United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS M TETHER (of Counsel) W Davies & Son Solicitors Acorn House 5 Chertsey Road Woking Surrey GU21 1EH
For the Respondents	MR S WILSON (of Counsel) Instructed by: The County Solicitor Legal & Committee Services Department County Hall Kingston-upon-Thames Surrey KT1 2DN


 


JUDGE HAROLD WILSON: This appeal has been brought by the applicant in the original proceedings, Mr Maguinness, against the decision of the Employment Tribunal in those proceedings, by which they dismissed his application.

Mr Maguinness has been represented today by Ms Tether and the respondent County Council has been represented by Mr Wilson. In the course of their submissions, Counsel referred us to a number of authorities: Robinson v British Island Airways Ltd [1978] ICR 304, Murphy v Epsom College [1985] ICR 80, Safeway Stores v Burrell [1997] IRLR 200, Williams v Compare Maxam Ltd [1982] IRLR 83, Church v West Lancashire NHS Trust [1998] IRLR 4, Nelson v BBC [1977] ICR 649, Clark v Trimco Motor Group Ltd [1993] ICR 237, Hannan v TNT-IPEC (UK) Ltd [1986] IRLR 165 and the unreported case heard in the Employment Appeal Tribunal on 29^th July 1996, Darlington Memorial Hospital NHS Trust v Edwards and Vincent (EAT/678/95). In our deliberations we have had regard to those parts of those authorities to which we were referred.

The position here was that Mr Maguinness was employed by the respondent County Council from 1994 until 1998 as a Group Leader at a residential centre for children run by the respondent County Council. Initially, there were four or five units at the centre, each with a Group Leader, but from about February 1996 the appellant had responsibility for more than one unit from time to time. Because of all manner of difficulties, including shortage of staff and the consequential stress and fatigue on other staff, it was decided by the respondent County Council that they would have a management structure review. They revised what they wanted their organisation to be. Each unit was to become separate and Group Leaders were to be discontinued. A new position of Team Manager post was created to be in control over everything. These proposals were not opposed by the union, on the basis that there would be no compulsory redundancies.

The appellant received a letter in September 1997 warning him of vulnerability of his position to redundancy. It is common ground that that letter constituted a warning of dismissal in due course. In October 1997 the appellant was informed of a number of posts and of the procedure which the respondent County Council proposed to adopt for filling them. Subsequently, the appellant applied for the post of Team Manager and the selection procedure involved an interview by three senior members of the respondent County Council; a supervision exercise and a thousand word essay. There were eight candidates for eight positions. In November 1997 the appellant was told that his application had failed and he signified that he was going resign. In due course, that is what he did, but of course there had already been the letter which, it is accepted, constituted a letter of letter of dismissal earlier on.

On those facts the tribunal decided, unanimously, that the application should be dismissed. They found that under the old regime both Team Managers and Group Leaders were on Grade F financially and the County Council were set upon their course of reorganisation because of a report which had revealed not only a shortage of management personnel but a very different management culture from the rest of the country. So far as the new post of Team Manager was concerned, it was to be graded G in recognition of the fact that it would have to carry much greater management responsibility than the former Team Managers or the Group Leaders. The person chosen would have to manage key areas such as care practice, finance and staffing in stand-alone units. There was going to be much greater emphasis upon management and integration with non-residential services in the community. There was, however, to be no change in the number of employees.

We have come to the conclusion that there was a reorganisation upon which the respondent County Council embarked and the implementation of that reorganisation led to a redundancy position in the statutory sense because the need of the respondent County Council for Group Leaders ceased.

We have considered the selection procedure, which was adopted for the new posts, and we note that it was comprised of the three parts already referred to. In our view, the complaint that it was subjective and that no reference was made to past assessments, is without basis. To be interviewed by three senior people rather than one on an assessment must be more objective. In any case, we agree that it was a management decision how to go about the selection process and we note that everybody was treated in exactly the same way.

It turned out that Mr Maguinness was, by a substantial margin, adjudged to be the worst performing of the applicants. It is to be noted that there was one applicant for each post. He was not offered a post but he was, however, offered a post of Assistant Team Manager at his existing grade of pay which was F. It was the respondent County Council's view that his former job as a Group Leader closely approximated to the Assistant Team Manager, having within it the charge of some of the senior practitioners and residential care workers.

Mr Maguinness was shocked at the decision. He considered that the job of Team Manager was his job, in that it was in no substantial sense any different from the job he had been doing as Group Leader and he therefore tendered his resignation on 7^th November 1997, giving no reason and rejecting the Assistant Team Manager's job. It would have been open to him to stay on with the respondent County Council and go through the redeployment process, which means that he would have been considered for any one of a number of vacancies within the County Council at the time. Had he rejected those he would have been dismissed upon redundancy terms.

In paragraph 31 the Employment Tribunal dealt with the question of the reasonableness of the offer of alternative employment. This is relevant because we have concluded that the Employment Tribunal erred in law in not finding that the situation was one of redundancy. Turning to the question of reasonableness otherwise, we quote from paragraph 31 of the decision:

"31. That leaves us with the question of whether the offer of an Assistant Team Manager's job at the same salary and the same location was a reasonable new contract. We bear in mind that Mr Maguinness did not regard it so. He felt with some justification that it was demeaning because whereas as a Group Leader his responsibility was to be head of a number of units and he had indeed himself at times run two units, he would now be responsible to a Team Manager and in respect of scope of authority and responsibility, his wings would be clipped. But reasonable means reasonable in the circumstances of the reorganisation. The modern employment scene inevitably involves employees and employers adapting to different techniques and responsibilities and in all the circumstances we find that the offer was reasonable. …"

We consider that that was a further error in law in that it pays insufficient regard to the importance of status in most jobs but in particular in ones of this nature. We find, as we are invited to do on the facts, that it was not reasonable alternative offer.

Accordingly, we find that there is a further error in law in that the dismissal was in fact unfair. So far as that is concerned, we note, as the tribunal found:

"31 … it was not the only offer that was available. There were many vacancies in Social Services in Surrey and the redeployment scheme gave him some priority in being considered for those jobs. The reason he was not considered, is that he resigned."

We therefore find that he contributed 50% to his own misfortune. We direct that this matter should be returned to the Employment Tribunal for a remedies hearing on that basis.

JUDGE HAROLD WILSON: We refuse leave to appeal.