British Aerospace v Green and Others
| Jurisdiction | England & Wales |
| Judgment Date | 23 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0323-6 |
| Docket Number | EATRF 94/0679/B |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 1995 |
[1995] EWCA Civ J0323-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
TRIBUNAL
Before: Lord Justice Stuart-Smith Lord Justice Waite and Lord Justice Millett
EATRF 94/0679/B
MR. J. BURKE Q.C. AND MR. B. CARR (instructed by Messrs Rowley Ashworth, London, SW19) appeared on behalf of the Appellants/ Respondents.
MR. J. HAND Q.C. (instructed by Messrs Nightingales, Manchester) appeared on behalf of the Respondent/Appellant.
LORDJUSTICE WAITE: This appeal concerns the powers of Industrial Tribunals regarding discovery and disclosure of documents when dealing with contested issues of fairness in selection for redundancy. Employers, in what is accepted to have been a genuine situation of redundancy, were called upon to make 530 members redundant out of a total workforce of 7000. The method of selection chosen was to assess the capabilities and experience of the entire workforce, awarding to each member marks according to a predetermined formula assessing eligibility under various criteria common to all participants. The 530 who achieved the lowest score were then dismissed as redundant. In the Industrial Tribunal proceedings that followed, 235 of the dismissed employees claimed that their selection for redundancy had been unfair. It was agreed that out of this large number of applications a selection should be made in the first instance of lead or sample cases, in the hope that their resolution would prove determinative of all or most of the issues in the remainder. A consent order was obtained from the Tribunal Chairman to that effect. The employers disclosed the marks scored by every one of the assessed employees. They also disclosed the assessment forms of all the applicants, so that each could see how he or she had been graded under the various criteria. The applicants contended that it would be essential to the process of nominating sample applications that they should be given discovery of the assessment forms of all employees who had notbeen dismissed, in order that a comparison could be made of the respective ratings, under each criterion, of those members of the workforce who had been dismissed and those who had been retained. At a preliminary hearing the Industrial Tribunal Chairman granted that discovery. Her order was overturned, on the employers' appeal, by the Employment Appeal Tribunal, from which decision the employees now appeal to this court to reinstate the discovery order.
A. THE LEGAL AND PROCEDURAL BACKGROUND
(1) The test of fairness
It has been accepted from the outset of the unfair dismissal jurisdiction that the concept of fairness, when applied to the selection process for redundancy, is incapable of being expressed in absolute terms. There are no cut and dried formulae and no short cuts. The recognised objectives include the retention within the reduced workforce, once the redundancies have taken effect, of employees with the best potential to keep the business going and avoid the need for further redundancies in future; as well as the need to ensure that qualities of loyalty and long service are recognised and rewarded. These are objectives which are liable to conflict with each other. When they do, it becomes the task of the Industrial Tribunal to determine whether in all the circumstances of each particular case the employers have succeeded in providing a response to the tension between them which comes within the range of reasonableness. The result of applying the terms of S 57(3) of the Employment Protection (Consolidation) Act 1978 to cases where the reason for dismissal was redundancy has been summarised (in a passage frequently approved —with the necessary adjustment of emphasis to take account of the later modification by statute of the burden of proof —in later authority) in Williams v. Compair Maxam [1982] ICR 157 at 161 as follows:
"…. there are only two relevant principles of law arising from that subsection. First, that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy 'as a sufficient reason for dismissing the employee', i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal."
The Industrial Tribunal must, in short, be satisfied that redundancy selection has been achieved by adopting a fair and reasonable system and applying it fairly and reasonably as between one employee and another; and must judge that question objectively by asking whether the system and its application fall within the range of fairness and reason (regardless of whether they would have chosen to adopt such a system or apply it in that way themselves).
(2) The degree of scrutiny required of the Industrial Tribunal
Employment law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge —namely a swift, informal disposal of disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him. The Court of Session expressed that in the words of the Lord President (Lord Emslie) in Buchanan v. Tilcon Ltd [1983] IRLR 417 at 418 in this way:
"In the event the appellant, apart from throwing out the suggestion that he might have been victimised because of dislike, merely expressed his concern that others, with even less seniority than he and employed in the same work (labouring) had been kept on. In this situation where no other complaints were made by the appellant all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision. As was pointed out by Phillips J in Cox v. Wildt Mellor Bromley Ltd [1978] IRLR 157 it is quite sufficient for an employer in a case such as this to call witnesses of reasonable seniority to explain the circumstances in which the dismissal of an employee came about and it was not necessary to dot every 'i' and to cross every 't' or to anticipate every possible complaint which might be made."
(3) Scrutiny in "marking" cases
Two recent decisions of the Employment Appeal Tribunal, one in its English and the other in its Scottish jurisdiction, have illustrated this principle at work. In Boal v. Gullick Dobson Ltd EAT 7th June 1994 (unreported) 100 redundancies became inevitable. Pools of employees from which the selection would be made were created on an area basis. The employees in each pool were then individually assessed according to a list of criteria which included productivity, skill, quality of work, attendance, punctuality and sickness records. The manager directly responsible for each employee awarded marks in each category which were then checked by two other managers. The degree of importance to be attached to each criterion was decided by the directors of the employers, not by the managers responsible for the marking. The applicant was one of those selected for redundancy under this system and was given an opportunity to discuss his selection with management. At that meeting he asked for details of the assessments of other employees from his pool who had not been selected, but whom he regarded as more obvious candidates than himself for redundancy. That disclosure was refused, his dismissal went ahead, and he complained to an Industrial Tribunal that the refusal had made his dismissal unfair. On his appeal to the Employment Appeal Tribunal from the dismissal of that complaint, it was held, dismissing the appeal, that a practice of allowing employees selected for redundancy to see the assessments of those employees who had not been so selected would involve, especially in cases where the numbers were large, an impossibly protracted exercise, offensive to commonsense and practicality and threatening to stultify the intended fairness of the whole selection process.
In Eaton Ltd v. King [1995] IRLR the applicants were four of 20 employees selected for redundancy by a similar process. One of the complaints was that (although given details of their own marks) they were refused a sight of the marks of others; another was that the supervisors responsible for the markings were insufficiently informed to make fair assessments. These complaints were upheld by the Industrial Tribunal, which was also critical of the fact that the member of senior management called to justify the assessment results was unable to speak of the detailed merits of the...
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