England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR PEREGRINE SIMON
(Sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2 Monday, 25th February 2002

1. LORD JUSTICE MAY: The first part of this appeal was heard and determined on 14th November 2001. The judgments which we then gave introduce the appeal as a whole and set out the relationships between the parties and the history of the litigation. It is not necessary to repeat in this Part 2 judgment the details that can be found in that judgment. Paragraph 7 of my judgment on that occasion explained that the judge's decision, in short, was, first, that Mr Cameron, the claimant, was not contractually entitled to enhanced redundancy payment and, second, that as a matter of fact he was not redundant anyway.
2. The claimant challenged both of these findings in this court in two grounds of appeal, one of them devoted to each subject. Miss Tracy Forster, on behalf of the defendant/respondent, accepted that if Mr Cameron succeeded on both those points he would be entitled to an enhanced redundancy payment subject to quantification. This court decided the first issue in Mr Cameron's favour, that is to say, the point as to his contractual entitlement. We are left today on this adjourned hearing with the question whether the fact of redundancy should have been found by the trial judge as it was not. The hearing was adjourned because submissions were made to us about the state of the evidence whose detail we did not then have. As part of the adjournment we ordered transcripts of evidence to be provided, and that has been done.
3. The purpose therefore of this adjourned hearing was to enable us to judge whether the judge's decision on the fact of redundancy was supported by evidence to which he referred only briefly, it being the contention on behalf of Mr Cameron that the judge's finding was not, on the evidence, justified.
4. On this second question, namely whether Mr Cameron's job was in fact redundant, the judge said this (page 26):

"Secondly, in order that a redundancy situation arises, it is necessary to show that the requirements of the defendant's business for employees to carry out work of a particular kind at a place where the employee is employed have ceased or diminished or are expected to cease or diminish.

The claimant points to two factors which show that a redundancy situation had occurred. First, evidence that 450 employees had been made redundant by the year end June 1990. This evidence is not particularly compelling in the context of the claimant's job or in the light of the large number of employees that continued to be employed.

However, the claimant also points to a number of internal documents from which the claimant's managers appear to have considered that the claimant was redundant. There are examples of this at E/85 and 86, E/144 and E/195, where Mr Holland wrote: `In the surviving group [the claimant's] job no longer exists."

5. I interpolate to say that those documentary references have been explained to us by reference to the documents which we have in a differently numbered bundle, and I shall refer to them in a moment. The judge went on:

"Against this, there is the evidence of every witness who was asked about the issue of redundancy (Mr Allen-Butler, Mr Davies, Mr Holland and Mr Shingles) that the claimant was not redundant. There is the specific evidence of Mr Davies who said that he still considered that there was still a place for the claimant in the EDG in February 1990 and there is the evidence of Mr Wright that, in view of the difficulties in the preceding six months, the claimant would not have been considered for redundancy. I accept this evidence and the submission of Mrs Tracy Forster that the claimant's role within the EDG was not strictly defined or confined so that there is a tendency to use the words `redundant' and `redundancy' in a loose way that does not necessarily coincide with the legal test. I also accept that the EDG was a fluid and developing organisation under Mr Davies' leadership and the failure to replace the claimant is not compelling evidence of redundancy, as it might be in other circumstances."

6. That was, as will be appreciated, a fairly short decision on the facts. The judge is not to be criticised for that because that decision was one of a number of decisions he had to make in circumstances where his decision was - although we have overturned that decision - that Mr Cameron was not contractually entitled to redundancy payment anyway.
7. In the original written submissions that Mr MacCabe put before us in advance of the previous hearing, his summary submissions on this issue were as follows. He said that the judge was wrong in law in referring to and finding that the claimant was not redundant unless, as is entirely unclear, he was using this as shorthand. It is not the individual person who is redundant but it is the job he or she is performing. The role of the person dismissed by reason of redundancy depends on whether the three-stage test as set out in Safeways Stores v Burrell [1997] ICR 523 is satisfied. The person so dismissed, who may or may not be the person whose job has disappeared and whose job is likely to disappear, is said to be dismissed by reason of redundancy.
8. Secondly, Mr MacCabe submitted that the judge had temporarily forgotten the whole thrust of the claimant's grievance, that he did not have a proper job title with a job code, no proper job description and he had very little work to do. Mr MacCabe referred to paragraphs 14 to 27 of his undisputed witness statement in the appeal bundle we have.
9. Thirdly, Mr MacCabe submitted that in addition to this there was overwhelming contemporaneous documentary evidence at the highest personnel and management levels that the claimant's job was redundant. The judge was not entitled to dismiss this cogent documentary evidence and to seek to avoid it by holding that the senior managers who described his position as redundant got this all wrong in 1989 but right in 2000. There was no evidence to support or justify this bare assertion by counsel for the employer, nor was there any explanation why the same witnesses could be now relied on when what they wrote in 1989 could not be. Mr MacCabe, in that written submission, went on to give detailed references in support of that.
10. As I have indicated, Mr Cameron's evidential case was that the whole trouble that led to his dismissal was that he had no work to do. His written evidence included that from mid-1988 there was little or no project work with no revenue-raising work for EDG, which was in danger of being shut down. Mr MacCabe has referred us again to the terms of his witness statement. He has again emphasised long passages in it which he tells us, and I accept, were not challenged and were agreed evidence. This includes an account of how things stood from February 1989 and reference to an explanation of some draft written job descriptions which we were shown this afternoon and which Mr Cameron, in his witness statement, explained as describing work which he said did not exist. There is also reference to documents relied on; for example, the notes of Mrs Helen Christian, the personnel representative to the EDG in September 1989. We were referred to a draft by Mr Allen-Butler that was not sent but was apparently dated around 18th October 1989 which speaks in terms of difficulties in defining and obtaining funding for suitable work for Mr Cameron. Mr MacCabe submits that no attempt was made to find alternative employment for him. He submits that the judge, having rejected the defendant's contentions as the operation of the grievance procedure, should not have accepted their factual evidence on the question of redundancy. It was obvious, he submitted, that Mr Cameron's job had disappeared. He was not replaced. The judge should not have accepted the evidence as to redundancy, and the managers whose evidence he had rejected in the light of the dismissal parts of the judgment.
11. It is sufficient reference to Safeways Stores v Burrell to refer to a part of the headnote in which it was held that -

" ..... a finding of dismissal by reason of redundancy under Section 81 (2) (b) of the Employment Protection (Consolidation) Act 1978 involved a three-stage process: first, it had to be established that the employee had been dismissed, secondly, that the requirements of the employers' business for employees to carry out work of a particular kind had ceased or diminished, or were expected to cease or diminish, thirdly, that the dismissal was caused wholly or mainly by that cessation or diminution;"

12. It will be seen that the judge was plainly referring to that authority, although he does not say so in terms, in the first paragraph of the excerpt from his judgment to which I referred at the outset of this judgment.
13. It should also of course be remembered - and Mr MacCabe has reminded us of this - that in this instance Mr Cameron's claim for enhanced redundancy payment is a contractual claim and not a claim under statute. One is accordingly concerned with the terms of his contractual entitlement.
14. It is necessary and helpful to refer to the main documents that Mr Cameron, through Mr MacCabe, relies on as indicating that his job had ceased to exist. The first one to which I have not already referred is a memorandum dated 1st December 1989 from Mr Russell Holland. It contains this passage:

"As things stand in the `Group' John is clearly not featured in anyone's plans or business requirement. Therefore even the most positive outcome will beg the question, `what happens to John?'"

15. There are important documents just before the defendant/respondent dismissed Mr Cameron in February 1990. An inter-office memorandum from Mr Dick Davies, dated 14th February 1990, to Nigel Bains, David Allen-Butler and Alastair Wright, with a copy to Russell Holland, includes the following:

"Everyone in the immediate working environment has witnessed John Cameron's absence in this unfolding process and he himself took steps to involve people through emotional telephone calls. Even leaving aside the organisational uncertainties around EDG, I cannot imagine we could re-absorb him in a trustful and constructive way.

I would go further and question whether any company could re-absorb any employee who had behaved in this way over a period of 8 months. From a discussion with Nigel there appear to be 4 possibilities.

1 Encourage John to return and seek to try and find him suitable employment.

2 In view of the dissolution of EDG, make him redundant. This would involve a significant redundancy payment.

3 In view of his failure to re-appear at work following Geoff Shingles' letter, simply sack him. However, if he then sues us and wins reinstatement at tribunal, pay him off again. This, I understand would turn out to be far cheaper than option 2.

4 Find out if John is amenable to a medical review and possible retirement on grounds of ill health."

16. The memorandum then continues:

"Any manager hiring him will, of course, have to know the difficulties that have arisen in the past - they cannot be buried. Should this be successful, he will have a job with Digital. Should this fail despite his fully consenting with the process, then we will make him redundant in the prescribed way."

17. Finally, on 15th February 1990 there is a memorandum from Mr Russell Holland to what he refers to as "remote addressee" which includes the following:

"If John is not perceived as a value adding part of the company then we should address the issue either by making him redundant or, if there are grounds, by sacking him. Personally I don't think those grounds exist at this point and if they do not in a form that would prevent him from getting reinstated and compounding the problem."

18. Then a little later on in the same document:

"The first issue from my perspective in the light of EDG's position and the fact that in the surviving Group John's job no longer exists - is John required by Digital. If not then the courses of action are clear. Redundancy unless there has been gross misconduct."

19. Over the page in the same document:

"I agree with each of your possibilities 1, 2 and 4."

20. That is a reference back to Mr Davies' memorandum.

"Though I beg to differ with the third. I think John should come in as we had planned, that we should explain the fact of his redundancy and before that happens we should be sure we know what course of action we want to take."

21. In supplemental submissions for the purpose of this adjourned hearing Mr MacCabe submitted that Mr Cameron was entitled to succeed on his claim for an enhanced redundancy payment without a finding that he would have been dismissed by reason of redundancy as opposed to having been wrongfully dismissed. He submitted that this followed from the finding of this court that paragraph 2.11 of the PPPM was contractual. Mr MacCabe pointed to the terms of the three stage process which paragraph 2.3 provides. The process is triggered if a job becomes, or is likely to become, redundant. Management guidelines provide that a job is redundant only if the job will no longer exist in its current form and location or if -

"the job has changed in responsibility and skill requirements to the point that that is no longer able to be carried out by the original job holder or the job holder considers it unsuitable, ie, the original job no longer exists."

22. It is then said that a person is only redundant if their job is redundant.
23. Mr MacCabe's first submission was that under this definition one contractual possibility for redundancy was that Mr Cameron's job was seen by him as unsuitable. Mr MacCabe submitted the point is that an unsuitability election lies with the claimant.
24. I reject this submission. It would be a very strange contract which entitled an employee to declare himself redundant by deciding that the job was unsuitable for him. The provisions to which Mr MacCabe referred do not, in my view, so provide. They are all, in substance, to the effect that the job no longer exists and that is stated in terms in the sentence from which Mr MacCabe takes the phrase on which he relies. On reflection, Mr MacCabe accepted this and did not pursue the point.
25. His second submission in these supplemental written submissions repeated that which he had made on the previous hearing, that is, that as a matter of fact Mr Cameron's job no longer existed, that is the effect of the contemporary documents, and that the judge was wrong to find otherwise. He refers to the judge's findings which I have already set out. He submitted that the judge did not explain why he preferred the evidence of the witnesses called on behalf of the defendant to that which they had said in contemporary documents. He made detailed written submissions as to the evidence of each of the defendant's witnesses. He accepts, I think, that the defendant's witnesses did not accept in terms that Mr Cameron was redundant in the sense that his job had ceased to exist. He submits that it is hard to see what more could have been done on behalf of Mr Cameron to show that his job had gone and that he could only, properly and lawfully, be dismissed for redundancy. He referred us this morning to passages in the transcript in support of this. I shall look at certain passages in the evidence in a moment.
26. First of all, it is necessary to stand back and see, in outline, the circumstances in which Mr Cameron came to be dismissed, on the one hand, and what was the position with the EDG on the other. Speaking generally, Mr Cameron was dismissed in February 1990 in circumstances which the judge held to be wrongful. During the previous months, from about September 1989 at least, the parties had been at loggerheads over the operation or, as Mr Cameron saw it, the defendant's non-operation of the contractual grievance procedure. The origins of this included that Mr Cameron maintained that he did not have a job description and that the defendant was unable to formulate one because he had no work. During the period from September 1989 Mr Cameron had not been at work. The judge held that the defendant had not properly operated the grievance procedure, but the defendant's contemporary view of the matter obviously was that Mr Cameron was being intransigent and unco-operative and they were becoming exasperated. They did not know what to do.
27. Speaking broadly, it was decided that the nettle had to be grasped and that either Mr Cameron had to return to work and co-operate or he had to go. The documents in February 1990 reflects this general position. In the result, he was told that if he did not return to work he would be dismissed. He was dismissed - allegedly for gross misconduct - and the judge held that this was wrongful. The February 1990 documents were, I think, a discussion of various means of terminating his employment against this background.
28. As to the EDG, its position in 1989 was regarded as precarious and there was a perceived possibility in the summer of that year that the company would withdraw financial support. There was a time in summer 1989 when this might have happened but, in the event, it did not. Support for the EDG continued, and the evidence was that this went well beyond Mr Cameron's dismissal. The group remained operational until 1993. Mr Cameron's case was that his lack of a job went back at least to February 1989. The litigation was fought on the battle ground whether his job had ceased to exist when he was dismissed in February 1990.
29. The essence of Miss Tracy Forster's submission today is that the evidence amply supports the case that the EDG was a loose talent-based organisation in which its members undertook or supported innovative projects, that Mr Cameron was intellectually fully capable of being a member of that group and that there was work there for him to do, that his relationship with Digital developed into a personality clash between him and them which gave rise to high emotions. Digital wanted to solve this human problem but, according to their understanding, were unable to do so because he was intransigent and, in particular, refused to return to work. Because of this it was hard to see how he could be fitted back into the organisation, that this is the light in which the contemporary documents are to be seen and that, but for all this, a job in the EDG remained and did not cease to exist. As Miss Tracy Forster put it this morning, redundancy is not created by someone falling out with an employer. The difficulty of re-introducing him was not a reflection of the employment prospects in EDG but a reflection of personal difficulties between Mr Cameron and Digital which had no part in the question of redundancy. She says that all this is fully supported by the evidence, and she submits that this evidence amply justifies the judge's finding.
30. I have read all the transcripts with which we have been provided. I am not going to refer to all the evidence, but it is necessary to refer to some of it. First of all, in paragraphs 3, 4 and 5 of Mr Davies' witness statement there is a fairly detailed account of the EDG and how it operated. I am not going to read out those paragraphs. But Mrs Tracy Forster told us, without opposition, that except for the statement in paragraph 4 that "there was no rigid personnel structure", there was no dispute as to that evidence. In paragraph 10 of Mr Davies' witness statement there is this:

"The claimant was valuable when he was relaxed and went with the flow but he became antagonistic and made demands that would be inappropriate at the best of times but were wholly out of keeping in the difficult business situation we were navigating. No business can be held to the demand that it can be run to the personal agenda of individual employees. This was a highly emotional matter with the claimant and it was very difficult to reach much agreement or rational understanding. Every effort was made to accommodate him but the claimant behaved in an inexcusable and extraordinary manner to all those involved in the grievance process he had initiated. By this time I had known the claimant for 15 years and had played a big part in shaping his career at the defendant. I was anxious to see the matter progressed to a satisfactory conclusion and would have welcomed any opportunity to find him a work situation that would work out satisfactorily."

31. There is a passage in paragraph 13 of this statement by reference to one of the memoranda from Russell Holland dated 14th February 1990, to which I have referred, where Mr Davies said:

"This memorandum therefore was intended to `grasp the nettle' and put forward proposals for bringing an end to the situation, which had by now dragged on for some twelve months without any real progress being made."

32. In paragraph 15 of his witness statement he has the evidence that -"The EDG continued in existence until 1993 ..... There were no redundancies in the EDG prior to 1993, although when the claimant's line manager Russell Holland left in 1992 he was not replaced."
33. There are some important passages in Mr Davies' oral evidence which I need to refer to not least because the judge emphasised that it was his evidence, among others, upon which he relied for his findings. Mr Davies was the manager of the EDG group and had been so since 1985. There are these passages in his oral evidence. On page 37 he explains how it was that in June 1989 he told everybody in EDG that they should look for jobs elsewhere because the funding was going to cease on 30th June. He explained in his answer how that came about; he had an obligation to warn people of the possibility but the possibility did not, in the event, materialise. On the following page, page 38, he was asked:

"Q. The position was that, as you rightly say, that EDG was in a very precarious position in 1989. The position also is that there was in truth no job for Mr Cameron. That is right, is it not?"

to which Mr Davies answered,

"A. No."

34. He was cross-examined by Mr MacCabe by reference to the documents. He said this:

"A. ..... All I can say with regard to that, is that the way in which EDG evolved is that it came into existence because we had persuaded the top management of the corporation that there was a very significant opportunity. As a result of that we, I should say I, had been allowed to hire a number of people which included Mr Cameron. I had been looking after them ever since then and had no intention of stopping looking after them, any of them."

35. He was then asked questions of this sentence in the document, the sentence being:

"Q. `As things stand in the group John is clearly not featured in anyone's plans or business requirements.' Obviously it means that you had, and you must have, been preparing plans throughout 1989 and probably before that for the EDG and what it clearly says is, as at December 1989, there was no place in those plans in the future of Mr Cameron.

A. I have to explain to you - - excuse me if I may just explain a little about how the group in fact worked which is that we worked loosely together in pursuit of a wide range of opportunities ranging, for example, a huge business arrangement with the American aircraft manufacturer, McDonald Douglas, a number of other customer contacts in Europe, the purchase of a little company in Norway called Metis, a number of contacts with the growing environmental business, all of these were in the context of new ways of doing business. In a normal way of planning, no, we weren't doing planning - - we didn't do planning in a way that would often be expected because simply we were being very opportunistic in the way in which we pursued business, and it was very successful through ten years."

36. Then the question came -

"Q. `Dick's pressing me for a resolution.' What were you pressing for since Russell Holland was not involved in the grievance procedure?

A. A resolution of the fact that we had not seen Mr Cameron for some months in work that the political situation to which I alluded earlier was getting no easier, and this whole situation was significant exposure."

37. On page 42 there is a passage. He has again referred to a document, and one in which there are four possibilities. The question was:

"Q. Let us look at 2 for the minute, what you are proposing there is to make him redundant. That is your second option, is it not?

A. Yes, this was recording some discussions, whether or not it was in any way a feasible option. I do not know. Nobody had been made redundant, nor was made redundant for some considerable time.

Q. We heard from Mr Shingles yesterday that nearly 450 employees in the UK were made redundant to the financial year end 1990?

A. Yes. No, excuse me, when I said nobody was made redundant, I was referring to EDG ..... "

38. Further questioning by Mr MacCabe on these documents went in this way (page 43):

"Q. It was your recommended course of action.

A. And following it I had further discussions with the people to whom the note was sent, and the conclusion of those discussions was, I clearly recall it, that the nettle had to be grasped, that it was completely inappropriate in any business to allow an employee who had behaved as Mr Cameron had to be taken up by another department or any other part of the business.

Q. So you decided not to give him the opportunity to be redeployed and, if that failed, to make him redundant?

A. Yes, I think we came to the conclusion at that time we were simply ducking the issue because over so many months and after so much effort had been expended to try to accommodate him, to try to bring him back under any circumstances, ... they all failed and that we were simply fooling ourselves if we tried to do anything further. That was the conclusion that I reached and felt as the line manager in question I had to."

39. On page 45 there is this at the end of an answer that Mr Davies gave:

"A. ..... I believe that we felt that an employee behaving in this way should simply be sacked.

Q. Even though in fact and in truth, of course, he was redundant, he had no job.

A. We discussed that. I addressed that earlier and I believe that that is not the case at all. It is not the way in which EDG ran as a group, and, as I pointed out to you, EDG existed for ten years running in the way that it was and provided very satisfactory careers for a number of people."

40. Over the page, on page 46, Mr MacCabe persisted by reference to another of the documents:

"Q. ..... He was redundant, was he not?

A. No, I take this view. I accept that there is a memo in front of me written by Mr Holland. But I go back to my statement, how EDG operated, and I can assure you that if Mr Cameron had come back and sought constructive help in moving forward to a job during the preceding weeks and months, he would have had all the help we could have given him. It would not have been addressed along the lines of: `No, there is no job for him'. The job that he came to was invented for him to a large degree as I did with all the other people in that group.

Q. So what you are saying is you would have invented another job, is that right?

A. Under the circumstances I think we could have looked for ways of employing him usefully, yes.

Q. You would have made a job out of thin air for him?

A. This was the nature of the group that we - - - - -

Q. Why is there no reference to that anywhere in these papers, the possibility?

A. This memo is dated 15th February. This came up at a very, very late stage. If Mr Cameron had been co-operative during September, October, November, December these conversations could easily have taken place.

THE DEPUTY JUDGE: Supposing that he had turned up following Mr Shingles' letter, complying with Mr Shingles' letter, how do you see the discussions going about his future?

A. We would clearly have had to find - - do our best to find a constructive situation for him inside the company, either inside the company or indeed inside EDG if that - - inside the group. You know, if he came back in a tone of reconciliation."

41. Over the page the deputy judge said:

"THE DEPUTY JUDGE: I do not understand.

A. What I said was, what I tried to say was, that if in response to Mr Shingles' memo Mr Cameron had returned in a constructive, should I say, - - in a way of continued constructive conversations then, yes, I would have continued to regard him as part of the group."

42. Further down the same page it was put to him:

"Mr Cameron's job had ceased to exist, had it not?

A. No, this is what I am not accepting."

43. At page 49 Mr Davies said in answer to an incomplete question:

"A. The subject of redundancy with regard to Mr Cameron never came up as far as I was - - I never thought of him in those terms nor or anyone else in the group other than the group as a whole potentially being threatened with discontinuation which never occurred."

44. At the foot of page 50 in answer to the question:

" ..... to what extent did members of the EDG have strictly delineated jobs, properly so called?"

45. Mr Davies answered:

"To virtually no extent whatsoever. The word I would have used initially about the thing was very entrepreneurial and people were taken on because of the opportunities that they could pursue, and, you know, the funding that they could attract and this is what happened. Our mission was to change the way in which business was done and people came in because they could work with particular examples of it."

46. There is then some evidence to which it is useful to refer of Mr Allen-Butler who was the personnel manager. At the bottom of page 25 of his evidence Mr MacCabe asked him questions by reference to the documents. The question was:

"Q. As far as we can, yes. But just one other point on this, what that shows at p.112 is that he was redundant.

A. No, it doesn't say that.

Q. He was going to be redeployed because there was no job for him in EDG.

A. This was an exploratory discussion. You will no doubt be aware in commerce that there is constant change going on and in virtually every situation you explore what the possibilities are. It does not mean that the possibilities are probability."

47. On page 26 there is this question:

"Q. Yes, but it says there was likelihood the group will cease to exist. How could whatever he had to say change that?

A. The point is there is a differen[ce] between likelihood and probability. At this time in the organisation there was a great deal of discussion about changes, about organisations moving being owned by different vice-presidents and so on. This was merely, as I understand it, a possible discussion about that. The evidence obviously shows that the group continued for a number of years after this.

Q. You see that recommendation for redeployment was in accordance with the extended employment and redundancy procedure, was it not?

A. Redundancy does not enter into this."

48. Further down the same page there is the question:

"Q. So what your conclusion was at stage 2 was that his job was redundant and that he would need to seek alternative work within Digital. That is right, is it not?

A. No, what I was saying there was `as you find this situation untenable', in other words if Mr Cameron found it untenable then he could seek redeployment elsewhere in Digital. This was a way of trying to find a position where he would feel more comfortable."

49. At page 27 the question was:

"Q. But it would not make any difference as to whether or not his job was there, would it?

A. Well, his job was there. The question is whether he would be best suited to move elsewhere in the organisation."

50. Further down the question was:

"MR MacCABE: ..... So what happened then was, you had by the way, as we will see in a minute, you had come out of the grievance procedure at this time but you are still being consulted about it, and what Russell Holland is saying there is there is no job for John.

A. That wasn't my interpretation. But I mean you need to ask Mr Holland about that. But what this actually says is that there are no plans for him, and bear in mind at this point in time, John had not attended work for over three months, so it is actually difficult to make plans for people who aren't there."

51. There is this passage in cross-examination of Mr Allen-Butler on page 32:

"Q, What Mr Holland there is saying is the fact is in the surviving group John's job no longer exists. `Is John required by Digital?' If not then the courses of action are clear, redundancy unless there has been gross misconduct'.

A. I don't read here that he says that John's job does not exist. I think he is putting an if case."

52. Further down:

"Q. He did not have a job. He did not have any work to do.

A. At this moment in time that was probably true because he was not there."

53. Finally there was some reference to the oral evidence of Mr Russell Holland. Mr Holland was a systems architect with the EDG. On page 58, in the course of his cross-examination, there was the question:

"Q. He did not have a future in the group, did he?

A. At that stage I think he did."

54. Further down:

"Q. What that suggests is that personnel were of the view that at the time he could be redundant, September 1989. What do you say to that?

A. I don't think there was any question of any of us being made redundant in September 1989. Indeed, none of us were."

55. There is a part on page 63 of Mr Russell Holland's evidence. He is asked questions by reference to the documentary statement -

"Q. `As things stand in the group, John is clearly not featured in anyone's plans or business requirements.'

A. .....

Q. What did that mean?

A. I believe that was a reflection of the fact that John had been out of contact with the group for some months at this stage. The group was moving on as quickly as it could trying to secure funding, trying to become part I think at that point possibly of the UK subsidiary, although I am not sure that that was ever completed, and the way that the group planned its activity in his absence John was not being included in anybody's immediate thoughts on how they would go forward, how they would drive their projects of the development work.

Q. What you say is: `Even the most positive outcome will beg the question what happened to John, what do we do with John.' That is really what it amounts to.

A. Absolutely. I was concerned that it would be very difficulty to bring John back in to people's thoughts and to the work that we were doing.

Q. The context is that it would be difficult to get him back into any plans or business requirements of the EDG.

A. The EDG was a number of people who were all pursuing individual development plans at that time, business development plans. I cannot think that it would have been impossible. It was just getting more difficult."

56. Later on at page 66 there is this question:

"Q. His job did not exist, did it?

A. No, well, it had been difficult to sustain activity with John's absence for a long time and, as I said before, nobody had actually built John into their on-going plans. We were all busy at this time trying to make EDG work.

Q. And nobody wanted to take him back in anyway?

A. On the contrary, if there was a way thatJohn could have been rehabilitated with the group, it was getting very difficult, it was difficult before February, I am sure he would have been, but it proved not to be the case."

57. Finally, on page 72 in re-examination by Miss Tracy Forster, the witness was asked:

"Q. I know this is a difficult question but I must ask it in view of the line taken by my learned friend in cross-examination, when you wrote your memos in February 1990 using the word redundant, redundancy, job does not exist and so forth, you recall all of those matters you were cross-examined about?

A. Indeed.

Q. What I want you to tell my Lord is this, firstly, if Mr Cameron's unhappiness had been resolved during 1989, either by you or by Mr Allen-Butler or by Mr Davies, or anyone else, if it had been resolved and he had returned to his previous relationships with his colleagues, what do you think, if anything would have happened to his job in February 1990?

A. I can only answer in the following fashion, that the group continued to exist for some time afterwards and existed - - it did actually prosper a little after that before it was eventually disbanded, and new challenges came in that required people who were familiar with the way that the group worked who were familiar with the discovery and the development that that had gone on, and at a personal level I believed that John could have contributed to that on-going work if, and only if, those issues had been resolved."

58. There are a number of other passages to which reference could be made but I shall not refer to any more because, in my judgment, on this part of the appeal I am not persuaded that the judge's decision was wrong. It was a decision of fact. I do not consider that he adopted an erroneous definition of redundancy either in general terms or in context of, as we have now found, Mr Cameron's potential contractual entitlement. The passage which I have read on page 26 of his judgment starting at line 11, in substance, correctly states the law. It also correctly states what, in my view, was the contractual test on the meaning of paragraph 2.11 of the PPPM. The judge's decision constituted the acceptance of oral evidence from a number of witnesses we have not heard but whom he heard. The judge took account of the documentary references relied upon. Some of the more important ones are explicitly referred to on page 26 of the judgment, and the substantial earlier part of the judgment which gives the history of the abortive operation of the grievance procedure shows that the judge must have had all the documents well in mind.
59. I am not persuaded that, in context, the documentary references are intrinsically inconsistent with the oral evidence. The main earlier part of the judge's judgment, taken with the passages of evidence to which I have referred, to my mind paint a picture of a breakdown of personal relationships between the claimant, the management and personnel representatives of the defendant with whom he had contact, rather than the disappearance or diminishing of the work upon which he was engaged and upon which the EDG, as a whole, was engaged.
60. I am persuaded in the end by Mrs Tracy Forster's reference to the evidence that there was indeed ample evidence to support the judge's finding on this part of the case. For these reasons, I would reject this second ground of appeal.
61. SIR ANTHONY EVANS: I agree. The issue raised at this second stage of the appeal, adopting the words of the relevant term of the contract of employment and used by Mr MacCabe, counsel for the appellant, is whether the appellant's job ceased to exist or, as it is also put, whether there was a redundancy situation at the time of his dismissal in February 1990 which the judge held was wrongful.
62. The appellant's case is that his job ceased to exist much earlier than that - by March 1989 or possibly a little later. Unfortunately, and perhaps understandably, that issue became inextricably mingled with a different question - what was the reason for the appellant's dismissal when it occurred? Was it redundancy, as the appellant asserted, or something else? I need not spell out here what the alternatives were. The appellant did not continue with his previous work after March 1989, possibly later than that but certainly for many months before February 1990. He said that no work was made available for him to do; his job no longer existed. His employers said that they could not give him work when he was not there to do it.
63. Today, Mr MacCabe has sought to say, as I understand him, that the judge was wrong to find that there was no redundancy and to find that the appellant's job did cease to exist by February 1990 at the latest.
64. Miss Tracy Forster has analysed the situation differently. She said, in effect, that the appellant was employed as a member of the EDG group for what he could contribute, as an individual, to the company's fortunes. He was employed for his own special talents. When he ceased to make them available, the other members of the group had to do what they could do without him. Mr Davies, in his evidence, used a striking phrase. He said that over the years the EDG provided careers for a number of people including, that is, for the appellant.
65. On that basis it is not easy to see how redundancy could arise for any individual employed as the appellant was unless, perhaps, the group as a whole was disbanded, and that did not occur until 1993. As Miss Tracy Forster indicated, and I think Mr MacCabe would agree, the question of identifying the job that was done and which the appellant says ceased to exist in 1989 was not addressed directly at the hearing; rather, the emphasis was on the appellant's request for a job specification and his employer's various efforts to produce one and upon the operation of the grievance procedures. It seems to me that the judge's finding, which is challenged on this appeal, has to be regarded in the light of the case as it was presented to him.
66. For the reasons given by Lord Justice May, there was evidence to support the findings that were made. I agree that they cannot be set aside by this court.
67. SIR DENIS HENRY: I agree with both judgments.
Order: Appeal dismissed