United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NIGEL PORTER (of Counsel) Richard Lowe Engineering Employers Association Broadway House Tothill Street London SW1H 9NQ
For the Respondent	COLIN GEORGE (Representative) Citizens Advice Bureau 1 Church Road Southend-On-Sea SS1 2AL


 


MR JUSTICE KIRKWOOD: This is an appeal by an employer, Taylorplan Services Ltd, and a cross-appeal by the employee, Mrs Shwartzberg, from a decision of an Industrial Tribunal at Stratford and entered in the register on 3 October 1995. The facts as found by the Industrial Tribunal can best be taken from its Extended Reasons, at paragraph 2:

"i) The Applicant started work as a Menu Clerk with Pall Mall Services in June 1991. When they lost the contract to provide a catering service at Southend Hospital, where the Applicant worked, the contract was taken over by the Respondents and the Applicant's employment was transferred to them, by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 1981. It is not disputed by the Respondents that there was a 'relevant transfer' within the meaning of those Regulations.

ii) The transfer to the Respondents took effect from Sunday 11 December 1994. Around that time, either before or after the transfer took effect, Mr Facer met all the staff who had been transferred to the Respondents individually, but at the meeting with the Applicant he did not mention the fact that an optical reader had been ordered which, when introduced, would be likely to make her job redundant.

iii) The Applicant started working for the Respondents on the first day when they took over the contract, 11 December, and worked during that week. However, on 15 December the Applicant slipped outside her office and broke her shoulder. She was off work for six weeks and returned to work on 23 January 1995. She had only been at work just over an hour when Mr Facer called her into his office and told her that she had two options: either to work as a Catering Assistant for three hours each day at a reduced hourly rate of pay or to accept redundancy. The same day he wrote to her confirming that, because of technical and operational advances, the post of Menu Clerk no longer existed in its current form and offering her three options: (1) to maintain her current post but at 1½ hours a day; (2) to accept the post of Catering Assistant (as already outlined to her at the meeting earlier in the day); or (3) to accept redundancy. The Applicant replied by letter dated 25 January 1995 stating that she had no option but to accept redundancy, since she could not afford such a drastic reduction in hours as entailed in the first option and was not trained to undertake the second option. She was accordingly paid a redundancy payment together with the various other items which were owing to her.

3 Having considered the evidence, we are satisfied that the reason for the dismissal of the Applicant was that her job as Menu Clerk had been made redundant by the introduction of an optical reader."

Having heard the evidence we are satisfied that the reason for the dismissal of the Applicant (the Respondent here) was that her job as Menu Clerk had been made redundant by the introduction of an optical reader.

Having gone on to consider section 57(3) of the Employment Protection (Consolidation) Act 1978, the Tribunal found that Mrs Shwartzberg's dismissal was unfair in all the circumstances of the case because of the abrupt way she was treated on her return from a lengthy period of illness. The Tribunal held that the way in which Mrs Shwartzberg was treated was so badly managed by the employers that they behaved unreasonably in treating her redundancy as a sufficient reason for dismissing her at that time.

The Tribunal also held however that, had the redundancy been managed differently Mrs Shwartzberg would have been dismissed anyway, since it was abundantly clear that her job had been made redundant. The Appellant, Taylorplan Services Ltd, does not seek to challenge any of those findings. Indeed, the Appellant argues, an appellate tribunal can only interfere with the findings of fact in certain clearly identified circumstances.

The Respondent to the appeal by her Notice did seek to challenge findings by the Industrial Tribunal and in particular, that the job was not in truth redundant or, if it was, then she had been unfairly selected for redundancy. Mrs Shwartzberg challenged in her Notice the weight attached by the Tribunal to certain matters of fact that she asserted. In argument however, it became clear that there can be no challenge to the finding of redundancy and that those points go to the reasonableness of the period of consultation.

Having made the findings of fact that it did, the Industrial Tribunal continued in its decision in these terms:

"5 ... Had the dismissal been better managed, we take the view that the employers could have dismissed her fairly and that this could have been achieved within three months. We therefore think it just and equitable to award her a compensatory award of compensation limited to 13 weeks' loss of net wages. ..."

It is against that finding of three months that the employer appeals contending for about two weeks and that by her cross-appeal Mrs Shwartzberg appeals, contending in it for about six months.

In support of its appeal the employer contended in the Notice of Appeal that it is established, as a matter of law, that two weeks is reasonable for consultation and reliance was placed upon Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676. It was thus contended that the Industrial Tribunal erred in law in finding a greater period than two weeks. That was a bold assertion. It is plain and, it was not pursued in argument, that that authority turned on its facts; that what is reasonable depends on the particular circumstances of each individual case and whilst that case provides helpful guidance, it cannot be elevated to the status of an established principle of law.

The Appellant further submits that three months was excessive because: (a) Mrs Shwartzberg's job was already redundant on 23 January 1995; (b) only a single redundancy was under consideration and (c) Mrs Shwartzberg's redundancy was inevitable.

The Appellant draws that together in these terms:

"9. Accordingly it is submitted that the period of three months was so excessive in all the circumstances that the Tribunal erred in law in reaching a decision which no reasonable Tribunal properly directing itself in law could have reached. It is clear that 'wholly excessive' periods for such consultation awarded by an Industrial Tribunal may render the Tribunal's decision perverse."

The Respondent to the appeal argues that the time it would have taken to dismiss her fairly rather than unfairly was six months. She contends that the Industrial Tribunal failed to attach proper weight to her ability to adapt to change and to the employer's failure to consult her properly on all the options of employment of her by them, all the more so, it is said, since these employers were newly on the scene and therefore did not know Mrs Shwartzberg and her abilities at all.

The Extended Reasons of the Industrial Tribunal do not fully reveal its reasoning behind its decision that three months was the appropriate period for the fair management of Mrs Shwartzberg's dismissal. It does however have to be said that the Tribunal had heard the oral evidence and was in a position to have a feel of the case and an impression of the witnesses, which we are not.

We reject that part of the written cross-appeal relating to the finding of redundancy. We do not have the beginnings of the material to warrant a challenge to the Industrial Tribunal's finding of fact about that and it is not pursued.

We return to the finding that three months was an appropriate period to bring about the fair dismissal of Mrs Shwartzberg. This is not, contrary in particular to a assertions in the skeleton arguments, a matter of law, but a finding of fact as to what would have been reasonable in all the circumstances.

Looking at all the circumstances, as we know them from the papers and the arguments, we find it quite impossible to accept that the decision was so manifestly and plainly wrong as to fall outside the possible proper exercise of discretion by the Industrial Tribunal. To describe it as 'perverse' would be wholly unwarranted and accordingly the appeal and the cross-appeal is dismissed.