of the following employee representatives the employer chooses:—

(i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf;

(ii) employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1).

(2) The consultation shall include consultation about ways of—

(a) avoiding the dismissals,

(b) reducing the numbers of employees to be dismissed, and

(c) mitigating the consequences of the dismissals,

and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

(3) …

(4) …

(5A) The employer shall allow the appropriate representatives access to the affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.

(6) . . .

(7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection [(1A), (2) or (4)], the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances.

(7A) Where—

(a) the employer has invited any of the affected employees to elect employee representatives, and

(b) the invitation was issued long enough before the time when the consultation is required by subsection (1A)(a) or (b) to begin to allow them to elect representatives by that time,

the employer shall be treated as complying with the requirements of this section in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.

(7B) If, after the employer has invited affected employees to elect representatives, the affected employees fail to do so within a reasonable time, he shall give to each affected employee the information set out in subsection (4).

(8) …

188A

(1) The requirements for the election of employee representatives under section 188(1B)(b)(ii) are that—

(a) the employer shall make such arrangements as are reasonably practical to ensure that the election is fair;

(b) the employer shall determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees having regard to the number and classes of those employees;

(c) the employer shall determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees;

(d) before the election the employer shall determine the term of office as employee representatives so that it is of sufficient length to enable information to be given and consultations under section 188 to be completed;

(e) the candidates for election as employee representatives are affected employees on the date of the election;

(f) no affected employee is unreasonably excluded from standing for election;

(g) all affected employees on the date of the election are entitled to vote for employee representatives;

(h) the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, may vote for as many candidates as there are representatives to be elected to represent their particular class of employee;

(i) the election is conducted so as to secure that—

(i) so far as is reasonably practicable, those voting do so in secret, and

(ii) the votes given at the election are accurately counted.

(2) Where, after an election of employee representatives satisfying the requirements of subsection (1) has been held, one of those elected ceases to act as an employee representative and any of those employees are no longer represented, they shall elect another representative by an election satisfying the requirements of subsection (1)(a), (e), (f) and (i)."

  1. If it be suggested that an employer had not complied with these provisions in respect of election of employee representatives, then the following terms of section 189 of the 1992 Act are applicable:

"189 Complaint . . . and protective award

(1) Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal on that ground—

(a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant;…

(1A) If on a complaint under subsection (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.

(1B) On a complaint under subsection (1)(a) it shall be for the employer to show that the requirements in section 188A have been satisfied.

(2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

(3) A protective award is an award in respect of one or more descriptions of employees—

(a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

(b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period.

(4) The protected period—

(a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and

(b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer's default in complying with any requirement of section 188;

but shall not exceed 90 days . . ..

(5) …

(6) If on a complaint under this section a question arises—

(a) whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or

(b) whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances,

it is for the employer to show that there were and that he did."

  1. In his case, Mr Phillips did present a complaint in relation to the election of employee representatives. In his form ET1 he asserted that:

"...the Respondent failed to comply with its obligation to arrange for the election of employee representatives in accordance with Sections 188-188A TULRCA 1992"

  1. The Employment Tribunal formulated the following issue for determination:

"Has the [company] proved that it complied with the obligation to arrange for the election of employee representatives under section 188-188A TULRCA 1992."

  1. Although (as the Employment Tribunal correctly recognized) the burden of proof was on the employer to establish compliance with the statutory procedures, Mr Phillips particularly contended that the employee representatives were not elected, because there was no election and/or there was no election satisfying the requirements of section 188A(1) of the 1992 Act. In short, his case was and is that because there was the simple acceptance by the company of the two (and latterly three) nominees put forward by staff there was no election and, accordingly, the representatives were not "elected".
  1. The Employment Tribunal dealt with these propositions at paragraph [46] of its judgment. It said:

"46. We turn then to the last limb of the claim which is for a protective award. This proceeds on the basis that there was a failure to consult on a collective basis. We have set out above the steps taken by the Respondent to consult with employee representatives. When stripped to its bare bones this part of the claim amounts to an assertion that there was a breach (described by Ms Darwin as 'technical') of section 188A of the 1992 Act on the basis that the employee representatives were not elected by secret ballot in accordance with section 188A(1)(i). In our judgment, there was no breach of this provision; the requirement is to hold a secret ballot only insofar as it is reasonably practicable. In this case the Respondent had determined that there would be two representatives; the affected staff put forward two nominations; the employer, through Mr Simmons, asked if there were any objections – there were none. In those circumstances, it was not reasonably practicable, in our judgment, for there to be an election, if indeed an election is something more than what we have just described. Ms Darwin has sought to argue that an election requires there to be ballots and a vote even if there are no more candidates than there are positions. In our judgment, an election requires no more than there be a free selection amongst the affected individuals and that is precisely what has happened here. But, were we wrong in that, we do not consider that it was reasonably practicable to hold an election in this case in circumstances where employees had already identified who they wished to represent them. We are reinforced in the justness of that view by the steps that were taken subsequently both by the staff affected and the employer when changes were proposed; the staff were able to comment on Mr Farrington replacing Mr Edirisinghe and the Respondent agreed without demur to an additional representative, Mr Powell, also being appointed at the employees' behest. For those reasons, we do not accept that there has been a material failure on the part of the employer in respect of its duty under sections 188 and section 188A of the 1992 Act."

  1. By Ground 3 of the grounds of appeal it is asserted that, on the facts found by them in this case, the Employment Tribunal erred in law in reaching the conclusion that the representatives had been "elected". By Ground 4 it is said that the Employment Tribunal misdirected themselves that the requirement to hold an "election" was a requirement to do so only in so far as was reasonably practicable.
  1. It was common ground that in the instant case there were no relevant trade union representatives (for the purposes of section 188(1B)(a)) and no pre-elected or appointed representatives (for the purposes of section 188(1B)(b)(i)) so that the employee representatives with whom the company would have to consult were "employee representatives elected by the affected employees…in an election satisfying the requirements of section 188A(1)": section 188(1B)(b)(ii) (with emphasis added).
  1. The simple submission of Ms Darwin for Mr Phillips is that in the present case the two/three employee representatives were not elected by the employees and that there was no election at all. Moreover, she submitted, what was required was not an election simpliciter but an election complying with the specific requirements of section 188A. That section, with its very specific language in the latter sub-paragraphs to subsection (1), envisaged an election requiring candidates, votes, a count and, consequently, the 'election' of elected representatives. She urged that if Parliament had intended that affected employees could nominate or appoint employee representatives, then it would have used the words 'appoint' or 'nominate' in the these provisions rather than the word 'elect'. Indeed, in that respect she drew attention to the distinction between the use of "appointed or elected" in section 188(1B)(b)(i) and the exclusive use of "elected" in section 188(1B)(b)(ii).
  1. We were also referred to Oxford English Dictionary definition of election as "The action of choosing: in various specific applications" and more particularly "1(a). The formal choosing of a person for an office, dignity or position of any kind; usually by the votes of the constituent body" or "1(b). The choice by popular vote of members of a representative body…" or "1(c). A vote."
  1. For the company, Ms Misra accepted that, on the facts, there had here been no ballot, vote or counting. But she submitted that those features were not necessary or essential where, as here, the number of persons putting themselves forward for election precisely matched the number of representatives. Put shortly, her case was that (1) there is no absolute requirement for a ballot where there is no contest and (2) the requirement for there to be a secret ballot is qualified in section 188(1A) and as such is only required where it is reasonably practicable to hold one. It cannot be reasonably practicable to hold a secret ballot where there is no contest. She drew attention, by way of analogy, to the provisions for election of trade union officers contained in Part IV of the 1992 Act and most particularly to section 53 which provides that in such cases there is no requirement to hold a ballot in an uncontested election.
**Election/elected**
  1. At its heart, the issue on this part of the appeal is whether the provisions of sections 188-188A force an employer to hold a ballot of employees in circumstances where the number of candidates precisely matches the number of vacancies for elected representatives.
  1. That issue falls to be determined on considering the words of the statute in their proper context. In our judgment, the thrust of the statutory scheme is to ensure that in larger scale redundancy situations the interests of the employees are collectively represented by those of their number whom they have chosen to represent them. The function of section 188A is to ensure a fair process for identification of those representatives by way of election.
  1. In cases where a ballot will be required because the number of candidates exceeds the number of necessary representatives (the employer having determined that number under section 188A(1)(b)) then the section sets out the parameters for voting, counting etc. But the section nowhere expressly requires that such a ballot be conducted or a vote undertaken in every circumstance.
  1. Parliament must be taken to have appreciated that it would not be uncommon that the number of candidates from a given workforce may fall short of, or precisely tally with, the number of representatives to be elected. Can it really be suggested that the necessary construction of the language Parliament has used is such as to compel the employer to nevertheless conduct a ballot or provide a voting opportunity in such cases? In our judgment, in the context of arrangements for workplace representation, we consider that to be highly unlikely. The net result would not achieve anything beyond the employer (in what is already a redundancy situation context) expending valuable time and resources on a wholly unnecessary exercise. Moreover, the logic of Ms Darwin's submissions would mean that in such a process the candidates would have been 'elected' even if no-one among the staff had troubled to vote because they considered the exercise of endorsing the candidates they had already put up to fill all available vacancies was a complete waste of time.
  1. We do not overlook the contrary proposition that a requirement for a ballot in every, and any, circumstance might have been intended by Parliament as a deliberate safeguard against 'rigging' by the employer. For example, the employer might identify and encourage – or even propose as candidates – favoured "yes men". The employer might then arrange for the number of places to be made available to 'fit' the number of such candidates and thus avoid a ballot or vote, declaring the "yes men" elected after perhaps having inviting the remaining employees (if they be so bold) to openly raise any specific objections. But it seems to us that the protection against such manipulation of the democratic process is contained in section 188A(1) itself in the requirement at paragraph (a) that the employer "shall make such arrangements…to ensure that the election is fair".
  1. In the instant case the particulars given of Ground 3 of the grounds of appeal draw attention to the fact that the employees were unable to anonymously object to the proposed named representatives circulated to them by the employer. But, on the other hand, any recipient of that list could have forced a ballot by putting themselves forward or by nominating another candidate without making any complaint of those named. Any staff member could have responded that he or she wished to have the opportunity to vote so as to express a preference or objection. No such responses were made. The final safeguard, as we have indicated, is the obligation under section 188A(1)(a) – ultimately policed by the Employment Tribunal system – that the election must be "fair".
  1. In sum, we are satisfied that an 'election' takes place for the purposes of section 188A(1) when, pursuant to and on completion of fair arrangements (or to use the words of the Employment Tribunal a "free selection"), the number of employee nominees or candidates matches the number of representatives to be elected and no further candidates are proposed. Those persons are, in our judgment, properly to be described as the 'elected' representatives. In such a circumstance no ballot or vote is required.
**Reasonably practicable/practical**
  1. In the light of our conclusion on 'election/elected', it becomes unnecessary to discuss in any detail Ground 4 of the grounds of appeal which addressed the fallback position taken by the Employment Tribunal in its paragraph [46]. That was that, if section 188A(1) did strictly require a ballot then, in the circumstances of the instant case, it was not "reasonably practicable' to hold one. However, having heard argument, we shall express our views shortly on this Ground.
  1. The first and most important point to emphasise is that the requirements of section 188A(1) in their application to the election of elected representatives for the purposes of section 188(1B)(b)(ii) are mandatory. A more flexible approach – of accepting just reasonably practicable steps towards compliance with the strict statutory provisions – is permitted by section 188(7). But that expressly applies only to sections 188(1A), 188(2) and 188(4). It does not extend to section 188(1B). It follows that in relation to election of elected representatives under section 188(1B) there must be strict compliance with section 188A(1).
  1. The proper construction of 188A(1) is, against that background, inherently unlikely to reveal a general over-ride that whatever is reasonably practicable by way of arrangements other than an election will suffice. Rather, the language of the subsection is more precise as to the scope for anything less than strict compliance. First, in subsection 188A(1)(a) the employer is required to make only such arrangements "as are reasonably practical" to ensue that the election is fair. We have touched on this above. Second, in subsection 188A(1)(i)(i) those voting (where there is a vote) are to do so in secret "so far as is reasonably practicable".
  1. If the Employment Tribunal were suggesting that, even if section 188A(1) otherwise ordinarily required a ballot in all cases, there was a general escape clause from that obligation on grounds that it would not be "reasonably practicable" to hold one, such a suggestion would in our judgment be wrong. As we have already held, there is no such obligation. But if we are wrong as to that, there is no general 'safety valve' for the employer in section 188A. Although the arrangements for election need only be such as is reasonably practical, if 'election' does import the requirement for a ballot (contrary to our finding on Ground 3) then the total absence of such a ballot cannot be saved by reliance on the very limited provision that the voting need not be conducted secretly where it is not reasonably practicable for that to be achieved: section 188A(1)(i)(i). Ms Misra conceded in the course of her oral submissions that such analysis must be the correct one.
  1. It follows that, had we allowed the appeal on Ground 3 we would not have been able to uphold what appears to us to have been the fall-back position of the Employment Tribunal and the appeal would have also been allowed on Ground 4.
  1. We cannot leave this aspect of the appeal without observing that the energy expended upon it in this appeal is out of all proportion to the relatively minor part it played in the claim as advanced before the Employment Tribunal. At most, success with it would have secured only the prospect or possibility of a protective award in favour of Mr Phillips under section 189. As section 189(2) makes clear, the making of a protective award is not the automatic consequence of non-compliance with sections 188 and/or 188A. The making of any award is in the discretion of the Employment Tribunal.
  1. Any fair reading of the judgment of the Employment Tribunal in this case would drive one to the conclusion that even if it had been satisfied of non-compliance on the particular facts, it would have made no protective award. It will be recalled that any non-compliance with sections 188/188A had itself been described (accurately) to the Employment Tribunal as "technical" by counsel for Mr Phillips. The Employment Tribunal found that there had been proper consultation both with Mr Phillips individually and with the staff representatives. There had been the opportunity to object to the process for selection/election of staff representatives available to all staff. No objection was made or other concern raised by Mr Phillips at the time and no objection/concern was raised by any other member of staff.
  1. It must follow that, had we found the 'technical' breach made out then, faithful to the factual findings made by the Employment Tribunal, we would have made only the declaration required by section 189(2) and would have dismissed the claim for a protective award. We simply record that we found it quite impossible to accept Ms Darwin's invitation to take as a starting point the maximum possible protective award which would in this case have been close to the limit of £18,000. That would have produced injustice rather than justice as between the parties in the circumstances of this case.
  1. Ms Darwin sought to derive some support for her submission from the decision of the Court of Appeal in Susie Radin Ltd v GMB [2004] EWCA Civ 180, [2004] ICR 893. That was a case in which there had been a total failure to observe the consultation requirements and the Employment Tribunal had imposed the maximum protected award under section 189. Lord Justice Peter Gibson upholding that decision said at para [45(5)]:

"How the ET assesses the length of the protected period is a matter for the ET, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate." [emphasis added]

  1. In the circumstances of the present case, that citation is less apposite than what the learned Lord Justice had also said should be borne in mind earlier in para [45], namely that:

"(2) The ET have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default.

(3) The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult." [emphasis added]

  1. That guidance has repeatedly been considered and applied by this Appeal Tribunal most recently in [Lancaster University v University & College Union]() [2011] IRLR 4.
  1. We can take the remaining grounds of appeal much more shortly, intending no disrespect to the advocates for both parties who provided us with ample written submissions and succinct oral argument.
**Ground 2: reasons**
  1. This Ground asserts that the Employment Tribunal failed to provide adequate reasons for its decision that there was a genuine redundancy situation within section 139(b)(ii) of the Employment Rights Act 1996. Faced with the Notice of Appeal particularising that challenge, the use of the Burns/Barke procedure was ordered by Judge Serota QC.
  1. The Employment Tribunal was asked the following questions:

"(1) What fact[s] did the Employment Tribunal find to support its finding that there was a redundancy situation at Harold Wood at the time of the Appellant's dismissal?

(2) Under which part of section 139 of the Employment Rights Act 1996 did the Employment Tribunal find that there was a redundancy situation?"

  1. A full and comprehensive response was provided by the Employment Judge on behalf of the Employment Tribunal on 15 September 2010. In answer to the first question posed, this meticulously spells out the evidential basis for each factual finding and in relation to the second question gives this compelling explanation of how the Employment Tribunal applied the terms of section 139 to the factual situation it had identified:

"2.1 It can be seen from our findings that we concluded that there were three phases to the Respondent's plans for the Harold Wood site.

2.2 The first phase was a proposal to reduce staff numbers at the site to about 20. We were satisfied that the Respondent wanted to retain a part of the business ('the 20G Muxponder') in which the Claimant was not involved (see paragraph 20 of our Reasons); he was unlikely, therefore, to have been retained under this proposal. This proposal would have fallen within section 139(1)(b)(ii) of the 1996 Act but it was abandoned as the Respondent's proposal before consultation with the staff began.

2.3 The second phase was a proposal to close the site altogether. This was what was put to the staff when consultation commenced. This proposal fell within section 139(1)(a)(ii) of the 1996 Act.

2.4 The third phase was the proposal to retain Harold Wood which emerged late in the consultation period. Under this proposal the Respondent did not require a 'Manager of Product Management' (the Claimant's role) and he was scored with other individuals for the roles under the new structure within his area of expertise (see paragraphs 30 to 33 of our Reasons and bundle page 485) but was unsuccessful. The relevant part of the 1996 Act at the date of the Claimant's dismissal was, therefore, section 139(1)(b)(ii)."

  1. Intending no disrespect to Judge Serota, and having now had the benefit of full argument, we doubt that in the light of the terms of the original judgment of the Employment Tribunal any further elaboration of their reasoning was required either for satisfaction of rule 30(6) or, putting the matter more generally, to enable Mr Phillips to understand the basis upon which his claim had failed. But any arguable shortcomings were amply addressed by the further elucidation offered in answer to the two questions posed by this Tribunal.
  1. In the circumstances, we consider it somewhat surprising that this ground of appeal was pressed before us at all.
**Ground 5: perversity**
  1. By this Ground, Mr Phillips contends that no Employment Tribunal properly appreciating what is currently regarded as fair industrial practice could have reached the decision which this Employment Tribunal reached in determining that his dismissal was within the range of reasonable responses open to an employer and/or fair. Ms Darwin submits in this context that it is 'noteworthy' that the Employment Tribunal only devoted one paragraph of the judgment to its conclusions regarding the fairness of the dismissal (paragraph [41]).
  1. Despite the meticulous amplification of this Ground in Ms Darwin's skeleton and supplementary oral argument we do not consider it made out. As the Court of Appeal has held, in Yeboah v. Crofton [2002] IRLR 634, a perversity appeal should only succeed where an "overwhelming case" is made that the Employment Tribunal has reached a decision which "no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached." In a context where it is said that the Employment Tribunal has failed to appreciate what is fair industrial practice, it is apposite to recall the judgment of Mr Justice Browne-Wilkinson (as he then was) in delivering a judgment of this Appeal Tribunal in Williams v Compair Maxam Ltd [1982] ICR 156 where he said at 160G:

"In considering whether the decision of an industrial tribunal is perverse in a legal sense, there is one feature which does not occur in other jurisdictions where there is a right of appeal only on a point of law. The industrial tribunal is an industrial jury which brings to its task a knowledge of industrial relations both from the viewpoint of the employer and the employee. Matters of good industrial relations practice are not proved before an industrial tribunal as they would be proved before an ordinary court: the lay members are taken to know them. The lay members of the industrial tribunal bring to their task their expertise in a field where conventions and practices are of the greatest importance. Therefore in considering whether the decision of an industrial tribunal is perverse, it is not safe to rely solely on the common sense and knowledge of those who have no experience in the field of industrial relations. A course of conduct which to those who have no practical experience with industrial relations might appear unfair or unreasonable, to those with specialist knowledge and experience might appear both fair and reasons: and vice versa."

  1. It would be quite wrong to focus, at Ms Darwin's invitation, exclusively on para [41] of the Employment Tribunal judgment. In the course of setting out its findings of fact, the Employment Tribunal amply sets the scene for the conclusions distilled in that paragraph. It is, in our judgment, impossible to describe its conclusions as perverse.
  1. Although we have not set them out, we are satisfied by the terms of the detailed rejoinder given in Ms Misra's skeleton argument that in this case the perversity challenge comes nowhere near the level at which this Tribunal would be justified in interfering with an Employment Tribunal decision.
  1. For all those reasons, this appeal is dismissed.

Published: 19/06/2011 11:32

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