United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	BRIAN NAPIER (of Counsel) Messrs Pinsent Curtis Solicitors 41 Park Square Leeds LS1 2NS
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: This is an appeal by the employer against a decision of an Industrial Tribunal sitting at Birmingham on 4th December 1995 that the applicant, Mrs Marion Dempsey, had been unfairly dismissed. Compensation was ordered in the sum of £6,585.60. Extended reasons for that decision are dated 10th January 1996.

Today the employer is represented by counsel, Mr Brian Napier. For the applicant, her representative Ms Rita Woods of the Wychaven Citizens Advice Bureau wrote to the Registrar on 14th November 1996 explaining that financial constraints prevented us hearing oral representations today, but she has sent a written argument prepared by Mr Charles Lamb, and we have taken those submissions into account in arriving at our decision in this appeal.

The uncontroversial background to the case is that the applicant commenced employment with the company on 10th September 1990 at their Broadway office in the salaries department. In 1992 part of the payroll system was transferred to the Tewkesbury office, some 15 miles away. The applicant remained at Broadway.

In 1995 the company decided to transfer the remaining payroll work from Broadway to Tewkesbury. The upshot was that the applicant was dismissed by reason of redundancy. Her employment terminated on 31st May 1995. She then brought a complaint of unfair dismissal.

The critical issue in this appeal revolves around the Industrial Tribunal's finding that no offer of alternative employment at Tewkesbury was made to the applicant in March 1995. We are indebted to Mr Napier, who has presented the point concisely and in a conspicuously fair way in the absence of representation on behalf of the applicant at this hearing.

The Tribunal's findings

Despite the fact that the applicant was not asked any questions in cross-examination, so that her evidence was effectively unchallenged, the tribunal detected a conflict of fact between Mr Wallin, the company's personnel director and sole witness called on its behalf and the applicant. The issue was whether or not Mr Wallin made an offer of alternative employment at Tewkesbury at a meeting with the applicant held on 6th March. It was common ground that at that time the applicant wanted to move to Tewkesbury. Mr Wallin's evidence was that if she wanted to move she could do so and he told her that. There was agreement that she would transfer. Her oral evidence, accepted by the Industrial Tribunal, was that Mr Wallin said that the company did not do relocation. On her account he said he would speak to Messrs Boyce and Elliott, the relevant managers at Tewkesbury, to see if there was work for the applicant.

The tribunal accepted her account. They found that no offer of transfer was made by Mr Wallin in March. In reaching that conclusion they relied upon certain contemporaneous documents which the tribunal found supported the applicant's version of events. We shall return to those documents shortly.

The Appeal

Mr Napier accepts that if he is to succeed in this appeal he must attack the tribunal's finding that no offer was made in March. To do so, he further accepts he must show that the finding was perverse. He so submits, on the basis that the tribunal misunderstood the facts. See Freud v Bentalls Ltd [1982] IRLR 443, paragraph 19, per Browne- Wilkinson J.

The kernel of his argument is that in finding that the contemporaneous documents supported the applicant's version of events, the tribunal misunderstood the true meaning and effect of what was there contained. In order to examine that submission we must now turn to the documents.

The documentary evidence

The first document in the relevant sequence is a memorandum from the applicant to Mr Wallin dated 7th March 1995. That states:

"May I confirm in writing the points raised at our meeting on 6.3.95.

a) I stated that since my work was moving to Tewkesbury I would like to move with it and work from there.

b) You said you would speak to Tony Boyse and Chris Elliott and get back to me regarding this matter."

The Industrial Tribunal observe in paragraph 4 of their reasons:

"She does not say that she was offered a job in Tewkesbury and that she had indicated that she would be interested in it or would like to accept it."

Next, the internal memorandum from Mr Wallin to Messrs Elliott and Boyse of the same date. Again the tribunal observe that it contains no reference to an offer of a job. Mr Wallin is concerned with the possibility of losing a tribunal if the applicant were to take proceedings. He concludes:

"In the meantime, please do not promise somebody else the work on the monthly payroll."

Since we are invited to find that the Industrial Tribunal's approach is perverse, we are entitled to test that submission by our own understanding of what, it appears to us, Mr Wallin intended to convey. If he was saying that he had offered the alternative employment and the applicant wished to take it, then it would be quite unnecessary to make that final remark.

On 8th March Mr Wallin wrote to the applicant to confirm their conversations.

He said this:

"It is the intention to move this payroll to the Tewkesbury Payroll Department effective from 1st June 1995. The Broadway role will therefore be redundant. You have advised me that you are happy to go with the work to Tewkesbury and I have advised Chris Elliott and Tony Boyse accordingly. I will come back to you when I know the prospects in Tewkesbury, recognising your concern that the position may be short term, if at all available."

The tribunal again observe that in that letter Mr Wallin did not say that the offer had been made. On the contrary, we would observe, the tone of the letter, far from confirming an offer by Mr Wallin to the applicant, suggests that he is awaiting a response from Elliott and Boyse as to whether there will be a position available for the applicant in Tewkesbury, and if so, for how long it may last.

On 3rd May the applicant wrote again to Mr Wallin. She said this:

"Following our conversation and correspondence regarding my redundancy, and in view of you not coming back to me concerning my transferring to Tewkesbury with my work, I assume that my last working day will be 31st May 1995.

Will you please confirm this date in writing in order that I can advise where necessary, the availability of dates for future employment, etc."

As the tribunal observe, that letter is consistent with her case that no offer had previously been made of alternative employment in Tewkesbury.

Finally, on 4th May Mr Wallin wrote a memorandum to the applicant, having earlier spoken to her, which appears to say for the first time in writing and in terms, that there is a job for her at Tewkesbury, although, he points out, it would be subject to review after three months. The tribunal accepted the applicant's evidence that she never received that memorandum.

Mr Napier submits that the first three documents are at best ambiguous as to whether an offer had been made or not. As to the final memorandum dated 4th May, although he accepts that he is bound by the tribunal's finding that the applicant did not receive it, he argues that it is corroborative of the company's case that an offer was made in March.

We are quite unable to accept his submission. It seems to us that the first three documents are more consistent with there being no offer at that stage in March, but that Mr Wallin would investigate the possibility of alternative employment with the relevant managers at Tewkesbury. As to the final memorandum dated 4th May, at best that shows that on 3rd/4th May Mr Wallin decided to offer the alternative post to the applicant. It does not, in our view, say anything more than that.

It follows that far from concluding that the tribunal misunderstood the evidence, it seems to us that it reached a wholly permissible finding that the documents supported the applicant's case rather than that of the company. This ground of appeal therefore fails.

Mr Napier argued a further point, albeit faintly. He submits that in dealing with compensation the tribunal failed to consider whether a reduction ought to have been made to the gross loss as calculated on the grounds that the applicant had lost a chance of continued employment as a result of the company's failure to properly consult with her. Red Bank Manufacturing Co Ltd v Meadows [1992] IRLR 209. We think the answer to that point, as Mr Napier appreciated in argument, lies in two findings of the tribunal. First, at paragraph 11 of the reasons, the tribunal find that if there had been a genuine attempt to move the applicant to Tewkesbury she could still have been working now. That finding is reinforced by a later finding that in fact no review of the potential job at Tewkesbury was ultimately carried out. Although that fact is not relevant to the fairness of the dismissal, it not being known pre-dismissal, it is relevant to the question of what compensatory award it is just and equitable to make when considering the former section 74(1) of the Employment Protection (Consolidation) Act 1978. Again, we can find no error of law in the tribunal's approach to the question of compensation.

No other points foreshadowed in the Notice of Appeal and skeleton argument having been pursued before us, we must dismiss this appeal.