United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S P QUANT (Associate Director - Personnel) Kvaerner Services Ltd Maple Cross House Denham Way Maple Cross Rickmansworth WD3 2SW
For the Respondent	MR D L REES (Employment Law Adviser) Jasmine House Kingston Stert Nr Chinnor Oxfordshire OX9 4NL


 


JUDGE PETER CLARK: This is an appeal by the employer, Trafalgar House Services Ltd ["Services"], against a decision of the Reading Industrial Tribunal sitting on 15th and 16th January 1996 that its former employee Mr Carder ["the applicant"] had been unfairly dismissed by reason of redundancy. Extended reasons for that decision are dated 7th February 1996 ["the reasons"].

The facts

The background facts appear to be these. Services is the employing company within the Trafalgar House group of companies ["the group"]. On 23rd October 1986 Services made a written offer of employment to the applicant, which he accepted specifically to work as contracts manager in Samuel Elliott & Sons Ltd ["Elliott"] a company within the group. Employment was to be on Services' written standard terms and conditions together with other express conditions set out in the letter of offer.

The applicant commenced the employment on 1st November 1986. He reported to Elliotts' offices at Caversham, Reading. In 1988 he was promoted to senior contracts manager of Elliotts.

In late 1992 or early 1993 Elliotts amalgamated with Trollope & Colls Ltd ["T & C"], another group company. As a result the T & C Head Office in London was closed, and T & C staff were transferred to Elliott's Reading base.

Until May 1994 the applicant reported to the Elliott's Contracts Director, Mr Cassidy; thereafter he reported to the T & C Contracts Director, Mr Drake.

On 1st August 1994 Mr Drake arranged a meeting with the applicant and seven other contracts managers. Six Elliotts contracts managers, including the applicant attended; the two T & C managers did not, according to the applicant's evidence. At that meeting Mr Drake advised those present that due to a downturn in business the number of contracts managers would be reduced to four; those who were to be dismissed would be so advised by September at the latest.

It was the applicant's evidence that two managers, Messrs Noble and Chanter, were transferred elsewhere within the group; a Mr McMorrow was subsequently dismissed in about September and a Mr Lane in December 1994.

In August 1994 the applicant was engaged on the British Airways contracts at Heathrow Airport. He was also asked to take responsibility for the British Airways contract at Gatwick. He remained in employment.

On 23rd February 1995 the applicant had a meeting with Mr Drake and Mr Wightman, the personnel manager. He was informed that a further reduction in the number of contracts managers employed would be necessary at the expiry of the Heathrow contract estimated at about 31st March 1995. He was told his employment would then come to an end unless alternative employment within the group could be found for him. He was handed a letter at that meeting by Mr Wightman which read so far as is material:

"Dear Mr Carder,

I write to confirm today's discussion with myself and Mr Drake. We regret that circumstances are such that we are obliged to further reduce the number of site projects staff. As a result we are obliged to consider you for an alternative position within the company or elsewhere in Trafalgar House."

Mr Wightman asked him to complete a pro forma to state his preferences for alternative employment; that the applicant did, and when asked about relocation, specified the areas in the Home Counties referred to in the pro forma and added:

"Anywhere in the UK or acceptable overseas location."

Mr Wightman went on to prepare a calculation of his entitlement in the event that he were to be redundant, and ended by saying that if the applicant should find alternative employment in the meantime, by which we understand him to mean, employment outside the group, the payments would not be affected.

The applicant arranged a meeting with Mr Quant, the Associate Director - Personnel for the Construction Services Sector, which took place on 8th March 1995. According to the applicant's evidence, contained in a witness statement which was read to the Industrial Tribunal, he told Mr Quant that he was unhappy with his selection for redundancy and was not really aware of the criteria used to select him for redundancy. Mr Quant explained the redundancy policy and referred him to the terms and conditions handbook. There is no finding by the Industrial Tribunal specifically as to whether that handbook formed part of his contractual terms and conditions of employment.

On the same day the applicant wrote to Mr Wightman confirming the discussion on 23rd February and went on to outline various matters agreed with Mr Wightman.

"(1) That it is my express wish to obtain if at all possible redeployment within Trafalgar House Group, in any suitable position and location including overseas.

(2) If this is not possible, I will be permitted to leave my present employment at a date earlier than 31st March without suffering any financial penalties, including my March salary."

He then goes on to deal with matters relating to holiday pay, his company car and his pension position.

On 9th March 1995, Mr Wightman replied in order to clarify certain matters. The first point he makes in that letter is this:

"You have not been notified of your redundancy. This will only arise if we fail to find a suitable appointment."

He went on:

"If you leave before 31st March having found an alternative elsewhere than within Trafalgar House, you will receive the settlement as previously detailed."

That is a reference to the calculation of the payment in the event of the applicant being made redundant.

Thus, an issue arose at this stage between the parties as to whether or not the applicant was under notice of dismissal by reason of redundancy.

On 17th March, the applicant told the tribunal, he was telephoned by the personnel manager of Trafalgar House Contracts Management Ltd ["Management"], another group company. We pause to observe that all the group companies to which we have referred appear to have been "associated employers" within the meaning of what was section 153(4) of the Employment Protection (Consolidation) Act 1978. For convenience we shall, in this judgment, refer to the provisions of the 1978 Act formerly in force. Equivalent provisions are now to be found in the Employment Rights Act 1996.

The purpose of that telephone call was to offer the applicant alternative employment at Leith in Scotland with Trafalgar House Construction (Europe) ["Construction"], another company within the group. After discussion the applicant agreed to try the Leith job, and to report for work on 29th March.

On 22nd March the applicant wrote to Mr Wightman setting out details of the arrangement for his secondment on a temporary basis to the Leith job.

On 23rd March Mr Wightman replied confirming secondment to the site staff at Leith and the fact that it would be regarded as a mutual trial in an alternative position. He concluded:

"In such circumstances, if it were to prove unsatisfactory and not lead to a permanent position, this would not affect the terms or rates of payment relating to redundancy as detailed in my letter of 23rd February."

On 27th March Mr Wightman confirmed the applicant's secondment to Construction effective on 29th March.

Meanwhile, the applicant had applied for jobs outside the group. Those applications had not been successful by 29th March, and on that day he presented for work on site at Leith. What then precisely happened is the subject of some debate.

In paragraph 30 of his witness statement the applicant gave this account:

"30 On the 29th March I received an offer of permanent employment with a company considerably closer to my home. I immediately contacted Mr Wightman and explained the situation and he agreed to release me with effect from 31st March 1995. At no time during the conversation did he offer, suggest or indicate to me that there were any other opportunities within the Trafalgar House Group of companies. Clearly he had been unsuccessful in finding me an alternative position with the Group by 31st March 1995 in accordance with his letter of 23rd February 1995 my employment terminated by reasons of redundancy."

We are told that he gave a different account at the Industrial Tribunal to that contained in paragraph 30 of his witness statement. We should add that by a direction of the tribunal prior to the substantive hearing, the parties had exchanged witness statements.

That version was, it seems, accepted by the Industrial Tribunal which records at paragraph 7 of the reasons the following:

"7 The applicant worked one day on 29 March 1995 at the Leith site and then travelled down South for an interview for alternative employment with another company. The applicant had an interview for new employment on 31 March, on which day he was offered fresh employment and he started his new employment on 3 April 1995. The applicant telephoned Mr Wightman and informed him that he was not returning as he had obtained new employment. The applicant confirmed the position by letter on 1 April 1995 (RIQ)."

One of the complaints in this appeal is that the applicant gave different oral evidence before the Industrial Tribunal from that contained in paragraph 30 of his witness statement. We shall return to this point later.

The Complaint

On 11th July 1995 the applicant presented a complaint of unfair dismissal only to the Industrial Tribunal. As the tribunal record at paragraph 9 of the reasons he received a payment on termination of his employment with the appellant which included his full statutory redundancy payment entitlement. This fact is not without significance when we come to consider the principal ground of appeal and the tribunal's reasoning.

By a Notice of Appearance dated 1st August 1995 the appellant indicated its intention to resist the application, inter alia, on the grounds that there was no dismissal, but that if there was a dismissal it was fair.

The Tribunal decision

The tribunal's reasoning which led them to conclude that the applicant had been unfairly dismissed is set out in paragraph 8 of the reasons in this way:

"8 The first matter to be considered by the tribunal was whether or not the applicant had been dismissed. As far as the applicant was concerned, he was going to be made redundant as from 31 March unless alternative employment could be found for him. Alternative employment was found with Trafalgar House Construction Europe on a trial basis as from 29 March 1995. The applicant worked one day on the new site and obtained alternative employment as from 3 April 1995. He left his employment with the respondent on 31 March 1995. The trial period commenced on 29 March 1995 and was terminated by the applicant. The trial period should have continued for a period of 4 weeks beginning with the date on which the applicant started work under the new contract. By Section 84(6) of the Employment Protection (Consolidation) Act 1978 if during the trial period the employee, for whatever reason, terminated a contract or gives notice to terminate it and the contract is therefore in consequence terminated, then, unless the employee's contract of employment is again renewed the employee shall be treated as having been dismissed at the date on which his employment under the previous contract for the reasons for which he was then dismissed or would have been dismissed had the offer for employment not been made. The Tribunal finds that by virtue of Section 84(6) the applicant was dismissed on 31 March 1995 on the ground that he was made redundant. ..."

The tribunal then go on to consider the question of reasonableness under section 57(3) and concluded that the appellant did not carry out any consultation in respect of the applicant's redundancy and that the dismissal was unfair.

The Appeal

Mr Quant advances the appeal on two grounds. First, he submits that the tribunal misdirected itself in law in holding that section 84(6) of the 1978 Act was relevant to the question of whether the applicant was dismissed for the purposes of Part V of the Act - the right not to be unfairly dismissed. Conversely, he contends that the tribunal failed to decide the real issues relating to the question of whether there had been a dismissal under section 55 of the Act.

Secondly, he complains that the tribunal adopted an unfair procedure in relation to the use of the witness statements.

We heard argument to the contrary from Mr Rees and having done so our approach is as follows.

The Statutory framework

This case brings into focus the interrelationship between the statutory codes for unfair dismissal and entitlement to redundancy payments, both of which were to be found in the 1978 Consolidation Act at the time of this tribunal's decision.

In order to understand our reasoning in determining this appeal it is necessary to set out a little of the legislative history prior to the 1978 Consolidation Act.

The original entitlement to redundancy payments began with the Redundancy Payments Act 1965. Quite separately the origins of unfair dismissal protection first appeared in the Industrial Relations Act 1971. Both codes appear in different parts of the 1978 Act; the right not to be unfairly dismissed is contained in Part V of the Act; the right to a redundancy payment in Part VI. How far do the two codes converge; to what extent do they diverge? How far does it matter on the facts of this case?

Unfair dismissal

So far as is material for present purposes Part V of the 1978 Act required the tribunal to embark on a three stage process.

(1) Was the applicant dismissed? To resolve that issue it is necessary to consider these definitions of dismissal contained in section 55 of the 1978 Act:

"(1) In this Part, except as respects a case to which section 56 applies, "dismissal" and "dismiss" shall be construed in accordance with the following provisions of this section.

(2) Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if,-

(a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice of without notice, or

...

(c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct.

(3) Where an employer gives notice to an employee to terminate his contract of employment and, at a time within the period of that notice, the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire, the employee shall for the purposes of this Part be taken to be dismissed by his employer, and the reasons for the dismissal shall be taken to be the reason for which the employer's notice is given."

The onus lies on the employee to prove dismissal on the balance of probabilities, and we emphasise at this stage, the reference in subsections (1) and (3) of section 55 to the words in this Part, that definition of dismissal relates to Part V.

(2) If he was dismissed, has the employer shown a reason for dismissal falling within section 57 of the 1978 Act? Here, the relevant reason is to be found in section 57(2)(c):

"that the employee was redundant"

(3) If the applicant was dismissed by reason of redundancy, did the employer act reasonably in treating that reason as a sufficient reason for dismissal under section 57(3) as amended.

Here, the burden of proof is "neutral".

Redundancy

Part VI of the 1978 Act is concerned with entitlement to a redundancy payment. The starting point again must be a dismissal. However, the definition of dismissal for the purposes of Part VI differs from that under Part V of the Act.

Section 83 provides:

"(1) In this Part, except as respects a case to which section 86 applies, "dismiss" and "dismissal" shall, subject to sections 84, 85 and 93, be construed in accordance with subsection (2).

(2) An employee shall be treated as dismissed by his employer if, but only if,-

(a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or

...

(c) the employee terminates that contract with or without notice, in circumstances (not falling within section 92(4)) such that he is entitled to terminate it without notice by reason of the employer's conduct."

We have omitted references to dismissal by expiry of a fixed-term contract, which does not arise in this case.

Two points immediately arise on a comparison of the definitions of dismissal in Part V and Part VI of the 1978 Act. The first is that the definition for the purposes of a redundancy payment entitlement in section 83(2), similar to that contained in section 55(2), is subject to sections 84, 85 and 93; provisions concerned only with entitlement to a redundancy payment. Secondly, section 83 does not, in itself, contain a provision equivalent to section 55(3), although not dissimilar provision concerned with entitlement to a redundancy payment is to be found in section 85 of the Act.

Next, when is a dismissal one by reason of redundancy? The definition is, so far as the material, to be found in section 81(2)(b):

" (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-

...

(b) 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."

Redundancy payment entitlement

We have earlier observed, as the tribunal found, that in this case the applicant was not claiming a redundancy payment. He had already received it. Nevertheless, the tribunal in terms found at paragraph 8 of the reasons that:

"... by virtue of Section 84(6) the applicant was dismissed on 31 March 1995 on the grounds that he was made redundant."

Does the question raised by section 84(6) help to decide whether or not the employee was dismissed under section 55 for the purpose of bringing a complaint of unfair dismissal. In our judgment it does not for the following reasons:

(1) An employee with the necessary continuous service, as in the case of this applicant, who is dismissed by reason of redundancy is entitled to a redundancy payment under section 81(1) of the 1978 Act, subject to the following provisions of the Act, i.e. the provisions in Part VI.

(2) In order to determine whether or not he has been dismissed the starting point is the definition contained in section 83(2). As with the definition for unfair dismissal purposes under section 55(2), the questions which arise include circumstances where there is an "actual dismissal" with or without notice or a "constructive dismissal".

(3) However, where notice of dismissal by reason of redundancy is given by the employer, the employee may nevertheless be disentitled to a redundancy payment where:

(a) an employer makes an offer before the ending of the previous contract to renew the contract of employment or to re-engage him under a new contract, and the renewal or re-engagement would take effect immediately on the ending of the previous contract or within four weeks thereafter, and

(b) in the case of re-engagement on different terms to the old terms, the employee unreasonably refused that offer in circumstances where it is a suitable offer.

In these circumstances he will have been dismissed by reason of redundancy, but his entitlement to a redundancy payment is barred. See section 82.

(4) Section 82 is principally concerned, in relation to offers of re-engagement, with an unreasonable refusal of suitable alternative employment before termination of the previous contract. However, section 84 is concerned with the concept of trial periods, originally introduced by the Employment Protection Act 1975. We do not propose to delve into the nuances of the trial period; it is unnecessary to do so for the purposes of this appeal, however, it is to be observed that section 84 provides for a trial period of four weeks, ending with the termination of the previous contract of employment, during which time the employee has an opportunity to assess the new and different job pursuant to the employer's offer of re-engagement. It is here that section 84(6) comes into play. It provides:

" (6) If during the trial period-

(a) the employee, for whatever reason, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated; or

(b) [immaterial]

then, unless the employee's contract of employment is again renewed, or he is again re-engaged under a new contract of employment, in circumstances such that subsection (1) again applies, he shall be treated as having been dismissed on the date on which his employment under the previous contract or, if there has been more than one trial period, the original contract ended for the reason for which he was then dismissed or would have been dismissed had the offer (or original offer) of renewed, or new, employment not been made or, as the case may be, for the reason which resulted in that offer being made."

(5) However, section 82(6) provides that if, during the trial period the employee unreasonably terminates suitable new employment with the same employer following an offer of re-engagement, he will not then be entitled to a redundancy payment.

(6) Thus two possibilities can arise as a result of the trial period provisions. Either the employee continues to work under the new terms and conditions following expiry of the trial period, in which case the original dismissal by reason of redundancy "vanishes" for the purposes of entitlement to a redundancy payment. Alternatively, if he terminates the contract during the trial period, the original dismissal under the previous contract, and the reason for it, redundancy, stand. In these circumstances either he is entitled to a redundancy payment or he is not, depending on whether the new employment was suitable, and whether his rejection of it was unreasonable.

(7) All of this presupposes that the original contract of employment was terminated by dismissal, and that the reason for that dismissal was redundancy. The enquiry under section 84(6) cannot determine whether or not there was an actual or constructive dismissal which terminated the previous contract of employment. It is for this reason that the tribunal have fallen into error.

(8) In our judgment the tribunal has failed to consider whether or not the original contract of employment, under which the applicant worked as a senior contracts manager with Elliotts, was terminated by the employer in circumstances amounting to a dismissal under section 55(2) and (3) of the 1978 Act. The following questions among others appear to us to arise for consideration on the facts of this case:

(a) Did the letter of 23rd February 1995 amount to a notice of termination by the employer under section 55(2)(a)? Or was it insufficiently precise to amount to a notice of dismissal; was it merely a warning of possible redundancy at some unspecified date in the future, subject to the possibility of alternative employment being found in the meantime? See Morton Sundow Fabrics Ltd v Shaw [1966] ITR 84.

(b) Even if it did amount to notice of dismissal, what was the effect of the applicant agreeing to take up the offer of alternative employment at the Leith site? A notice of dismissal may be withdrawn by mutual agreement. Compare Harris & Russell Ltd v Slingsby [1973] ICR 454.

(c) Having attended for work at Leith on 29th March 1995, what was the effect of his terminating that alternative employment in order to take up a job offer outside the group? Whether or not it disentitled him to a statutory redundancy payment is immaterial to the question of unfair dismissal. He has received the equivalent of a redundancy payment. The question is who terminated the employment? Was it a termination by mutual agreement, as the employer contends; in which case there was no actual dismissal.

(d) Alternatively, was the employer in actual or anticipatory repudiatory breach of the original contract of employment? That question may depend upon the terms of the contract, and the employer's contractual right, if any, to transfer him to other work within the group, as to which there is no finding by the tribunal. Mr Rees asserts that there was no such mobility clause. That is a matter for determination by the fact finding tribunal. If there was a repudiatory breach, did the employee leave in consequence of the breach, in circumstances amounting to constructive dismissal, or was the operative factor his obtaining new employment elsewhere in which event there may not be a constructive dismissal? See Walker v Josiah Wedgwood [1978] ICR 744.

(e) What is the effect of section 55(3) on the facts of this case?

(8) All these are matters, it seems to us, which fall to be considered and determined in order to answer the question, "was the applicant dismissed within the meaning of Part V of the 1978 Act?" That is the first question; it is not answered by the provisions of section 84(6) which simply preserve the employee's right to a redundancy payment in circumstances where the previous contract has been terminated in circumstances amounting to dismissal by reason of redundancy; subject to the qualification contained in section 82(6) where the employee rejects alternative employment with the original employer during the trial period.

(9) In the course of our consideration of the law applicable to this case we have not overlooked an apparent inconsistency between two authorities in this appeal tribunal. Those are the cases of Hempell v W H Smith & Sons [1986] ICR 365 and Ebac Limited v Wyner [1995] ICR 466. We invited submissions from Mr Quant and Mr Rees on the effect of those authorities in this case.

In Hempell the facts were these. On 22nd March 1982 the employee was given notice of dismissal by reason of redundancy to take effect on 15th May. Thereafter the employment was extended until 17th September when she was offered alternative lower paid employment on an eight week trial period basis. She accepted the offer and on 17th September received an ex gratia payment which included her statutory redundancy entitlement as at that date. On 15th October the employer dismissed her as unsuitable for the new post.

She brought a complaint of unfair dismissal on the basis that she was dismissed on 15th October.

An Industrial Tribunal held that all the conditions of section 84(6) had been fulfilled. She should be treated as having been dismissed on 17th September for the reason for which she was then dismissed namely redundancy. Since she did not complaint that that dismissal was unfair her complaint of unfair dismissal failed.

Her appeal to this tribunal was allowed. In giving the judgment of the Employment Appeal Tribunal, Peter Gibson J considered and rejected an argument advanced on behalf of the employer that the question was governed by section 84. He considered the scheme of Parts V and VI of the 1978 Act and concluded that they operated for the most part as separate codes. He summarised his conclusions at page 370 B-C in this way:

" In our opinion, section 84 was not relevant to the employee's complaint of unfair dismissal on 15 October 1982. She was by her originating application claiming not a redundancy payment but re-engagement. Had she claimed a redundancy payment, whether by reason of her dismissal for redundancy on 17 September or by reason of her dismissal on 15 October, then section 84 would have been relevant to defeat her claim in the light of the payment received by her on 17 September 1982."

However, in EBAC a different approach was taken.

There the employee was dismissed by reason of redundancy on 21st August 1992. He received a statutory redundancy payment together with pay in lieu of notice. Shortly thereafter he received an offer of re-engagement in a different department on the basis that his employment would be continuous. The new job did not work out and he left on 19th September. He then brought a complaint that he had been unfairly dismissed on 21st August. The employers argued that his contract of employment having been renewed or he having been re-engaged under a new contract, the provisions of section 84 applied to extinguish the dismissal on 21st August for the purposes of considering the complaint of unfair dismissal. An Industrial Tribunal rejected that argument, holding that section 84 applied only to claims for a redundancy payment under Part VI of the Act, not to complaints of unfair dismissal under Part V. It found the dismissal to be unfair.

The employer's appeal to this tribunal succeeded, and the case was remitted to the same Industrial Tribunal for a further hearing. It is right to note that before this appeal tribunal the employee did not appear and was not represented.

In giving the judgment of the Employment Appeal Tribunal Judge Byrt QC considered the reasoning of Peter Gibson J in Hempell, but distinguished that case on its facts and went on to hold that it was the substantive reason for the dismissal which determined the application of section 84 (i.e. redundancy), not the nature of the complaint. At page 471 A-C he expressed himself in this way:

" Our judgment is that it is the substantive reason for the dismissal which determines the applicability of section 84. The facts in Hempell's case are, indeed, radically different than those in the present case and, in our judgment, one has to read the observations of Peter Gibson J. in that case in the context of that case and do what one can to apply them to the facts of the present case. We decided that it is the substantive reason for the dismissal which determined the applicability of section 84 and not the procedural aspects of such a dismissal which determines whether it has been a fair or unfair dismissal. In this case, dismissal was for redundancy. Section 84 is there to provide the employer with a defence to a claim by an employee substantially based upon the redundancy situation."

In our judgment there is fundamental conflict between the approaches of the Employment Appeal Tribunal in Hempell and EBAC. Given that conflict we unhesitatingly prefer the approach of Peter Gibson LJ, as he now is, to that of Judge Byrt QC. The question of whether or not there has been a dismissal on a complaint of unfair dismissal must be determined by reference primarily to Part V and not Part VI of the Act; the question as to whether the reason for that dismissal was redundancy will be determined by reference to the definition of redundancy contained in section 81(2) of the Act; the question of whether or not the employee is entitled to or disentitled from a redundancy payment, with which section 84 is solely concerned, cannot be determinative of the question of unfair dismissal under Part V.

Conclusion

The short answer is that this appeal succeeds. The Industrial Tribunal erred in law in deciding the question of dismissal for the purposes of this unfair dismissal claim only by reference to section 84(6) of the 1978 Act.

We shall remit this case to a fresh Industrial Tribunal for rehearing. The new Industrial Tribunal may wish to consider, among other things the following questions:

(1) Was the applicant dismissed within the meaning of section 55 of the 1978 Act? We refer to our earlier observations as to some of the issues which that question raises in this case.

(2) If so, was the reason for dismissal redundancy? That is unlikely to be in dispute.

(3) If so, was the dismissal fair or unfair under section 57(3)? It will be for the new tribunal to make a judgment as to whether the applicant was made aware of the redundancy selection criteria applied in his case. Reference may be made to the Company handbook in this respect and its contractual status; whether the criteria were fairly applied in the applicant's case; whether there was adequate consultation, bearing in mind the meetings which the Industrial Tribunal find took place; and whether reasonable attempts were made to find the applicant alternative employment.

(4) If the dismissal is held to be unfair, to what remedy is the applicant entitled? The Industrial Tribunal in this case adjourned the question of remedies and that matter has not been resolved. It is at this stage that the alternative employment at Leith may become relevant, not to determine whether or not it was suitable employment unreasonably refused for the purpose of deciding entitlement to a redundancy payment, but in order to decide whether or not the applicant had failed to mitigate his loss under section 74(4) of the 1978 Act.

Witness statements

Finally, we return to the second ground of complaint in this appeal. It is argued that by permitting the applicant to alter the evidence which appeared at paragraph 30 of his witness statement, the tribunal denied the appellant justice in this case. They were misled and did not bring evidence to challenge the new version of events given by the applicant in the witness box.

It is convenient for Industrial Tribunals to receive evidence in the form of witness statements which are either read by or allowed to stand as part of the evidence of the witness. It seems to us that how this is dealt with by the Industrial Tribunal is a matter for it to decide under its powers to regulate its own procedures provided for in Rule 13(1) of the Industrial Tribunal Rules of Procedure 1993.

Where a witness departs from his witness statement that will be a matter for cross-examination and comment by the opposing party. If that party is taken by surprise, the remedy is to apply for an adjournment in order that further evidence can be called. That was not done in this case. However, since this matter is being remitted for a fresh hearing as a result of what we have found to be a material misdirection in law by the original Industrial Tribunal, the point can be dealt with by the appellant at the remitted hearing, by cross-examination on the basis of a previous inconsistent statement, and by calling evidence if necessary in rebuttal. It will then be for the tribunal to make the necessary findings of fact where a conflict of evidence exists.