Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been fairly applied in the absence of evidence from those who had made the relevant markings when assessing employees for redundancy. The EAT upheld the employer’s appeal on the ground that although there had been no individual consultation there had been extensive consultation with the unions. The Court of Session allowed the employees’ appeals and remitted the cases to the Employment Tribunal to consider remedy. The employers then sought to lead additional evidence to show that the employees would still have been dismissed even if a fair procedure had been followed and that, accordingly, compensation should be reduced in accordance with the principle identified in Polkey. The employers request was denied, and they appealed.
Held: The appeal was dismissed.
Lord Prosser said: ‘We are not persuaded that the various expressions of opinion to be found in previous cases are as difficult to reconcile as may be suggested, or as may have been thought when some of these opinions were expressed. If one reads the whole of the final paragraph of the opinion delivered by Lord Coulsfield in Steel Stockholders (Birmingham) Ltd, it seems to us that he appreciates that the word ‘procedural’ does not reflect some precisely identifiable category, far less that it represents a category which would be precisely defined in all cases without enquiry into the facts. In broad terms, it appears to us that there will be situations where one can say that what went wrong was ‘merely’ procedural. Equally, in broad terms, it appears to us that there will be situations where once can say that an employee has been deprived of ‘something of substantive importance’ to use a phrase of Lord Coulsfield’s. We see no need to discard entirely terminology of this kind; and whilst in many cases it may be inappropriate to allocate the particular facts to either category, or to do so without enquiry, it seems to us that a distinction between the ‘merely ‘ procedural, and the more genuinely ‘substantive’ will often be of some practical use, in considering whether it is realistic, or practicable, or indeed ‘just and equitable’ to embark upon an attempt to construct a hypothesis, enabling one to assess what would have happened, if only it had. If there has been a ‘merely’ procedural lapse or omission, it may be straightforward to envisage what the course of events would have been if procedures had stayed on track. If, on the other hand, what went wrong was more fundamental, or ‘substantive’, and seems to have gone ‘to the heart of the matter’, it may well be difficult to envisage what track one would be on, in the hypothetical situation of the unfairness not having occurred. It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been. It does not seem to us that there is anything very wrong in using the word ‘substantive’ in connection with this latter situation.’
Judges:
Lord Prosser
Citations:
[1998] IRLR 686
Citing:
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Steel Stockholders (Birmingham) Ltd v Kirkwood EAT 1993
The tribunal considered the use of the word ‘procedural’ in the Polkey, and doubted whether Lord Bridge could have meant to classify matters such as the choice of a pool for redundancy, or the adoption of criteria for selection as procedural as . .
Cited by:
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.
Employment, Scotland
Updated: 30 April 2022; Ref: scu.200301