United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR K UNDERWOOD (Solicitor) Underwoods 1 Holywell Hill St Albans Hertfordshire AL1 1ER
For the Respondent	MISS J EADY (Of Counsel) Legal Services UNISON 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE LINDSAY: We have before us by way of a final appeal hearing the case of Mr C Maddock against Broxbourne District Council. The appeal is by Broxbourne District Council. There had been a hearing before the Industrial Tribunal under the Chairmanship of Mr Purse on 30 May 1996 and that led to Extended Reasons being given on 8 July 1996, there having earlier been only summary reasons.

The unanimous decision of the Tribunal was that the Applicant, Mr Maddock, was unfairly dismissed and the decision went on to adjourn the question of compensation to a date to be fixed.

The dismissal was held by the Industrial Tribunal to have been for the given or shown reason of redundancy. What the Industrial Tribunal held in their paragraph 4 was that:

".... The Respondents had no other post which could be offered to the Applicant [Mr Maddock] and therefore, they proceeded to dismiss him by reason of redundancy, by a letter dated 21 August 1995. His employment ended on 20 October 1995."

There is no suggestion there that the reason then given was disingenuous or untrue. They proceeded to dismiss him by reason of redundancy, says the Industrial Tribunal, and it does not qualify that with any doubt or suspicion.

The Industrial Tribunal, having come to that conclusion, then moved on to the question of fairness in paragraph 5 of their decision:

"The fairness of the dismissal. The tribunal had to consider whether the Respondents acted reasonably or unreasonably in all the circumstances in treating redundancy as a sufficient reason for dismissing the Applicant within the meaning of section 57(3) of the Employment Protection (Consolidation) Act 1978." .... (Our underlining.)

They regarded themselves, in other words, as having to go on to consider whether redundancy was a sufficient reason. That obligation - using, instead of reference to Section 57(3), the language of its current embodiment in Section 98 of the Employment Rights Act 1996 - to go on to consider matters only arises if the employer has shown the reason in question. What Section 98(4) says is this:

"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)– ....."

and it then goes on in the familiar way to talk about whether a sufficient reason for dismissing the employee has been demonstrated.

So when the Industrial Tribunal said it had to consider whether the Respondents acted reasonably or unreasonably, in all the circumstances, in treating redundancy as the sufficient reason, they must have taken the view that the employer had fulfilled the provisions, as they now are, of Section 98(1) and (2) namely that the employer had shown a reason for the dismissal and that it was that the employee was redundant.

Redundancies are, of course, of very varying kinds. Without pretending to be statisticians we would think that the one involved here was of a relatively unusual kind numerically because the unusual feature here was that at the end of the day, after a reorganisation, the Broxbourne District Council was employing more people in the particular area of employment than they had done at the start. We do not, of course, say that that means that there cannot have been a redundancy but we would say that it is a redundancy of a relatively unusual kind.

The difficulties that Mr Underwood has rightly drawn to our attention in this case stem largely from the expression in paragraph 7 of the reasons. What the Industrial Tribunal says is this:

".... The Applicant's redundancy was artificially created by the Respondents ....."

They then go on to say that the redundancy was not a sufficient reason.

What is it that is meant by that expression - that the redundancy was "artificially" created? Note, they do not say there was no redundancy at that point, they say merely that it was "artificially" created. It is not a convenient phrase but we are obliged to look to the Industrial Tribunal's reasons as a whole. We are told that we must not use a fine (or perhaps any) toothcomb in going through their reasons but to look at them as robust decisions of an Industrial jury. Viewing them in that way, what is to be meant by their reference to the redundancy having been "artificially created", given that in their paragraph 5 (as earlier demonstrated) they must have had in mind that redundancy was indeed the reason that had been sufficiently shown for the purposes of the statute.

On balance, we feel that all that was intended by that expression was that this was an unusual redundancy in that the employer ended up employing more people in the department at the end of the reorganisation that he had in mind than he had employed at the start. It was, in other words, a genuine redundancy but not a redundancy that necessarily required the dismissal of Mr Maddock. He could have done the job which had been created in the reorganisation. What they held at paragraph 6 was this:

"The tribunal is unanimously of the view that Mr Maddock was capable of performing the work of Operations Officer for which he applied. It was work in a grade below his existing post and we are satisfied that he would have done that work in a competent manner. If the Respondents had concerns about any aspects of the work of the post, they could have been overcome by suitable training or by a slight modification to the job description. The tribunal considers that it is reasonable to expect the Respondents to take those steps if they considered them desirable."

They continue in paragraph 7:

"The tribunal accepts that the Respondents believed that the person whom they appointed to the post of Operations Manager was likely to prove more competent than the Applicant. However, it does not accept that it was reasonable to engage a new employee to fill that post when that would mean that the Applicant would necessarily become surplus and, in the absence of any other suitable vacancy, be dismissed."

Accordingly, after this curious reference to the redundancy being "artificially" created, they went on to conclude:

".... the tribunal is unanimously of the view that the Respondents did not act reasonably in treating that redundancy as a sufficient reason for dismissing the Applicant."

Viewing the decision as a whole, we do not find that the inconvenient and unclear description of the redundancy as having been "artificially" created is sufficient to displace the clear logic of the earlier parts of the decision that there was, indeed, a redundancy.

Of course it does not follow that a redundancy (be it genuine or artificial) is of itself enough to prove in order to indicate that a given dismissal is fair. One can have a very genuine redundancy which nonetheless does not lead to a fair dismissal. It is essentially a matter for the Industrial Tribunal, as the Industrial jury as it is quite often described to be, to hold whether in all the circumstances the dismissal was fair, moving on from there having been a redundancy.

The conclusion of this Tribunal was that this particular dismissal was unfair. Have we got material which sufficiently indicates an error of law in that conclusion? We do not feel that we have. Here there was another job created. It was a job which Mr Maddock could perform, at all events if there was some re-training or a slight modification to the job, and that is a factor which we feel that the Industrial Tribunal was entitled to have regard to in considering whether the dismissal was fair or unfair.

Although Mr Underwood has rightly drawn attention to this curious phrase "artificially created", we do not feel that his argument has demonstrated an error of law in the conclusion of the Tribunal.

There are one or two other points that we ought to mention. This was a case where at an earlier stage the EAT had asked that the Chairman should provide his Notes, but not his Notes generally, only his Notes relating to a particular subject - restructuring. It transpires, according to the Chairman's letter, that there were no Notes of Evidence relating to the restructuring. The Chairman has produced witness statements on the point but no notes relative to restructuring, so far as concerned any oral examination in chief, or cross-examination, or re-examination.

It is, of course, disappointing that there were no notes on the subject, but it is explicable because, as Miss Eady for the Applicant [Mr Maddock] points out, a person in Mr Maddock's position is unlikely to know very much about the detailed nature of the reorganisation and the reason for it and the reasons why it particularly took the shape it did. It is very much a subject which is within the knowledge and competence only of the local authority employer and that is why it is quite likely, although we cannot be sure one way or another, that there was no oral evidence on that particular subject. In other words, we cannot assume that the Chairman heard oral evidence on the point but failed to take a note of it; the likely reading, and certainly one that we could not say was impossible, is that there was no oral evidence by way of evidence in chief, cross-examination or re-examination on that particular subject and that, of course, would explain the absence of the Chairman's Notes on the point.

A second point is that Mr Underwood has sought to say that it could be that what the Industrial Tribunal had in mind as being the shown reason for the dismissal, was not redundancy but, using the language of Section 98(1)(b) "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held". He says that if that had been the case then different considerations would have come into play than would have come into play had redundancy been the only matter considered. However, it is not possible to hold that the Tribunal might have had in mind "some other substantial reason", given that in paragraph 5 of their holding they do say, (as I quoted earlier):

".... The tribunal had to consider whether the Respondents acted reasonably or unreasonably in all the circumstances in treating redundancy as a sufficient reason for dismissing the Applicant ...." (Our underlining.)

That, plainly, is what they had in mind and that precludes the requirement, or possible requirement, of "some other substantial reason" needing to be considered.

Although, undoubtedly, the Industrial Tribunal could have expressed themselves more clearly than they did and although, undoubtedly, the reference to an artificial creation of the redundancy has led to an argument that has been properly advanced to us by Mr Underwood, we feel, on balance, that, viewing the matter as a whole, it was a decision that there was a redundancy but that nonetheless the dismissal was unfair in the circumstances which the Industrial Tribunal described. We do not feel able to find there has been any error of law in that conclusion and accordingly we dismiss the appeal.