United Kingdom Employment Appeal Tribunal

APPEARANCES

 

NO APPEARANCE BY OR ON BEHALF OF EITHER PARTY


 


JUDGE PETER CLARK: The Appellant, Mrs Sabar, commenced employment with the Respondent, the Moroccan Enterprise and Training Centre METC as an administrative assistant on a two year fixed term contract commencing on 22 July 1993 (the first contract). Clause 17 of that contract contained a waiver of unfair dismissal and redundancy payment rights in the event of its expiry and non-renewal of the fixed term.

The contract was renewed by a further written contract (the second contract) for a fixed term of 2 years commencing on 22 July 1995. Clause 15 of that agreement, headed 'Notice of Termination', provided:

"It is emphasised that employment will terminate automatically, notwithstanding any other terms, on external (i.e. North Kensington City Challenge ("NKCC") or other) funding for the company being withdrawn or not renewed."

The second contract did not contain a fixed-term waiver clause similar to clause 17 in the first contract.

The Respondent was funded by external bodies, principally NKCC. NKCC reduced its funding. As a result it was decided not to renew the Appellant's contract on its expiry on 21 July 1997. A letter to that effect was sent to her on 6 June 1997. On 24 July 1997 she was sent a cheque in respect of redundancy pay, calculated at four times her gross weekly wage of £219.73. that is slightly in excess of the then statutory maximum of £210 per week, provided for in SI 1995/1953.

On about 18 June 1997 the Appellant presented a complaint to the Employment Tribunal alleging unfair dismissal and unlawful racial discrimination. The matter came before an Employment Tribunal sitting at London (N) on 12 December 1997. The Tribunal dismissed both complaints.

Against the decision to dismiss the complaint of unfair dismissal only the Appellant served Notice of Appeal to the EAT dated 18 February 1998. That Notice is signed by solicitors, Moss Beachley & Mullem ("the Solicitors"). At a preliminary hearing held on 14 October 1998 the matter was allowed to proceed to a full hearing on the grounds identified in the judgment of Judge Byrt QC delivered on that day.

The appeal now comes before us for the full hearing. There have been two significant developments since the Employment Tribunal hearing. The first is that the Respondent ceased to exist on 31 March 1998. It has no assets. The second is that the Appellant's legal aid order has been suspended, so we are informed by a letter from the solicitors dated 8 March 1999. In those circumstances, the Solicitors ask to be removed from the record.

The upshot is that neither party appears before us or is represented today. In these circumstances we think the proper course is to consider the appeal on its merits on the basis of the papers before us.

As to the claim of unfair dismissal, the Tribunal found in paragraph 2 of the Extended Reasons dated 8 January 1998, that the Appellant was dismissed by letter dated 6 June 1997. We think that the Tribunal means that non-renewal of the fixed term contract upon expiry amounted to a dismissal under s.95(1)(b) of the Employment Rights Act 1996. Certainly they proceeded, correctly in our judgment, on the basis that there had been a dismissal of the Appellant.

Next the reason for dismissal. At paragraph 9 of the reasons, the Tribunal appear to find that there was a redundancy situation, within the meaning of s.139 of the 1996 Act. They find that there was at the time no funding for the administrative assistant post then held by the Appellant.

They go on to find in paragraph 10 of the reasons that following Mrs Sabar's dismissal, Mrs Haynes resigned from her position as general manager. Her role was then taken on by the training manager, resulting in a saving in staffing costs which allowed the Respondent to employ two part-time administrative assistants to fill the Appellant's old duties. However, the Tribunal found that at the relevant time, that is the date of dismissal, there was a redundancy situation. They go on to say that in any event it was not encumbent on the Respondent to renew the Appellant's contract of employment if they did not think fit.

Next, they observe that the Appellant received a redundancy payment, although they say, without explaining why, that they accepted that the redundancy payment was made out of generosity and not as an entitlement.

Finally, they found that the Respondent tried to counsel the Appellant and possibly find her alternative employment, but the Appellant did not wish to be interviewed by Mrs Haynes.

Turning to the grounds of appeal on which the matter was allowed to proceed to a full hearing, they are in summary:

(1) that the Tribunal failed properly to consider whether dismissal by non-renewal of the second contract on its expiry was for a potentially fair reason and if so whether it was a fair dismissal

(2) the Tribunal was wrong to find that the reason for dismissal was redundancy

(3) the Tribunal failed to consider whether the dismissal was procedurally fair

(4) the Tribunal made conflicting findings in paragraphs 9 and 10 of the reasons as to whether the reason for dismissal was indeed redundancy.

We can deal with those points quite shortly. We are satisfied that the Tribunal found that the reason for dismissal was redundancy. The reference to the redundancy payment being made out of generosity rather than by way of entitlement is not clearly explained. However, it is plain to us that the Tribunal found that the reason was redundancy and that the Respondent paid a redundancy payment, slightly in excess of the Appellant's statutory entitlement.

We think that the Tribunal was entitled to reach that conclusion as to the reason for dismissal. At the time of the dismissal there was a diminution in the requirement for an administrative assistant. It was only later, as a result of Mrs Haynes resignation, that the funding became available to recruit two part time administrative assistants.

Alternatively, we think that on the Tribunal's findings they would have been entitled to conclude that the non-renewal of the Appellant's contract was for some other substantial reason, namely the reduction in available funding. Terry v East Sussex County Council [1976] ICR 536.

As to fairness, the Tribunal found that attempts were made to counsel the Appellant and possibly find her alternative employment. She declined an interview.

In these circumstances, particularly where it was made clear in clause 15 of the second contract that the employment would cease in the absence of necessary funding, it was open to the Tribunal in our view, to find that the dismissal was fair.

Accordingly, we are not satisfied that there is any basis in law for interfering with this decision, and the appeal will be dismissed.