Appeal No. EAT/806/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 January 1995

	Before

	HIS HONOUR JUDGE D M LEVY QC

	LORD GLADWIN OF CLEE CBE JP

	MR K M YOUNG CBE

MR T P HAWKES 	APPELLANT

TREASURES RIVERS WYATT AND NATTRASS & CO	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R COLBEY
(Of Counsel)
A Toplin
Wainwright A J Harry & Stevens
81-81A Marlowes
Hemel Hempstead
Herts
HP1 1LF

For the Respondents	Mr C Auld
(Of Counsel)
Treasures & Rivers Wyatt
17 St Johns Lane
Gloucester
GL1 2AJ

	JUDGE LEVY QC:   At the conclusion of argument in this appeal Mr Colbey, who appears for the Appellant here, Mr Hawkes, has made an application to amend his Notice of Appeal, effectively he having withdrawn everything which was in the appeal heretofore.  What he seeks to do is to introduce a new paragraph 3 in the Notice of Appeal which reads as follows:

		"The Tribunal erred in law in deciding the fact that Mr Wyatt believed consultation would have made no difference constituted exceptional circumstances making the failure to consult not have the effect that the dismissal was unfair".

	With some hesitation the application having been made almost at the 13th hour, we are giving leave to Mr Colbey to amend his Notice of Appeal in the form which I have read it out, but having carefully considered the submissions made by Mr Colbey and Mr Auld feel that this appeal fails.  Let us explain why.

	The facts behind this appeal, as it now is, can be fairly shortly stated.  Mr Hawkes was an Assistant Solicitor in the Respondent firm, ("the firm") which had fallen as, with so many firms of solicitors in the time of the recession, on difficult times.  A time came when the solicitors were over the top on their overdraft facilities and retrenchment became necessary.  The firm held back for as long as they could.  

	There was then, within the partners, a redundancy exercise in which Mr Hawkes was the obvious client.  He was made redundant.  He worked out his redundancy for a period of three months and commenced, as he was entitled to do, proceedings in the Industrial Tribunal on 10 March 1992.  The firm entered an appearance on 10 April 1992.  

	There was a hearing before the Tribunal at Bristol on 10 and 11 September 1992.  The Decision was reserved and promulgated on 2 October 1992, when the unanimous decision was that the Applicant was not unfairly dismissed by the Respondent and his application was dismissed.

	What had been run below were essentially a conspiracy theory by the partners to get rid of Mr Hawkes and in the Notice of Appeal that was taken up as being wrongly rejected as was the allegation of bias by the Tribunal.  Both those were dropped after the skeleton argument had been lodged and on the appeal this morning Mr Colbey made it clear that the point in the appeal was what, at the end of the hearing, he appends in the ways that he has.

	The simple question therefore is, did the Tribunal err in law in deciding the fact that Mr Wyatt believed that consultation would have made no difference, constituted exceptional circumstances making the failure to consult not to have the effect that the dismissal was unfair?  We turn to paragraphs 20 and 21 of the Reasons given by the Tribunal.  They are as follows:

		"In considering whether the selection of the applicant for dismissal in these circumstances was fair, it seemed to us that the uniqueness of his position has to be borne in mind.  He was the only qualified solicitor who was neither a salaried nor an equity partner in the firm.  The respondents's partners, as his employers, were not candidates for redundancy themselves.  Given the need to reduce the numbers of persons doing contentious work, the only other possible candidate for redundancy would therefore be Mr Grey.  He was a clerk, and not a qualified solicitor.  He had been with the firm since 1970; he had built up a substantial following of clients; and he was primarily a conveyancer, although he did do some contentious work which appeared to us to be predominantly for clients who came to him personally.  In all those circumstances, we could see nothing unreasonable in the respondent's decision to select the applicant for redundancy rather than Mr Grey".

	Pausing there, clearly the Industrial Tribunal did the exercise to see whether it was reasonable, in the position of the firm being a small firm, to select the Appellant.  And then paragraph 21 reads:

		"We did consider the question of consultation.  Plainly, there was none in this case.  We considered whether that factor alone might render this dismissal procedurally unfair, but at the end of the day we concluded that it did not.  Mr Wyatt's view was that consultation would have been wholly useless, for nothing that the applicant could have said would have affected the end result.  We took the view that that was a reasonable line to take given the circumstances as the respondent firm honestly and reasonably believed them to be at the time.  Costs had to be cut, and the applicant's contentious work could be shared among the two partners who dealt with such matters, with some assistance from Mr Grey.  It is hard to see how anything which the applicant could have said could have altered that conclusion.  In all the circumstances, therefore, we were satisfied that this dismissal was fair and that the applicant's claim should be dismissed".

	In attacking particularly that paragraph Mr Colbey drew our attention to two authorities, one of them decided before the Tribunal hearing which is under appeal, but not referred to at that hearing and the other, a later case.  

	The first of the cases was De Grasse  v  Stockwell Tools Ltd [1992] IRLR 269.  There Tucker J. and his colleagues were considering a quite different situation to that which we have to consider, but reference was made to the case of Spink  v  Express Foods Group Ltd [1990] IRLR 329 EAT and to Freud  v  Bentalls Ltd, both of which stress the need for consultation.  

	Mr Auld has satisfied us that, notwithstanding the authority was not referred to during the hearing, the Tribunal below did do the test which is set out, as necessary in that case in expressing the reasons that they did at paragraph 21.  He reminded us of what Browne-Wilkinson J. said in Freud  v  Bentalls Ltd [1982] IRLR 443 EAT, as quoted in that case:

		"14  Turning now to considerations of industrial relations practice, consultation (as opposed to unilateral action by the employer) is one of the foundation stones of modern industrial relations practice.  The statutory Code of Practice emphasises its importance in every aspect of industrial relations.  In the particular sphere of redundancy, good industrial relations practice in the ordinary case requires consultation with redundant employee so that the employer may find out whether the needs of the business can be met in some way other than by dismissal and, if not, what other steps the employer can take to ameliorate the blow to the employee.  In some case (though this is not one) the employee may be able to suggest some re-organisation which will obviate the need for dismissal; in virtually all cases the employer if he consults will find out what steps he can take to find the employee alternative employment either within the company or outside it.

	And, of course, it is axiomatic that consultation should take place in a case, but we were also reminded by another passage from the same judgment which found its way into the other case cited to us, Heron  v  Citylink - Nottingham [1993] IRLR 372.  The passage our attention was drawn to was the final part of paragraph 12:

		"... Only by consulting the employee can the employer discover whether such an option is open in any given case.  Therefore good industrial relations practice requires that, unless there are special circumstances which render such consultation impossible or unnecessary, a fair employer will consult with the employee before dismissing him".

	Mr Auld says, with some force, that the consultation was unnecessary here, given the circumstances as set out in paragraphs 20 and 21 of the Full Reasons which we have read.  Although we must stress that consultation is something that employers must carry out if, by and a large, a decision that they have not unfairly dismissed an employer is to be avoided. We think that in the special circumstances of this case, given the background to which we have eluded, given the investigation done by the employer first, we accept Mr Auld's submission that it was not necessary in this case.

	Furthermore, it was not the fact that Mr Wyatt believed consultation would have made no difference which constituted exceptional circumstances.  What the Tribunal held as unnecessary was the actual circumstances themselves which they took some pains to set out.  It is quite clear that this point was not argued, either fully or at all below, and in those circumstances, we have less hesitation than we otherwise might in dismissing this appeal.

	Mr Auld, who appears for the Respondents to this appeal, has made an application that the Appellant pays some portion of the costs of the appeal because of these facts.

	The appeal, as originally mounted, contained an allegation of bias.  There was a hearing of the appeal fixed for 21 June 1994.  Before the appeal it became clear that the necessary interlocutory steps where an allegation of bias was to be made, had not been taken.  That became clear as a result of advice Mr Auld gave.  The matter came before Judge Hull and the matter was taken out of the list.  Ultimately, the case was prepared for hearing by the Respondents on the basis that bias and conspiracy theory were all up in the air on appeal and these were abandoned on the morning of the hearing.  It is right to say that Mr Colbey, who appeared for the         below tells us and it is clear, that the Appellant has been on legal aid throughout.  

	We have carefully considered whether on the facts of this case, we should depart from the normal order as to costs.  We do think that there may have been certain irregularities in the preparation of the case by the Appellants and especially in their failing to take the preliminary steps where an allegation of bias was to be made, and especially when not notifying the other side well in advance if they knew points were to be abandoned as they should have known well in advance of this hearing.  That should have been the more so, when there are directions as to the lodging of skeleton arguments, which in this case do not appear to have been well prepared.

	In the circumstances however, we do not think it appropriate to depart from the normal rule.  Therefore, there will be no order for costs save legal aid taxation of the Appellant's costs.