Appeal No. EAT/0882/02/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 2003
Judgment delivered on 4 April 2003

Before
MR COMMISSIONER HOWELL QC
MR P GAMMON MBE BA
MR H SINGH

MS S MILNER	APPELLANT

THE UNIVERSITY OF GREENWICH	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS H GREWAL
(of Counsel)
Instructed By:
Prospect
Prospect House
75-79 York Road
London SE1 7AQ
	
For the Respondent	MR D McILROY
(of Counsel)
Instructed By:
Messrs Davenport Lyons
Solicitors
1 Old Burlington Street
London W1S 3NL	

MR COMMISSIONER HOWELL QC

1	This is an appeal by Ms Susan Elizabeth Milner, a former principal scientist working in the Natural Resources Management Department of the University of Greenwich, against a decision of the Ashford Employment Tribunal sitting on 11 to 13 June 2002 when they rejected her claims for unfair dismissal and sex discrimination in the termination of her employment for redundancy on 31 July 2001.  Her Originating Application presented on 30 October 2001 had included further claims for breach of contract but those were withdrawn so far as the Tribunal proceedings were concerned by counsel on her behalf at the hearing.  It is also plain from the closing submissions of her counsel at the hearing which were produced to us that the issues the Tribunal were required to consider were limited to two: whether her dismissal had amounted to an act of unlawful sex discrimination, and further or alternatively whether it had been unfair.

2	The Tribunal found that: 
(1) the Applicant had been employed as a principal scientist in the National Resources Institute since August 1995, and since 1996 had been an employee of the Respondent after the Institute had been privatised and become part of the University.  There was some evidence of personal difficulties between her and her line manager Mr Hunter, who scored her original assessment for redundancy and was himself made redundant at the same time as she was.  
(2)	Towards the end of 2000 a consultant’s report into financial difficulties at the Institute concluded that it had been overvaluing its work and in consequence operating at a substantial loss instead of breaking even as had been thought.
(3)	In those circumstances it was reasonable for the Respondent to embark on a redundancy process to reduce salary overheads, and the procedure for this was agreed with the relevant unions (including the one of which the Applicant was a member).
(4)	The initial selection for redundancy was by scoring on a matrix, with six criteria including past and future commission generating activity, research contribution and activity in consulting work, the data for this purpose being derived principally from computer records which the Applicant as well as other members of the department were reminded to keep up to date.  There was no provision for individual consultation at this stage.
(5)	The scores awarded to the Applicant by Mr Hunter were reasonable and accurate with two exceptions, which could have resulted in additional points being awarded in her favour taking her total score on the matrix to fifty five, but this was still well short of the score of eighty points which the Tribunal found was not unreasonably used by the Respondents as the threshold to avoid redundancy.
(6)	There were proper checks and balances in place in the intervention of other members of staff to ensure that Mr Hunter carried out a proper assessment of the Applicant’s work.
(7)	The Applicant’s selection for redundancy was confirmed by an appeal panel which treated the appeal properly and afforded each individual the chance to argue for an amendment of his or her scores.
(8)	The Tribunal accordingly concluded that the reason for the Applicant’s dismissal had been redundancy and that the procedure adopted had been fair in all the circumstances; they rejected the claim that the Applicant had proved facts from which they could have considered her dismissal to be an act of sex discrimination.

3	The parts of the original grounds of appeal which were permitted by the Appeal Tribunal at the earlier Preliminary Hearing to proceed to Full Hearing before us were refined by Ms Grewal, who appeared on behalf of the Appellant, into two main heads. First she contended that the Tribunal had misdirected themselves or failed to address material issues on the complaints of sex discrimination, in particular in having failed to consider and determine whether there had been less favourable treatment of the Appellant in the individual scorings awarded to her at the initial stage of the redundancy exercise as compared with a suggested comparator Dr Sear, a male principal scientist who had not been selected for redundancy.  Ms Grewal submitted that the only reasonable conclusion from the more favourable scores achieved by Dr Sear was that the Appellant had thereby been treated less favourably than him, with the consequence that the burden of proof on her complaint of sex discrimination then shifted under Section 63A Sex Discrimination Act 1975 (as amended) so as to require the complaint to be upheld in the absence of an adequate explanation from the Respondent.  Ms Grewal submitted that this involved a separate question of less favourable treatment in relation to the scoring from that inherent in the actual dismissal itself, and that the Tribunal had wrongly failed to address this.

4	In our judgment the complete answer to that part of Ms Grewal’s submissions was given by Mr McIlroy who appeared for the Respondent, in pointing to the issues for decision as defined by the Applicant’s own counsel in his written closing submissions, which make it quite clear that the Tribunal was only asked to consider sex discrimination issues in relation to the dismissal itself.  On that it was quite obvious that the act of dismissal was itself less favourable treatment and a detriment when compared with any other employee who had not been similarly dismissed, and the Tribunal had quite reasonably and properly proceeded on that basis to determine whether the employer had satisfied it of some adequate explanation showing that the ground for dismissal had in fact been the potentially fair reason of redundancy unrelated to the question of the employee’s sex.  On that, the Tribunal had concluded looking at the events and process which led to her dismissal as a whole, that they were satisfied it had been a genuine redundancy dismissal and not an act of sex discrimination.  The principal grounds leading them to that conclusion were that the dismissal was in accordance with the procedure agreed with the trade unions, Mr Hunter (against whom the main allegations of prejudice on the ground of the Applicant’s sex had been made) had had his scorings reviewed in such a way as to ensure they were a proper assessment, Mr Hunter himself had been involved neither in the actual selection for redundancy nor in the appeal panel, and the appeal had constituted a genuine rehearing of the decision to dismiss the Applicant at which she had ample opportunity to produce information and make out a case for amendment of her scores; and finally even taking into account all the possible arguments in her favour for the award of higher individual scores, the result would still have been to leave her well below the redundancy threshold level.  

5	We agree with Mr McIlroy that given the way the matter was presented to the Tribunal there is no ground for saying that the Tribunal misdirected themselves or overlooked material issues on the question of sex discrimination, and their overall conclusion that the facts did not justify a finding of sex discrimination in either the fact or the manner of the dismissal was one open to them to reach on the evidence before them and the findings they made.  We are not satisfied that we should infer any material misdirection as to the burden of proof from the Tribunal’s failure to make express reference to Section 63A Sex Discrimination Act 1975. The crucial issue to which they correctly addressed themselves was what was the true reason for the Applicant’s dismissal, and in finding that they were satisfied this was indeed redundancy and that the Respondent had adequately explained the way in which the redundancy process had taken place and the way marks had been allocated, we think their decision clearly demonstrates a correct understanding that on this issue the burden of proof was on the employer, as it is both under Section 98(1) Employment Rights Act 1996 and under Section 63A Sex Discrimination Act 1975 (as amended).  

6	The second main head of Ms Grewal’s submissions was that the lack of individual consultation and other procedural irregularities on which she relied in relation to this redundancy process resulted in its being fundamentally flawed, such as to lead any reasonable Tribunal to the conclusion that the overall result was unfair.  Such defects were not capable of being rectified in the appeal process carried out, the Tribunal had wrongly overlooked the fact that people in different departments appeared to have been treated differently in some respects, and the appeal panel had wrongly failed to consider the possibility of part time work for this Applicant as an alternative to redundancy.  All of this meant that the Tribunal could not properly have concluded the process was a defensible or fair one.

7	On this aspect of the case we have again preferred Mr McIlroy’s submissions, which in our judgment stated the legal issue correctly by saying that the question was whether the Employment Tribunal were satisfied that the process leading to dismissal had overall been a fair one within the band of reasonableness for an employer under the well established test in Section 98(4) Employment Rights Act 1996, rather than focusing as Ms Grewal’s arguments did on individual criticisms of particular aspects along the way.  The overall conclusion that a fair and reasonable procedure had been adopted by the employer before the dismissal became final was justified by the initial consultation that had taken place with trade unions, the lack of individual consultation at this stage being satisfactorily remedied by the opportunity later, in particular at the appeal stage which they found to be a genuine rehearing, to raise any question of amendment of the individual markings; as the Tribunal found there had been an express reminder and opportunity to update the information on the departmental records ready for the redundancy exercise; they had expressly recorded their conclusion that the process had not in itself resulted in any unfairness to the Applicant, and there had been nothing put forward to indicate that any discrepancies between individuals in different departments had affected her adversely in any way.  

8	The possibilities of alternative employment were found by the Tribunal to be limited for persons of her grade in any event, and had been for practical purposes excluded by the Applicant herself by indicating that she was only willing to take part time employment for one day a week. The Respondent had a reasonable and fair policy of offering part time work for a minimum of two days a week, and she never indicated to the Respondent or the appeal panel that she was willing to make herself available for alternative work on that basis instead of the one she had stipulated.  Having taken all the points put forward by Ms Grewal into account we have not been persuaded that on this part of the appeal she has identified any material error of law that could invalidate the Tribunal’s overall conclusion on the facts, that the process adopted by the Respondent was reasonable and fair in terms of Section 98(4).

9	We accordingly unanimously dismiss this appeal.