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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Apex Charitable Trust Ltd v Etheridge [2003] UKEAT 0360_02_1302 (13 February 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0360_02_1302.html Cite as: [2003] UKEAT 0360_02_1302, [2003] UKEAT 360_2_1302

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APPEARANCES

 

For the Appellant	MR R W ASTON (Solicitor) Messrs Astons Solicitors The Stables Manor Road Staverton Nr Daventry
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


THE HONOURABLE MR JUSTICE RIMER

1. This is an appeal by Apex Charitable Trust Ltd ("Apex") against the decision of an Employment Tribunal sitting at Birmingham on 16 November and 21 December 2001 and 9 January 2002. The Tribunal was chaired by Mrs M F Street. Their careful extended reasons were promulgated on 11 February 2002. The application before them was a claim by Mr S T Etheridge, a former employee of Apex, that he had been unfairly dismissed. The Tribunal held that he had been. They adjourned the remedies hearing to a date to be fixed. Apex, which appears before us by Mr Aston, its solicitor, challenges that decision on this appeal. Mr Etheridge has not appeared before us, either in person or by a representative, but Mr Aston tells us that he has written to his firm saying that he was content to rely on the reasoning of the Tribunal.
2. Apex is a charitable trust whose work includes helping ex-offenders into employment. Its headquarters are at St Alphage House, Fore Street, London. It also has an office at The Rotunda, Birmingham and Mr Etheridge worked there. He was in charge of the Finance and Central Services Department (the "FCSD"). He had a team of three. The National Operations Manager also worked at Birmingham, although he spent much of his time travelling around the country. Occasionally, however, the two men would be together in Birmingham, and Mr Etheridge from time to time dealt with matters arising in his colleague's absence.
3. Dame Margaret Booth is the chairman of Apex. She considered that there was merit in having its central services all located in London under one roof. On 24 March 1999, an informal meeting of Apex trustees resolved in principle to move the FCSD at Birmingham to St Alphage House. The Chief Executive of Apex, Mr Allen, was given the task of taking the matter forward. He outlined the proposal to Mr Etheridge in Birmingham on 10 November 1999 and confirmed it to him on 16 November. The proposal was to relocate the FCSD in London by the end of January 2000. Mr Allen told Mr Etheridge that his present post would be available to him in London and he was asked to notify Apex within two weeks whether he wished to accept the offer to relocate. He was also invited to provide any alternative suggestions to the proposal. Mr Etheridge and a colleague in Birmingham put forward four alternatives but on 14 December 1999 Mr Allen wrote rejecting them all. They included alternatives to the decision to relocate to London and that was unacceptable to Apex.
4. Mr Etheridge did not want to relocate to London. Daily travel there would have involved increased costs and he did not want to move to London. On 13 December 1999, he invoked Apex's grievance procedure, complaining that it had failed to consult him properly. On 14 January 2000, Mr Allen wrote to Mr Etheridge saying that as Apex would be implementing the relocation plan his post in Birmingham would be redundant. Mr Allen and Mr Byrne, another Apex employee, had a meeting with Mr Etheridge on 18 February 2000. Mr Etheridge was told of the vacancies existing in Apex, three of which were in London, and was asked if he wished to be considered for any of them. All were significantly lower paid than his current position and he expressed no interest in them. On 8 March 2000, he offered to relocate to London in his existing post on the basis of an increase in salary that would cover his increased costs – some £6,000 – but Apex rejected that offer and there were no further negotiations over alternatives to redundancy.
5. On 29 March 2000, Mr Etheridge's grievance was heard and dismissed. He appealed. On 6 April 2000, Apex gave him notice that he was being dismissed by reason of redundancy with effect from 7 July 2000. He appealed against that dismissal. Dame Margaret Booth heard and dismissed Mr Etheridge's grievance appeal on 26 May 2000.
6. During May 2000 the National Operations Manager, who had a base in Mr Etheridge's Birmingham office, gave in his notice. The Tribunal found that "It was public knowledge that the National Operations Manager was leaving his job and Mr Etheridge was specifically aware of it." It was a post which attracted a salary of about £21,000 and was the one central services post in Apex that was to continue to be available outside London. The job was advertised in the Guardian on 7 June 2000, together with a number of other vacancies. The job description was very different from that of the job that Mr Etheridge held. The job had, however, been reviewed, regraded and restructured and the advertised salary for it was £27,610, which was equivalent to that of the post Mr Etheridge was leaving. The closing date for applications was 30 June 2000.
7. Mr Etheridge did not see the advertisement. He had, however, sought details of the job for a subordinate of his, Mr Freeman. He was not interested in the job himself because the salary it had carried of £21,000 was significantly lower than his current salary. The details of the vacancy, together with the higher salary the regraded job would carry, was sent by Apex direct to Mr Freeman.
8. The Tribunal found, in paragraphs 24 and 25, that:

24 "The post was not brought expressly to his attention for his own consideration because neither the chief executive nor the chairman of the board of governors thought he was suitable for the post. It was a post that now was to involve deputising the Chief Executive and a close working relationship between those two post holders was critical. It was a job with a primarily operational and fund raising content. It was a very different job from that which Mr Etheridge had held in his long work for the trust.

25 Mr Byrne, Mr Allen and Dame Margaret Booth were aware of the restructuring and regrading of the post but did not expressly alert Mr Etheridge to it."

9. Apex's redundancy policy was as follows:

4.1 "Apex will try to identify suitable posts for staff selected for redundancy. Wherever possible, posts will be comparable in terms of pay, duties and location. However, a close match will not always be possible. Apex may offer a part-time post to a full-time employee, and a full-time post to a part-time employee, if that is the only alternative to redundancy and if the post seems otherwise suitable. Apex reserves the right where it has doubts about an employee's ability to do a different job from the one that is redundant to either:

(i) not offer it to him or her, and declare a redundancy while recruiting to another post; or

(ii) invite the person concerned to compete for the vacancy, so that his or her suitability for the post can be assessed against external standards…"

10. Mr Etheridge's appeal against dismissal was heard by Dame Margaret Booth on 9 June 2000. She did not discuss the National Operations Manager vacancy with him. She did not give a decision there and then. She then also heard an appeal by Mr Freeman against his dismissal. He complained that he was entitled to have his appeal heard by the board of trustees. Dame Margaret appears to have agreed with that so she tore up her notes from both hearings and then chaired fresh appeal hearings on 16 June 2000, sitting this time with three other trustees. Mr Etheridge's appeal was dismissed and he left his employment on 7 July 2000.
11. Mr Etheridge conceded at the hearing before the Employment Tribunal that he was dismissed for redundancy, which is a potentially fair reason under section 98 (1) of the Employment Rights Act 1996. His point, however, was that the consultation with him was unfair and there was a failure to consider alternatives. In particular, he complained that he was not consulted about the possibility of applying for the restructured National Operations Manager job.
12. The Tribunal held that the obligation to consult Mr Etheridge was on the consequences of the decision to relocate. They found that Apex's consultation with him, down to and including the meeting of 18 February 2000 was fair: they had discussed the vacancies and alternatives which were at that stage open to him.
13. The Tribunal then said this:

43 "The post of the National Operations Manager became available in May 2000. Mr Allen reviewed and regraded the post. [Apex] were entitled to consider that Mr Etheridge knew of the vacancy, given his position in [Apex], that he worked from the same office as the person who had left and had asked for the details of the post to be sent to his subordinate. Had he seen the advertisement, it would have been clear to him that the post had been regraded. The salary was now equivalent to his own. That was bound to be a very relevant consideration for Mr Etheridge in considering this post. It is not established that he did see that advertisement and no internal document circulating the vacancy had been produced. It is not established that he knew of the restructuring and increased salary.

44 Mr Etheridge was a senior and long serving manager in an organisation that had a small central services sector. He had himself been involved in handling redundancies and relocations. He was a key figure within the Apex Redundancy Policy (paragraph 3.2). He was able to put together alternative proposals to [Apex] and did so.

45 He could have foreseen that the post might be reconsidered and restructured on becoming vacant. He might have considered making proposals for restructuring himself, if a restructured post would have interested him. He could have requested the details of the post in order to check that it was, as he assumed, not one he was interested in applying for himself. He did not.

46 The key representatives of [Apex], that is the Chairman of the Board and the Chief Executive did not consider that Mr Etheridge was suitable for that post. Within the terms of the redundancy policy, Apex reserves to itself the right not to invite people to apply for posts for which they are not considered to be suitable. Whether tacitly or expressly, a decision was made not to draw his attention to the vacancy for his own consideration…

47 Fairness does not require that an employee is invited to apply for a post that he will not be offered. Full consultation did require that the vacancy and its terms were brought to Mr Etheridge's attention. It remained open to [Apex] to discourage an application. Had he applied, it is not likely that he would have been appointed and that decision is one that could have been made before he left…

49 The failure to consult Mr Etheridge over the vacancy for the National Operations Manager at the new salary, as the only senior post available within the charity outside London, was unfair. The burden on the employer to consult and to take reasonable steps to avoid or minimise redundancy is clear. It outweighs any burden on the employee to make proposals or enquiry. This is not a case where it is clear that it was utterly futile to consult properly over this vacancy, but it is a case where even had the proper consultation taken place, the outcome is likely to have been the same.

50 The dismissal was unfair having regard to the criteria in section 98 (4) of the 1996 Act because of insufficient consultation. No reasonable employer would have treated the redundancy as a sufficient reason for dismissal without having regard to the vacancy that had arisen. Having regard to the size and resources of the charity and the information they had, the company did not in all the circumstances act fairly in treating the redundancy as a sufficient reason for dismissal because of that failure of consultation."

14. In referring, in paragraph 49 of their reasons, to the possible futility of any consultation about the vacancy the Tribunal was, we infer, alluding to the words of Lord Bridge of Harwich in Polkey v A E Dayton Services Ltd [1987] IRLR 503, a decision to which the Tribunal was referred. In particular, Lord Bridge said, in paragraph 28 of that decision as follows:

28 "Employers contesting a claim of unfair dismissal will commonly advance as their reason for dismissal one of the reasons specifically recognised as valid by section 57 (2) (a), (b) and (c) of the Employment Protection (Consolidation) Act 1978. These, put shortly are: (a) that the employee could not do his job properly; (b) that he had been guilty of misconduct; (c) that he was redundant. But an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as "procedural", which are necessary in the circumstances of the case to justify that course of action.. Thus, in the case of incapacity, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show that he can do the job; in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation; in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the Industrial Tribunal is not permitted to ask in applying the test of reasonableness posed by s57 (3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of s57 (3) this question is simply irrelevant. It is a quite a different matter if the Tribunal is able to conclude that the employer himself, at the time of the dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under s57 (3) may be satisfied."

15. By this appeal Apex challenges the Tribunal's finding of unfairness as being one which they were not entitled to make. Mr Aston, who has presented us with a very comprehensive skeleton argument on which he has not materially elaborated in his oral submissions, recognises that a dismissal will generally be unfair if there has been a failure to consult, but the general principle is subject to exceptions. His proposition, which he derives from the case to which we have just referred, is that an employer is not obliged to consult with an employee with regard to a vacant post when the employer considers the employee to be unsuitable for it and when he would not be offered the position in any event. He says that in the circumstances in which an employer reasonably adopts the view that consultation would be futile and could not alter the decision to dismiss, it may not be unreasonable for there to be no consultation and the absence of consultation will not mean that the dismissal was necessarily unfair.
16. In the present case, Mr Aston submits that the Tribunal misdirected themselves. They found, in paragraph 46, that Apex had decided that Mr Etheridge was not suitable for the post of National Operations Manager and had positively made a decision not to draw his attention to the vacancy. In short, they found that Apex had decided not to consult with Mr Etheridge about the vacancy and nor did it. But the Tribunal then came to their own view that nevertheless full consultation required Apex to bring the vacancy to Mr Etheridge's attention and that the failure to do so necessarily rendered the dismissal unfair. They concluded in paragraph 50, that no reasonable employer would have treated the redundancy as a sufficient reason for dismissal without having regard to the vacancy which had arisen. But this conclusion appears to us to have two difficulties about it. First, it can be said to contradict the finding in paragraph 46, that Apex did have regard to the vacancy that had arisen. Secondly, it does not appear to recognise the possibility of the type of exceptional circumstance which Lord Bridge identified, namely one in which, despite a deliberate omission to consult, the dismissal may still be a fair one.
17. In our view, the question which the Tribunal should have asked themselves, but did not, was whether Apex acted reasonably in taking the view that they would not consult with Mr Etheridge about the vacancy because they had anyway determined that he was not suitable for it. If, having asked that question, they answered it in the affirmative then it would, in our view, be open to the Tribunal to have concluded that the dismissal was fair.
18. We have considered whether we can ask and answer those questions ourselves. We have come to the conclusion that we should not do so and in any event Mr Aston does not suggest that we should do so. His stance is that if, as we are, we are in principle with him on this appeal, we should allow the appeal and remit the matter to the same Tribunal for a re-consideration of the question of whether Apex reasonably considered that consultation about the vacancy with Mr Etheridge would be futile and whether, if so, the dismissal was fair.
19. Accordingly, we propose to allow the appeal and remit the matter to the same Tribunal for a re-hearing on those questions. We say the same Tribunal because that is what Mr Aston has suggested we should do, and if he is content with that then that is the order we will make. But we think it probably desirable to include in the order a provision that if it becomes impracticable for the same Tribunal to be reconstituted to hear the matter, then the regional chairman can convene an alternative Tribunal for the matter to be dealt with. So we will remit it to the same Tribunal, with that proviso, for a rehearing of those questions.