United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR H N E CHESTERFIELD (EMPLOYEE RELATIONS ADVISER) EEF Western Association Engineers House The Promenade Clifton Down Bristol BS8 3NB
For the Respondent	MR P ARCHER (Solicitor) Wiltshire Law Centre 26 Victoria Road Swindon Wiltshire SN1 3AW


 


HIS HONOUR JUDGE D M LEVY QC The Respondent to this appeal, Mrs Stimpson, applied for voluntary redundancy and was given it. Subsequently, she made an application to an Industrial Tribunal claiming as follows:

"I was made redundant on 31 October as a result of the assembly area of the work place closing down. At the time that redundancy was announced, I was advised that there was a choice between accepting redundancy pay or taking alternative work in the Process Department. I asked whether I could take a job in the Process Department on the basis of a 4 week trial period. The employer refused to offer a trial period. I was informed that if I took work in the Process Department and left because it was unsuitable that I would lose my redundancy pay. This refusal is confirmed in writing in the minutes with the Trade Union on 24 October 1997.

I could not afford the risk of losing redundancy pay and for that reason I did not take the alternative work and opted for redundancy. If the alternative work had been available on the basis of a trial period, then I would have certainly taken it. It is likely that work would have been suitable and I would not have lost my job. I am advised that "voluntary retirement" is treated as dismissal under the 1996 Employment Rights Act following the case of Burton Alton and Johnson Limited v Peck (1975) IRLR 165, CA. I am further advised that a dismissal for redundancy is unfair if the terms on which alternative work is offered are unreasonable and, in particular, if the mandatory trial period is refused (see Elliott v Richard Stump Limited (1987) IRLR 215)."

The Appellant, Mitel Semiconductor Ltd, put in a Notice of Appearance. There was a hearing of the Respondent's complaint before an Employment Tribunal sitting at Bristol on 16 April 1998. The decision of the Tribunal was sent to the parties on 18 May 1998. The unanimous decision of the Tribunal was that the Respondent was unfairly dismissed and the question of remedy was adjourned to a date to be fixed. From that decision, the Appellant appeals.

The grounds on which the Appellant appeals is basically that in its decision the Tribunal misapplied the judgment of the Court of Appeal in Elliott v Richard Stump Limited [1987] IRLR 215. Although it was stated in the Respondent's Notice of Application that "the Respondent refused to offer a trial period", there was no such refusal. We have had the benefit of hearing submissions from both representatives who appeared below appearing before us. It was accepted by Mr Archer on behalf of the Respondent that the Appellant did not refuse a trial period to the Applicant. In fact, the Respondent did not seek a trial period from the Respondent.

What is clear from the Extended Reasons, as amplified in oral argument before us, is that, at an early stage of the Appellant's reorganisation when the question of redundancies was mooted, there was a meeting when the subject of transferring to other jobs was raised and, in this context, the question of a trial period was raised but not answered. A Trade Union representative was at the meeting. If the Respondent was told by anyone that there was not to be a trial period, it was not by the Appellant. The Tribunal, in its Extended Reasons, found that Mr Jamieson, the employer's representative, fell short of saying in terms that the employees would not be allowed a trial period if they transferred. It found instead that he prevaricated and contemplated the question of whether there would be any vacancies available in Wafer Fab, that was the alternative employment, with the secondary issue of whether, if they applied for such jobs and were appointed, they would be entitled to a trial period.

In paragraph 18, the Extended Reasons refer to ACAS Advisory Booklet No.12, Page 21. We have had the advantage of having been given a copy of what we are told is the current redundancy handling advisory booklet of ACAS. It contains this passage:

"A Trial Period

An employee who is under notice of redundancy has a statutory right to a trial period of 4 weeks in an alternative job where the provisions of the new contract differ from the original contract, the period to begin when the previous contract has ended. The effect of the trial period is to give the employee a chance to decide whether the new job is suitable without necessarily losing the right to redundancy payment. The 4 week trial period can be extended for retraining purposes by an agreement which is in writing, specifies the date on which the trial period ends and sets out the employees terms and conditions after it ends. If the employee works beyond the end of the 4 week period or the jointly agreed extended period, any redundancy entitlement will be lost because the employee will be deemed to have accepted the new employment."

and then there was this important final sentence to the paragraph:

"Employers should communicate this to the employee when the alternative job offer is made. "

It is clear on the facts of this case that no job offer was ever made to the Respondent. She had, in fact, applied for redundancy payment without seeking an alternative job unlike some of her colleagues who applied for an alternative job. She therefore was never offered an alternative job and hence the employer was never in breach of the obligation to give the trial period, which it would have had if it offered alternative employment.

In Elliott v Richard Stump Limited there was this important paragraph in the findings of the EAT in a panel headed by Scott J, as he then was, at paragraph 10.

"Mr Elliott when he met one of the directors of Richard Stump Ltd to discuss the question of the alternative employment offered to him said that he would like a trial period. The evidence before the Industrial Tribunal was that the response of the director was to say that a trial period was inappropriate, and that there was to be no trial period."

That is quite different from the present case when there was no application by the Respondent herself for a trial period. In effect, what happened was she made two and two make five. In fact she took alternative employment, having accepted the redundancy offer and brought these proceedings when she found, perhaps late in the day, that if she had applied for another job she would likely have got one.

It is accepted that if we find that the Tribunal drew a wrong conclusion of law on the facts as they found them, we should set aside the decision. The Tribunal appears to have reached a decision that the Appellant was obliged to draw the attention of the Respondent to the fact that if a job offer was made she would be entitled to a trial period. In our judgment, there was no such high obligation on the Appellant. It seems to us that the Respondent cannot be criticised for the manner in which it carried out the redundancy exercise which had unfortunately become necessary. The employees had the benefit of a well known Union assisting them throughout the exercise. In our judgment, the decision of the Employment Tribunal cannot be sustained.

In the circumstances of this case, in our judgment, there should not have been a finding that the Applicant was unfairly dismissed and we will therefore substitute for the finding of the Industrial Tribunal a finding that the Applicant was fairly dismissed in the circumstances of this case. We would thank both advocates for their assistance.