Appeal No.	 EAT/766/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR A C BLYGHTON
MR A E R MANNERS

MR A HUMPHREYS	APPELLANT

HARLOW DISTRICT COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS D ROMNEY
(of Counsel)
UNDER EMPLOYMENT LAW 
APPEALS ADVICE
SCHEME (ELAAS)	

	JUDGE HICKS:	The Appellant, Mr Humphreys was employed by the Respondents, Harlow District Council as an Information and Support Services Officer from 16 December 1995 until he left on 28 February 1998.  It appears from the Tribunal’s recital of the facts that he left of his own volition and it may be that in truth this is a constructive dismissal case, but nothing tuns on that; in fact no attention is paid to that aspect of the matter in the Tribunal’s reasons or in the Notice of Appeal and we therefore say no more about it.  

1	His dismissal, the Respondents said, was for redundancy and indeed that is no longer in issue.  It is accepted on Mr Humphreys’ behalf that first there was a redundancy situation, in the common phrase, that is to say that the requirements of the relevant statutory provision were met, and secondly that that was indeed the reason for which the employers dismissed.  Having disposed of those issues the Tribunal then asked itself whether the dismissal was fair and divided that into two parts, first whether there was an unfair selection and secondly whether there was an unfair lack of consultation.  

2	Having reviewed the history with those matters in mind the Tribunal in paragraph 33 sets out its conclusions on that point and comes to the conclusion that the method of selection was fair and in paragraph 34 that the consultation was, as they express it, “more than adequate” and the dismissal was not therefore unfair for that reason.  

3	The appeal, as argued before us by Ms Romney, concentrates on the second of those points, whether there was adequate consultation, although closely allied with that are specific matters which go also to the method of selection.  The argument as to inadequate consultation is that there was a need for individual consultation as well as what actually took place which, as the Tribunal found and is not challenged, involved full consultation with the relevant union and the agreement with the relevant union of a procedure for dealing with the situation.  It also involved, secondly, consultation with the employees in the form of three group meetings, to which all relevant employees were invited, and to the second and third of which Mr Humphreys went.  

4	Apart from the interviews with him as to possible alternative posts there was, it appears, one individual consultation in the sense of a single face to face meeting with a manager, and the submission is that the Tribunal erred in law in not considering whether that was adequate, and by inference, not coming to the conclusion that it was inadequate.  It is true that in paragraph 33, where the selection process is summarised, there is no specific reference to that point.  In paragraph 34, where the consultation process is summarised, the consultations with the unions and the three consultation meetings are mentioned.  They had of course set out in more detail in the narrative of the chronological history and facts earlier.  And it is then said:

“Lastly, Mr Humphreys saw on a one to one basis Mr Byrne, the General Manager, and discussed the situation with him.  We conclude in this case there was more than adequate consultation.”

5	It seems to us to be impossible to argue on the basis of that that the Tribunal erred in law.  They manifestly considered all three forms of consultation.  Whether those consultations as described by them were adequate was entirely a question of fact for them and they reached their conclusion and we see no error of law in that.  

6	The point, however, as I have already indicated, does lead into the other specific grounds of appeal which Ms Romney argued because the connection, she says, is that had there been fuller, and as she would submit, adequate individual consultation, it would have raised the question first of the procedure agreed with the union, secondly the ring-fencing, as she puts it, of a post held by a Mr Drewett and thirdly the criteria applied by the process and the effect on Mr Humphreys.  

7	Mr Drewett’s position is the subject matter of her final submission and I shall come to that.  Two other points as to the procedure agreed with the union and the criteria applied are criticised.  In Ms Romney’s second main head she makes in particular the point that the job matching, which had been agreed with the union and was part of the process, was flawed by not being done by Mr Humphreys' immediate line manager, but by persons in a senior position who had not the same immediate acquaintance with the details of Mr Humphreys’ work, or presumably of the work of the other persons concerned in the job matching process.  

8	Secondly she says that part of this process, once jobs had been assessed, was to check whether any of the pool of employees being considered - some eleven, of whom eight could be placed in the new organisation - had jobs which had a match of at least 50% with a new position, and she says that that was based on an out of date job description.  

9	One only has to state those points to see that they are manifestly questions of fact for the Tribunal, not for us, and we see no error of law in the way in which the Tribunal deals with them.  They set out the process which took place.  They are not required, in our view, to go into such detail as item by item to express their own view about the suitability and accuracy with which that process assessed the situation.  To do so, indeed, would have been to have stepped into the area of substituting their own judgment for that of the employer and we therefore see no error of law under that head.  

10	The final head, which I have already mentioned, is the position of Mr Drewett.  Mr Drewett, as the Tribunal recount in paragraph 5 of their reasons, had been a gardener employed by the Respondents in the Parks and Landscape Service but he had obtained in 1996 a placement to develop information technology skills and appears to have been a great success.  His ability to master those skills and to apply them was clearly regarded by the employers as exceptional and just before the final stages of the redundancy selection process, and as Ms Romney quite rightly and properly points out after it must have been apparent to the employer that there was likely to be the need for dismissals for redundancy, he was confirmed in a new post at which he started on 2 October 1997 and was officially and permanently appointed on 6 October, after the relevant strategic positions had been made by the responsible committee of the Respondents (although before formal adoption by the full council as we understand it) and about a fortnight before a letter went out to employees which marks the beginning of the notification and selection process.  The criticism is that, as Ms Romney puts it, it is beyond belief that the Respondent would not have in mind that they were creating that new job, which they then, as it is put, ring-fenced in Mr Drewett’s favour at a stage when they should have been bearing in mind the process of selection for redundancy, and whether that process involving Mr Drewett was fair in relation to other employees.  

11	The Tribunal clearly had that aspect firmly in mind and we have no doubt that was because it had been argued fully before them.  I have said that they set out the facts in full in paragraph 5 and then, when they come to deal with the selection process in paragraph 33, they return to Mr Drewett’s position and say this:

“It is also suggested by Mr Humphreys that to ring-fence Mr Drewett when he had earlier been first seconded and then given a permanent post which slotted in was unfair.  The timing was unfortunate [and these we take to be the Tribunal’s words, not Mr Humphreys' submission], bearing in mind that redundancies were considered to be imminent.  However, although Mr Humphreys and others might have felt aggrieved at Mr Drewett’s protected position, that does not of itself mean that the Respondents acted in any inappropriate or unfair way.  We do not believe they did and accordingly the dismissal is not unfair for this reason.”

12	Again, in our judgment, that was plainly an issue of fact which was ventilated before and considered by the Tribunal and to attack it is in essence simply to attack their conclusions on the facts.  It does not display any error of law and we find that ground also, like the others, unarguable and must therefore dismiss the appeal at this stage.