COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE O'CONNOR
SIR DENYS BUCKLEY
| FRANK ALEXANDRE MURPHY
Room 392 Royal Courts of Justice and 2 New Square,
Lincoln's Inn, London WC2A 3RU. Tel: 01 405 9884/5)
MISS ELISABETH LAING (instructed by Messrs. Underwood & Co, Solicitors, London W1M 8LN) appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE STEPHENSON: I ask Sir Denys Buckley to give the first judgment.
SIR DENYS BUCKLEY: This is an appeal from the decision of an employment appeal tribunal given on 12th July 1983 under the Employment Protection (Consolidation) Act, 1978 in proceedings in which an industrial tribunal had, by a majority, on 13th October 1982 decided that the present appellant, Mr. Murphy, had been dismissed by the respondent, Epsom College, for the reason that he was redundant, or alternatively for a substantial reason of a kind such as to justify the dismissal of an employee holding the position of a resident plumber.
The facts are fully stated in the decision of the industrial tribunal - indeed, at unusual length, I think - but since an understanding of those facts is necessary for the proper understanding of the decision of the industrial tribunal, it will be necessary for me to review them in some detail. For ease of reference I shall endeavour to indicate in the course of my judgment the paragraphs in the decision of the industrial tribunal in which the relevant findings are contained.
The respondents, Epsom College, are the proprietors of a well known public school. For the purposes of that school they own and operate a considerable range of school buildings, including boarding houses and houses for members of the staff. They employ a works department staff under a clerk of the works, comprising some 17 tradesmen of various types. The maintenance of the school involves, amongst other things, plumbing works and repairs which have to be carried out from time to time, and the buildings of the school incorporate a variety of domestic hot water systems and central heating installations; that is all dealt with in paragraphs 3 and 5 of the decision.
The appellant, Mr. Murphy, is a qualified and experienced plumber. He was engaged as a resident plumber on 14th April 1980, and continued to be employed by the college until his dismissal on 26th March 1982, which dismissal is the subject matter of this appeal.
In April of 1980, when Mr. Murphy was engaged, the college already had a non-resident plumber included in the staff of its works department, whose name was Williams; but they had a need for an additional plumber to attend to the maintenance of the heating installations in the various buildings and to assist Mr. Williams in carrying out the general plumbing work of the school (paragraph 4). Mr. Murphy was engaged to meet that need. In the event the greater part of his time was spent on dealing with the domestic heating and central heating plants, but he also assisted Mr. Williams in the general plumbing requirements of the school. Mr. Williams' time was spent almost entirely on general plumbing.
In September and October of 1981 the college made certain improvements and extensions to their domestic and central heating installations at the cost of some £30,000; these included the introduction of electronic controls of various kinds. That is dealt with in paragraph 7.
The programme of improvements and alterations raised certain questions as to the principal functions of the works department, the balance to be drawn between new work on conversion projects and maintenance within the manpower resources available, and the staffing level of the various trades necessary to fulfil the role of the department (paragraph 8).
On 23rd November 1981 Mr. Murphy wrote a letter to the bursar of the school, of which part is set out in paragraph 9 of the decision and I will read it:
"I formally advise you that with effect from 27 November 1981 I shall not be available for any overtime or emergency callouts unless payment is guaranteed at the rates set out in the Joint Industry Board for Plumbing Mechanical Engineering Services in England and Wales National Working Rules Nos. 3 & 5.2.2.
"I shall, of course, continue to carry out my duties as a plumber within the terms and conditions of my employment but I shall decline to execute any work - from the effective date - outside the defined limits required of a trained plumber.
"The proviso would exclude work on steam, gas and central heating installation(s), servicing and maintenance of appliances, components and pipework (which to date I have undertaken voluntarily) except to assist and under the supervision of other qualified operative(s).
"I am fully prepared, in good faith, to further discuss this issue in the hope of securing a mutually acceptable settlement of the current situation which, as far as I am aware, has to date not developed into a dispute".
Down to that time Mr. Murphy had been doing work on heating installations in the course of his contractual employment and for his contractual payment. It was the bursar's belief that Mr. Murphy was required by his contract to carry out any work required of him on hot water and heating systems. Mr. Murphy was putting forward the contention that his contractual obligations were confined to work which was strictly within the scope of a trained plumber and to the extent that he undertook work on the heating installations and appliances mentioned in his letter it was purely voluntary and, by inference, that he could refuse to undertake the work at any time except in return for additional agreed remuneration or that he could pick and choose the work which he was prepared to undertake or impose conditions upon its performance (paragraph 11).
Mr. Murphy was not professionally qualified to deal with all the problems which arose in relation to the steam heating system which was employed in the main school buildings and in the kitchen and the laundry of the school; nor was he qualified to deal with any electronic controls (paragraph 12).
The bursar wrote to Mr. Murphy on 27th November 1981 in the following terms:
"As I indicated in our discussion, the College has a requirement for work to be carried out on steam, gas and central heating installations, servicing and maintenance of appliances, components and pipework. Since, as you now point out, this work is outside the defined limits required of a trained plumber, the College will need to review the best way of getting this work done. This review will include the cost effectiveness of employing resident staff, the level and type of skills involved in meeting the College's requirements, and overall staffing levels in the trade. This letter should be taken as notice of the College's intention to examine the situation, as it cannot be precluded that some redundancy may result" (paragraph 13).
The planning committee of the college instituted a review of staffing levels in their works department (paragraph 13).
Mr. Murphy replied to the bursar's letter on 7th December 1981 in the following terms:
"I would refer you to my letter dated 23 November 1981. I have indicated that I carry out various additional duties voluntarily - and enjoyably - which obviously has been beneficial to the flexibility of the Maintenance Department. Therefore, in a reciprocal act of good faith toward the College for meeting my claim, I am prepared to continue on a permanent basis and included within the terms and conditions of my employed status to carry on those duties subject to stringent conditions listed below. These conditions would also be in the best interests of the College in complying with statutory/ safety/insurance requirements"
and Mr. Murphy then set out four numbered paragraphs headed respectively "Steam", "Gas", "Central Heating" and "General", in which he indicated various items of work which he accepted to do only under direct supervision and subject to provision of written instructions and specification. The industrial tribunal in paragraph 15 of their decision, in which paragraph that letter is set out, say that Mr. Murphy
"was imposing a very considerable limitation on some tasks which he had previously performed freely and voluntarily and which the college believed were within the contractual scope of his employment".
That letter was discussed orally by the bursar and Mr. Murphy, and the bursar then refused to accept the conditions and stipulations made by Mr. Murphy in his letter (paragraph 16).
A review of the functions of the works department was carried out, principally I think by the clerk of the works, and the bursar and the clerk of the works together formulated recommendations to the planning committee of the college, which included this among other recommendations (paragraph 22):
"(c) Heating Fitter/Plumber: On 14 April 1980 the College employed and housed a second plumber. The incumbent of this post, Mr. Murphy, has recently been in correspondence with the College concerning his duties, and copies of this correspondence are attached ....If the plumber's duties are to be restricted as indicated by Mr. Murphy in this correspondence only one plumber is required for normal maintenance work. The College then has a requirement for a resident 'heating fitter' who would be prepared to do some plumbing, to weld, and to help the plant engineer on steam installations. This would mean that one of the existing College plumbers would become redundant, and to provide accommodation for the heating fitter, it would need to be Mr. Murphy".
It will be remembered that Mr. Murphy was a resident member of thestaff; Mr. Williams, the other plumber, was non-resident.
In paragraph 22 of their decision the industrial tribunal say:
"It is apparent from this recommendation that the governing factor determining the basis of selection was the need to provide accommodation for the resident heating fitter".
The recommendations were approved by the Planning Committee. The industrial tribunal expressed the view that the investigations which led up to the recommendation with regard to the heating fitter/plumber was a genuine assessment, carried out by the clerk of the works and the bursar in good faith.
On 23rd February 1982, in consequence of the decision of the planning committee, Mr, Murphy was given notice in a letter in the following terms:
"I refer to our previous correspondence concerning your employment at Epsom College. You have stated that as a 'plumber' you are only obliged to work within certain narrow limits except under certain conditions which you have sought to impose. To that extent our requirement for 'a plumber' has diminished, as our principal requirement is for someone who is competent to deal with the College steam, gas and central heating installations, and who will also carry out any additional plumbing work. The Maintenance Department has a relatively small staff and therefore, in addition members are required to exercise a degree of flexibility in carrying out other work which may not be within narrowly defined limits of their trade. Mr. Williams is employed as a plumber and does not have sufficient experience in heating.
"Because the College has a limited requirement for strictly plumbing work to be carried out, it cannot continue to employ two plumbers, neither of whom can be principally responsible for the heating system without supervision. Since you were the last of the two College plumbers to be employed we have no alternative but to make you redundant.
"It is with regret therefore, that I have to give you one month*s notice to terminate your employment by the College on 26 March 1982, on the grounds that your post of plumber has become redundant.....
"Although in due course we shall be employing a heating engineer, we believe, and you yourself have expressed the view, that you are not qualified or have insufficient experience to fulfil this position" (paragraph 23).
Mr. Murphy then gave notice of application to the industrial tribunal on 2nd March 1982, In his notice he categorised his dismissal as a "contrived redundancy", and gave as his opinion of the reason for his dismissal:
"I consider the reason to be a latent disciplinary action for seeking to determine my basic rights, e.g. payment for overtime and emergency callout".
The college entered an appearance to that application and, as the rules require, they gave particulars of the grounds on which they intended to resist Mr. Murphy's application in the following terms:
"(1) The Applicant was engaged as a second plumber. It was understood and agreed from the outset that, although it was not the principal object of his employment, he would spend a part of his time on the maintenance of the Respondent's central heating system; which he did, apart from a short period when he withdrew co-operation for bargaining purposes.
"(2) In the course of the employment it became apparent that the Applicant was spending the greater part of his time on the central heating system, although he did not have the qualifications or experience required in a central heating tradesman (e.g. in welding, or in the maintenance of electronic control systems). When invited to seek such qualifications, he declined.
"(3) The Respondents therefore decided to abolish the post of second plumber, and instead to recruit a central heating tradesman. This necessitated the dismissal of the Applicant on the grounds (a) that the position of second plumber was now redundant, and/or (b) that the Applicant did not possess, and declined to acquire the skills required to allow him to be re-employed as a central heating tradesman".
After the proceedings had been instituted Mr. Murphy sought to get the decision as to his dismissal reversed by the college, but in that he was unsuccessful (paragraphs 24 and 25). The college advertised for a heating engineer; the advertisement was in the following terms, stating that applicants should hold a City and Guilds Certificate for heating and ventilation, and that they must have a knowledge of steam and be in possession of welding certificates (paragraph 26).
The industrial tribunal formulated the problem which they saw before them in the following way:
"Shortly expressed, the problem is as follows. Was the real and underlying cause of the dismissal Mr, Murphy's attitude towards the duties he was expected to perform or was the expression of his attitude only the occasion for re-assessment of the need of the College for an employee to undertake responsibility for maintenance of the full range of their heating installations?"
One member of the tribunal took the view that the underlying reason was Mr, Murphy's attitude expressed in his letter of 23rd November 1981, and that member of the tribunal would accordingly have decided that the conditions of s.57(3) of the Act as amended were not satisfied and that the dismissal should be held to be unfair. The majority, however, took the contrary view. They concluded that Mr. Murphy's letter of 23rd November 1981 was not the reason for his dismissal, but only the occasion for the re-assessment of the need for an employee specifically charged with responsibility for maintenance of the college's numerous heating installations, because the principal reason was the assessment of the need to make adequate provision for repairing and maintaining the heating installations (paragraph 30).
The minority view was then expanded in paragraph 31 of the decision, which I shall read in full because it contains two apparently contradictory findings as to the continued requirement of two plumbers or only one plumber. Paragraph 31 reads:
"There was no diminution in the requirement of the College for employees to undertake work on the heating installations or to undertake general plumbing work. Even if the College recruited an additional heating technician there was sufficient general plumbing work to justify the employment of two trained plumbers and there was no material alteration in the nature of the work. It is a matter for the employer to decide the size and balance of his workforce in the light of the resources which he is prepared to devote to any particular aspects of his overall requirements. If an employer decides to reorganise his business by substituting tradesmen having specialist qualifications of one kind for tradesmen having qualifications of another kind to perform work of a broadly similar nature, the employee displaced may be said to have been dismissed either for a reason related to his qualifications under section 57(2)(a), or because he was redundant under section 57(2)(b), or for some other substantial reason such as to justify the dismissal of an employee holding the position which he held under section 57(1)(b) of the Act. We incline to the view that the dismissal should be classified as redundancy in the second plumbing post, as the College had a requirement for only one full-time trained plumber to carry out their general plumbing work and the employee displaced would be justly aggrieved if a redundancy payment claim was resisted on the ground that there had been no redundancy within the definition of section 81(2)(b) of the Act. We find in the alternative that Mr. Murphy was dismissed for some other substantial reason of the kind referred to in section 57(1)(b) of the Act. It is purely a question of formal categorisation because whether or not it was a sufficient reason for dismissing Mr. Murphy falls to be determined under section 57(3) of the Act, as amended".
This paragraph, at first impression, certainly does seem to contain two mutually contradictory statements about the continuing need for plumbing services extending to the services two trained plumbers or only one trained plumber. The tribunal went on to elaborate on this point in the following paragraph, paragraph 32:
"In considering whether the College acted reasonably in treating the re-assessment of their needs and consequent re-organisation of the Works Department as a sufficient reason for dismissing Mr. Murphy we had regard to the following matters:-
(a) Mr. Murphy was dismissed in consequence of a genuine re-assessment of the staffing needs of the Works Department" - I am not going to read these paragraphs in full, but I shall read what I think is important.
"(b).....What was really important was that the employee appointed should be able to deal with the full range of the College's numerous heating plants, including the steam and industrial heating installations. It is not for us to determine the specific needs of the College or to criticise them for poor commercial judgment.
(c).....Mr. Murphy had clearly indicated that he could provide only a limited service under conditions of supervision and express instruction which were considered to be unacceptable. The only practicable alternatives were to appoint a heating technician in place of one of the two plumbers or to appoint him as an addition to the establishment of the Works Department"•
In (d) the bursar concluded that
"....if the technician could also assist in the general plumbing work there would be no continuing need for two full-time trained plumbers".
In paragraph (e) it was the bursar's assessment
"that there was greater need for a resident heating technician than for a resident plumber, and it is for the employer to determine that need. Whether Mr. Murphy was to be dismissed or retained the accommodation which he occupied was needed for the heating technician".
In paragraph (f) it states that it was the bursar's assessment
"that there was a requirement for only one trained plumber if a heating technician was added to the establishment of the Works Department. Had Mr. Murphy been further consulted on the extent to which he could provide the required heating maintenance services before the decision to dismiss him was made, it would still have been (the Bursar's) assessment that he was not qualified to perform the full range of services, which was his reason for confirming the notice of dismissal".
I do not think I need read the further sub-paragraphs of that paragraph of the decision.
Paragraph 31 of the decision is clearly directed to s.57 the Act, which provides, so far as it is necessary for me to refer to it:
"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -
(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held".
"(2) In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which -
(a) related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do" —
I need not read (b)
(c) was that the employee was redundant", and I need not read (d).
That section must be read in conjunction with s.81, which provides in subsection (2):
"For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to....
(a) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish".
So the question for the industrial tribunal was whether Mr. Murphy's dismissal was attributable wholly or mainly to the fact that the college's requirement for employees to carry out work of a particular kind had ceased or diminished.
It is in this connection that the apparently contradictory statements in paragraph 31 of the decision are significant. For Mr. Murphy it was argued that there was no such cessor or diminution because it was found as a fact that there was sufficient general plumbing work for two plumbers even if a heating technician was added to the staff; for the college it is contended that there was a diminution in the need for two plumbers because it was found as a fact that the college had a requirement for only one full time trained plumber on the general plumbing work of the college as a result of the reorganisation of the staff.
It appears to me that the proper rationalisation of paragraph 31 is, or at any rate may be, as follows: There was no diminution of the college's requirement for employees to carry out the maintenance of the heating installations and the general plumbing work of the college taken together. If the college added a heating technician to their works department staff, there would in fact still be enough general plumbing work to keep two plumbers employed. But, bearing in mind that the heating technician would be able, both on grounds of competence and availability of time, to assist in carrying out the general plumbing work, it was for the college as a matter of commercial judgment to decide the size and balance of its works department staff in the light of the resources which it was prepared to devote to general plumbing. The college decided that it would henceforth employ a heating engineer and one plumber only; there was consequently a diminution in the requirements of the college for plumbers; they had a new requirement for an employee having different qualifications and skills to deal with the heating installations because the employment of a plumber for that work had proved unsatisfactory, and this may have been, and probably was, increased by reason of the 1981 improvements and extensions, including the introduction of electronic controls. They still had a requirement for a relief plumber which the heating engineer could supply part time, but they had no requirement for a second full time plumber. They might have decided to increase their staff by one body, but they were under no obligation to do so; this would be a purely commercial decision for the college.
In this branch of the law the industrial tribunal is the forum of fact; an appeal to the Employment Appeal Tribunal lies only on a point of law: see Hollister v. National Farmers' Union, (1979) Industrial Cases Reports 542. The appeal tribunal can only interfere with a finding of fact on such grounds as are indicated in the well known authority of Edwards v. Bearstow.
Mr. Murphy appealed to the Employment Appeal Tribunal. The first three "questions of law", so called, on which he relied were:
(i) Whether the majority was right in law to hold,
(at paragraph 31 of the decision dated 14th October 1982) that if an employer decides to reorganize his business by substituting tradesmen having specialist qualifications of one kind for tradesmen having qualifications of another kind to perform work of a broadly similar nature, the employee displaced may be said to have been dismissed either for a reason related to his qualifications under section 57(2)(a), or because he was redundant under section 57(2)(b), or for some other substantial reason such as to justify the dismissal of an employee holding the position which he held under section 57(1)(b) of the Act.
"(ii) Whether the tribunal was right in law in finding (paragraph 31) that the Applicant had been dismissed by reason of redundancy (a) without finding that the requirements of the Respondents for employees to carry out work of a particular kind had ceased or diminished or were expected to cease or diminish, and/ or (b) having found (paragraph 31) that 'there was no diminution in the requirement of the College for employees to undertake work on the heating installations or to undertake general plumbing work'.
"(iii) Whether any reasonable tribunal could have found that the Applicant was dismissed by reason of redundancy".
The next ground contained in the notice is:
"(iv) Whether the majority was entitled in law to find (paragraph 31) that in the alternative the Applicant had been dismissed for some other substantial reason without specifying adequately or at all what that reason was".
There are a number of other grounds of appeal which are set out, but I do not think I need read further.
The Employment Appeal Tribunal, after setting out the facts, said at p.9 of the transcript of their judgment:
"Although there was obviously room for disagreement before the industrial tribunal as to whether the reason for dismissal was Mr. Murphy's attempt to limit the range of the functions which he could be required to carry out or whether it was a genuine re-assessment and re-organisation of the works department in the light of changes in the heating installation, that dispute of fact has been settled by the findings of fact made by the majority. Accordingly on the face of it the industrial tribunal's decision is unimpeachable. Although there might be some doubt whether the reason for dismissal was properly classified as being redundancy or some other substantial reason, it must have been one or other of the two. The tribunal having applied their mind to the relevant matters and reached their own conclusion whether the decision to dismiss was reasonable, there would be no jurisdiction in this court to override or vary their conclusion on the point. The difficulty in the case has arisen from the fact that before the industrial tribunal the employers never sought to justify the dismissal on the grounds that it was for 'some other substantial reason'. Such case was not pleaded by the employers, nor was it argued. At the hearing before the industrial tribunal the point was not ventilated at all nor was any suggestion made by the industrial tribunal that they might be going to decide the matter on that ground".
The Employment Appeal Tribunal referred to the case of Nelson v. British Broadcasting Corporation, (1977) Industrial Cases Reports, 649. There an industrial tribunal had held the dismissal to have been on the grounds of redundancy, which was the only defence relied upon before the tribunal. On appeal the Employment Appeal Tribunal doubted the correctness of that finding of redundancy, but held that there was some other substantial reason for the dismissal within s.57(1)(b) of the Act. On appeal to this court it was held that it was not a case of redundancy, and since that was the only ground relied upon before the industrial tribunal the employers could not rely on some other substantial reason in the Employment Appeal Tribunal. When one bears in mind that the industrial tribunal is the sole forum of fact, the correctness of that decision seems to me to be perfectly clear. There had been no findings in the industrial tribunal relating to dismissal for another substantial reason.
Nelson is factually distinguishable from the present case, but I agree with the view expressed by the appeal tribunal in the present case that Nelson has a bearing on this case. The college, in its entry of appearance, asserted that the dismissal of Hr. Murphy was necessitated by reason of the fact that the position of second plumber had become redundant, or that Mr. Murphy did not possess, and declined to acquire, the skills required to allow him to be employed as a central heating tradesman, clearly indicating reliance on s.57(2), sub-paragraphs (c) and (a). They did not rely on any other substantial reason under s.57(1)(b). It may be that the industrial tribunal, in paragraphs 31 and 33 of their decision, inadvertantly used language appropriate to s.57(1)(b) instead of language appropriate to s.57(2)(a), but it is I think true that, although there are many passages in the industrial tribunal's decision which could have attracted attention to, and been applicable to, s.57(2)(a), the possibility of the dismissal having been due to some other substantial reason falling within those words in s.57(1)(b) was not ventilated at all, so that the parties had no opportunity, or at least no occasion, to deploy their cases on that aspect in the industrial tribunal. I agree with the observation of the appeal tribunal at p.11 of the transcript that natural justice requires that a party should not have a case decided against him on a ground on which he has not had an opportunity to be heard.
But this, I think, is of no significance if Mr. Murphy's dismissal was justifiably held to have been occasioned by redundancy. In my judgment the facts found by the industrial tribunal afforded ample justification for the majority view that the dismissal was due to redundancy in the second plumbing post, that is, resulting from the introduction to the staff of a heating engineer to carry out work of one particular kind, which was distinct from general plumbing, and the consequent reduction of the college's requirement for plumbers to carry out work of another particular kind, namely, plumbing.
We were referred by Miss Laing, appearing for the college, to Robinson v. British Island Airways Ltd, (1978) industrial Cases Reports, 305, as a case involving similar problems arising from a staff reorganisation. It can be said that that case has rather generalised similarities to the present case, but for my part I do not get much, if any, assistance from it. Every case of reorganisation must, I think, depend intimately on its particular facts. In each case it must be for the industrial tribunal to decide whether the reorganisation and reallocation of functions within the staff is such as to change the particular kind of work which a particular employee, or successive employees, is or are required to carry out, and whether such change has had any, and if so what, effect on the employer's requirement for employees to carry out a particular kind of work.
In the present case the Employment Appeal Tribunal reached the conclusion (p.18 of the transcript) that on the facts found it was open to the industrial tribunal to hold that Mr. Murphy was dismissed for redundancy, since the requirement of the college for an employee to carry out work of a particular kind hitherto done by Mr. Murphy, that is to say, combined general plumbing and heating work done by a plumber, had ceased or diminished by reason of the appointment of a heating technician who could take over the functions formerly carried out by Mr. Murphy but with wider responsibilities. I do not dissent from that formulation of the position, but for myself I would put it as follows: The college ceased to require a plumber in Mr. Murphy's post because they appointed a different kind of tradesman, namely a heating engineer, having different qualifications and skills from those of a plumber, to perform functions and assume responsibilities in connection with the college's heating installations of a more extensive and more responsible kind than the functions which Mr* Murphy was competent to perform in that respect. That heating engineer would be available and competent to help part time in the carrying out of the normal plumbing work of the college, and in consequence the college's requirement for the part time services of a plumber to assist Mr. Williams in the general plumbing work ceased. The college's need to employ plumbers was consequently reduced to the services of a single plumber.
For these reasons I would dismiss this appeal.
LORD JUSTICE O'CONNOR: Sir Denys Buckley has stated the facts in this case and I need not repeat them.
When this application came before the industrial tribunal the respondents' pleaded case really set up defences to the applicant's application for a decision that he had been unfairly dismissed on the basis of s.57(2)(a) and (c). Paragraph (a) is that the reason related to the capability or qualification of the employee for performing the work of the kind that he was employed to do; (c) that the employee was redundant.
The notes of the chairman of the industrial tribunal show that in opening the case Miss Laing, for the respondents, stated the issue in this way:
"The applicant feels unfairly dismissed. He says he was attempting to clarify his working conditions. He was required to carry out additional duties. The respondents say redundancy and/or lack of required qualifications. It was clear at the outset that he was required to spend some time on maintenance of the central heating systems".
During the course of the case the clerk of the works, who had employed the applicant, said that at the end of the day his conclusion was:"....it stands out I made a mistake to employ a plumber to do a central heating job and the burden falling on one plumber was essentially central heating".
The evidence was all addressed to these two issues of redundancy and qualification, and of course the applicant's claim that the real ground for his dismissal was because he had demanded more money for doing part of his work.
There is no need to go through the evidence further than to say that it was all addressed to those issues and then, when it came to the concluding address by Miss Laing for the respondents, the note reads as follows:
"Miss Laing (closing for the Respondents).
1. The reason was redundancy and/or lack of qualifications.2. It was a sufficient reason and s.57(3) satisfied".
There were the issues which the industrial tribunal then went away to consider before announcing their decision orally later that day, which I think I am right in saying was the third day of the hearing.
As we know, the industrial tribunal disagreed, and the majority decision was announced tersely by the chairman; it is the very last entry in his note:
"Majority decision: Fair dismissal redundancy/SOSR - reasons reserved"
"SOSR" stands for "some other substantial reason", and that is a provision which is not found in subsection (2) of s.57, but is found in subsection (l)(b) of that section.
I am in no doubt whatever that the learned chairman made a slip of the tongue. He cannot have intended to say that there was some other substantial reason; nobody had suggested it. What he should have said was "redundancy and/or lack of qualification", to use the "shorthand" of subsection (2)(a) of s.57.
However, having made the slip it now explains why, in their reasons, the majority tried to support it. When one looks at the decision of the industrial tribunal one will find that they were correctly applying their minds to the two issues which had been argued before them; for example, in paragraph 7 of the reasons for their decision the tribunal say:
"The college consulted a consulting engineer, Mr. B.A. Harry to put forward proposals for improvement and extension of the heating installation for the main school buildings and boarding houses. The proposals were accepted and the work was carried out by contractors in September and October of 1981 at a cost of some £30,000 and it included an extension of the pipework and the incorporation of electronic control. It is not suggested that that work could have been carried out by Mr. Murphy even if he had been qualified to undertake it, but in due course it was seen to pose the question as to who amongst the employees of the works department would be primarily responsible for dealing with any problems which might develop in the course of time".
Then, when one turns to paragraph 30, one finds the industrial tribunal starting off with the majority decision, and I take up the quotation from some lines into the paragraph:
"Mr. Swan" - he is the bursar - "was responsible for buildings and installations having an insured value of some £28m and was entitled to feel vulnerable when he established that no one in the maintenance department could be instructed to carry out the necessary repairs and maintenance to the heating plant. In putting forward his recommendation to the planning committee
Mr. Swan was entitled to take into account that even if Mr. Murphy withdrew his conditions as he eventually did in his letter dated 8th March 1982, he was still not qualified to perform the full range of services which could be provided by a heating technician".
In paragraph 31, because of the slip which had been made in orally announcing the decision, an attempt was made to force that part of the decision into the reasons; one only has to read paragraph 31 to see that it simply does not fit.
The relevant parts of the finding in paragraph 31 for my purpose were:
"If an employer decides to reorganise his business by substituting tradesmen having specialist qualifications of one kind for tradesmen having qualifications of another kind to perform work of a broadly similar nature, the employee displaced may be said to have been dismissed either for a reason related to his qualification under s.57(2)(a) or because he was redundant under s.57(2)(b)" - and now we get the forced passage - "or for some other substantial reason such as to justify the dismissal of an employee holding the position which he held under s.57(1)(b)".
As I have said, that never formed any part of the case whatever. Then, having had to force it into the decision, the tribunal went on to say that they were inclined to the view that it was redundancy and if they were wrong about that it was some other substantial reason, instead of saying, as they ought to have done under s.57(2)(a), that the man was not capable of doing the work which he was required to do, because he did not have the necessary qualifications.
That matter could, and should, have been cleared up when the matter was before the Employment Appeal Tribunal. In my judgment the Employment Appeal Tribunal had ample evidence in this case, distinguishing it from Nelson, to insert the correct reason which the majority of the industrial tribunal quite clearly intended. But they do not appear to have been asked to do so; as far as I can judge, the case before them was argued on the two issues, and it was sought to say that some other substantial reason could be invoked in the present case; but the Employment Appeal Tribunal, applying Nelson correctly in my judgment, refused. They do not appear to have been asked to correct what was in my judgment a manifest and simple mistake made by the chairman in announcing his decision orally. Had they been asked to do so I have no doubt that they would have done so. There was ample evidence on which they could have come to that conclusion - indeed, there were express findings, as I have read, to the effect that this man did not posses the qualifications required for the job of maintaining the renovated heating installation.
In this court there has been a respondents' notice, but Miss Laing has not sought to persuade us to do what in my judgment the Employment Appeal Tribunal could and should have done, and as no application has been made to us to that effect, what I have said so far in this judgment must be regarded as obiter. I have said it so that in future cases it may well be that the Employment Appeal Tribunal, if they come across a situation in which a plain error such as this has been made, will feel themselves empowered not to be put off by the decision in Nelson from correcting the error.
As to the question of whether this man was redundant, for my part I am quite satisfied that the modernisation of the heating arrangements diminished the requirement of the respondents for plumbers, because the maintenance of the plant as modernised was not a plumber's work. The fact that the heating technician did some plumbing work, or would be required to do some plumbing work, does not alter the situation. Sir Denys Buckley has dealt with the matter fully; I agree with his judgment on that part of the case and I also agree with the reasoning and judgment of the Employment Appeal Tribunal.
I would dismiss the appeal.
LORD JUSTICE STEPHENSON: I agree with both the judgments which have been delivered and have nothing to add to them.
(ORDER: Appeal dismissed with costs: costs to be paid out of legal aid fund unless Law Society objects within ten weeks; legal aid taxation)