United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SAM NEAMAN (of Counsel) Davis Frankel & Mead Solicitors 33 Welbeck Street London W1M 8LX
For the Respondent	MISS SOPHIE GARNER (of Counsel) Morrish & Co Solicitors Oxford House Oxford Row Leeds LS1 3BE


 


JUDGE PETER CLARK: This is an appeal by the employer, British Bata Ltd ["BBL"], against a decision of the Stratford Industrial Tribunal that it had unfairly dismissed its former employee, Mrs Everett. Full reasons for that decision are dated 2nd September 1996.

The Facts

Mrs Everett ["the applicant"] was employed by BBL from 1st April 1970 until her dismissal effective on 21st April 1995.

Throughout the employment she worked as a manufacturing operative. Her work rate was exceptional. She had an unblemished record. She worked on a process known as BIPAK/BOPAK.

In June 1995 management decided to move from a single day shift to a three shift rotating system on the BIPAK/BOPAK work.

Notice of the proposed changes was given to staff on 30th June 1994.

Thereafter meetings took place between management and unions, whose members were unhappy with the shift alteration. Most of the affected employees accepted transfer to the Monoplax Department at a lower rate of pay. It was anticipated that in due course that department would also move to a three shift system.

However, the applicant adamantly refused to work the new system. Her case was discussed at a meeting held on 14th October 1994. She was offered a transfer to Monoplax which would eventually result in her being £130 per week gross worse off. She transferred to Monoplax for a time, but then moved back to the BIPAK/BOPAK work.

On 20th December 1994 BBL wrote to the applicant giving her further proposals to consider. No resolution was reached and on 27th January 1995 Mr Nicholls, a personnel manager, wrote to her in these terms:

"Dear Mrs Everett,

Further to our letter of 25th January 1995, the Company has now carefully reviewed and considered your position.

In light of the fact that you will not accept a change in your working hours and have refused alternative employment offered to you during the extensive consultations that have taken place between us with your Union Representative assisting you throughout, we regret that the Company see no alternative but to terminate your contract of employment with twelve weeks notice at your present average rate of pay. Thus your employment will cease on 21st April 1995.

The twelve weeks notice period will commence from the date of this letter. However, during the notice period, if you reconsider your position and feel that you would be willing to accept the change of hours or the offer of alternative employment put to you by the Company, please let us know at which time we can give the matter our further consideration."

The applicant sought to appeal to Mr Graham, the Group Managing Director, but that was refused. Instead, a meeting was held on 23rd March 1995 between the applicant and her union representative, Mr Bayes and Mr Nicholls and Mr Copping. The applicant put forward her proposals which were rejected by Mr Nicholls in his letter dated 24th March 1995.

Her employment ended on 21st April 1995 and she promptly found new employment elsewhere.

The tribunal decision

The tribunal were satisfied that BBL had established some other substantial reason for dismissal, namely a major business reorganisation. That was a potentially fair reason for dismissal.

The tribunal went on to consider the question of reasonableness under what is now s.98(4) of the Employment Rights Act 1996. It found:

(1) Notwithstanding an extended period of consultation with the unions BBL was less than flexible with the applicant. From the letter of 20th December 1994 it took the employer only until 27th January 1995 to come to the decision that dismissal was inevitable.

(2) It found the dismissal unfair for the reasons set out in paragraph 10 of the extended reasons:

"10 We have taken the view that the Respondent ought to have given considerably more weight to the length of the Applicant's period of service and her exemplary record and its recognition that she was an exceptional and outstanding employee in terms of the speed of her piecework operation. It has seemed to us that the Respondent might well have given further thought to a "ring fence" arrangement on the basis Mr Bayes suggests, namely that if the Applicant were not to be accommodated on the Bipak/Bopak line, her average rate of pay would be maintained on the Monoplax line to reduce perhaps at £1 per week over a period of approximately 130 weeks by which time the Applicant's rate of pay would have been brought into line with the Monoplax operators. It is not of course for us to seek to substitute our view or approach as an alternative to that deployed by the Respondent at the time. Nevertheless, we take the view the Respondent ought to have occupied itself rather more extensively and rather more thoroughly in individual consultation, thought and discussion with Mrs Everett in an endeavour to relocate her suitably, either in the Bipak/Bopak, Monoplax or other allied operation in recognition of her capability, length of service and employment record. It has not seemed to us that the Respondent's dismissal of the Applicant on the basis we have described fell within the reasonable band of responses available to the Respondent at that time. For these reasons we find the Applicant's dismissal by the Respondent to be unfair."

(3) However, in its approach to the compensatory award under the just and equitable principle it said this at paragraph 11:

"11 Nevertheless, the Applicant has honestly admitted before us that her mind was made up and the only option acceptable to her was continued work on the Bipak/Bopak line on a day shift basis or on an earnings protected basis on the Monoplax line. In that regard, it has seemed to us that although we have perceived the need for further consideration and thought on the part of the Respondent, such further consideration would have made no ultimate difference with the Applicant's dismissal by the Respondent. We are entirely satisfied and the Applicant readily accepts, her view would have remained the same. Equally, we are entirely satisfied that the Respondent's view would not have changed in the light of the commercial decision it had to make but made, in our view, too quickly. For these reasons we are entirely satisfied, albeit rather unusually in a case such as this, that the principal well known from the decision in Polkey v A E Dayton Services Ltd [1988] ICR 142 ought to be applied by us in finding that a further period of consultation and though of one month ought to have been allowed by the Respondent. However, and as we have already indicated, we are entirely satisfied that after that time the Applicant would have been fairly dismissed by the Respondent, the reason for dismissal being "some other substantial reason" as prescribed by section 57(1) of the 1978 Act."

The Appeal

Mr Neaman on behalf of BBL takes a number of points. The principal one which concerns us and which we have taken as a preliminary point is this. He submits that as a matter of law consultation between employer and employee can continue after notice of dismissal is given until the effective date of termination. Here, between 27th January and 21st April 1995. During that period, on the facts, a meeting was held on 23rd March at which the applicant put forward her proposals, which were rejected by BBL. The tribunal found that the unfairness in this case lay in the employer acting too quickly, although further consultation would have made no difference to the result, in the sense that the applicant could have been fairly dismissed one month later.

The tribunal's error, he submits, lay in taking the date of the notice of dismissal as the cut off point for considering the reasonableness of the dismissal, whereas in law it was for the tribunal to assess the reasonableness of that dismissal at the effective date of termination of the contract - see Parkinson v March Consulting Ltd (TLR 9th January 1997 CA). If the latter date is taken more than one month has elapsed since notice was given and further consultation has taken place on the tribunal's findings, resulting in an impasse which the tribunal found provided sufficient reason for dismissal.

Miss Garner submits that on a fair reading of the tribunal's decision it had in mind the 21st April as the date at which it should assess the reasonableness of the decision to dismiss. She accepts that that is the relevant date. It was open to the tribunal to find that at that date insufficient consultation had taken place, and that a further month's consultation ought to have been undertaken.

Conclusion

In our judgment Mr Neaman is correct in his submission. The tribunal fell into error in taking the date on which notice was given as being the relevant date at which to assess the reasonableness of the decision to dismiss. We think that is an inevitable reading of the tribunal's decision, particularly in paragraph 9 where they say:

"From its letter of 20 December 1994 it took the Respondent only until 27 January 1995 to come to the decision that dismissal was inevitable."

and in paragraph 11 where they say:

"Equally, we are entirely satisfied that the Respondent's view would not have changed in the light of the commercial decision it had to make but made, in our view, too quickly."

That commercial decision must be a reference back to the decision that dismissal was inevitable as found in paragraph 9.

Had the tribunal taken the effective date of termination as the relevant date they would on their other findings, inevitably have come to the conclusion that sufficient consultation had taken place and that in all the circumstances the dismissal was fair.

Accordingly, we shall allow this appeal and substitute a finding of fair dismissal.