United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J SMITH (of Counsel) Sandra Wheeler 173 Herbert Road London SE18 3QE


 


JUDGE CLARK: The Appellant, Mr Robert Gloudon, commenced employment with the Respondent, the London Borough of Brent (the Council) on 2 January 1986. At the relevant time, he held the post of Deputy Business Director in CRAFT, an internal business unit of the Council providing administrative support to various parts of the Council's Social Services Department. The Business Director of CRAFT, Ros Howard, divided CRAFT into sub-units and the Appellant's main function was the management of the Children's Services Unit.

1. As part of a review carried out in the autumn of 1995 by Wendy Mallard, Service Development Director for Children's Services, it was proposed that for existing units in Children's Social Work should be amalgamated into one unit and further that the administrative support services then provided by CRAFT be undertaken within the new unit.
2. A meeting took place on 16 January 1996 attended by the Appellant, Ros Howard and Wendy Mallard. An important conflict of evidence arose before the Tribunal. Ms Mallard proposed that the CRAFT staff, including the Appellant, engaged in children's work, should transfer en bloc to the new Children's Services Unit. It was the evidence of both Ms Mallard and Ms Howard that the Appellant said that he did not wish to transfer to the new unit. His evidence was that he would transfer with his staff to the new unit. The Tribunal rejected the Appellant's evidence on this point, particularly in the light of subsequent written communications involving Ms Howard, Ms Mallard and the Appellant himself.
3. In these circumstances Ms Mallard proceeded to plan for the absorption of CRAFT staff into the new unit but without the Appellant. On 9 February 1996, Ms Howard sent a memorandum to Ms Mallard which tended to indicate that the Appellant was now willing to transfer to the new unit. There was no substantive response to that until 9 March.
4. In the interim, a post of Finance Officer within the new unit had been offered to and accepted by another person involved in the reorganisation. The Appellant was not considered for that post. However, he was given the opportunity to apply for the post of Administrative Director for Finance and declined to do so.
5. Subsequently, he sought to take the line that transfer to the new unit remained an option for him (see for example his communication to Wendy Mallard, 12 March 1996). That had not been her understanding, so she said. At a meeting held on 14 March, Ms Mallard offered him a ring-fenced interview for the post of Placements Officer at his existing grade. He did not take up that opportunity. Consequently, by a letter dated 29 March, the Appellant was dismissed by a reason of redundancy with effect from 5 May 1996. He was not required to attend for work, there being none for him to do during his notice period.
6. Following his dismissal the Appellant presented a complaint of unfair dismissal to the Employment Tribunal on 2 August 1996. That complaint was heard by a Tribunal sitting at London North on 8 December 1998. By a decision with extended reasons promulgated on 21 December 1998, the Tribunal dismissed his complaint.
7. Having made their findings of fact the Tribunal concluded that the Appellant had been dismissed by reason of redundancy and that the dismissal was fair. There had been proper consultation with him. He lost his job by not taking the opportunity to transfer with his staff to the new unit; contrary to his evidence he had turned that opportunity down at the 16 January meeting. The Tribunal found that he had then burnt his bridges. Further he had not helped himself by passing up the chance to apply for the post of Assistant Director and Placement Officer.
8. Against that decision this appeal is brought and Ms Smith on behalf of the Appellant advances two grounds of appeal. First that the Tribunal failed to consider whether the Respondent had adopted a fair selection procedure and criteria in this case. Secondly, she argues that the decision was perverse. As to that second ground she submits that no reasonable Employment Tribunal properly directing itself on the facts in this case could find first, that there had been reasonable consultation; secondly that the Appellant had acted unreasonably in refusing to transfer to the new unit; and thirdly that the Respondent took reasonable steps to provide alternative employment in that it offered the Appellant an opportunity to apply for the new post after it was clear that he would be made redundant.
9. As to the first ground of appeal, Ms Smith has referred us to the decision of this Tribunal in the case of Langston v Cranfield University (1998) IRLR 16, for the proposition that a Tribunal which does not consider the questions of selection, consultation and alternative employment when considering a complaint of unfair dismissal by reason of redundancy, falls into error. It may be that that is putting the proposition a little too high. But on the facts of this case we are satisfied that no real question of selection arose.
10. The Appellant on the Tribunal's findings of fact had the opportunity to move across to the new unit on 16 January 1996. He indicated that he would not do so, albeit in the hope that he would remain in his existing unit. But we do not think that any question of unfair selection arises on the facts of this case.
11. As for the grounds of perversity advanced, we have been taken in considerable detail through the evidential thickets of this case. It is clear to us that there was conflict between what was being said at the time in the various memoranda passing between the three main players (Ms Mallard, Ms Howard and the Appellant) and indeed what was being said by each of them in evidence. We are quite satisfied that the matters raised by Ms Smith today are essentially questions of fact for the Employment Tribunal.
12. We are not persuaded that this appeal raises any arguable point of law on the perversity ground bearing in mind the high hurdle which the law sets an Appellant who relies on that ground. In these circumstances we have reached the conclusion that this appeal discloses no arguable point of law to go forward to a full appeal hearing and consequently it must be dismissed.