COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE BIRTLES PRESIDING)
(ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
LONDON CENTRAL, MR WEINIGER PRESIDING)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE LLOYD
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MRS ANNMARIA BRASH-HALL |
Appellant |
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- and - |
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GETTY IMAGES LIMITED |
Respondent |
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Mark Sutton (instructed by Putsmans) for the Respondent
Hearing date: 11 April 2006
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Crown Copyright ©
Lord Justice Lloyd:
"The redundancy terms would have been the same under both reorganisations, as they are based on the applicant's salary at the time and her length of service, neither of which had changed. You are referred to the redundancy guidelines at document 5 of the Respondent's list of documents".
"In addition these guidelines are followed entirely at Getty Images discretion and do not represent any kind of contractual right".
Consistently with this, the letter dated 25 June, when describing the third option of redundancy, said this:
"If you were to be made redundant you would receive three months notice and three months enhanced severance (conditional upon signing a standard Getty Images severance agreement). The latter payment is a tax free payment".
"There is one further alternative based on the Respondent succeeding in its case. On that basis the Applicant will be entitled to damages until she would have been dismissed and then damages based on the redundancy package. The Tribunal is urged not to take that course. It would result in the Respondent benefiting from its own tort; it would require the Tribunal to make an inference based on a state of affairs that would not have existed had the Applicant not been unlawfully dismissed".
"4.4.5 On the basis of that finding, the Tribunal is entitled to factor into its award the severance payment that A would have received if she had exited the R's employment at 11.03".
"The position of NAM [National Account Manager] was a suitable alternative for anyone in the position of HOS [Head of Sales]. We do not accept the Applicant's opinion given by her in her evidence that NAM was a junior position. It was a high level responsible position in a consolidated organisational re-structure close to the Board in the management level. We find that had the Applicant been HOS as she ought to have been, she would have been offered the position of NAM on the November 2003 restructure. The matter of redundancy in November 2003 in relation to the second and this time genuine restructure which did affect the post of HOS, was adverted to in submissions, but the provisions of section 141(2) and (3)(b) ERA would have disentitled any occupant of HOS who had been offered but did not accept the NAM post, to a redundancy payment, as had the position of NAM been offered to an incumbent of HOS, we find it would have been suitable alternative employment".
"13. The answer to the first ground of appeal is that the Tribunal's decision is based upon the evidence that it heard. The Tribunal found that Mrs Brash-Hall would have rejected any offer of alternative employment that the Tribunal considered to be suitable alternative employment.
14. The issue of whether or not in those circumstances the Respondents would have paid a redundancy payment was not canvassed in evidence before the Tribunal and the Tribunal was in fact limited to the two letters that we have referred to together with the redundancy guidelines. No witness was asked questions by either counsel about whether in the circumstances of this case Mrs Brash-Hall would have been paid a redundancy payment if she had rejected the offer of suitable alternative employment. In the absence of that evidence, it is hardly surprising that the Employment Tribunal came to the conclusion it did that no redundancy payment would have been made or that Mrs Brash-Hall should be awarded that sum as part of her compensation. We therefore find no error of law in that respect."
Lord Justice Wall
"(1) This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment -
……
(b) to re-engage him under a new contract of employment,
with … re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.
(2) Where sub-section (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer."
Lord Justice Laws