United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE HICKS QC: Mr McDade, the employee and appellant in this case, was employed the respondent employer, the London Borough of Ealing. He had been employed by them since 1988 and since 1993 he had been a senior recreation officer.

In 1996, as the tribunal found, there was a genuine redundancy situation. Mr McDade's union, UNISON, were notified of that on 9th February, and he on 19th February 1996. On 6th March 1996 he received what the tribunal referred to as a redundancy notice. On 11th March 1996 he made a claim for consideration of various matters, which was treated as an appeal against dismissal. The employer had a procedure for dealing with redundancy situations which included the concept of what were called "assimilation rights", and in this case those dealing with the matter on behalf of the employer originally concluded that there were six employees who had such rights in respect of one new post. Four of those six, including Mr McDade, were interviewed and the tribunal find that there was no criticism made on his behalf of those interviews, but the result of those interviews was that one of the other three of the four persons interviewed was offered and accepted the one new post. Mr McDade pursued internal appeals against that decision, which went apparently through three stages, which the tribunal recite. We need not go into the detail of that, because the end result was that the final internal appeal committee came to the conclusion that Mr McDade was not redundant and he was not dismissed. Mr McDade, as it were, was successful in that round of the history and remained in the employ of the Council.

Mr McDade was then placed in a temporary position at Perivale, although that seems in a sense to have been a nominal appointment, because at the time he was off work sick and remained so until the termination of his employment.

On 14th November 1996 his union suggested to the Council that a termination package should be agreed and made proposals for that. Whether there were any intermediate negotiations is not dealt with in detail but on 11th February 1997, as the tribunal find, the Council made an offer which was subsequently accepted by Mr McDade. We understand that Mr McDade does not dispute that the tribunal was entitled to come to that finding, although whether he was content with the advice from his union is not perhaps clear and in any case not relevant so far as we are concerned. He was understandably unhappy about the fact that he was not able any longer to continue to exercise his skills and experience in a suitable post. But the finding of the tribunal, which is what matters so far as we are concerned, is that he did accept the Council's offer.

The matters argued on his behalf before the tribunal were, first, that the original selection was unfair but as the tribunal, in our view inevitably and rightly, found, since that original process which would have led to his dismissal for redundancy was overturned by the internal appeal procedure that was not the cause of his dismissal. So far as the ultimate dismissal was concerned the tribunal found, and in our view unchallengeably found, that that was a voluntary redundancy.

There were argued before the tribunal two points of constructive dismissal on the basis of that voluntary resignation. The first was again to hark back to the "mess", as the tribunal put it, made of the original selection procedures but that, as the tribunal found, was not even alleged on Mr McDade's behalf to be a breach and, in any event, had it been a breach the tribunal found that it was not sufficiently serious to be a repudiation and was not accepted by Mr McDade because he continued in employment, and that conclusion by the tribunal, in our view, is unarguably right or, to put in more exactly, there is no arguable ground for saying that they were wrong in law in that conclusion.

Finally there was an argument that there was a repudiatory breach justifying Mr McDade's resignation by way of a unilateral change of duties, but the tribunal found that what happened was not a unilateral change of duties imposed by the employer but an invitation to apply for a new post with different requirements in the situation of the disappearance and therefore redundancy of the post in which Mr McDade had previously been employed. Again, there is no arguable ground in our view for saying that the tribunal was wrong in law in that respect.

That being so, we have come to the conclusion that there is no basis on which this appeal could arguably succeed and that it must be dismissed at this stage.