APPEARANCES
| 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
- This has been the hearing of an appeal against a decision of the Employment Tribunal at Southampton which by a unanimous judgment dismissed the claim by Mr Davies for unfair dismissal by the respondent, Farnborough College of Technology.
- Before the Tribunal, Mr Davies was unrepresented. He represented himself, and the respondent was represented by counsel described there as Mr Jameson but I assume not miraculously transformed before us today into Ms Jameson.
- The Tribunal reached its decision without the benefit of an important decision of this Employment Tribunal, Alexander and another v Brigden Enterprises Ltd [2006] ICR 1277, which was not then reported, albeit that it had been delivered by the Employment Appeal Tribunal per Elias P, Lord Davies and Mrs Palmer. It is not in dispute before us today that we should apply Alexander as the law, if it be the law, to the decision of the Tribunal and not treat it as the raising of a new point of law such as to raise issues such as were discussed, for example, in Glennie and Independent Magazines (UK) Ltd [1999] IRLR 719.
- The issue related to the dismissal of Mr Davies, who had been a lecturer and eventually a senior lecturer in the marketing department as from 1 July 1995 for nearly 20 years at the Hampshire Business School, which is part of the Farnborough College of Technology. As the Tribunal points out, the Appellant was only a few years away from normal retirement age when he was dismissed for redundancy. There is no doubt that there was a redundancy situation, or at any rate there has been no challenge to that at any stage. There were in the marketing department at the relevant time three lecturers - leaving aside a fourth who was, for various reasons, not relevant: Mr Hutton, a senior lecturer a little older than Mr Davies, Mr Taylor an associate lecturer of roughly the same age as Mr Davies, and the Appellant himself. Mr Hutton and the Appellant held full-time appointments, while Mr Taylor had a half-time appointment.
- The level of demand for marketing courses had been in decline for some time, it seems, and a decision was made that there was, notwithstanding hope that the position might improve after the position was initially looked at in December 2005, in any event by July 2006 an inevitability that steps had to be taken. We can clear a number of matters out of the way straight away. First, there is no doubt that there was at any rate sufficient consideration, not least instigated by the Appellant himself, as to whether redundancy could be avoided by the "pain", as he put it in one of the meetings he had with the respondents, "being shared", i.e. slimming down the teaching hours so that all the members of the department could remain. Although that was properly considered, there is no challenge to the fact that in the end a decision to make one person redundant was not challengeable. Secondly, he raised whether LIFO should not have applied, and once again, although this was considered, there is no challenge to the eventual adoption of selection criteria which are referred to in paragraph 11 of the Tribunal's judgment. They were Employer Engagement; Wider Responsibilities; Degree or Equivalent; Post-graduate study; Teacher Training; Specialist Skills Knowledge; Industrial Experience; Consultancy; Programme Management; Classroom Observations; and Performance Evidence.
- The law now is, since the Employment Act 2002, that there are standard procedures which apply, where appropriate, to dismissal for redundancy. Since they also apply to other dismissals the wording requires adjustment to the particular circumstances of redundancy but schedule 2 to the 2002 Act reads in material part as follows, under the heading Chapter 1, Standard Procedure:
"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.
- The case of Alexander, to which we referred, is related to consideration of the proper interpretation of the requirements of that standard procedure. The significance of the standard procedure is that it is an obligation on the employer the breach of which can lead to an automatic unfair dismissal under s98A of the Employment Rights Act 1996 ("the 1996 Act"). This reads 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 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.
- In Alexander the provisions of schedule 2 of the 2002 Act fell to be construed. The facts of Alexander do not matter, save to say that that case too involved an employee who complained that he had been made redundant without adequate consideration of his position and compliance with the procedure. In Alexander it was found, allowing the appeal, that there had been a breach of that procedure, but upholding a decision made in the alternative by the Employment Tribunal that there would have been a fair dismissal under Polkey in any event because the claimants whose procedure was thus found to have been breached would have been dismissed in that they were the least skilled of the workforce. The appeal was allowed by the Employment Appeal Tribunal in a reserved judgment given by Elias P, in which he said the following by way of central conclusion, at paragraph 45 ff of the judgement, after dealing with counter-submissions by the two parties which are not dissimilar to those that we have heard today. Counsel for the respondent was arguing that no more information was required to be given to the employee than had been given, on the facts of that case, while counsel for the employee was submitting that the employee in that case should have been given not only his own marks but the marks of those with whom he or she was competing. Elias P said this:
"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."
- We do not propose to set out any more of Elias P's judgment in this judgment, but plainly we refer with respect to what he says in paragraph 47 to 49 of the judgment in addition. We do not believe that the EAT was there saying that in every case in order to comply with the statutory procedure the giving of the particular marks to an employee is necessary. What is necessary is that, on the facts of any given case, an employer must give sufficient information in relation to how the criteria were applied to a particular employee to give him the opportunity, to which they refer, of challenging and correcting and supplementing the information which the employer may wrongly have taken into account or may inappropriately not have known of, in order to arrive at the conclusions on those criteria. That may involve the giving of the particular marks, but it may not. We read the words:
"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.
- It is submitted by Ms Jameson that we should decline to follow Alexander in its conclusion that such requirement on an employer is a necessary part of and/or a proper interpretation of the statutory requirements. She submits that that should be seen as guidance for a good employer, but not as part of the statutory procedure. We understand why she has said that, because of course, given s98A of the 1996 Act it is important that, because of the automatic consequences to an employer and in favour of the employee of a breach of the procedure, tribunals should be slow to put glosses on a procedure so that what might simply be unfair or unreasonable conduct can be constituted or castigated as breach of procedure leading to automatic unfair dismissal, as opposed to ordinary unfair dismissal. But not only do we conclude that, if not bound, we are certainly strongly influenced, by such a recent and persuasive reserved judgment by the President and two experienced lay members of the Employment Appeal Tribunal, but we agree with it. It is quite plain that when in the standard procedure at paragraph 2(2)(a) and (b) it requires that the employer must inform the employee "what the basis was" and that the employee must have a "reasonable opportunity to consider his response", that must be interpreted as indicating that sufficient information must be given both so that it may be understood, and so that the employee may have the reasonable opportunity to challenge its accuracy or completeness. There would be no point in what Ms Jameson has described as minimum requirements, or what might less charitably be described as going through the motions, if such procedure is indeed to be interpreted as doing something short of what this Appeal Tribunal has interpreted it as doing.
- Consequently we approach the facts of this case regarding ourselves as bound by and/or wishing to agree with Alexander, and consequently looking to see whether, on the facts of this case, there has been a breach of the statutory procedure as interpreted, but falling short of the submission made by Ms Beale on behalf of the Appellant, namely that because the marks were not in fact expressly disclosed in this case there must automatically have been a breach of procedure. That is not what we conclude Alexander said or meant.
- The facts of this case can be shortly described. We have indicated that there was this redundancy position, that it was hoped it would not come to it, but the position did not improve, and so a letter was sent by the respondent which, it is not disputed, complied with Step 1 of the procedure dated 3 July 2006, and it appears a copy was sent shortly afterwards to the Appellant's trade union representative. The selection criteria were indicated, and the consequences of the Appellant being selected for redundancy, if he was, were spelt out and there was an invitation to a meeting at which the Appellant was entitled to be represented. That meeting took place on 11 July with a number of people present, and although the Appellant did not bring a trade union representative or other colleague he was reminded that he could have one present, but said he was happy to proceed unaccompanied. It was at that meeting on 11 July that there was discussion about the selection criteria, about LIFO and about "sharing the pain". At that stage there had been no decision made by the respondent, provisional or otherwise, as to which of the three staff would be made redundant, but clearly the assessments were in train and there was, although it had been suggested that there had been in some way collusion before the Tribunal hearing, a conclusive and unchallenged finding by the Tribunal that there was no collusion, and there was no bad faith or bias in the arrival by the three markers, as it turns out there were, at their markings for the three men in the pool.
- There was then what was described as "part two of the meeting held last week", held on 19 July, at which the Appellant attended, again without a representative, although he asked the panel whether they had considered the letter from his representative. A suggestion was made on this appeal that there could be a ground of appeal that the dismissal was unfair on the basis that he was not given an opportunity to have, and/or did not have, a representative at this meeting, the 19 July meeting, although, as will appear, there was an express dealing with this at the 11 July meeting, and at the appeal hearing to which we will refer he was in fact represented. Quite apart from the fact that it is not suggested, and has not been, that there was a breach of the statutory requirement to be accompanied - it is only relied upon as making the procedure or helping to make the procedure unfair - this was not a point that was argued below. We are entirely clear that within the authorities including Glennie, which are well known to this Appeal Tribunal, it would be wholly inappropriate to allow the Appellant to argue this ground. First we do not consider it comes close to being a "knock-out blow" such as is referred to in Glennie, Secondly we find it relatively unpersuasive in any event that such an argument could have assisted in concluding an otherwise fair procedure, as it otherwise was, to be unfair, not least because of the circumstances to which we have referred by reference to the original letter and the opportunity at part one of the meeting to be represented, which was passed up, and the presence of a representative at the appeal. Thirdly in any event, as both sides accept, if this point were permitted to be run on appeal and were successful, it would mean the need for further evidence to be adduced as to precisely what occurred and as to its effect – always a strong if not conclusive argument against allowing a new argument on appeal. For all those reasons we are entirely clear that that ground of appeal would fail, but that in any event it is not appropriate to consider it.
- We turn then to continue the history with regard to the live appeal before us, which is that there was automatic and/or ordinary unfair dismissal by reference to the failure to comply with the procedure and/or with the interpretation of the procedure in Alexander. The meeting of 19 July is essential to that consideration. We cannot commend the conduct of the employers as to how they handled this redundancy in relation to a man of 20 years employment. The decision had, it would appear, been, if not actually, certainly provisionally, made to make him redundant rather than the other two, on the basis that he was by far the weakest, as it was described, of the three candidates, and had achieved - again as it was described in the meeting -the lowest score; but that was not explained until after, effectively, he had been told that he was being made redundant, although that was arrived at not quite as dramatically and harshly as that statement perhaps implies. But it is certainly only halfway through the meeting in which it is made clear, that after application of the whole range of criteria, he had the lowest score, and the final conclusion at the end of the meeting is that:
"Regrettably, you were the person with the lowest score and therefore you are the person we are going to make redundant".
- We are quite satisfied that that does not comply with Step 2 of the procedures, whether as interpreted by Alexander or indeed otherwise. The employee was not informed prior to the meeting that he was, or was provisionally at any rate, to be made redundant and that that was the decision which was to be discussed, nor even the fact that he was the lowest of the three in relation to the criteria. Matters however did not stop there, because he was told about his right of appeal in accordance with the procedures, and there was a Step 3 appeal. Prior to that hearing he was sent a letter of 19 July in which, having set out the criteria, it said:
"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."
- There then followed the appeal hearing, of which we have the minutes, which are not suggested to be other than an accurate and very helpful account of what occurred before the appeal panel, and there were also present, apart from the note-taker at the meeting, the Appellant, his union branch secretary and two members of the redundancy panel. It is quite plain that there was a very full discussion during that meeting, at which he was given the opportunity of correcting, supplementing and challenging conclusions about himself in relation to a number of the different criteria, not only himself personally but also with the assistance of his union representative, and there were specific questions raised by the panel which gave him further opportunities. We shall return later to the question as to whether, had this been an actual Step 2 meeting, this would have complied with the requirements of the procedure and of Alexander, but it is certainly a very full meeting, and the Tribunal in reaching its decision that there was no unfair dismissal concentrated heavily on that hearing. Even at that hearing, however, there was no disclosure to the Appellant of the marks, either his marks or those of his colleagues, except to say, as indeed was the case, that in respect of all of the criteria he was significantly lower in his marks than both of his colleagues, to which of course, although having the natural and human instinct against either self-aggrandisement or comparison with close colleagues, he did his best to respond.
- The Tribunal had the benefit, because the documents were disclosed, of those marks, and the Tribunal also heard evidence from all three of the markers, and it is indeed the case that he fell behind on the markings on each of the 11 criteria. We have all of the workings, and then we have a chart which was put together for the Tribunal, as we understand it, or it may be for the appeal hearing, which contrasts the three. All three markers were identical in their overall appreciation of the position of the three, albeit of course that they gave different individual marks within each criterion in respect of each of the three employees. Mr Davies came out with a total, out of a maximum of 11 times 5 (that is 165), of 41. Mr Taylor came out with 70 and Mr Hutton with 87. In relation to some criteria the latter two uniformly scored higher. Mr Taylor, for example, scored highly on Degree or equivalent, a topic which was specifically discussed with the Appellant in his appeal meeting. Mr Hutton came out very strongly on Performance Evidence, and it is the case that on each of the criteria both of the other two outscored the Appellant in the view of all three markers.
- The Tribunal's conclusion, having heard that evidence, was as follows in paragraph 13 ff of the judgment:
"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."
- The Tribunal seems to have erred in one unimportant, or less important, factual respect, in the sense that it seems to be implied from that finding that the marks were disclosed at the meeting on 25 July. Whether they meant to say that we are not clear, but if that is what they intended to say, it was not of course the case. But, more significantly, they erred in concluding that any defect in this respect was cured at the appeal hearing as a matter of law. If there was a breach of the statutory procedure, such that there would be automatic dismissal, then that could not be cured by the appeal. If all they meant to say was that there had been an ordinary unfair dismissal, then of course it is trite law that unfairness or unreasonableness in the course of the procedure can be and ordinarily is cured by the giving of a fair and independent appeal. But if the Tribunal had concluded that there was a breach of statutory procedure, then their statement that there was an unfortunate failure by the respondent which was cured at the appeal hearing would have needed to have been re-worded or reconsidered. That is now what we have to address.
- We have referred to Ms Jameson's submission that all that Alexander was doing was giving guidance as to what would be fair and reasonable, alternatively that it should not be interpreted as a statutory interpretation of the procedure. We have already indicated we do not accept that submission. We are satisfied that at the meeting of 19 July the respondents did not give, nor had prior to the meeting given, a sufficient or any explanation of the basis for a conclusion that the Appellant should be made redundant, and did not give either prior to or at the meeting sufficient opportunity for him to understand and challenge that basis. There was therefore, in our judgment, a breach of the procedure as so interpreted. That breach did not involve necessarily the need to disclose the marks, but it certainly involved the need to disclose very much more than was disclosed, and/or to have disclosed it earlier, and in time for the meeting, and certainly to give the opportunity for discussion which simply did not take place.
- We come then to the appeal hearing, which now becomes important not for the purpose of curing a defect which would avoid a finding of unfair dismissal, because we are satisfied here that the Tribunal erred in not concluding that there was automatic unfair dismissal. The appeal hearing will now become central, coupled of course with the evidence as to what was before the respondent at the time, on the issue of Polkey; namely whether, if there had been at the 19 July meeting a proper compliance with the procedures and a proper opportunity to challenge given to the Appellant, the same result would have occurred. This would involve, depending on our conclusion, one of two possible outcomes. The first would be a conclusion that, because this issue is not addressed by the Tribunal, the matter should be remitted to the Tribunal for a further hearing – whether before the same or a different Tribunal is in issue between the parties - and we should limit ourselves to allowing the appeal, substituting a finding of automatic unfair dismissal, and remitting. The alternative would be our concluding that Polkey applies, and that there would have been no difference in the outcome. Of course it is well established that the Employment Appeal Tribunal should be very chary in substituting its own decision for that of the Employment Tribunal, but it does occur, and there are many authorities on the topic. An authority relating to the test to be applied to which our attention has been drawn by Ms Beale is the decision in Maund v Penrith District Council [1984] IRLR 24, but there are others. We are satisfied that, at any rate for the purposes of today, we should accept that we should send this case back to an employment Tribunal by way of remission, unless there is no reasonable prospect of any other decision being reached than one that there would have been no difference, i.e. that Polkey would have applied had a fair procedure been operating.
- Ms Beale submits that we should remit for the following reasons. (1) The Tribunal did not address the issue, (2) The Tribunal heard other evidence apart from the minutes of the hearing to which our attention has been drawn and the facts of the marks. Thirdly, and this really arises out of the way that we have phrased the proposition, that there is a prospect of a different decision, either from the same or, as she would prefer, from a different Tribunal. She points to a number of nil scores against the Appellant's name and submits that on a number of those, whether by reference to the minutes of the meeting, or by reference to a more informed approach which the Appellant would have been able to have adopted had he known what he had to address, they would or could or might involve incorrect assumptions or facts on the part of the Appellant. Her understandable position is that, given the way the procedure went, the Appellant had to act blind.
- We should indicate, because of the submission that Ms Beale made, which we have addressed, about the effect of Alexander, that, although we have indicated that we do not agree that it is a requirement in every case that the employer should disclose the employer's marks - there may be other ways in which the employee can be given that sufficient opportunity – and while we emphasise and agree with Elias P's statements in Alexander that it is not necessary for an employer to disclose the marks of the other employees with whom he is competing, in this case we conclude that it would have been sensible and appropriate for the Appellant's marks to be disclosed to him, because in that way the Appellant could have seen those items in respect of which he was scoring nought. Consequently we must take into account that even by the end of the appeal hearing the Appellant did not have the full facts before him with which he could grapple, albeit he had been given a very good go in the appeal hearing as it went.
- But the issue before us is not, as it was before the Tribunal, whether the defect was cured. We have indicated already that the statutory defect could not be cured. The issue is whether had he been given his marks, and a discussion been held along the lines of what happened in the appeal hearing and perhaps even more, is it arguable that a different result would have occurred? Is there a prospect that on a remission a different result could ensue? We must bear in mind, although only in arriving at the balance of our decision and not in any way determinatively, the fact that the overall objective must be considered, and although it was only a one day hearing, and even if it was sent back to a different Tribunal, as is sought, it is unlikely to take more than one day, nevertheless this would involve the calling of evidence all over again, and the continuation of a degree of suffering and misery for the Appellant.
- We would apply the test to which we referred earlier. Is there a prospect for success for an argument? We are clear that if it were a question of seeking to analyse or anticipate what oral evidence might be given, we are satisfied here that there is no prospect of success for an argument that there might have been a difference in outcome, even if the Appellant had had those figures disclosed to him at the meeting of 19 July or had had more information given to him than he was given. We note the fact that the Tribunal assessed the evidence, ostensibly for a different purpose, namely bad faith and collusion, to which we have referred, but we equally note that all three markers were heard, and were cross-examined, and that, as Ms Jameson has pointed out, the fundamental complaint was, at the Tribunal and at all times by the Appellant, that he should not have been marked lower than the other two, and certainly not significantly lower than the other two, as he was. After hearing that evidence, and hearing them cross-examined there is no suggestion in the minds of the Tribunal that there was any flaw in their thinking and indeed, and we do emphasise this, the Tribunal's conclusion was that the defect, as they saw it to be in the earlier process by way of lack of information being given to the Appellant, was cured at the appeal hearing.
- The points that are made by Ms Beale by reference to a number of noughts is of course well made but to achieve a different result here the fresh Tribunal would have to reach a conclusion that Mr Davies ought reasonably to have achieved 71 or 70 rather than 41. In fact Mr Hutton had something over a 50 per cent score, Mr Taylor something over a 43 per cent score and the Appellant less than a 25 per cent score. For him to pick up anywhere near to Mr Taylor would be in our judgment an impossible task. In those circumstances we do not consider that there might be a different result were we to send this back to the same, or indeed a different, Tribunal. We do not consider that there is any prospect of success for such an argument, and it would be cruel to be kind if we were to give any encouragement of the Appellant by sending the matter back when we conclude that to be inappropriate. We are entirely satisfied that this is a case in which we can and should substitute our own decision, not only that there was automatic unfair dismissal, overturning the decision of the Tribunal that there was no unfair dismissal, but that there should in those circumstances be consideration by us as to whether, had the procedures been followed, there would have been any difference, and we are satisfied there would not have been.
- The result is that in this particular case there would be a nil award, as is agreed between the parties, by way of compensation, because the result would have been the same after the appeal. As for a basic award it is equally common ground that we must and should make a basic award, which we do, and we are invited by both sides in such a situation, rather than to remit calculation of uplift to a Tribunal, to decide the matter ourselves. We have done so. The range is 10 per cent up to 50 per cent. This is plainly not at the top range where, as sadly still is the case, sometimes there is a complete and deliberate breach of any procedures. There was here some compliance with the procedures; Step 1 and Step 3 were complied with. Step 2 was, as Ms Jameson would have it, minimally complied with, but we are satisfied not complied with by dint of the failures to which we have referred, but there was no deliberate and flagrant breach of the procedures in that regard. On the other hand this is not a technical breach. We are not satisfied with the way in which this employer handled the meeting of 19 July, and had the respondent done so properly we are satisfied that this whole Tribunal procedure might never have been necessary. We conclude that the appropriate uplift is 25 per cent, which is what we order.
- We have not dealt with the alternative argument by Ms Beale that there should be a finding of ordinary unfair dismissal. We do not think it necessary to do so. Had we considered it in any detail we would have in any event come to the same result by virtue of our conclusion as to Polkey, but we are satisfied that it is not necessary by virtue of our conclusion that there was here unfair dismissal. Thank you very much.
