Law Report: Redundancy dismissal with no consultation 'was fair': Duffy v Yeomans and Partners Ltd, Court of Appeal (Lord Justice Balcombe, Lord Justice Saville and Sir Roger Parker), 12 July 1994

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A decision to dismiss for redundancy where there was no consultation between the employer and employee can be fair even if the employer did not make a deliberate decision not to consult the employee.

The Court of Appeal dismissed an employee's appeal from decisions of the Employment Appeal Tribunal ((1993) IRLR 368) and an industrial tribunal that the employee had not been unfairly dismissed.

The employee, a long- standing foreman painter, was dismissed by reason of redundancy. The industrial tribunal, considering whether the employee should have been consulted about his redundancy, decided that, in the circumstances where the employee could not have been transferred to another site and no further site contracts were available, consultation with the employee would have served no useful purpose.

Tim Kerr (Christian Fisher & Co) for the employee; Michael Burton QC and Andrew Clarke (Masons) for the employers.

LORD JUSTICE BALCOMBE said that the correct approach for an industrial tribunal, when determining whether the dismissal was fair or unfair within section 57(3) of the Employment Protection (Consolidation) Act 1978, was to consider whether the employer's decision to dismiss fell within the band of reasonable responses to a redundancy situation which a reasonable employer could adopt.

A complaint of unfair dismissal because the employee was made redundant without prior consultation was the subject of Polkey v Dayton Ltd (1988) AC 344 in the House of Lords. Lord Mackay LC said that 'It was what the employer did that is to be judged, not what he might have done . . . Whether in any particular case (failure to consult would render a dismissal unfair) is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.'

It had been suggested that Lord Bridge's concurring speech established that unless an employer lead evidence to show that he considered the question of consultation, and decided that it would be useless, he could never be said to have acted reasonably. That suggestion was not accepted in Hooper v British Railways Board (1988) IRLR 517, but had found favour in Scotland in Robertson v Magnet Ltd (Retail Division) (1993) IRLR 512.

There was no warrant for the proposition that there must be a deliberate decision by the employers that consultation would be useless, with the corollory that in the absence of evidence that such a decision was made, a finding by an industrial tribunal that a dismissal for redundancy was reasonable was necessarily wrong in law.

The industrial tribunal was asked to judge what the employer did and not what it might have done. The tribunal must ask whether an employer, acting reasonably, could have failed to consult in the given circumstances.