United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS A RUSSELL (of Counsel) Messrs Aston Clark Solicitors 239 High Street Acton London W3 9BY
For the Respondents	MS K WALDEN-SMITH (of Counsel) Messrs Sharpe Pritchard Solicitors Elizabeth House Fulwood Place London WC1V 6HG


 


JUDGE PETER CLARK: This appeal comes before us today for a full hearing, having been allowed to proceed at an ex parte preliminary hearing held before a division presided over by Lord Johnston on 12th October 1998. The arguable point in the appeal identified in the judgment given by Lord Johnston is whether the Employment Tribunal had confused the issue of restructuring and the need to save costs with the real issue as regards redundancy, namely whether there was cessation or diminution in the requirements of the employer for employees to carry out work of a particular kind.

By their Answer, the respondents contended that it had been conceded on the appellants' behalf below by their then representative, Mr Sullivan of their trade union UNISON, that there was a redundancy situation. We are told that an application was made for the Chairman's Notes of Evidence following the hearing before Lord Johnston's tribunal, but that was refused by the Registrar.

At the outset of this hearing the question of a concession was raised. We were mindful of the Court of Appeal's strictures against permitting a party to re-open before this tribunal an issue conceded below. See Jones v Burdett Coutts School [1998] IRLR 521.

It became apparent that a real dispute exists between the parties as to what precisely happened before the Employment Tribunal. Ms Russell, who did not appear below, contends on instructions that whereas Mr Sullivan conceded the point at one stage, he later withdrew the concession with the permission of the tribunal. Thus the issue on which this appeal was permitted to proceed remained live and was adjudicated on by the Employment Tribunal. Further, she points out that no concession is referred to in the Employment Tribunal's extended reasons. Accordingly, she claims that she is entitled to pursue the point on appeal.

Ms Walden-Smith, who did appear below, tells us that a general concession having been made as to redundancy by Mr Sullivan, that was partially withdrawn to the extent that the appellants pursued an argument based on the proposition that there was no genuine financial need to dismiss the appellants. The exercise was a sham. That contention was considered and rejected by the Employment Tribunal as appear from the extended reasons. However, she contends that the concession as to the diminution in the requirement of the employers remained throughout and consequently it was unnecessary for evidence to be led on that question; for there to be cross-examination; for there to be submissions on it or indeed for the tribunal to adjudicate on it.

We were asked to resolve that conflict. We felt quite unable to do so without the Chairman's comments and Notes of Evidence, and we think, despite the unfortunate costs implications, that both parties accept that position. Thus, with reluctance due to the costs' position, we have felt bound to adjourn this appeal so that enquiries may be made of the Chairman, Mr Menon.

For this purpose Counsel have helpfully agreed the questions which ought to be put the Chairman, and the nature of the request for his Notes of Evidence. They are as follows:

Questions

(1) Does the Chairman recall, by reference to his Notes of Evidence, whether or not the appellants' representative made any concession to the tribunal with respect to the redundancy situation.

(2) If the Chairman does recall such a concession:

(i) does the Chairman recall when any such concession was made?

(ii) does the Chairman recall the gist of the words of the concession made and, if so, what those words were?

(iii) does the Chairman recall the extent of any concession made?

(3) If the Chairman does recall such a concession, does he recall whether or not the concession was resiled from by the applicants' representative, Mr Sullivan?

(4) If the Chairman does recall that the applicants' representative did so resile:

(i) does he recall when Mr Sullivan did so resile?

(ii) does he recall the manner in which Mr Sullivan did do resile?

(iii) does he recall the gist of any words used to so resile?

(iv) does he recall the extent to which the applicant's representative did so resile?

The request for Chairman's Notes of Evidence

1. Notes of Evidence, including any cross-examination of:

David Divine,

Shirlene Hasmat Ali

Monica Codogan

Judy Stewart

Noreen Morris

relating to the issues of:

(1) the roles undertaken by both applicants up to the effective date of termination of their employment;

(2) the roles to be fulfilled by the restructured posts of Refuge Manager and Housing Management Officer ("the restructured posts");

(3) the extent to which there was any overlap between the applicants' positions and the restructured roles and the extent to which the applicants could or were already carrying on the restructured roles;

(4) Any diminution or cessation of the respondents' requirements for employees to undertake work of a particular kind.

2. Notes of all submissions (including references to all authorities referred to) and representations made by the representatives during the course of the proceedings.

In these circumstances we shall adjourn the appeal and direct that a copy of this judgment be sent to the Chairman for his comments and to kindly produce the relevant Notes of Evidence as outlined above. I shall reserve the case to myself and deal with any further applications prior to the case being relisted for a one day hearing. I shall give a direction as to when the case should be relisted after receipt of the Chairman's Notes and comments.

Finally, Ms Walden-Smith has raised the question of the costs thrown away of today's hearing. We shall reserve any application for costs to the final hearing of this appeal.